



COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Jiwa, 2012
    ONCA 532

DATE: 20120808

DOCKET: C54085

Gillese, Pepall and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nadeem Jiwa

Appellant

Clayton Ruby and Nader Hasan, for the appellant

Michal Fairburn and Scott Latimer, for the respondent

Heard: May 23, 2012

On appeal from the sentence imposed on June 29, 2011 by
    Justice Michelle K. Fuerst of the Superior Court of Justice.

Gillese J.A.:

[1]

On August 2, 2007, 43-year old Detective Constable Robert Plunkett was
    killed while carrying out his duties as a police officer.  At the time of his
    death, he was married with three children, a valued member of the York Regional
    Police Special Services Unit and active in the community.

[2]

Nadeem Jiwa was 19 years old at the time of the offence.  He had no
    criminal record but was on bail at the time for airbag theft.  He was found not
    guilty of the first degree murder of Detective Constable Plunkett, but guilty
    of manslaughter.  He was sentenced to 12 years of imprisonment, followed by a
    10-year driving prohibition.

[3]

This appeal calls into question the fitness of that sentence.

Overview

[4]

In August of 2007, Mr. Jiwa was on bail for airbag theft.  One of the
    conditions of his bail was that he was to abide by the rules of his mother, who
    was his surety.  One of those rules was a 1:00 a.m. curfew.

[5]

From approximately 2:30 a.m. to just before 5:00 a.m. on August 2, 2007,
    Mr. Jiwa and a friend were under surveillance by members of the York Regional
    Police Special Services, including Detective Constable Plunkett, because the
    two men were suspected of stealing airbags from cars.  The police officers were
    working in plainclothes and driving unmarked vehicles.  They watched as Mr.
    Jiwa and his friend travelled through a residential neighbourhood stealing airbags. 
    They also stole a gold-coloured Honda.

[6]

Mr. Jiwa and his friend drove separately to Ascot Crescent.  At shortly
    before 5:00 a.m. the police decided, primarily for public safety reasons, that
    the two men should be arrested.

[7]

Detective Constable Plunkett radioed that he would assist the other
    arresting officers.  As the other officers dealt with Mr. Jiwas friend,
    Detective Constable Plunkett approached the gold Honda yelling police, police,
    police.  Mr. Jiwa put the car into reverse.  Detective Constable Plunkett was
    caught in the crease of the open drivers door.  He had no choice but to cling
    to the car, with one hand on the top of the open door and the other on top of
    the car, as it sped backwards. He was crushed to death when the door of the car
    hit a tree. He fell to the ground.

[8]

Mr. Jiwa continued to drive the car in reverse, coming to a stop only when
    the stolen vehicle he was driving was struck by another police vehicle.
    Although Mr. Jiwa attempted to flee on foot, he submitted to arrest after a
    chase by other police officers.

[9]

Mr. Jiwa did not deny that he killed Detective Constable Plunkett but
    maintained at trial that it was an accident and that he did not know that
    Detective Constable was a police officer when he caused the car to drive
    backwards.  The jury found him guilty of manslaughter.

[10]

The
    sentencing judge found that Mr. Jiwa knew that he was being arrested by police
    officers, including Detective Constable Plunkett, and that he drove the car in
    reverse in order to avoid being arrested.  She also found that Mr. Jiwa did not
    stop when Detective Constable Plunkett was crushed against the tree.  I will
    refer to these findings collectively as the findings of fact.

[11]

During
    the sentencing hearing, Crown counsel was permitted to play a video tribute to
    Detective Constable Plunkett.  Defence counsel had agreed to the video being
    played.

[12]

The
    Crown contended that a sentence of 12 to 14 years in jail should be imposed
    while the defence argued that five to seven years imprisonment was
    appropriate.

[13]

Mr.
    Jiwa was sentenced to 12 years of imprisonment and a 10-year driving
    prohibition to commence after the expiration of his jail sentence.

[14]

Mr.
    Jiwa seeks leave to appeal sentence.  He acknowledges that manslaughter is a
    serious offence and the circumstances are tragic but argues that 12 years is
    too long, given that he was a youthful, first offender who has shown genuine
    remorse for his actions.

[15]

For
    the reasons that follow, I would dismiss the appeal.

The Issues

[16]

The
    appellant submits that the sentencing judge erred in:

1.  making
    the findings of fact;

2.  admitting
    the video tribute at the sentencing hearing;

3.  her
    articulation and application of the sentencing principles    applicable in
    manslaughter cases;

4.  her
    application of the proportionality principle; and

5.  imposing
    a 10-year driving prohibition.

The Findings of Fact

[17]

The
    appellant submits that the sentencing judge made a palpable and overriding
    error in finding that Mr. Jiwa knew that Detective Constable Plunkett was a
    police officer and in finding that he knew Detective Constable Plunkett was
    injured when he continued driving after the collision.  He also contends that
    the sentencing judge failed to explain why she disregarded the evidence
    favourable to Mr. Jiwa and that she significantly increased the sentence based
    on aggravating factors that had not been proved beyond a reasonable doubt.

[18]

I
    see nothing in this ground of appeal.  There is no basis on which to interfere
    with the sentencing judges findings of fact.

[19]

The
    sentencing judge properly articulated and applied the relevant legal principles
    in concluding that this was a case in which she had to come to her own
    determination as to whether Mr. Jiwa knew that he was being arrested by the
    police and drove in an effort to resist arrest.  The sentencing judge gave
    thoughtful, comprehensive reasons for her findings of fact.  Those findings
    were fully available to her.  In relation to the finding that Detective
    Constable Plunkett was a police officer, while it is correct that he and the
    other officers were in plain clothes, during the arrest they repeatedly yelled
    that they were police officers.  They yelled this so loudly that a civilian
    heard them from inside her bedroom.  The appellants friend acquiesced in the
    arrest so he clearly understood that they were police officers.  The suggestion
    that Mr. Jiwa thought Detective Constable Plunkett was only winded after
    being smashed into a tree is ludicrous, in my view.  As the driver of the
    vehicle, Mr. Jiwa must have appreciated the severity of the collision that
    crushed Detective Plunketts body between the tree and the car door.  It is inconceivable
    that any driver could fail to appreciate the harm that would be caused by such
    a collision.

[20]

At
    para. 46 of her reasons, the sentencing judge specifically states that she
    found the facts beyond a reasonable doubt.  It is apparent from the careful manner
    in which the sentencing judge approached the evidence that she did precisely as
    she stated, that is, she found the facts beyond a reasonable doubt.

[21]

To
    the extent that the appellant suggests that the sentencing judge erred by
    sentencing Mr. Jiwa as if he had been found guilty of manslaughter on the basis
    of the unlawful act of resisting arrest, I disagree.  It is clear from her
    reasons that Mr. Jiwa was sentenced for unlawful act manslaughter on the basis
    of dangerous driving, with an aggravating factor being that he was
    intentionally resisting arrest at the time that he engaged in the dangerous
    driving.  The sentencing judge made no error in considering, as an aggravating
    factor, that Mr. Jiwa drove dangerously in order to avoid arrest.

The Video Tribute

[22]

The
    appellant submits that the sentencing judge erred by admitting the memorial
    video tribute to Detective Constable Plunkett at the sentencing hearings.  The five-minute
    long video consisted of still photographs of Detective Constable Plunketts funeral
    set to music, including close-ups of teary-eyed police officers and photographs
    of Detective Plunketts grieving widow.

[23]

The
    sentencing judge understood the videos potential for prejudice.  Prior to
    admitting it, she indicated that she would be guided by counsels positions on
    the matter, saying, If [all counsel have] seen it and youre confident that it
    is not inappropriate then Ill be guided by your joint positions.  After some
    discussion, defence counsel agreed to the video being played.

[24]

In
    her reasons for sentence, the sentencing judge expressly instructed herself not
    to be guided by emotion but, rather, to impose a just sentence in accordance
    with the principles of sentencing.  As well, she expressly stated that she
    ignored any victim impact information that exceeded permissible bounds.

[25]

The
    sentencing judge was properly cautious about receiving evidence or information
    that might be an attempt to use emotion to increase the length of the
    sentence.  In light of defence counsels consent to its admission and as it is clear
    that the sentencing judge was not unduly swayed by the video, I would dismiss this
    ground of appeal.

The Sentencing
    Principles

[26]

At
    para. 34 of her reasons, the sentencing judge said this:

In sentencing an offender for manslaughter, the principles of
    denunciation and deterrence, both general and specific, are paramount: see,
R.
    v. Carrière
, [2002] O. J. No. 1429 (C.A.);
R. v. Costa
, [1996] O.J.
    No. 299 (Gen. Div.).  Rehabilitation cannot be ignored, particularly for a
    young first offender, but it assumes a subordinate role in manslaughter cases. 
    Society must express, through the courts, its abhorrence of the criminal
    conduct involved in the taking of a life by an unlawful act.

[27]

The
    appellant contends that these sentences are an incorrect statement of law and
    that the sentencing judge erred in relying on them.  He says that there is
    neither a blanket rule that the principles of denunciation and deterrence are
    paramount in all manslaughter cases nor that the goal of rehabilitation must be
    subordinate to denunciation and deterrence in all manslaughter cases.

[28]

I
    agree that there are no such blanket rules.  However, I do not accept that the
    sentencing judge intended these statements to be a general rule for all
    manslaughter cases, nor do I view her as having treated them as such.  Rather, the
    sentencing judge was saying that, in the circumstances of this case, denunciation
    and deterrence were paramount and rehabilitation was secondary.

[29]

My
    view is based on two primary considerations, the first of which is para. 35 of
    the sentencing judges reasons.  Para. 35 of the reasons reads as follows:

A diverse range of circumstances will found a conviction for
    manslaughter.  Accordingly, while the maximum sentence is life imprisonment,
    there is wide variation in the range of sentence for this offence.  At one end
    of the manslaughter spectrum, the circumstances may approximate an
    unintentional and almost accidental killing, while there will be those
    approaching murder at the opposite extremity:  see,
R. v. Carriere
,
    above.  As the Supreme Court of Canada put it in
R. v. Ferguson
, 2008
    SCC 6, at para. 15, The appropriateness of a sentence is a function of the
    purpose and principles of sentencing set out in ss. 718 to 718.2 of the
Criminal
    Code

as applied to the facts that led to the conviction.  The facts
    of the offence, the circumstances of the accused, and his or her moral
    blameworthiness are all considerations.

[30]

In
    para. 35, the sentencing judge identifies the fact-specific and highly
    individualised task of a sentencing judge, one that reflects his or her
    assessment of the combined effect of the many variables inevitably at play when
    crafting a sentence.  The sentencing judge concludes para. 35 with a reiteration
    of the need to consider all of the facts of the offence, the circumstances of
    the accused, and his or her moral blameworthiness.

[31]

Paragraph
    35 follows immediately after the impugned statements.  Its recognition of the
    diverse range of circumstances that will found a conviction for manslaughter
    and the need to consider each case individually demonstrate that the sentencing
    judge did not intend the statements in para. 34 to amount to a general rule
    applying to all manslaughter cases.  Rather, as I have said, para. 34 expresses
    the sentencing judges view of how to balance the competing variables at play
    in the case before her.

[32]

My
    second reason for so concluding flows from the cases referred to by the
    sentencing judge:
R. v. Carrière

(2002), 164 C.C.C. (3d) 569
    (Ont. C.A.) and
R. v. Costa
(1996), 30 W.C.B. (2d) 28 (Ont. Ct. (Gen.
    Div.)).  Neither
Carrière
nor
Costa
stands for the general
    proposition that denunciation and deterrence are paramount in all manslaughter
    cases or that rehabilitation must always be subordinate to denunciation and
    deterrence in all manslaughter cases.

[33]

In
Carrière
, after explaining why the facts led the court to view moral
    culpability in the case as very close to the murder end of the spectrum and why
    Mr. Carrière approached the worst offender category, this court stated at
    para. 18:

Having regard to the principles of sentencing ... and to the
    totality of the circumstances in this case,
we conclude that the objectives
    of denunciation, deterrence and isolation must be given paramount consideration. 
    Other considerations, such as rehabilitation cannot be ignored but must, in our
    view, assume a subordinate role. [Emphasis added.]

[34]

By
    its terms, para. 18 makes it clear that this court was not creating a rule of
    general application to manslaughter cases. It was only after having due regard
    to the specific circumstances of that case that the court held that denunciation,
    deterrence and isolation were the paramount sentencing considerations.

[35]

Like
    the present case,
Costa
was a case of a youthful, first offender.  Mr.
    Costa had pleaded guilty to manslaughter.  At para. 35 of his reasons for
    sentence, Watt J. reflects the need to consider each case on its own facts when
    balancing the competing interests at play in sentencing.  He wrote:

There is, however, no standard sentence, for there is neither
    standard crime nor standard criminal.  To be certain, there are various
    principles whose application governs the imposition of sentence in any case. 
    Their application, however, does not always mandate the same result.

[36]

The
    reasons for sentence in the present case are careful, detailed and thorough. 
    They demonstrate the depth of knowledge and experience of this sentencing judge. 
    As para. 35 of her reasons (set out above) makes clear, she was fully aware of
    the tremendous variation in the degree of responsibility among offenders found
    guilty of manslaughter.  She also would have been fully aware that
Carrière

and
Costa

stood for the propositions quoted above and not
    for a general principle of law governing all manslaughter cases.

[37]

Accordingly,
    I would dismiss this ground of appeal.

Proportionality

[38]

The
    appellant submits that the sentencing judge erred in her application of the proportionality
    principle by failing to give sufficient weight to the role of rehabilitation in
    sentencing a youthful, first offender.  He submits that a sentence of 12 years
    is inconsistent with the goal of rehabilitation and outside the range for
    analogous cases.  He points to cases such as
R. v. Priest
(1996), 110
    C.C.C. (3d) 289 (Ont. C.A.) as support for his submission that sentences for
    youthful first offenders must focus on specific deterrence and rehabilitation
    and not on general deterrence or denunciation.

[39]

I
    do not share the appellants view of the caselaw.

[40]

Priest

was a case involving break-and-enter theft by a 19-year old.  The
    sentencing judge found that general deterrence was the paramount
    consideration.  In allowing the sentence appeal and reducing the sentence,
    Rosenberg J.A. on behalf of this court, held that the sentencing judges
    emphasis on general deterrence at the expense of rehabilitation in the context
    of a youthful first offender was an error in principle.

[41]

However,
    as this court noted in
R. v. Tan
, 2008 ONCA 574, 268 O.A.C. 385, at
    para. 32, in
Priest

at pp. 294-95, Rosenberg J.A. was careful
    to exclude very serious offences and offences involving violence from the
    principle that sentences for youthful first offenders should emphasize
    individual deterrence and rehabilitation.  In the present case, the appellant
    committed a very serious, violent crime.

[42]

In
    my view, the sentencing judge committed no error in treating denunciation and
    deterrence as paramount sentencing goals in this case nor did she improperly
    subordinate the principle of rehabilitation.  The fact that Detective Constable
    Plunkett was killed while in the line of duty is a seriously aggravating
    factor, one which the sentencing judge underlined by reciting the following
    passage from
R. v. Phillips
(1999), 138 C.C.C. (3d) 297, at para. 27,

Police officers carry out an essential and responsible role in
    society.  In doing so they are often required to assume risks to their personal
    safety.  Because of that, when a police officer is killed in the execution of
    duty, the community is understandably outraged.  In imposing sentence, it is
    appropriate to reflect societys revulsion for this aspect of the offence.

[43]

Nor
    do I accept that the sentencing judge failed to give due consideration to the
    appellants rehabilitative potential.  She gave full recognition to the fact
    that Mr. Jiwa was only 19 at the time of the offence and that he was a first
    offender. Far from ignoring or improperly discounting rehabilitation, she
    expressly set out the many positive aspects of Mr. Jiwas life that spoke to
    the matter of rehabilitation.  She summarized them in para. 48 of her reasons,
    saying:

In mitigation, Mr. Jiwa was only 19 years old when he killed
    Detective Constable Plunkett.  He has no prior criminal record.  However, his
    life circumstances as they were at the time of the offence are unimpressive. 
    Despite the advantages of a supportive and prosperous family, he failed to
    complete high school, had not worked at employment of consequence, and was not
    amenable to his parents discipline.  It is to his credit that he has taken and
    passed two high school level courses while in custody.  This demonstrates some
    degree of maturation, which is supported by the observations of Dr. Ismail, and
    is an indication of rehabilitative potential.  Mr. Jiwa has very strong family
    and community support from individuals who are committed to assist him in
    integrating back into society.  He expressed some degree of remorse when he
    apologized to Detective Constable Plunketts family in court.  I consider as
    well that the killing of Detective Constable Plunkett was what is sometimes
    termed an involuntary manslaughter, meaning an unlawful killing not
    accompanied by the state of mind to constitute it murder: see,
R. v. Costa
,
    above.

[44]

At
    the same time, however, she recognized the factors that seriously aggravate the
    offence and elevate Mr. Jiwas moral blameworthiness.  In addition to the
    seriously aggravating factor that Detective Constable Plunkett was killed
    during the course of duty, on the facts as found by the sentencing judge, Mr.
    Jiwa knew that he was dealing with the police but, intent on resisting arrest,
    he drove the stolen car in a dangerous way that led to Detective Constable
    Plunkett being crushed to death.

[45]

In
    addition, at para. 47 of her reasons, the sentencing judge lists the following additional
    aggravating factors:

a.       At the time of the offence, Mr. Jiwa was driving a
    stolen car, having spent several hours engaged in criminal activity, stealing
    airbags;

b.       Mr. Jiwa was on bail for allegations of similar
    activity, albeit not convicted of it;

c.       Mr. Jiwas recognizance of bail specified that he was
    to obey the rules set by his mother as his surety.  One of those rules was a
    1:00 a.m. curfew.  He demonstrated a flagrant disregard for his mothers
    discipline and so for the underlying court order;

d.       After Detective Constable Plunkett was crushed between
    the tree and the car door, Mr. Jiwa did not stop to come to his aid.  He
    carried on until Detective Constable Shaw deliberately rammed the Honda;

e.       Mr. Jiwa then tried to flee the area on foot,
    surrendering to the police only when it was clear that he had no route of
    escape; and,

f.        Detective Constable Plunketts death has had a
    devastating impact on his family, and on his colleagues who were with him that
    night.

[46]

As
    all counsel conceded at the sentencing hearing, there are no cases that match
    the circumstances of this one.  The sentencing judge was left to draw on the principles
    of sentencing and weigh the facts that she had found against those principles. 
    As an appellate court, we must defer to the sentencing decision unless
    convinced that there is an error in principle or that the sentence is
    demonstrably unfit.  As Doherty J.A. noted at para. 72 of
R. v. Ramage
2010 ONCA 488, (2010), 257 C.C.C. (3d) 261 (Ont. C.A.):

The sentencing judge represents and speaks for the community
    that has suffered the consequences of the crime.  He or she is much better
    placed to determine the sentence needed to adequately protect the community
    than is an appellate court sitting at a distant place often years removed from
    the relevant events.

[47]

As
    I have explained, the sentencing judge approached the task of sentencing
    properly and her reasons reveal no error in principle or law.  While the
    sentence is at the very high end of the range for a youthful, first offender
    and other judges might have imposed a shorter sentence, I cannot say that it is
    demonstrably unfit.

The Driving Prohibition

[48]

The
    appellant contends that the imposition of a 10-year driving prohibition to
    commence at the end of Mr. Jiwas jail sentence was excessive and unnecessary. 
    He argues that the lengthy driving prohibition will unduly impede the
    appellants reintegration into society because it will limit his job and
    educational opportunities on release.

[49]

While
    it would have been preferable had the sentencing judge given reasons for
    imposing the driving prohibition, I would not give effect to this ground of
    appeal.  It is apparent on a full reading of the reasons that the sentencing
    judge imposed the driving prohibition to protect the public.  At a time when Mr.
    Jiwa was on bail for stealing airbags, he breached that bail, and killed a
    police officer while driving excessively fast and dangerously.  In the context
    of the sentence as a whole, the driving prohibition is not unfit.

DISPOSITION

[50]

Accordingly,
    while I would grant leave to appeal sentence, I would dismiss the appeal.

E.E. Gillese J.A.

I agree  E.
    Ducharme J.A.

Pepall J.A. (Concurring):

[51]

I
    have read the reasons of my colleague, Gillese J.A., and agree with her that
    the sentence imposed was fit and that the appeal should therefore be dismissed.
    I also agree with her reasons on the first, second, fourth and fifth issues
    raised by the appellant on the appeal, but disagree with her reasoning on the
    third issue, namely, the sentencing judges articulation of the sentencing
    principles.

[52]

As
    my colleague indicates,
R. v. Carriè
re
(2002), 164 C.C.C.
    (3d) 569 (Ont. C.A.) and
R. v. Costa
(1996), 30 W.C.B. (2d) 28 (Ont.
    Ct. (Gen. Div.)) do not stand for the propositions advanced by the sentencing
    judge in paragraph 34 of her decision and reproduced in paragraph 26 of these
    reasons. Unlike my colleague, however, it is my view that the sentencing judge
    erred in paragraph 34 of her reasons in articulating the governing principles
    in sentencing an offender for manslaughter. As my colleague states at paragraph
    32: Neither
Carriè
re
nor
Costa
stands for the
    general proposition that denunciation and deterrence are paramount in all
    manslaughter cases or that rehabilitation must always be subordinate to
    denunciation and deterrence in all manslaughter cases.  I agree.  However,
    with respect, I do not read paragraph 34 of the sentencing judges reasons as
    being consistent with these principles.

[53]

Furthermore,
    in my view, paragraph 35 of the sentencing judges reasons does not serve to
    qualify the incorrect statements of principle at paragraph 34 of the reasons.
    Firstly, treating denunciation and deterrence as paramount and rehabilitation
    as subordinate is not necessarily inconsistent with a consideration of all the
    facts of the offence, the circumstances of the accused and his moral
    blameworthiness as described in paragraph 35 of the sentencing judges reasons.
    Secondly, reasons for decision should speak for themselves.

[54]

Having
    said that, in the circumstances of this case, I am of the view that
    denunciation and deterrence should be treated as paramount and rehabilitation
    as subordinate. Furthermore, I agree with, and adopt, the sentencing judges
    description of the aggravating and mitigating factors applicable in this case.

[55]

This
    was a very serious crime.  Detective Plunkett was killed in the line of duty.
    His family and colleagues have been devastated by his death. I recognize that
    Mr. Jiwa was only 19 years of age at the time of the offence, had no previous
    record, showed some remorse and the killing was involuntary. Nonetheless, the
    offence was committed while he was on bail for pending air bag theft charges;
    he was driving a stolen vehicle having spent several hours stealing air bags;
    and he was in violation of his curfew. The sentencing judge found, as she was
    entitled to do, that Mr. Jiwa knew he was being arrested by police officers
    including Detective Constable Plunkett, drove in an effort to resist arrest and
    did not come to Detective Constable Plunketts aid. Taken together, these
    factors warrant a 12 year sentence of imprisonment. Accordingly, I conclude
    that the sentence was fit.  I, too, therefore would dismiss the appeal.

Released:

EEG                                       S.E. Pepall
    J.A.

AUG 08 2012


