



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Elenezi, 2021 ONCA 834

DATE: 20211119

DOCKET: C68748

Hoy, Coroza and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ali Elenezi

Appellant

Ewan Lyttle, for the appellant

Hannah Freeman, for the respondent

Heard and released orally:
    November 18, 2021

On appeal from the sentence imposed on December
    12, 2018 by Justice Hugh R. McLean of the Superior Court of Justice.

REASONS FOR DECISION

[1]

The
appellant seeks leave to appeal his sentence
    for contempt of court.

[2]

He was part of a group of men who concocted a plan to lure a victim to a
    parking lot to assault and kidnap him as retribution for providing information
    to the Ottawa Police. When the plan was carried out, the 18-year-old victim
    attempted to flee. He was shot twice, causing his death.

[3]

The appellant accepted a plea deal for manslaughter. At his guilty plea,
    he affirmed that the agreed statement of fact, which included that one of two
    men  Nedeljko Borozan and Mohamed Mohamed  was the shooter, was true and
    complete. The appellant was sentenced to 12 years imprisonment.

[4]

Mr. Borozan and Mr. Mohamed were subsequently tried before a jury for
    first degree murder and kidnapping. After another intended Crown witness from
    the group refused to testify, the trial judge signed orders requiring the
    appellant and the other members of the group who, like the appellant, had pled
    guilty, to testify. The appellant appeared and, having received legal advice,
    refused to be sworn or testify at their trial. He said he was fearful of the
    consequences for himself and his family if he testified. At the time he refused
    to testify, he was 20 years of age. Both accused were subsequently acquitted.

[5]

The appellant was found guilty of contempt of court and sentenced to
    three years, consecutive to his 12-year sentence for manslaughter.

[6]

An appellate court can only intervene to vary a sentence if a sentencing
    judge made an error in principle that had an impact on the sentence or the
    sentence is demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089, at para. 11.

[7]

The appellant argues that the sentencing judge erred in principle by
    failing to consider three relevant factors  his youth, his rehabilitative
    prospects, and the totality principle  and that the sentencing judges failure
    to do so impacted on the sentence imposed. He further argues that the
    sentencing judge gave unreasonable weight to his refusal to testify. He submits
    that his sentence should be reduced from three years to one year.

[8]

We are not persuaded that there is any basis for this court to vary the
    sentence imposed.

[9]

The sentencing judge delivered brief oral reasons following lengthy
    submissions by counsel. The appellants youth and rehabilitative prospects were
    a focus of the sentencing hearing. The sentencing judge acknowledged the
    arguments made about the appellants youth and rehabilitative prospects. He did
    not fail to consider them. Rather, he concluded that denunciation must
    nonetheless be the primary principle, despite the appellants youth and
    rehabilitative prospects.

[10]

The
    sentencing judge also considered the totality principle and the need to avoid a
    crushing sentence. He found that a sentence of three years was required to give
    effect to the need to denounce the appellants entirely separate offence of
    contempt of court.

[11]

The
    trial judge did not give unreasonable weight to the appellants refusal to
    testify. The sentencing judge  who was also the judge at the murder trial 
    appreciated the context surrounding the appellants refusal to be sworn. But he
    concluded that notwithstanding the appellants concerns, the court must bring
    home a denunciatory sentence to indicate to persons, being the accused and
    likeminded individuals, that this kind of behaviour will simply not be
    tolerated.

[12]

As
    this court observed in
R. v. Yegin
, 2010 ONCA 238, the justice
    systems response to a refusal to testify must be firm and direct 
    significant jail terms above and beyond whatever other period of incarceration
    the individual is, or might be, facing for his own participation in the
    relevant events must be imposed. The sentence imposed was consistent both with
    the jurisprudence and the actual sentences imposed for other youthful
    offenders. In
R. v. McLellan
, 2016 ONSC 3397, sentences of 30 months
    were imposed on youthful offenders for refusing to testify in a murder trial.
    And in
R v. Omar
, 2017 ONSC 1833, affd 2018 ONCA 599, leave to appeal
    refused, [2018] S.C.C.A. No. 398, a three-year sentence for a youthful offender
    was upheld by this court.

[13]

Accordingly, leave to appeal sentence is granted but the appeal
    is dismissed.

Alexandra
    Hoy J.A.

S.
    Coroza J.A.

Sossin
    J.A.


