IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Alkhatib, 2007 NSSC 294
Date: 20071004
Docket: CR 273081
Registry: Halifax
Between:
Her Majesty the Queen
v.
Chadi Mouhanad Alkhatib
SENTENCING DECISION
Judge: The Honourable Justice Glen G. McDougall
Counsel: Mark Hareema and Frank Hoskins (appearing in place of Christopher Morris), on behalf of the Crown
Roger Burrill, on behalf of the Accused
By the Court (Orally):
[1] Mr. Chadi Mouhanad Alkhatib (henceforth referred to as Mr. Alkhatib) was originally charged with five offences under the Criminal Code.
[2] A trial on all five charges was originally scheduled for April 2, 2007.
[3] Mr. Alkhatib decided to change his plea on two of the five Counts. As such, he pleaded “guilty” to:
(i) Count 1: Break, enter and theft, contrary to s. 348(1)(b) of the Criminal Code; and
(ii) Count 4: Unlawfully causing bodily harm, contrary to s. 269 of the Criminal Code.
[4] The Crown proceeded to trial on Count 3 of the indictment - assault with a weapon, to wit: a motor vehicle, contrary to s. 267(a) of the Criminal Code.
[5] After a trial lasting two days this Court found Mr. Alkhatib guilty of the offence. The remaining two charges were then stayed.
[6] Mr. Alkhatib was initially released on conditions pending the sentencing. The Crown then gave notice of its intention to seek revocation of Mr. Alkhatib’s release.
[7] On June 25, 2007 in an oral decision, the court revoked Mr. Alkhatib’s bail and ordered that he be detained until the time of sentencing. Counting the day that bail was revoked and today’s date, Mr. Alkhatib has so far spent a total of 101 days behind bars.
[8] The time has now come to pronounce a fit and proper sentence upon Mr. Alkhatib. As previously stated, Mr. Alkhatib pled guilty to two offences. The Crown decided to proceed to trial on the third offence of assault with a weapon.
[9] In his sentencing brief, defence counsel, Mr. Burrill, indicated that the Court must first decide whether a stay should be entered on Count 4 given the conviction entered on Count 3.
[10] The defence contends that a stay is required in the circumstances of this case. Mr. Alkhatib would then be sentenced on Counts 1 and 3 only.
[11] Mr. Burrill cited the case of R. v. Basilio (2003), 175 C.C.C. (3d) 440 (Ont. C.A.) as authority for his argument. Basilio was concerned with whether convictions for aggravated assault and assault with a weapon on the same complainant could be sustained.
[12] The Basilio case interprets and relies upon the earlier Supreme Court of Canada decision in R. v. Prince (1986), 30 C.C.C. (3d) 35. The unanimous decision of the Court was delivered by the then Chief Justice Brian Dickson.
[13] After analyzing the factual and legal nexus between the counts, the Ontario Court of Appeal in Basilio had this to say about Prince at paras. 21 and 22:
[21] In Prince, the court sets out three ways in which sufficient legal correspondence can be found to exist. First, an element may be a particularization of another element. Second, there may be multiple ways of proving a single delict. The third arises where Parliament, in effect, deems a particular element to be satisfied by proof of a different nature, not because logic dictates the conclusion but because of social policy or inherent difficulties in proof. The court concludes by emphasizing that application of the criteria is not to be done in a fashion that causes us to "lose sight of the overarching question whether the same cause, matter or delict underlies both charges".
[22] On the facts of this case, the same delict underlies both charges. The wounding in the charge of aggravated assault was inflicted through the use of the knife to stab Kerr. It is a knife wound. It is this same wrongful use of a knife to stab Kerr that underlies the charge of assault with a weapon. To focus on the distinction between the elements of wounding and use of a knife, without reference to the essential connection between these two elements on the facts of this case, is to lose sight of the overarching consideration that the same wrong underlies both charges. The wrongful use of the knife is [page448] addressed through the more serious offence of aggravated assault. Thus, the conviction for the lesser offence of assault with a weapon should be set aside.
[14] Defence counsel submits that similar conditions apply in the case against his client. He argues and I quote:
While Mr. Alkhatib tendered a guilty plea to the more negligence-based count 4, this Honourable Court was satisfied beyond a reasonable doubt that the mental element of recklessness had been met within the definition of count 3. This, indeed, was the only live issue at Trial.
He concludes by requesting the stay.
[15] Crown counsel, in his brief, argues that while there is a factual nexus between the two Counts there is not the requisite legal nexus. He, too, cites the Prince case, supra, as support for maintaining both Counts. He also suggests that any concern with quantum of sentence can be allayed by considering the totality principle and the use of concurrent sentences. Although this is a valid point it fails to address the concern that Mr. Alkhatib would likely have with regard to his criminal record. Unlawfully causing bodily harm and assault with a weapon are both serious offences. They each carry a maximum penalty of ten years imprisonment. As far as sentencing goes it will not likely result in consecutive sentences but if both convictions are allowed to stand it could have significant consequences for Mr. Alkhatib later on.
[16] In arguing against a stay, the Crown contends that a sufficient legal nexus does not exist between these two counts as they differ significantly with respect to:
(i) the required mental element; and
(ii) the existence of bodily harm.
[17] He submits that unlawfully causing bodily harm is a crime based on the commission of an objectively dangerous course of action. Neither an intention to cause bodily harm nor subjective foresight of bodily harm is an element of the offence.
[18] He goes on the contrast this with the mental element required for assault with a weapon. He submits that a conviction with a weapon requires proof beyond a reasonable doubt that the offender acted intentionally or, at least, acted out of reckless foresight.
[19] He uses the difference in the mental elements between these two counts to distinguish Basilio, supra, which involved aggravated assault and assault with a weapon. He suggests that both these offences require proof beyond a reasonable doubt of subjective mens rea.
[20] In my opinion, the Crown is wrong on this point. The mental element in aggravated assault is the mental element in assault simpliciter coupled with objective foresight of the risk of bodily harm. There are a long list of cases to support this. To name but a few:
R. v. Williams, [2003] 2 S.C.R. 134;
R. v. Godin (1994), 31 C.R. (4th) 33; 89 C.C.C. (3d) 574 (S.C.C.)
R. v. Cuadra (1998), 125 C.C.C. (3d) 289 (B.C.C.A.)
[21] The mental element in aggravated assault is the same as for unlawfully causing bodily harm. The Crown is correct, however, in stating that the rationale applied in Basilio has not been universally followed. The Alberta Court of Appeal in R. v. Strawberry, [1995] A.J. No. 579 found that the offences of aggravated assault and assault with a weapon were not subject to the rule against multiple convictions.
[22] The Crown’s other argument against a stay is that assault with a weapon does not require bodily harm. As such, bodily harm is not an element of the offence described in s. 267(a) of the Criminal Code. It involves the intentional use or threat of use of a weapon in committing an assault. Whereas with unlawfully causing bodily harm no weapon need be used or threatened for use. It is the bodily harm caused in committing an assault that is prohibited.
[23] In the case of Prince, supra, Chief Justice Dickson said at pp. 10 and 11:
It has been a consistent theme in the jurisprudence from Quon, through Kienapple and Krug that the rule against multiple convictions in respect of the same cause, matter or delict is subject to an expression of Parliamentary intent that more than one conviction be entered when offences overlap: see, in particular, McGuigan v. The Queen (1982), 66 C.C.C. (2d) 97, 134 D.L.R. (3d) 625, [1982] 1 S.C.R. 284. In Krug, LaForest J. Was careful to explain that the presence of additional, distinguishing elements was in itself an (page 49] expression of such an intent. No element which Parliament has seen fit to incorporate into an offence and which has been proven beyond a reasonable doubt out to be omitted from the offender’s accounting to society, unless that element is substantially the same as, or adequately corresponds to, an element in the other offence for which he or she has been convicted.
I conclude, therefore, that the requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.
There is, however, a corollary to this conclusion. Where the offences are of unequal gravity, Kienapple may bar a conviction for a lesser offence, notwithstanding that there are additional elements in the greater offence for which a conviction has been registered, provide that there are no distinct additional elements in the lesser offence.
[24] Earlier in the same decision Chief Justice Dickson quoted from a decision of Lambert, J.A. in R. v. Harrison (1978), 7 C.R. (3d) 32, at page 37; 9 B.C.L.R. 199; in which he stated:
There must be a relationship of sufficient proximity first as between the facts, and secondly as between the offences which form the basis of two or more charges for which it is sought to invoke the rule against multiple convictions;
[25] There can be no question that the two offences arise out of the same factual scenario. As such the required factual nexus for consideration of the rule against multiple convictions has been established. The Crown concedes this point.
[26] The offence of assault with a weapon under s. 267(a) presents additional, distinguishing elements when compared to unlawfully causing bodily harm under s. 269. This can be interpreted as an expression of Parliamentary intent. The use of a weapon in committing an assault is distinct from unlawfully causing bodily harm. The latter offence requires proof of bodily harm that is caused by an unlawful act coupled with the mental element of objective foresight of bodily harm.
[27] Assault with a weapon need not result in bodily harm. It is the actual or threatened use of a weapon in committing an assault along with proof of the requisite mental element that constitutes this offence.
[28] As former chief Justice Dickson stated in Prince, supra:
If an accused is guilty of several wrongs, there is no injustice in his or her record conforming to that reality.
[29] For these reasons, I do not think this to be an appropriate case to stay the offence of unlawfully causing bodily harm. I will proceed to sentence Mr. Alkhatib on all three counts that he either pled guilty to or was found guilty of by this Court.
[30] The Court will first look at the potential sanctions that could be imposed on Mr. Alkhatib for breach of these three Criminal Code offences.
[31] The first offence of breaking and entering a place and committing theft is described in section 348(1)(b) of the Criminal Code. It reads:
348. (1) Every one who
...
(b) breaks and enters a place and commits an indictable offence therein, ...
...
is guilty
(d) if the offence is committed in relation to a dwelling‑house, of an indictable offence and liable to imprisonment for life, ...
[32] The second offence of assault with a weapon is contained in s. 267(a) of the Criminal Code. It reads:
267. Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, ...
...
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
[33] The final offence under s. 269 of the Criminal Code is for unlawfully causing bodily harm. It reads as follows:
269. Every one who unlawfully causes bodily harm to any person is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
[34] The Crown proceeded by way of indictment on all three charges.
[35] Sentencing remains one of the most difficult tasks for judges despite the recent codification of sentencing principles.
[36] The court is guided by Sections 718 to 718.3 of the Criminal Code of Canada contained in part XXIII. These Sections provide, amongst other things, as follows:
S. 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
© to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner or child,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
(v) evidence that the offence was a terrorism offence
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
© where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[37] Section 718.3 deals with punishment generally and need not be recited here other than to say the court has considered the general intent of this particular section in reaching its decision today.
[38] Mr. Burrill, counsel for Mr. Alkhatib, very ably argued for the Court to consider a conditional sentence for his client to be served in the community. Such a sentence is more commonly known as “house arrest”. He has referred me to the Supreme Court of Canada decision in R. v. Proulx, [2002] 1 S.C.R. 61, which is a decision of former Chief Justice Antonio Lamer. In para. 1 of the decision Chief Justice Lamer wrote:
By passing the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 ("Bill C-41"), Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison. In an attempt to remedy the problem of overincarceration, Parliament has introduced a new form of sentence, the conditional sentence of imprisonment.
[39] Conditional sentences are provided for in section 742.1 of the Criminal Code. It reads:
742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of imprisonment of less than two years, and
(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,
the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.
I will refer once again to the decision of Chief Justice Lamer who provided a summary of what he said in his reasons at para. 127:
127 At this point, a short summary of what has been said in these reasons might be useful:
1. Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing.
2. A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest should be the norm, not the exception.
3. No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions [page127] in favour of or against a conditional sentence for specific offences.
4. The requirement in s. 742.1(a) that the judge impose a sentence of imprisonment of less than two years does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in the community. Although this approach is suggested by the text of s. 742.1(a), it is unrealistic and could lead to unfit sentences in some cases. Instead, a purposive interpretation of s. 742.1(a) should be adopted. In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community.
5. As a corollary of the purposive interpretation of s. 742.1(a), a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.
6. The requirement in s. 742.1(b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not the primary consideration in determining whether a conditional sentence is appropriate. In making this determination, the judge should consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law. Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. A consideration of the risk posed by [page128] the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals.
7. Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. This follows from Parliament's clear message to the judiciary to reduce the use of incarceration as a sanction.
8. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.
9. Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.
10. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the [page129] circumstances of both the offender and the community in which the conditional sentence is to be served.
11. A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances.
12. No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced. However, it would be in the offender's best interests to establish elements militating in favour of a conditional sentence.
13. Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. As explained in M. (C.A.), supra, at para. 90: "Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit".
[40] Since none of the offences involved carries a minimum sentence, conditional sentencing can be considered. However, before doing so I must in a preliminary determination reject a penitentiary term and probationary measures as inappropriate (see item 4 of the summary by C.J. Lamer in Proulx, supra).
[41] In addition section 742.1(b) states that the Court must be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code. This is a condition precedent to the imposition of a conditional sentence.
[42] For reasons which will become clear in reviewing the mitigating and aggravating factors in this case, I have concluded that this is not an appropriate case for a conditional sentence.
[43] In have previously referred to the requirement under s. 718.2(a) to consider aggravating or mitigating circumstances.
[44] Some of the aggravating circumstances in this case are:
(1) The break-in occurred in a dwelling house. A person’s home should be a refuge. It should be a place where one feels safe and secure. It should be a place where one can go to escape the pressures of life. In this particular case a family’s peace and security were violated by an intruder;
(2) Certain items of significant monetary and sentimental value were taken and have not been recovered. Many of these items can never be replaced because of their sentimental value;
(3) One of the owners of the dwelling arrived home to find Mr. Alkhatib hastily trying to flee the scene. Like any home owner he tried to protect his property and his family. Unfortunately for him Mr. Alkhatib was more concerned with his escape than Mr. Morrison’s health and well-being. As a result of Mr. Alkhatib’s callous disregard for anyone other than himself he inflicted severe and permanent injuries on Mr. Morrison;
(4) Not to be forgotten in all this is the impact that this has had on other members of the Morrison family. In particular, his young daughter who was present throughout and was there to witness her father lying in the street with a fracture of his lateral tibial plateau and no doubt in excruciating pain. The entire family has been affected by Mr. Alkhatib’s criminal actions;
(5) The peacefulness and tranquillity of the entire neighbourhood has no doubt been shaken by these events. Certainly the witnesses who saw Mr. Alkhatib practically run-down Mr. Morrison with his motor vehicle must have been shocked by what they saw; and
(6) Mr. Alkhatib has a prior criminal record, albeit not extensive.
[45] Some of the mitigating circumstances of this case are:
(1) Mr. Alkhatib is relatively young;
(2) No one was home at the time of the break-in. This was fortunate although Mr. Morrison might not agree;
(3) Mr. Alkhatib has offered a written apology in which he indicates remorse for what he did and for the injuries he caused to Mr. Morrison. A significant portion of the letter written while Mr. Alkhatib was being held at the Correctional Centre awaiting sentencing was devoted to a plea to this Court to show leniency and was not intended to offer an apology; and
(4) Mr. Alkhatib would appear to have at least some family support.
[46] After considering all of these factors and keeping in mind the various principles of sentencing including denunciation, deterrence (specific and general), rehabilitation, punishment and the fundamental purpose of sentencing which is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions, I have concluded that a conditional sentence in this case would not be appropriate.
[47] Given the serious nature of these offences I believe a sentence in excess of 2 years is necessary. Additionally, I am not satisfied that serving the sentence in the community would not endanger the safety of the community particularly when you consider the offender’s prior record.
[48] Counsel have referred a number of cases to me for my consideration. I have reviewed all these cases. I have also considered the Pre-Sentence Report prepared by Probation Officer, Dana Bowden. It presents a picture that seems in contrast with what was said by his father, Mr. Mouhanad Alkhatib, who was called as a witness at the sentencing hearing. Mr. Alkhatib, Sr., seems genuinely interested in helping his son. Unfortunately this does not appear to have always been the case. I encourage Mr. Alkhatib, Sr., to fulfil not only his undertaking to this Court but also to his son that he will be there for him from now on.
[49] The Court has concerns about Mr. Alkhatib, Sr.’s, stated desire to enforce the provisions of the Conditional Sentence Order that might be imposed on his son. Also when one considers the numerous motor vehicle infractions against Mr. Alkhatib this speaks volumes about his willingness to abide by Court sanctions.
[50] The Victim Impact Statement read into the record by its author, Mr. Ian Morrison, presented an emotional, yet controlled, picture of the devastating effects this incident has had on him and his family.
[51] I have reviewed the various letters of reference filed in support of Mr. Alkhatib. Based on these letters there is at least some hope that Mr. Alkhatib can be rehabilitated so as to one day return to the community to make a positive contribution. That will be entirely up to him.
[52] I have considered the very eloquent and forceful written and oral submissions of counsel for both sides. I commend both defence counsel, Mr. Burrill, and Messrs. Morris, Hoskins and Hareema for the Crown.
[53] As previously indicated, defence counsel asked the Court to consider a sentence of 2 years less a day to be served in the community.
[54] Crown counsel recommended a combined sentence of seven years — five years for the break and enter and two years consecutive for the assault with a weapon. They further recommended a concurrent sentence on the charge of unlawfully causing bodily harm.
[55] The Crown is also seeking an order for restitution as well as the mandatory firearms prohibition and DNA Sample. The defence is not opposing these latter three orders.
[56] Before I pronounce sentence I will give Mr. Alkhatib the opportunity to address this Court. You do not have to say anything, however, if you choose to do so now is your chance.
[Chadi Alkhatib responds by saying “no thank you, I don’t have anything to say”]
[57] Mr. Alkhatib, please stand sir.
[58] On the charge that you did unlawfully break and enter a place, to wit: a dwelling house and did commit therein the indictable offence of theft, contrary to section 348(1)(b) of the Criminal Code, this Court sentences you to a period of incarceration for 30 months.
[59] On the charge that you did assault Ian Morrison with a weapon, to wit: a motor vehicle contrary to section 267(a) of the Criminal Code, this Court sentences you to a period of incarceration for 18 months which time is to be served consecutive to the time already imposed.
[60] On the charge that you did unlawfully cause bodily harm to Ian Morrison contrary to section 269 of the Criminal Code this Court sentences you to a period of incarceration for 18 months which time is to be served concurrent with the time already imposed.
[61] Mr. Alkhatib is to be credited for the time already spent on remand which I previously calculated to be 101 days. As is customary in these situations the credit will be double the time already served.
[62] In total then, Mr. Alkhatib will serve four years in prison less the credit of 202 days for time already served.
[63] In addition to the sentence of incarceration I also order restitution be made pursuant to s. 738 of the Criminal Code, as follows:
(1) $17,192.97 payable to Ian and Barbara Morrison;
(2) $7,812.03 payable to ING Insurance Company of Canada
for a total of $25,005.00.
[64] Finally, I order the mandatory firearms prohibition for 10 years under s. 109 of the Criminal Code and an order authorizing the taking of a sample from Mr. Alkhatib for purposes of DNA analysis pursuant to s. 487.051 of the Criminal Code.
[65] That concludes my decision on sentencing. Mr. Alkhatib, you can sit down. My few remaining comments would be that I hope, if you have not already learned from your mistakes, that you will take the time to reflect on what you have done and, indeed, gain something positive from this experience if that is possible. It is never too late to make changes in your life. Upon release, I hope you begin to turn your life around. You seem to have a good family. Your father has pledged to support you. With his guidance and assistance perhaps you can stay out of trouble. I do not think I have to tell you what lies in store for you if you do not.
[66] I wish you luck and hope that you have the energy to do the right thing.
[Mr. Burrill requests that the victim surcharge under s. 737 C.C.C. be waived.]
[Mr. Hareema on behalf of the Crown, content with waiving surcharge.]
[67] The Court grants defence motion to waive the victim surcharge which normally would be levied under s. 737 of the Criminal Code.
J.