Court File and Parties

Ontario Court of Justice

Date: 2018-10-01

Court File No.: Toronto 4817 998 17-75004055

Between:

Her Majesty the Queen

— and —

Sabriya Francesca Dantas-Ismail

Before: Justice Howard Borenstein

Plea of Guilty taken on: September 11, 2018

Reasons for Sentence released on: October 1, 2018

Counsel:

• Ms. Karen Simone — counsel for the Crown
• Mr. Christopher Ponesse — counsel for the Crown
• Mr. David Butt — counsel for the accused Sabriya Francesca Dantas-Ismail

BORENSTEIN, J.:

Facts

[1] Sabriya Dantas-Ismail is 22 years old. She has plead guilty to one count of attempting to obstruct justice.

[2] She lied to the police about who killed her ex-boyfriend Tyrone Tomlinson. Mr. Tomlinson was a young man and was the father of their three-year-old child.

[3] In February 2017, her new boyfriend Omar Davis killed Mr. Tomlinson. Ms. Dantas-Ismail says, and the Crown is prepared to accept, that Mr. Tomlinson was assaulting Ms. Dantas-Ismail with a knife at the time Davis shot and killed him. He had come into the home, saw Ms. Dantas-Ismail there with Mr. Davis and their child, and began to assault and drag Ms. Dantas-Ismail from the home, holding a knife to her neck. While on the street, Mr. Davis shot and killed Mr. Tomlinson.

[4] When the police attended the shooting, Mr. Davis had already fled the scene. Ms. Dantas-Ismail was taken right to the police station where she gave a lengthy statement. In it, she said she did not know who shot Mr. Tomlinson. She did not recognize the shooter's voice but, based on what he said, it appeared he attended the house with Mr. Tomlinson. This was a lie.

[5] The following day, she gave another lengthy statement to the police where she again repeated that she did not know who shot Mr. Tomlinson. She gave a vague, misleading description of the shooter and speculated that the shooting may have been related to a robbery she alleged Mr. Tomlinson committed the previous year. She also told the police that no one was at her home that night other than herself, her son and a friend, Ms. Omo-Obi-Egwale.

[6] Ms. Omo-Obi-Egwale told the police that Mr. Davis had been at the house and she was surprised Ms. Dantas-Ismail did not mention him.

[7] I was told in submissions, without objection, that Ms. Dantas-Ismail had called Ms. Omo-Obi-Egwale twice, asking her not to mention Mr. Davis to the police.

[8] Ms. Dantas-Ismail was 20 at the time.

[9] Over the next seven and a half months, the police were investigating this crime and had made no arrests. During that time, I am told Ms. Dantas-Ismail travelled on holidays with Mr. Davis. Mr. Tomlinson's family did not know who killed their son. In August 2017, when she was questioned again by the police, she admitted that Mr. Davis was the one who shot Mr. Tomlinson. Mr. Davis was arrested. I presided over his preliminary hearing. Ms. Dantas-Ismail recounted the events as I have just described. I am told that Mr. Davis has plead guilty to manslaughter and received a sentence of ten years for this offence, as well as another shooting.

[10] Ms. Dantas-Ismail is now 22 years old. She has no prior criminal record. She is a mother of one son, who is now four and a half years old. She lives with her own mother who helps provide child care. She has begun working since May 2018. She attends counselling with counsellors who have provided letters to the Court.

Defence Reports

[11] The defence filed two opinion letters or reports. The first is from Dr. Lori Haskell, a psychologist. It is about the neurobiology of trauma and its role in this case. The second was a joint report by two narrative therapists.

[12] I turn first to Dr. Haskell's report. Dr. Haskell received a letter from defence counsel setting out a basic version of the allegations, and sought her opinion. Based on that letter, Dr. Haskell provided an opinion. I excerpt from her opinion.

Without a doubt the circumstances you describe would qualify as extremely stressful or traumatic events. This would most likely mean that your client would neurobiologically register the situation as a serious threat and, at the time, her brain would have released a cascade of stress hormones that would have impaired the rational prefrontal cortex, leaving her brain dependent on automatic reflexes and habits.

And later:

The translation and relevance for the circumstances of your specific case, as you describe them to me, and as I would surmise, are the following. The prefrontal cortex is the centre of executive functions in the brain. Executive function describes the activity of a system in the brain that manages other cognitive systems. It is involved in managing complex processes like reason, logic, problem solving, planning and memory. The extensive body of neuro-scientific knowledge and advances in the field explicate that through the integration of these multiple processes, the prefrontal cortex plays a significant part in directing attention, developing and pursuing goals, and inhibiting counterproductive impulses. Part of the impairment of the prefrontal cortex is the inability to discriminate as to who is trustworthy and who is safe. In the extenuating circumstances you described, your client may have had an automatic reflex to protect herself by lying about the identity of the shooter. This would not be a "thought out" or intentional act (because her cognitive reasoning would have been impaired in this situation). But rather, would have been an automatic survival response in a situation of threat.

Her impairment would have been intensified, as Arnsten describes above, by the fact that she had been previously exposed to chronic stress and threat, and this can lead to more persistent loss of PFC functioning. As well, not having slept before the police interview means that she would not have had an opportunity to have consolidated her memory which means she may have had fragmented memories or incomplete memory. The police interview itself would create additional situation of ongoing threat and stress that may have further impaired her prefrontal cortex and thus her ability to thoughtfully reflect and recall.

[13] While I accept that the events witnessed by the accused, as she describes, would have been extremely traumatic and stressful, and would have resulted in certain neurobiological consequences, especially in light of her pre-existing vulnerability as recounted by her and accepted by the Crown, Dr. Haskell's report goes further than I think is reasonable on the facts of this case. This is not a case of memory fragmentation caused by traumatic events or sleep deprivation. Ms. Dantas-Ismail admits intentionally misleading the police as to who killed Mr. Tomlinson. She lied not once but twice, and encouraged her friend to mislead the police as well. She was stressed and traumatized by what she had witnessed but knew what she was doing. In fairness to Dr. Haskell, the letter setting out the facts upon which she based her opinion does not make any reference to the fact that Ms. Dantas-Ismail was calling her friend, urging her to not tell the police about Mr. Davis. And I think that significantly undermines the value of Dr. Haskell's report, including as it relates to the time when she gave the two statements. While I accept Dr. Haskell's opinion concern the neurobiological effects of trauma generally, I find they have limited impact in this case. I discount her opinion based on what was not told to her in the instructing letter. Further, I see no issue of sleep deprived memory at all in this case.

[14] A joint opinion letter was written by social workers Ruth Pluznick and Amy Drucker.

[15] Ms. Drucker writes that her work is "guided by the practices and principles of narrative therapy and a commitment to striving to work from an anti-oppressive, anti-racist and decolonizing framework".

[16] They describe narrative therapy as a "collaborative and non-pathologizing" approach, which centres people as the experts of their own lives. A narrative approach views problems as separate from people and assumes that people have many skills, abilities, values, commitments and competencies that will assist them to change their relationship with problems influencing their lives. It is also a way of working that considers the broader context of people's lives, particularly in the various dimensions of diversity, including class, race, gender, sexuality and ability.

[17] They write:

We are writing this letter in support of Sabriya Dantas' desire to move forward in her life in ways that align with her hopes for her life and the life of her son. It is our hope, in writing this letter, that we can highlight the traumatic effects on Sabriya of living with a partner who used violence, the effects of the police moving quickly in the aftermath of Tyrone's death (and that Sabriya's life was almost taken by him) and how far Sabriya has come in reclaiming her life back from the effects of violence.

[18] They recount Ms. Dantas-Ismail's account of her life with Mr. Tomlinson and the events of that fateful night. They write that Ms. Dantas-Ismail has come to realize that she does not need to forgive Mr. Tomlinson to move on with her life.

[19] They conclude:

It is our belief that Sabriya was so impacted by the trauma of the night that her life was almost taken by Tyrone, that she was not in the position to provide an accurate statement to police. What has us drawing this conclusion is based on what Sabriya described in her re-telling of the events on the night that Tyrone was killed. Sabriya did not have time to process what happened. "I didn't know if Tyrone died". "I was trying to understand how someone (whom) I gave so many years to and did everything for, came to kill me. Sabriya said that she "did not feel present" when she was at the station. "I was in shock… I haven't felt anything yet" "My brain was thinking of 100 different things".

Sabriya's commitment to her son's well being has consistently stood out to both Ruth and I in our conversations with Sabriya. In every conversation we have had with Sabriya, we have gotten further acquainted with her commitment to Isaiah, through the lengths that she has been willing to go to support his development. We have also been struck by Sabriya's resiliency, refusal to give up skills in the face of what she has faced in her short life. It has struck us how far she has come to reclaim her life back from the effects of the violence she endured in her relationship with Tyrone, in her refusal to give up, by accessing supports when she needs to, and through her own practices of self reflection. We are in strong support of Sabriya's desire to move forward in her life in ways that align with her hopes for her life in the life of her son. In terms of next steps, we are both happy to continue to work with her to support her to move forward in her life and preferred ways.

[20] The report helpfully reveals that Ms. Dantas-Ismail is pursuing counselling.

[21] The authors are passionately invested in Ms. Dantas-Ismail and committed to empowering her. It is also clear that the report is not an independent expert report but a report by supportive counsellors.

[22] I place little weight in their view of the offence, or on Ms. Dantas-Ismail's moral culpability.

[23] There is virtually no mention of the loss of life that actually did occur in this case. Their view that Ms. Dantas-Ismail was not in a position to provide an accurate statement to the police is contradicted by her admission that she intentionally lied to the police or that she encouraged her friend to do so.

[24] So, I have considered the reports, but give them limited weight for the reasons given.

[25] Just because the Crown chose not to cross-examine the authors, does not mean they fully accept their reports – they do not. They vacillated at best but ultimately decided not to call a contradictory expert. But just because they chose not to cross-examine the expert does not mean the Court is bound to accept the report in its totality. I do not, and indicated my difficulties with these reports to counsel during submissions, especially that the opinion seems to significantly contradict the accused's admission of willfully misleading the police, and because all of the relevant underlying facts, namely: Ms. Dantas-Ismail's attempt to get her friend to lie to the police, were not conveyed to Dr. Haskell.

Victim Impact Statements

[26] Victim impact statements were read out in court or filed as exhibits. They were moving and powerful. Mr. Tomlinson's family and friends have been in court throughout, displaying courage and their sorrow. They do not believe he was violent. The impact of the loss has been great. Their connection to their son, and their grandchild Isaiah is in the custody of Ms. Dantas-Ismail. It is complicated, to say the least. They cannot understand how she did not let them know who her son's killer was.

Positions of Crown and Defence

[27] The Crown submits a sentence of three to six months in jail, followed by probation would be fit. It speaks to the frustration of the police investigation, and the harm caused to the family by them not knowing the truth.

[28] The defence submits that a suspended sentence would be fit. Given the reports it has submitted, which it says considerably mitigates Ms. Dantas-Ismail's moral blameworthiness as well as all the other factors, such as her plea, her age, lack of criminal record, and co-operation as seen by her testimony at Davis' preliminary hearing. Alternatively, it submits that, if custody, is required, a conditional sentence would be appropriate. As a distant third alternative, it submits that an intermittent sentence would be reasonable.

[29] The case law presented shows a wide range of sentences from non-custodial to custodial. Both sides recognize and emphasize how unique these facts are. Needless to say, there is very little on all fours with this case. They also agree that the core of the damage caused by the attempt to obstruct justice is the seven and a half months Mr. Tomlinson's family was denied the truth about who killed their son.

Aggravating and Mitigating Factors

[30] There are many mitigating features in this case.

[31] Ms. Dantas-Ismail was only 20 at the time. She was being assaulted. The person she was protecting by lying to the police had tried to help her. She has no criminal record. She has plead guilty. She testified at the preliminary hearing. She is now working. She is in counselling. She was in a high state of stress when she spoke to the police, particularly during her first statement.

[32] While a guilty plea is traditionally considered a sign of remorse, I find she is not particularly remorseful for what she had done or appreciates the gravity about lying to the police in relation to a homicide. The reports and her comments speak more about herself and her moving on, rather than about what she has done. She did not do anything to correct what she had done until spoken to by the police again, seven months later.

[33] The aggravating factors in this case are Ms. Dantas-Ismail deliberately lying to the police about who committed the homicide; her attempt to get her friend to lie as well; and the length of time before the truth became known.

Principles of Sentencing in this Case

[34] A fit sentence must consider the offence and the offender. It must be proportionate to the gravity of the offence, and the responsibility of the offender, and must have one or more of the following objectives:

a) To denounce unlawful conduct; b) To deter the offender and other persons from committing offences; c) To separate offenders from society where necessary; d) To assist in rehabilitating offenders; e) To provide reparation for harm done to victims or to the community; and f) To promote a sense of responsibility in offenders, an acknowledgement of the harm done to victims and to the community.

[35] The weight to be given to any of the objectives depends on all of the facts of each case. However, the principles and objectives of deterrence, denunciation and rehabilitation must be considered and weighed.

[36] A sentence should be as minimally restrictive as possible, consistent with the purposes and principles of sentencing.

[37] Ultimately, if a reasonable balance is struck, the sentence should contribute to the protection of the public.

Decision on Sentence

[38] The accused is a youthful, first offender, who has plead guilty. In most such cases, rehabilitation is to be given considerable weight. However, in this case, despite her youth, her conduct needs to be denounced.

[39] In my view, balancing all of the factors, lying to the police to protect the identity of someone who has killed demands that denunciation be given significant weight. She maintained that lie for seven and a half months, all the while no arrest was made. She tried to get her friend to lie as well. Despite her youth, and her guilty plea, and the other mitigating features of this case, a suspended sentence is inappropriate. It would not reflect the gravity of this particular attempt to obstruct justice.

[40] It requires a sentence of imprisonment.

[41] Given that the Crown is seeking a three- to six-month sentence, and the absence of a minimum sentence for this offence, a conditional sentence of imprisonment is possible.

[42] Courts have held that a conditional sentence, in appropriate cases, can properly express the principles of deterrence and denunciation. Although, clearly, a conditional sentence will not have the same denunciatory effect as a sentence of incarceration.

[43] A conditional sentence may also be longer than an otherwise appropriate period of incarceration, and may include terms to give it a punitive element in order to enhance the effect of the conditional sentence: see R. v. R.N.S., 2000 SCC 7, 140 C.C.C. (3d) 553 (S.C.C.); R. v. Killam, [1999] O.J. 4829 (Ont. C.A.); and R. v. Shoker, 2006 SCC 44, 212 C.C.C. (3d) 417 (S.C.C.).

[44] With respect to deterrence, I doubt Ms. Dantas-Ismail needs to be specifically deterred. Further, given the unique circumstances of this case, general deterrence is less of a consideration. I also consider the fact that Ms. Dantas-Ismail is the single mother of a young child.

[45] In my view, a nine-month conditional sentence, followed by one year probation would be a fit sentence. The terms will be as follows:

1. You will report today to a conditional sentence supervisor and thereafter as required.

2. You are to remain in Ontario unless you have prior written permission from your supervisor to leave the Province.

3. For the first three months, you are confined to your home at all times with the following exceptions:

   a. While travelling directly to and from or while at school, work, counselling, the grocery store, or taking or picking up your son from child care;

   b. As may be necessary to fulfill the requirements of this conditional sentence;

   c. For medical or emergency appointments for you or your son;

   d. With prior written approval from your conditional sentence supervisor;

   e. Every Saturday between 10:00 a.m. and 3:00 p.m. to attend for any personal errands.

4. You will take and actively pursue any counselling as directed by probation, and sign releases to enable your conditional sentence supervisor to ensure your compliance with this condition.

5. You will not possess any weapons as defined by the Criminal Code.

6. For the next three months, the house arrest will be converted to a 7 p.m. to 6 a.m. curfew with the same exceptions. All other conditions to remain the same.

7. For the final three months, the curfew will be from 11:00 p.m. to 6 a.m. with the same exceptions. All other conditions to remain the same.

[46] Following this conditional sentence, you will be placed on probation for one year. You are to report to a probation officer within three days of the commencement of your probation and thereafter as required. In addition to the mandatory terms of probation, you will take and participate in counselling as directed by probation and sign all necessary releases. You will not possess any weapons as defined by the Criminal Code.

Released: October 1, 2018

Signed: "Justice Borenstein"