Court Information

Ontario Court of Justice

Date: 2016-10-24

Between: Her Majesty the Queen — and — Omar Brown

Before: Justice H. Borenstein

Sentencing submissions heard: September 2, 2016 Reasons for Sentence released: October 24, 2016

Counsel:

• Mr. P. Maund, counsel for the Crown
• Mr. D. Holmes, counsel for the accused Omar Brown

BORENSTEIN J.:

Facts and Convictions

[1] Omar Brown was found guilty after trial of two counts of assault and two counts of assault with a weapon. One count of assault was stayed pursuant to the decision in R. v. Kienapple, 15 C.C.C. (2d) 524. I will not repeat my findings of fact. In brief form, Mr. Brown was approached by a 17 year old girl who was raising funds for charity by canvassing on the street. The accused agreed to donate to the charity. He then walked away after signing up. He returned moments later believing the 17 year old canvasser had stolen $10 from him. She had not but Mr. Brown has mental health issues and honestly, but mistakenly, believed that she had. Mr. Brown grabbed her by her wrist demanding the money. He then pulled out a knife threatening her for the money. One of her co-workers quickly ran up and Mr. Brown did the same to her. She gave him ten dollars. Mr. Brown was acquitted of the robbery on the basis of his honest but mistaken belief that he was owed the money but was nonetheless found guilty of the two assaults and two assaults with weapons. This all occurred at the end of January 2016.

[2] Mr. Brown remained on bail pending sentencing. Due to various reasons, sentencing submissions were only heard in September 2016.

Subsequent Offence

[3] Just prior to his sentencing, Mr. Brown plead guilty to a further charge which is very concerning. On February 16, 2016; a month after I found him guilty of these offences, Mr. Brown was at his family's home. His sister noticed that he was upset. He said he would go "cut him up" and he put a knife in his jacket and left. His mother called the police. The accused went to a shelter. The police were looking for him. They stopped him as he was walking with what they described was determination. In his jacket was a 12 inch knife hidden in a sheaf. He was arrested and has plead guilty to breaching the no weapons term of his recognizance and to possession of a weapon for a purpose dangerous. Thankfully, his mother's quick actions may have saved someone from injury and saved her son from much greater trouble.

Victim Impact

[4] The impact on the victims can be easily inferred. The young woman working raising funds for charity declined to file a victim impact statement but I can well imagine the impact this encounter had.

Background Information

[5] The accused is 35 years old. I have reviewed the P.S.R. as well as reports from psychiatrists and have reviewed his criminal record.

[6] Mr. Brown was born in Toronto. His father passed away when he was only two years old. He was raised by his mother with his three sisters. He described his childhood as rough. He never married but, about eighteen years ago, he was involved with a woman for six months. They have a son. Mr. Brown maintains a relationship with his son. He has no fixed address. He stays in shelters or with friends. He was expelled from high school but, in 2008, he completed his high school credits. He told the author of the P.S.R. that he has a Social Service Worker certificate. He has worked as a painter, gardener, warehouse employee, construction worker and is presently on ODSP. He drinks alcohol sometimes but does not describe it as a problem. His mother and sister think it is a problem. He also used marijuana which he considers medicinal.

Mental Health History

[7] In 2006, he was diagnosed with paranoid schizophrenia. He has been seeing a psychiatrist, Dr. Asayesh, since 2007. He sees Dr. Asayesh every three months and receives medication. He was seeing Dr. Asayesh regularly between 2011 and 2014 and was apparently doing quite well.

[8] Dr. Asayesh wrote a report in March 2015. He wrote that he saw Mr. Brown in February 2015 but had not seen him previously since May 2014, a month before this offence. At that time, Mr. Brown was doing well so he reduced his medication. He wrote that Mr. Brown has difficulty accepting his schizophrenia diagnosis though knows he has an illness and knows he requires treatment. He wrote that Mr. Brown does not abuse alcohol or drugs but described him as aloof, introverted and asocial. He wrote that Mr. Brown has little disturbance of thinking or sensorium but that, it was conceivable that if he does not take sufficient medication, he would be more prone to anger. Mr. Brown has always had a baseline level of irritability. He concluded by noting that Mr. Brown wants to be nice to people, mind his own business, find work and not be on government assistance but that has not been easy for him. At the February 2015 meeting, he increased Mr. Brown's dosage and would follow up with him on a regular basis.

[9] In April 23, 2015, Mr. Brown was assessed by Dr. Gojer, another psychiatrist in relation to this offence. Dr. Gojer wrote that Mr. Brown had paranoid schizophrenia. Mr. Brown reports hearing voices and believing people are after him. He began hearing voices in 2013. He carries a knife thinking he needs it for protection. Dr. Gojer was of the opinion that Mr. Brown's offending was connected to his mental health illness and either poor compliance or inadequate dosage. Dr. Gojer wrote that Mr. Brown now had insight into his offending and was more stable and the dosage has been increased. He wrote that the accused will have to see his psychiatrist regularly and abstain from drugs and alcohol.

[10] We know of course that the accused committed the failure to comply in February 2016, ten months after seeing Dr. Gojer.

[11] In March 2016, Dr. Asayesh saw Mr. Brown and wrote an update to his report in April. He wrote that Mr. Brown was extremely sad when he saw the doctor in March 2016 and told him about the new charge. He told the doctor he carried the knife because he believed he needed it for protection. The doctor wrote that Mr. Brown has always been insightful about his condition and follows his treatment plan compliantly. I found those comments odd as was his comment that, given the accused's history, his desire to protect himself was understandable.

Character and Support

[12] According to the P.S.R., the accused apparently sticks very much to himself. He feels isolated. When not working, he enjoys making music. He told the author of the P.S.R. that he was in counselling for six months at the end of 2014 and he has learned his lesson. He will stay out of trouble. That was obviously not the case. These offences were after his counselling.

[13] Mr. Brown's mother and sister believe he needs help; not jail. He can be verbally aggressive but not violent. He carries a knife due to his paranoia. His mother believes that he needs mental health treatment, stable housing, stability in the form of school or work and to stay away from substances. When those factors coalesce, he remains out of trouble. No doubt she is right. She also notes that he always believes people are taking his money or are out to get him and he is in denial at times about his mental health issues.

Criminal Record

[14] His criminal record began in 1996 when he was a young person. His entries continued right to 2006 when he was diagnosed and then treated. While being treated, he remained out of trouble until this series of current offences. The offences on his record are mostly break and enters and thefts although there are several assault police, threatening and possession of a weapon charges. He also has a conviction for possession for the purpose of trafficking conviction for which he received time served in addition to 132 days of pre-sentence custody.

Remorse

[15] Mr. Brown wrote a letter of apology apologizing to the victims.

SENTENCING PRINCIPLES

[16] It is clear that, where mental illness exists, it can operate in mitigation of sentence particularly where it is connected to the offence or the offender would serve much harder time in custody as a result of the illness. In those cases, deterrence and denunciation plays little role in sentencing. However, even where there is a causal link between the illness and the offence, if the illness, (especially if untreated) continues to render the accused dangerous to others, separation may still be a significant sentencing objective notwithstanding the mental illness.

[17] In the 2013 decision of R. v. Ellis, 2013 ONCA 739, the majority of the Ontario Court of Appeal stated the following (at paragraphs 116-123):

[116] The authorities, some of which were referred to by the trial judge, indicate that it is not enough to determine that the offender had a mental illness at the time of the offence. The trial judge must also determine the extent to which that illness contributed to the conduct in question and the impact of that finding on the appropriate sentence. The trial judge will consider whether there a causal connection between the offender's mental illness and the commission of the offence and, if so, whether it diminished the offender's culpability.

[117] There is no doubt that an offender's mental illness is a factor to be taken into account in sentencing. Where mental illness plays a role in the commission of the offence, the offender's culpability may be diminished, punishment and deterrence may be ineffective or unnecessary and treatment and rehabilitation of the offender may be paramount considerations. As this court explained in R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 38:

… here the appellant's mental health problems played a central role in the commission of the offence. In such circumstances, deterrence and punishment assume less importance. As this court emphasized in R. v. Robinson, 19 C.C.C. (2d) 193, at p. 197, where offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them. Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in cases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender. In such circumstances, the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the public and that the offending conduct is not repeated. This is especially so where a lengthy prison term may be regarded as counterproductive: see also R. v. Hiltermann, 141 A.R. 223 (C.A.), and R. v. Peters, 2000 NFCA 55, 194 Nfld. & P.E.I.R. 184 (Nfld. C.A.), at paras. 18-19.

[118] In Batisse, Gillese J.A. found that the appellant's mental health issues played a central role in the commission of the offence. She was described as having serious mental health challenges, which were the product of "an atrocious childhood and an abusive early adulthood" (at para. 39). The court found that these mental health challenges led to the commission of the offence. The appellant was remorseful and pleaded guilty.

[119] This court's decision in Davies, one of those considered by the trial judge, also illustrates the point well. A crown attorney pleaded guilty to four offences involving fraud and breach of trust, two of which related to the performance of his duties. He had a history of bipolar disorder and had been treated with medication for some seven years prior to the offences. The sentencing judge concluded that his behavior was not attributable to his mental illness and sentenced him to a total of two years less a day imprisonment.

[120] In varying the sentence, this court concluded that the sentencing judge misconstrued the evidence concerning the relationship between the offender's mental illness and the crimes he had committed and failed to consider certain other evidence. Specifically, in finding the offender's medication was always in the therapeutic range, the sentencing judge ignored the uncontested evidence of one of his physicians that his medications were not sufficient to prevent a manic episode. Second, the same physician's opinion was that during the relevant time the offender was in an "uncontrolled state of hypomania" (at para. 30). In the circumstances, Blair J.A. substituted a blended sentence of twelve months less a day in custody plus a 12 month conditional sentence, to run consecutive with the term of incarceration.

[121] R. v. Dickson, 2007 BCCA 561, 228 C.C.C. (3d) 450, is another example. The appellant, a book-keeper, forged cheques for her personal benefit. She had undiagnosed and untreated bipolar disorder at the time of the offence. Her psychiatrist opined that there was a direct causal connection between her mental illness and the commission of the offences. In allowing an appeal from a sentence of twelve months' imprisonment, and substituting a conditional sentence, Finch C.J.B.C. stated, at para. 70:

In my respectful opinion, a sentence of imprisonment is unfit in these circumstances. It cannot be necessary in the interests of general deterrence for serious theft, to incarcerate someone who is mentally ill when the offences were committed, whose mental illness was a cause of her committing the offences, who pleads guilty, who makes restitution, and who undertakes an appropriate course of medical treatment. To the extent that public opinion is relevant to the principle of general deterrence, I am satisfied that reasonable citizens informed of all the relevant circumstances in this case would consider that the provisions of the Criminal Code and the ends of justice are met by a conditional sentencing order.

[122] In contrast to these cases, in my view, the sentence here was fit and the trial judge made no error to warrant this court's intervention. The trial judge took a balanced, insightful and fair approach to the appellant's mental illness. She found it mitigated the sentence that he would otherwise receive, but that it did not result in such a reduced culpability to displace the need for a denunciatory and deterrent sentence. This balanced approach was entirely within her domain. In applying this approach, she understood the evidence and gave appropriate consideration to the relevant sentencing principles.

[123] Absent significantly reduced culpability, the circumstances required a denunciatory and deterrent sentence. As a refugee claim adjudicator, the appellant represented Canada. He held Ms. Kim's future in his hands. He used his office and power to offer her a choice: "Have sex with me and stay in Canada, or don't have sex with me and you will be sent back to Korea." Knowing that she had been abused by men – her father in Korea and her husband in Canada – and knowing she had no status in Canada and feared returning to Korea, he exploited her vulnerability so that he could abuse her himself.

Application to This Case

[18] Returning to the case at bar, the Crown concedes there is some connection between the accused's paranoid schizophrenia and the offences committed but submits the connection is minimal. I agree with that concession somewhat but I believe the accused's mental illness is more than minimally connected to his offending. I believe his paranoid schizophrenia, for which he under medicated at the time, was a significant factor in his conduct and will reduce the sentence.

[19] Mr. Brown has 10 days total of pre-sentence custody combined on these two charges which will be credited as 15 days.

Crown and Defence Submissions

[20] The Crown submits a sentence of six to nine months in jail for the assault with a weapon and three months consecutive for the February breach of recognizance for a total sentence of nine to twelve months would be fit. The Crown seeks three years of probation, a DNA Order and a 10 year section 109 Order.

[21] The defence submits a total sentence of four to six months in custody followed by probation would be fit. The defence submits that rehabilitation ought to be the driving sentencing principle in this case. However, the defence has advised that Mr. Brown is now in custody on an unrelated matter and will be for considerable time. The defence concedes therefore that, given that situation, any rehabilitation will be placed on hold and the sentencing options at this time are limited.

Sentencing Considerations

[22] In my view, general deterrence and denunciation play a significantly lesser role in this case given Mr. Brown's illness which is connected to this offence. His moral culpability is much less than the offender who commits such offences and who does not suffer from his illness. That said, Mr. Brown does continue to present a danger when he is off his medication. It is my hope that the sentence I will impose upon him will make Mr. Brown realize he must be serious about his illness and his treatment for, if he is not, he can be a danger to others. I also want to impose a sentence that will offer Mr. Brown help and counseling when he is released from custody.

[23] Balancing these factors, and considering totality, I sentence Mr. Brown as follows.

SENTENCE

[24] For the offences involving the two victims of the assault with a weapon, the sentence will be six months in jail less 15 days pre-sentence custody for a sentence of five and a half months concurrent per count. On the failing to comply and possession of a weapons charge, a further one month consecutive concurrent on each count in jail followed by three years probation for a total custodial sentence of six and a half months.

Following the custodial part of the sentence, he will be sentenced to three years probation on the following terms, which are all intended to connect Mr. Brown with treatment:

• In addition to the statutory terms, he is to report within 3 days of his release from custody and thereafter as required;
• Not possess any weapons as defined by the Criminal Code;
• No contact with the victims of this matter;
• You are to take and actively participate in any counselling particularly for mental health issues, anger issues and substance abuse issues as directed by probation and not discontinue the treatment without the written approval of your probation officer or psychiatrist and sign all releases to enable your probation officer to monitor that condition;
• There will be a lifetime weapons prohibition pursuant to section 109 and an Order that he provide a sample of his DNA.

Released: October 24, 2016

Signed: Justice H. Borenstein