Court File and Parties

Ontario Court of Justice

Date: September 14, 2020

Court File No.: Ottawa 19-R1805

Between:

Her Majesty the Queen

— and —

Yusuf Hussein and Abdirahman Sahal

Before: Justice P.K. Doody

Heard on: July 16, 2020

Reasons for Sentences released on: September 14, 2020

Counsel

M. Humphreys — counsel for the Crown

S. Brass — counsel for the defendant Yusuf Hussein

S. Ahsan — counsel for the defendant Abdirahman Sahal

Judgment

DOODY J.:

Convictions and Crown Position

[1] On February 19, 2020, after trial, I found Yusuf Hussein guilty of aggravated assault on Morty White on December 8, 2018. I also found Abdirahman Sahal guilty of aggravated assault on Mr. White and assault on Julian Wilson on the same date. I found Mr. Hussein guilty of breaching a bail undertaking, and a probation order, by communicating with Mr. Sahal on that day. I also found Mr. Sahal guilty of two counts of breaching a probation order, by failing to keep the peace and be of good behaviour and by communicating with Mr. Hussein.

[2] Crown counsel seeks sentences of 4 years in custody for each of the defendants.

Defence Positions

[3] Ms. Brass, counsel for Mr. Hussein, submits that, after taking into consideration credit for 45 days of actual pre-sentence custody and almost 600 days of restrictive bail conditions, a suspended sentence, followed by a period of probation, would be appropriate. In the alternative, she asks the court to impose a sentence of 90 days or less, to be served intermittently. She asks the court to consider the effect of the pandemic on the appropriate sentence.

[4] Ms. Ahsan, counsel for Mr. Sahal, submits that an appropriate sentence, all other things being equal, would be 2 years in custody. She submits, however, that a number of other factors should reduce that sentence:

(a) he served 236 days of actual pre-sentence custody, for which he should receive credit at 1.5 days per day, for a total credit of 354 days;

(b) 23 days of his pre-sentence custody was between March 13 (the declaration of the emergency caused by the pandemic) and April 4, and the effect of the pandemic on him during this time should further mitigate his sentence;

(c) he has been on strict bail conditions since April 4, 2020; and

(d) on May 16, 2019, he received an effective sentence of 300 days custody for other offences and, had he been sentenced for these offences at the same time, the totality principle would have applied to reduce the total sentence.

[5] He submits that the cumulative effect of all these things is that the actual sentence imposed on him should be no more than 6 months, to be followed by a period of probation.

Circumstances of the Offences

[6] The facts underlying these convictions are set out in my decision of February 19, 2020. These reasons should be read together with that decision.

[7] Although only Mr. Sahal was charged with assaulting Mr. Wilson, the two men jointly assaulted Mr. Wilson and, less than 90 seconds later, Mr. White. Both assaults were completely unprovoked. Neither of the victims had ever met either of the two defendants before that day.

[8] The two defendants left a house on Hannah Street, a side street running north from Montreal Road, at 8:52 a.m. They approached a car stopped at the intersection with Montreal Road. Mr. Hussein went up to the driver's door, spoke to the driver, punched his side window, and tried to open the driver's door and the passenger door. The driver drove away.

[9] Mr. Hussein then walked towards a car in a parking lot on the northeast corner of Montreal Road and Hannah Street and tried, unsuccessfully, to open the front door after the driver got in. He and Mr. Sahal then walked east along Montreal Road.

[10] Mr. Wilson, a 57 year old retired public servant, was walking west on the same sidewalk, heading to his bank. As he passed the two defendants, Mr. Hussein turned and hit him with a closed fist on the right side of his temple beside his ear. He had done nothing to precipitate the attack. He almost fell. Both men were coming at him. He ran west, across Hannah Street.

[11] Mr. Hussein and Mr. Sahal ran after him, but stopped at the parking lot. Mr. White, a 75 year old retired baker, came out of the bank beside the parking lot less than 10 seconds after the two defendants got there. He had been getting some cash after having his usual Saturday morning breakfast with friends at a restaurant on Montreal Road. He walked past the two defendants. They confronted him. He put his arms up. They struck him in the face and pushed him to the ground. Mr. Hussein lifted his foot up and stomped on Mr. White's head at least twice.

[12] The men left Mr. White lying on the ground and ran back down Hannah Street, returning to the house from which they had left some 4 minutes earlier.

[13] Mr. White suffered a fractured pelvis, two fractured ribs, and fractured nasal bones. He suffered extensive bruising.

Victim Impact Statements

[14] Both men provided victim impact statements.

[15] Mr. White was in the hospital for four days and then had to use a walker and, subsequently, a cane for a number of weeks. He reported that the soreness and stiffness at the back of his head and neck lasted about 3 months. He said that while he does not seem to have had any lasting side effects, the attack has had an impact on him and those close to him in terms of understanding the fragility of life and what might have been. He wrote, "While I have the ability not to dwell on negativity and try to just look forward, this shouldn't have happened to me or anyone else and I am pleased that justice is being served."

[16] Mr. Wilson wrote that since the assault he suffers from anxiety, for which he has been prescribed medication. He suffered from post traumatic stress disorder, and this has been worse since the assault. He does not want to leave his apartment.

Circumstances of the Offenders

(a) Yusuf Hussein

[17] Mr. Hussein is 19 years old, and was 18 at the time of the offences.

[18] A thorough pre-sentence report was prepared.

[19] He was convicted on June 28, 2018, approximately six months before these offences, of possession of a weapon for a purpose dangerous to the public peace, breach of undertaking, obstructing a peace officer in the execution of her duty, and breach of recognizance, all under the Youth Criminal Justice Act. He received discharges with conditions for these offences. One of the conditions was that, for a period of 9 months, he not associate with Mr. Sahal.

[20] He was also convicted under the Criminal Code, after the occurrence of the December 2018 assault and breaches of probation for which I am now sentencing him:

(a) in April 2019 of 2 counts of breach of undertaking by contacting Mr. Sahal and by failing to notify the police of his change of address on November 11, 2018, for which he received a conditional discharge and 12 months probation; and

(b) on February 4, 2020 of breach of a bail condition by breaching a curfew in August 2019, for which he received a suspended sentence and one day probation after taking into account 3 days of actual presentence custody, for a credit of 5 days.

[21] Mr. Hussein was abandoned by both his parents at a young age. He and his older brother were primarily raised by his grandmother. He told the author of the pre-sentence report that he had a positive childhood. He left school in Grade 11. He is unemployed and supported by ODSP. He has been employed for only two months since leaving school. His grandmother told the author of the presentence report that his behaviour began to deteriorate after becoming involved with new peers, resulting in his involvement with the criminal justice system.

[22] Mr. Hussein's grandmother also told the author of the presentence report that Mr. Hussein suffered from mental health issues. This was confirmed by a report provided by Dr. Helen Ward, a forensic psychiatrist who has practiced in that field in Ottawa for over fifteen years and is also an Assistant Professor in the Department of Psychiatry at the University of Ottawa. Dr. Ward advises, based on review of medical records from the Ottawa Hospital and the Royal Ottawa Mental Health Centre, that Mr. Hussein presented to the Ottawa Hospital in June 2017, saying that he believed that there was a chip in his left hand, "monitoring him", but left before being seen by physicians from the psychiatry unit. He was admitted to the Children's Hospital of Eastern Ontario for 9 days from November 27 to December 6, 2017 with a history of auditory hallucinations and disorganization. He was diagnosed with brief psychotic disorder, possibly cannabis-induced psychosis. He was then admitted to the Ottawa Hospital from December 14 to 19, 2017. He had not taken the medication prescribed by the physicians at CHEO. He had not slept for 2 days, and was continuously talking, disorganized, and "perseverating" on somatic and persecutory delusions. He was discharged with a diagnosis of "First Episode Psychosis". He was subsequently admitted to the Ottawa Hospital between December 26 and 29, 2017 and April 17 and 18, 2018 because of exacerbation of his psychosis.

[23] He was admitted to the Royal Ottawa Hospital Youth Psychiatry Unit from May 16 to June 29, 2018 because of paranoia and grandiosity. He was discharged with a diagnosis of bipolar disorder. He was seen again at the Royal Ottawa Hospital on December 7, 2018, the day before the assaults on Mr. White and Mr. Wilson, and his medication reduced. Dr. Ward stated that she was not sure that there was a link between the medication change and the offence.

[24] Mr. Hussein told both the author of the presentence report and Dr. Ward that he had been a heavy daily user of cannabis but stopped when he was discharged from the Royal Ottawa Hospital about two years ago. He said that this improved his mental health symptoms.

[25] Dr. Ward diagnosed Mr. Hussein as suffering from Bipolar I disorder, currently in remission with medication; schizoaffective disorder; and cannabis use disorder in full sustained remission.

[26] Dr. Ward wrote:

From what I can determine, Mr. Hussein's criminal behaviour began in 2017, after he dropped out of school after losing basketball, and around the same time that he began developing symptoms of mental illness. His mental illness likely is genetic in origin but may have emerged earlier due to the trigger of heavy cannabis use. The nature of Mr. Hussein's illness, in which when acutely ill he is activated, disinhibited, psychotic, and manic, may have contributed to the poor decisions he has made with respect to peer associations. In addition, it further separated him from the ability to reconnect with high school and basketball, which would have given him more incentive to engage prosocially.

As a person with persistent and severe mental illness, Mr. Hussein is disadvantaged by his cultural background. The main parental figure has been his grandmother, who does not speak or understand much English. Aunts and uncles have contributed to an extent, but it would be fair to generalize that it is more difficult for a person from a non-Western background to connect to the mental health system. While Mr. Hussein has been very lucky that he has culturally sensitive support from the Centre for Resilience and Social Development (Rajo project), I am unsure how long this will be available to him and he certainly could benefit from more support through the mainstream mental health system as well.

[27] Dr. Ward wrote that she had read the Crown Brief and notes that "there is very little in the account of the offences that would suggest a direct role for mental illness in their commission." She opined that while she did not find a direct link between Mr. Hussein's Bipolar I disorder and the offence, "there are numerous indirect links between them that are important to recognize, and optimizing his mental health is an important building block to engaging him in meaningful prosocial activity such as work, volunteering, or going to school."

[28] She wrote:

If Mr. Hussein is sentenced to any significant time in custody, I strongly recommend that it be served at the St. Lawrence Valley Correctional and Treatment Centre (SLVTC) so that he may have the opportunity to participate in programming to improve his insight into his mental illness, substance use, and offending behaviour. I have serious concerns that were he not to be at a facility such as the SLVTC his mental condition would deteriorate, placing him at high risk for being victimized or for violent institutional behaviour, and he might never recover function once he has had another episode, even when treated.

[29] For Mr. Hussein to serve his sentence at the SLVTC, he would have to be sentenced to less than 2 years in custody, since it is a provincial institution.

[30] Mr. Hussein has a mental health worker, Manal Haji Egeh. Ms. Haji Egeh is a registered psychotherapist. She works with Rajo, a multi-agency therapeutic crime prevention project to reduce youth violence and build resilience in the Somali Canadian community. She told the author of the presentence report that when she first met him, shortly after his diagnosis of bipolar disorder, he did not have good coping mechanisms and was difficult to engage. She said, however, that since these offences, he has been "a lot more open and motivated to understand more about himself."

[31] Ms. Haji Egeh also provided a letter to the court. She has seen Mr. Hussein in 38 individual counselling sessions since April 4, 2018. She wrote that his history of severe trauma and bipolar disorder posed consistent barriers to his desire to change and live a better life, and the mental health stigma from his community prevented him from seeking proper treatment, but that he was able to overcome this and stayed committed to his counselling sessions. She reports that she has seen significant and important changes towards managing his emotions, and that he is choosing to respond differently to challenging emotions like anger and sadness.

[32] Mr. Hussein has also worked with an outreach worker, Deeqa Kosar, for about a year and a half. She told the author of the presentence report that she began working with him to help him address his mental health issues in a culturally responsive way. She said that her individual counselling sessions with Mr. Hussein had led him to have a better understanding of mental health issues and the importance of taking his prescribed medications. She has seen a marked improvement in his demeanour and behaviour since he has been taking his medications regularly. She said that while Mr. Hussein has not directly expressed remorse for his actions, he say that he "feels bad for what the victim's family has gone through" and was shocked by the extent of Mr. White's injuries that he learned of during the trial.

[33] Mr. Hussein addressed me during sentencing submissions. He apologized to Mr. White and Mr. Wilson. He said that he was very sorry for what happened that day – that it was a "life lesson". He said that he had been drinking a lot but that that did not excuse his actions. He told me that his almost two years on house arrest had made him more mature, and that he was working with his psycho-therapist on his coping skills. He said he was very ashamed of himself, that he knew that Mr. White and Mr. Wilson were innocent victims and that his apology would not be enough but hoped that it would help in some way with the healing process. He said "this will never happen again".

(b) Abdirahman Sahal

[34] Mr. Sahal is 20 years old, and was 18 at the time of the offences.

[35] He has a criminal record. He was convicted of 3 counts of robbery and a breach of recognizance on February 27, 2018, as a youth, and sentenced to 18 months probation. He was also convicted on Oct. 19, 2018, of breaching that sentence by being in contact with Mr. Hussein on July 27, 2018, for which he was fined $100.

[36] Mr. Sahal was convicted of a number of offences after he committed the offences for which I am now sentencing him.

[37] On April 23, 2019, he pleaded guilty to 3 offences:

• damage to property under $5,000 as a youth on May 29, 2018, for which he was sentenced to 6 months probation;

• uttering a threat to cause death as an adult on January 6, 2019, for which he received a suspended sentence (after credit for 30 days of presentence custody) and a 5 year weapons prohibition under s. 110; and

• breach of probation as an adult on January 6, 2019 by being in contact with Mr. Hussein, for which he received a suspended sentence and 18 months probation.

[38] On May 16, 2019, he was found guilty of possession of cocaine on June 21, 2018 for the purpose of trafficking and sentenced to 135 days custody after taking into consideration 165 days of presentence custody.

[39] A pre-sentence report was prepared for Mr. Sahal.

[40] His parents separated when he was quite young and he lived with his mother and 6 siblings.

[41] He has never been employed. He told the author of the presentence report that he had never received social assistance.

[42] He left school in Grade 11 with 11 outstanding credits. He completed academic work while incarcerated and earned 5 more credits. He needs 6 more credits to obtain his high school diploma. He has completed all the required community service hours. After his release on April 4, he completed two online courses – one in construction safety training fundamentals and one in working with biohazardous materials.

[43] Affidavits were filed on the sentencing hearing from Mr. Sahal's mother, brother, and sister. None of them has a criminal record.

[44] His mother has been a single parent since 2004. She lives in a four bedroom townhome with her children. Mr. Sahal has been living there since he was released from custody on April 4, 2020. She testified that he has not breached his conditions and has been respectful of her authority. She also said that he is more mature than he was before he was arrested for these charges.

[45] Mr. Sahal's brother Sharmarke Sahal holds two diplomas from Algonquin College and is employed as a project accountant for a local developer. He testified that since his brother returned home on April 4, he has been assisting him with a home renovation project and helping his mother around the house. He said that his brother appears to be more mature than he was before he was arrested.

[46] Mr. Sahal's sister Sumia Sahal has a diploma in early childhood education from Algonquin College. Before the pandemic, she was employed part-time at the Catholic School Board as an extended day program supply teacher and part-time at A & W as a team leader. At the time of the sentencing hearing, she was not employed by the school board but had kept her job at A & W and hopes to regain her job at the school board when schools reopen. She too swore that since he has been home, he has been assisting everyone around the house with home renovations and chores, and believes that her brother is more responsible than before he was arrested. As did her brother, she swore that she is committed to making sure that her brother stays on the right track in whatever way she can.

[47] The author of the presentence report wrote that she had contacted the Ottawa Police Service and was told that Mr. Sahal has had 62 interactions with the Ottawa Police Service between 2017 and 2020 with many of them for involvement in drug activity, robberies, and violence. Mr. Sahal, through his counsel, did not admit those facts. The Crown did not seek to prove them as aggravating factors. I do not find these facts to be established and place no weight on them.

[48] The author of the presentence report noted that Mr. Sahal denied any wrongdoing, telling her that he had pleaded not guilty to these offences. She wrote that although he was sorry for what happened to the victim, and that he felt bad and was really sorry that it happened to him, he failed to take responsibility for contributing to what the victims endured. In her conclusion, she repeated this comment and wrote that his "cognitive distortions in conjunction with his ability to blatantly deny his behaviour, including the index offences, demonstrate a lack of accountability on the subject's part and these continue to be areas of concern".

[49] Mr. Sahal declined to address the court during sentencing submissions, as was his right. I cannot conclude that he was remorseful for these offences.

[50] The defendant, however, had a constitutional right to plead not guilty and make the Crown prove beyond a reasonable doubt that he was guilty. It is not an aggravating factor that he did so. My conclusion that he is not remorseful prevents him from relying on remorse as a mitigating factor, but any lack of remorse or refusal to admit guilt is not an aggravating factor. (R. v. Reeve, 2020 ONCA 381 at paras. 9 – 14)

Analysis of Appropriate Sentences Before Considering Other Factors

(a) General Considerations

[51] The fundamental purposes of sentencing, as established by s. 718 of the Criminal Code, are to denounce unlawful conduct and the harm done to victims and the community caused by it; deter the offender and others from committing offences; separate offenders from society where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or the community; and promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

[52] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[53] Other relevant principles are that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)) and that courts should exercise restraint in imposing imprisonment (s. 718.2(d) and (e)).

[54] There are a number of aggravating circumstances in this case.

[55] The attacks were unprovoked. They were acts of gratuitous violence. They had significant impacts on both Mr. White and Mr. Wilson, a statutorily aggravating factor under s. 718.2(iii.1), although the impacts could have been much more severe, given the nature of the assaults. The offenders worked together in inflicting violence on the two victims.

[56] Both defendants pleaded not guilty. Had they pleaded guilty, I would have been able to consider that as showing remorse, a mitigating factor. But they had a right to plead not guilty and require that the Crown prove their guilt. It is not an aggravating factor.

[57] Both defendants were convicted of other offences after they committed these offences. Those offences were, for both men, committed both before and after the date of these offences.

[58] A conviction entered after the date of the offence for which a defendant is being sentenced is not an aggravating factor. It is, however, relevant to consider when determining the character or potential of the defendant for rehabilitation which, if present, would be a mitigating factor, as well as the need for specific deterrence and protection of the public. (R. v. Finelli, [2008] O.J. No. 2537 at para. 44 (S.C.J.), cited with approval in R. v. Wilson, 2020 ONCA 3 at para. 67)

[59] The mitigating factors are best considered for each defendant separately.

(b) Considerations Relating to Mr. Hussein

[60] At the time he committed these offences, Mr. Hussein had been found guilty of 4 offences as a youth some 6 months previously, for which he received a discharge with conditions. He was technically a first offender. (R. v. Barclay, 2018 ONCA 114 at para. 44)

[61] He expressed remorse at the sentencing hearing. He apologized to Mr. White and Mr. Wilson and said that what happened that day was a life lesson to him. He said that he was very ashamed of himself.

[62] Remorse is relevant because if an offender is remorseful, the prospects of rehabilitation are increased. I accept that Mr. Hussein feels remorse for what he did that day.

[63] Crown counsel submitted that I should consider, when determining the likelihood of Mr. Hussein's rehabilitation, the warnings he was given by the judges who sentenced him in April 2019 and February 2020. I do not accept this submission. I am sentencing him for what he did in December 2018. While the subsequent convictions are relevant to his rehabilitation prospects, subsequent warnings are not. His behaviour in December 2018 could not have been affected by those warnings.

[64] Crown counsel also submitted that I should take into consideration the fact that the judges who sentenced Mr. Hussein in April 2019 and February 2020 were told that he was taking advantage of mental health support including the support worker from Rajo. He submitted that I should discount similar submissions now, when I am sentencing him for what he did in December 2018. I do not accept this submission. As Dr. Ward's report indicated, Mr. Hussein has not had an easy path dealing with the mental health system. He was trying to deal with his issues in the spring of 2019 and the winter of 2020. He is still trying to deal with them in the summer of 2020. That is not something for which he should be faulted. Nor is it a reason for me to discount the effect of his mental health on his sentence.

[65] He has significant mental health issues. As the Court of Appeal held in R. v. Ellis, 2013 ONCA 739 at paras. 116 to 122, the extent to which that illness contributed to the conduct in question, and, if so, whether that diminishes the offender's culpability are important considerations. I accept Dr. Ward's opinion that while there is not a direct link between Mr. Hussein's Bipolar I disorder and the offence, "there are numerous indirect links between them that are important to recognize." While this does not displace the need for a denunciatory sentence which the circumstances of this offence require, it does mitigate the sentence that Mr. Hussein would otherwise receive.

[66] Mr. Hussein has significant support to help deal with his mental health issues, and he has been taking advantage of that support. Given what Dr. Ward wrote in her report about the difficulties for persons of non-Western backgrounds to connect with the mental health system, it is important that this support is culturally sensitive and part of the Somalian-Canadian community in Ottawa. This enhances the likelihood of his rehabilitation.

[67] Mr. Hussein's presentence report was positive. The author's assessment was that, in light of his active involvement with mental health and social supports, he would be suitable for a further term of community supervision.

(c) Considerations Relating to Mr. Sahal

[68] Seven months before he committed these offences, Mr. Sahal was convicted of 3 counts of robbery and breach of recognizance under the YCJA. Two months before these offences, he was convicted of breach of sentence by contacting Mr. Hussein. He was not a first offender.

[69] Mr. Sahal declined to speak at his sentencing hearing. He did tell the author of the pre-sentence report that he felt very sorry for what had happened to the victim. His expressed remorse was less than Mr. Hussein's. I cannot find that he is remorseful. This is not an aggravating factor, but had he been remorseful, it would have been mitigating.

[70] Crown counsel submitted that I should consider what Mr. Sahal was told by sentencing judges before and after these offences were committed when I am considering the likelihood of his rehabilitation. As I said with respect to Mr. Hussein, while the fact of his subsequent convictions, for both prior and subsequent offences, are not aggravating circumstances, they can be considered when determining his rehabilitation prospects and the need for specific deterrence and protection of the public. I can also, in my view, consider what he was told by a sentencing judge before he committed these offences when determining his rehabilitation prospects.

[71] On February 27, 2018, Mr. Sahal was being sentenced for 3 counts of robbery committed on July 25 and 26 and September 18, 2017 and 1 count of breach of recognizance. Justice Boxall spoke with Mr. Sahal:

Boxall J.: I'm going to talk to you. Some judges don't think it makes a difference. Maybe it does. Maybe it doesn't. I don't know, but I know this. You're right on the border, right? So you're in youth court. You could put this behind you. Ultimately, if you stay out of trouble long enough – and it's not just to your birthday – this record could go away. You could be working and make your mother and your other family members proud or you could go in another direction, right?

Mr. Sahal: Yes.

Boxall J.: And you know better than I what's happened with persons in the city, young persons, and young persons from your community. You know what's happened to some of them.

Boxall J.: I'm going to make a decision one way. What's the purpose? Is it so we just feel good that we made a decision? Is it to keep your mom and your brother safe? Is it to keep the community safe? Is it for fun? What's the purpose?

Mr. Sahal: No, it's for like, it's for to keep the community safe.

Boxall J.: And keep the community safe from who?

Mr. Sahal: From people you think that do affect them in a bad way.

Boxall J.: If you're 18, what do you think would be happening to you?

Mr. Sahal: Well, something different.

Boxall J.: A lot different.

Mr. Sahal: Yes.

Boxall J.: So here's the situation. You're not 18, but you're going to be 18 real soon.

Mr. Sahal: Yes.

Boxall J.: So I hope you learn from this. You can't change what you've done. That bank teller, those other people, they going to have to deal with what you've done. You're going to have a record, at least a youth record. It will have some consequences for you. You can't change that.

Mr. Sahal: Yes.

Boxall J.: But you have a lot of control over what you do this afternoon, tomorrow, next week, whether you come back, whether your mom has to come back, you know?

Mr. Sahal: Yes.

Boxall J.: So you understand the conditions?

Mr. Sahal: Yes.

Boxall J.: You also understand that if you follow them and you do what you're capable of doing, then life goes in a totally different and good direction, right?

Mr. Sahal: Yes.

[72] Despite this warning, and Mr. Sahal's indication that he understood what he was being told, he committed this offence some 8 months later. In my view, this diminishes the prospect of his rehabilitation.

(d) Appropriate Sentences Before Consideration of Pre-Sentence Custody and Other Factors

[73] Justice Code analysed the range of sentences imposed for the offence of aggravated assault in R. v. Tourville, 2011 ONSC 1677. At paragraphs 27 through 30 he described a range which started at the "bottom end" of a suspended sentence for exceptional cases, as in R. v. Peters (2010), 2010 ONCA 30, where the Court of Appeal upheld that sentence together with 3 years' probation for a 26 year old with no record, who had pleaded guilty, and caused serious facial lacerations to the victim after a bar room dispute in which she used a broken beer bottle. The offender was Indigenous, and the Gladue report disclosed a very difficult upbringing in a violent and abusive home, leading to drug abuse and alcoholism. The offender had made real progress in dealing with her substance abuse problems and had obtained employment.

[74] Justice Code wrote:

in the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force.

[75] He noted that:

at the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve "unprovoked" or "premeditated" assaults with no suggestion of any elements of consent or self-defence.

[76] In Tourville, Justice Code imposed a sentence of 21 months imprisonment followed by 2 years' probation. The offender was in lawful possession of the knife for work-related purposes. He and the victim had shared responsibility for escalating the fight with verbal posturing and mutual challenges to fight. He was a relatively young first offender who had come from a very difficult background involving childhood abuse, alcoholism and prescription drug abuse. He had recently made real efforts to reform himself and had significant rehabilitative potential. He was an Indigenous person who was interested in restorative justice programs relating to his heritage, which were available with a reformatory sentences. He found that these factors placed the offence in the lower end of the range, but the aggravating factors of the severity and number of injuries suffered by the victim required denunciation and deterrence which suggested a custodial sentence of some significance.

[77] The Court of Appeal referred to Tourville as a "leading case" in R. v. Jones, 2013 ONCA 245, when it upheld a 24 month sentence imposed for two convictions of assault with a weapon against two victims. The offender was Indigenous, and this was taken into account by the sentencing judge in imposing a reformatory rather than a penitentiary sentence.

[78] In R. v. Pomanti, 2017 ONCA 48, the Court of Appeal upheld a 22 month sentence for aggravated assault. The victim had invaded the defendant's home. The defendant struck him with a shovel, causing significant injuries. The trial judge rejected self-defence. The Court of Appeal held that the sentence was within the appropriate range for an aggravated assault of that type by a first offender, citing Tourville.

[79] Both Mr. Hussein and Mr. Sahal are youthful offenders.

[80] While Mr. Hussein was technically a first offender, Mr. Sahal had been convicted of five offences, on two occasions, before these offences.

[81] The restraint principle requires that I consider all sanctions apart from incarceration for first offenders and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the defendant. For first offenders, general deterrence cannot be the sole consideration. In serious cases and cases involving violence, however, rehabilitation alone is not the determinative factor – general deterrence and denunciation are also significant factors to be considered. However, it would be wrong to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender. (R. v. Batisse, 2009 ONCA 114; R. v. Mohenu, 2019 ONCA 291; R. v. Thurairajah, 2008 ONCA 91 at paras. 41-42)

[82] Neither Mr. Hussein nor Mr. Sahal had been sentenced to a custodial term before they committed these offences. A first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. The length of a first sentence is more reasonably determined by considerations of individual deterrence. (R. v. Priest)

[83] In my view, these offences are above the mid-range suggested by Code J. in Tourville. They were far from consent fights. They were unprovoked, gratuitous violence. And while Mr. Hussein was a technical first offender, I cannot ignore his prior findings of guilt. And the victims suffered significant injuries. The aggravating factors I have outlined require a penitentiary term.

[84] Nor, however, do I believe that these offences are at the higher end of the range, as submitted by Crown counsel, who sought 4 years in custody for each offender before consideration of the other factors I have outlined. Both offenders are youthful. It is appropriate that I consider their likely rehabilitation, keeping in mind that denunciation and deterrence are still important considerations given the circumstances of the offences. While the prospect of rehabilitation is not high, I am not prepared to conclude that, even for Mr. Sahal, it is non-existent. He does have strong family support and has furthered his education while in custody and after release on bail. I recognize, however, that even individual deterrence requires that significant sentences be given.

[85] The defendants submitted that I should consider the effect of the pandemic on the sentences imposed. I have taken into account, as the Court of Appeal has said is appropriate, the "fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission." (R. v. Morgan, 2020 ONCA 279 at para. 8) I recognize that the risk of transmission of the virus is higher where people are at close quarters. It will be with us for a while. Nevertheless, I have concluded that the sentences I am imposing are as short as possible, considering all of the circumstances of the offences and the offenders.

[86] I recognize that the parity principle requires that like offenders be sentenced the same for like offences, all other things being equal. Differences imposed on co-accused convicted of the same offences are appropriate, however, where there are significant differences between the offenders.

[87] In my view, there are differences between Mr. Hussein and Mr. Sahal that justify imposing different sentences for each. Those are:

(a) Mr. Sahal's record prior to committing these offences is worse than Mr. Hussein's;

(b) Mr. Hussein's mental health issues, while not displacing the need for a denunciatory sentence, justify a lesser sentence;

(c) Mr. Sahal's prospects of rehabilitation, given his lack of remorse, subsequent offences and the fact that Justice Boxall's warnings in February 2018 did not deter him from committing these offences, are poorer than Mr. Hussein's, who has shown remorse for these offences; and

(d) Mr. Sahal was found guilty of assaulting Mr. Wilson, while Mr. Hussein was not charged with this crime (although I did find that the Crown had proven beyond a reasonable doubt that he had thrown the punch).

[88] Taking all of these considerations into account, I have concluded that the appropriate custodial sentences for all these offences, before considering credit for pre-sentence custody, restrictive bail conditions, and the effect of the pandemic on pre-sentence custody, are 30 months for Mr. Hussein and 36 months for Mr. Sahal.

Analysis of Other Factors

(a) Mr. Hussein

(i) Pre-Trial Custody

[89] Mr. Hussein was in pretrial custody for 45 actual days. The parties are agreed that he is entitled to 68 days credit at 1.5.

(ii) Restrictive Bail Conditions

[90] He was subject to restrictive bail conditions for 609 days.

[91] He was released from custody on January 16, 2019 on conditions requiring him to remain in the residence at all times, except for medical emergencies, travelling directly to and from court appearances, and meeting with his lawyer. He was also allowed to be out of the house for appointments at the Royal Ottawa Mental Health Centre or with his mental health worker, but only while in the presence of one of his sureties. He was not allowed any visitors at his residence. These conditions were in place for 247 days, until September 18, 2019.

[92] They were then amended. The condition prohibiting visitors was removed. He was allowed to be out of the house, in addition to what had been allowed under the prior order, at any time while in the company of one of his sureties or another named individual. He was no longer required to have one of his sureties with him when attending appointments at the Royal Ottawa or with his mental health worker. These conditions were in place for 364 days.

[93] Time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating factor. There is no rigid formula for calculating the amount of credit to be given because there can be such a wide variation in bail conditions, even house arrest conditions. The amount of credit will depend on a number of factors, including the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; and the ability of the offender to carry on normal relationships, employment and activity. Where the offender asks the sentencing judge to take pre-trial bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. (R. v. Downes (2006))

[94] I asked Mr. Hussein's counsel about the impact of his bail conditions on him. She pointed to his inability to work or go to school or even, in the first 8 months, to have visitors at his residence or leave the residence except to go to medical appointments. Mr. Hussein's outreach worker told the author of the pre-sentence report that his restrictive release conditions prevented him from attending workshops and group counselling sessions.

[95] Mr. Hussein's bail conditions were quite restrictive, particularly in the first 8 months. I do not have significant evidence as to their effects on him, other than what is apparent by the terms themselves and what the outreach worker told the pre-sentence report author. I have concluded that an appropriate credit would be 150 days.

(iii) Conclusion as to Length of Custodial Sentence for Mr. Hussein

[96] Consequently, Mr. Hussein's sentence will be 695 days in custody—30 months, or 913 days, minus 68 days credit for pre-sentence custody, minus 150 days for his restrictive bail conditions.

(b) Mr. Sahal

(i) Pre-Sentence Custody

[97] Mr. Sahal was in custody serving a sentence for another offence. The parties are agreed that, but for these charges, he would have been released, with remission, on August 13, 2019, after serving 2/3 of that sentence. He remained in custody from that date until April 4, 2020, when he was released on bail. The parties are also agreed that he is entitled to 1.5 days credit for each of those days, for a total credit of 354 days. (R. v. Plante, 2018 ONCA 251)

(ii) "COVID Credit" for Pre-Sentence Custody

[98] Mr. Sahal seeks an additional credit of 35 to 40 days for the time between March 13, 2020 (when the state of emergency was declared by the province) and April 4, 2020 when he was released on bail. He submits that he should receive this credit because he suffers from asthma, was at higher risk of contacting the disease, and therefore suffered emotional stress beyond that suffered by inmates when the pandemic was not an issue.

[99] My colleague Pringle J. reviewed the jurisprudence on this issue in her judgment in R. v. O.K., 2020 ONCJ 189. She followed Kozloff J. in R. v. Abdella, 2020 ONCJ 245, in which he held that it was not necessary to have specific evidence of additional mental and physical hardship on an offender to give credit on this basis. Justice Kozloff inferred additional hardship caused by the pandemic, and granted a further one day credit on top of an extra credit of 1.5 days he had already given to compensate for the numerous lockdowns the offender had experienced during his pre-trial custody. Pringle J. gave one half day credit for each day on this basis, wanting to avoid potential double counting on top of credit she had already given for lockdowns.

[100] I have no evidence that Mr. Sahal was subject to lockdowns or unusual deprivation of liberty for the 23 days he was in custody between March 13 and April 4. Mr. Sahal's counsel sought this credit on the basis that he was more fragile than others, and the general effect of the pandemic, much as described by Kozloff J. in Abdella. Crown counsel submitted that while credit could be given on this basis, it should be less than that sought by Mr. Sahal.

[101] I conclude that, in the absence of more specific evidence, Mr. Sahal is entitled to a further credit of 1/2 day per day during this period of time, or a further credit of 12 days. I take into account that this period of time was when uncertainty about the pandemic and the likelihood of it spreading in close conditions like jails was more uncertain, and more worrying, than it may have become by now.

(iii) Restrictive Bail Conditions

[102] Mr. Sahal also submitted that he was entitled to a credit for restrictive bail conditions. He was on bail from April 4, 2020 until the date of this decision, a total of 164 days, on conditions which required him to stay in his residence at all times except for medical emergencies or to travel to and from court or meetings with his lawyer. He wore an electronic monitoring bracelet so that police would be alerted if he left his residence.

[103] Mr. Sahal did not provide any evidence of the effect of these conditions on him. Some effects are obvious. He was confined to his home and could not leave, even for a short walk outside. Crown counsel submitted that I should take into account that many people were confined to their homes by reason of the pandemic at this time, some under a legal obligation to self-isolate for a period of time. I accept that. At the same time, I recognize that these bail conditions did, to a significant degree, move Mr. Sahal from one jail to another, albeit one which was significantly less confining. I have concluded that an appropriate credit for this is 2 months, or 60 days.

(iv) Retroactive Application of the Totality Principle

[104] Mr. Sahal also submitted that he should be given credit for the fact that, had he pleaded guilty to these charges on May 16, 2019, when he pleaded guilty to the charges of possession of cocaine for the purpose of trafficking and was sentenced to 135 days custody after giving credit for 165 days of pre-sentence custody, his total sentence would have been less than that sentence combined with the sentence for these offences. His counsel asserts that the totality principle would have resulted in a reduction of the total sentence. She submitted that I should give an extra 6 months credit on this basis.

[105] The question of law raised by this submission has been answered by the Court of Appeal in R. v. Stuckless, 2019 ONCA 504. Mr. Stuckless received a sentence of 6 ½ years for 102 offences against 18 young boys. The offences were committed during a period of time when he committed other offences for which he had already been punished in 1998. He submitted that the sentence on the subsequent conviction should take into account the fact that, if he had been sentenced for all offences at the same time, the total sentence would have been less than both combined.

[106] Huscroft J.A. wrote:

71 The question then arises: is it appropriate to adjust the sentence in this case because the respondent committed the offences during a period in which he committed other offences for which he has already been punished?

72 The answer is plainly no.

73 The proportionality principle operates having regard to the circumstances of the offences for which an accused person is being sentenced. It is inappropriate to speculate as to the sentence the respondent would have received if all of his crimes committed during the relevant period had been before this court when he was sentenced in 1998: R. v. James, 2013 MBCA 14, 288 Man. R. (2d) 269, at para. 56.

74 The respondent avoided detection for much of his offending committed during the relevant period and so escaped punishment for that offending. He cannot now invoke his prior sentence, already served, in order to limit the sentence he receives for having committed the offences presently before the court, simply because these offences were committed during the same time frame: James, at para. 58.

75 Nor is respondent's 1998 sentence to be treated as a mitigating factor in this case: R. v. Leroux, 2015 SKCA 48, 460 Sask. R. 1, at para. 60. As the sentencing judge acknowledged, the prior sentence may be considered as part of the respondent's background and may be factually relevant to his prospects for rehabilitation, but the focus must remain on the offences currently before the court. The 1998 sentence is not to be considered as forming a part of, or mitigating, the sentence to be imposed.

[107] I conclude that Mr. Sahal is not entitled to a credit on this basis.

(v) Conclusion as to Length of Custodial Sentence for Mr. Sahal

[108] Mr. Sahal's sentence is 36 months (or 1,095 days), minus 354 days for pre-sentence custody at 1.5 days per day; minus 12 days for a "COVID credit" between March 13 and April 4, 2020; minus 60 days for restrictive bail conditions. The result is a sentence of imprisonment of 669 days.

Conclusions

[109] I sentence Mr. Hussein:

(a) on the count of aggravated assault against Mr. White, after giving credit of 68 days for pre-sentence custody and 150 days for his restrictive bail conditions, to a term of imprisonment of 695 days; and

(b) on the two counts of breaching a bail undertaking and breaching a probation order by communicating with Mr. Sahal, to terms of 60 days imprisonment for each, to be served concurrently with each other and with the aggravated assault sentence.

[110] I sentence Mr. Sahal:

(a) on the count of aggravated assault against Mr. White, after giving credit of 354 days for pre-sentence custody, 12 days for the effect of the pandemic while in custody from March 13 to April 4, and 60 days for his restrictive bail conditions, to a term of imprisonment for 669 days;

(b) on the count of assault against Mr. Wilson, to a term of imprisonment of 1 year, to be served concurrently;

(c) on the count of breaching probation by communicating with Mr. Sahal, to a term of imprisonment of 60 days, to be served concurrently;

(d) on the count of breaching probation by failing to keep the peace and be of good behaviour, to a term of imprisonment of 1 day, to be served concurrently.

[111] I recommend that Mr. Hussein serve his sentence at the St. Lawrence Valley Correctional and Treatment Centre so that he may have the opportunity to participate in programming to improve his insight into his mental illness, substance use, and offending behaviour.

[112] I order that these reasons for sentence and Dr. Ward's report dated July 13, 2020 be provided to the correctional authorities and Mr. Hussein's probation officer; and that the reasons for sentence be provided to Mr. Sahal's probation officers.

[113] I order that both Mr. Hussein and Mr. Sahal be on probation for a period of two years, reporting to a probation officer within 48 hours of being released from custody and thereafter as directed. Both will be required to sign any releases necessary to permit the probation officer to monitor their compliance and provide proof of compliance with any condition of the order to their probation officer on request.

[114] Mr. Hussein will be required to undergo counselling for mental health issues as recommended by his probation officer, to sign any release of information forms as will enable his probation officer to monitor his attendance and completion of any assessments, counselling or rehabilitative programs as directed and to provide proof of attendance and completion of any assessments, counselling or rehabilitative programs as directed.

[115] Both offenders will be prohibited, as a term of probation, from possessing any weapons as defined by the Criminal Code. They will both be prohibited from communicating, directly or indirectly, with either of the complainants or coming within 250 metres of any place they live, work, or are likely to be.

[116] I order that both offenders provide a sample of their DNA for analysis and registration on the database. This flows from their convictions for aggravated assault, which is a primary designated offence under s. 487.04.

[117] I order that both offenders be prohibited from possessing any firearm, prohibited firearm, restricted firearm, prohibited weapon, prohibited device, prohibited ammunition, cross-bow, restricted weapon, ammunition and explosive substance for life. I make this order because of the convictions for aggravated assault, an indictable offence for which the maximum penalty exceeds 10 years. I recognize that the prohibition under s. 109(2)(a) could have been for only 10 years. In my view, the circumstances of these offences, and the records of the offenders, requires a lifetime prohibition.

[118] I order under s. 743.21 that both offenders are prohibited from communicating, directly or indirectly, with Mr. White or Mr. Wilson during the custodial period of the sentence.

Released: September 14, 2020

Signed: Justice P. K. Doody