ONTARIO COURT OF JUSTICE

DATE: 2023 12 18 COURT FILE No.: Toronto #22-70002230

BETWEEN:

HIS MAJESTY THE KING

— AND —

ZLALAME ALEMU

Judgment

Before: Justice B. Jones

Heard on: May 17, 2023, and December 15, 2023

Reasons for Judgment released on: December 18, 2023

Counsel: J. Foreman, for the Crown E. Lam, amicus Z. Alemu, self-represented

Jones J.:

I. Introduction

[1] After a trial, I found Zlalame Alemu guilty of assault with a weapon, assault causing bodily harm and failing to comply with a release order. These offences occurred on March 6, 2022. I also found him guilty of a residential break and enter, mischief under $5000, and threatening a peace officer for events that subsequently occurred on March 19, 2022.

[2] The Crown proceeded by indictment. Mr. Alemu chose to represent himself. Following the findings of guilt, I appointed Ms. Lam as amicus to assist the court with ensuring a fair sentencing hearing for Mr. Alemu.

II. March 6, 2022, Offences

[3] Mr. M. Asegahegn attended at 155 Sherbourne Street to meet a friend in unit 1102. He knocked on the door and was greeted by Mr. Alemu instead. There was a brief struggle between them. Mr. Alemu struck Mr. Asegahegn with a metal rod that appeared to have a knife taped to the end. He stabbed Mr. Asegahegn in the neck with the knife. A different part of the metal rod also struck him in the fear near his lower jaw.

[4] Photographs of his injuries were entered into evidence and the weapon was obtained by the investigating officers. Mr. Asegahegn testified that he could not speak or swallow after the assault. He had difficulty eating. The attack caused him significant pain. He required medical attention.

[5] Mr. Alemu was bound by a release order which prohibited him from possessing any weapons.

III. March 19, 2022, Offences

[6] Mr. Alemu re-attended at 155 Sherbourne Street on this date at unit 1102. Officers attended to this unit in response to a complaint about an unwanted guest. They knocked on the door while Mr. Alemu was inside. He did not answer. The officers made their way inside and he chose to flee to an adjacent apartment by jumping from one balcony to another.

[7] Jonathan Williams was alone in unit 1105. He awoke to find Mr. Alemu inside his apartment. Mr. Alemu had forced open his balcony door and stolen two of his knives, one of which he was holding in his hand.

[8] Mr. Williams yelled at Mr. Alemu to leave and exited to the balcony. Mr. Alemu then jumped to the balcony attached to unit 1104.

[9] Christopher Mills resided in unit 1103. He heard a loud thud in his living room and found Mr. Alemu standing there. Mr. Alemu entered his apartment unlawfully through the balcony as well. Once Mr. Alemu was distracted, Mr. Mills was able to push Mr. Alemu into the hallway and lock his door.

[10] Officer Jardin encountered Mr. Alemu on the 9th floor. She was preparing to detain him as a suspect. He told her he had a gun and would shoot her. She let him go. He was later arrested by other officers outside the building.

[11] During Mr. Williams and Mr. Mills’ testimony, they described the terrifying experiences they had when Mr. Alemu broke into their homes.

IV. Pre-Sentence Report

[12] Mr. Alemu is 34 years old. He was born near the border of Eritrea and Ethiopia. His father had two daughters and one son from another relationship before marrying his mother. His mother had one daughter before meeting his father. He has two biological brothers.

[13] His father was a soldier while his mother was a homemaker. In 1998, amid the Ethiopian civil war, his family was separated from his father. He did not want to live with his father in Eritrea as young children were often forced to become child soldiers. As a child, he felt the ground shudder and shake due to the heavy bombings and gunfire. His father was killed in the war.

[14] After his father passed away, he experienced a difficult childhood. He and his brothers only attended school part-time. They were often forced to rummage through garbage to look for scraps of food. In 2002, when he was 13, he stowed away on a Green Peace boat that was docked in neighbouring Djibouti. He travelled from there to Egypt, where he was discovered by the authorities and placed in a refugee holding centre. He arrived at a refugee camp and was sponsored through World Vision. He arrived in Canada later that year. He resided with Ms. Dorrett Bramwell, his legal guardian, for three years in Brampton.

[15] Mr. Alemu had difficulties in high school and associated with an older peer group which had a negative influence on him. By 15 he decided he did not wish to continue school and did not want to reside with Ms. Bramwell any longer. She contacted the Children’s Aid Society (“CAS”) and he was placed in a group home when he turned 16.

[16] Mr. Alemu has been in and out of custody for most of his adult life. He informed Ms. Bramwell, with whom he maintains a relationship, that he feels safe in custody but does not feel safe in the community.

[17] He feels he is “trapped in a country that I don’t know” and feels lonely while he attempts to understand who he is. The conflict in Ethiopia continues to take a heavy toll on him mentally, and he blames “evil forces” for killing his father and pushing him out of his homeland. He fears that he and his people are being targeted for extermination and wants to support his family.

[18] He is currently kept in the Special Needs Segregation Unit of the TSDC as he does not get along well with the other inmates.

[19] Mr. Alemu acknowledges he recently began using cocaine and crystal methamphetamine.

[20] He likes to write poems, read the bible and pray in his spare time.

[21] A medication review from the TSDC reported that Mr. Alemu was diagnosed with personality disorder and schizophrenia. He does not take medication and has been referred to a psychiatrist. He can be illogical and displays a disorganized thought process at times. He has admitted to being “happily suicidal”.

[22] His response to community supervision in the past has been poor. When he is released from custody, plans have been made to assist him with community reintegration. He has been assigned to someone from the John Howard Society, and that organization will work with him if he is cooperative. Regarding his mental health, he has not shown any willingness to connect with a psychiatrist in the community yet.

[23] Mr. Alemu has a lengthy prior criminal record, including for crimes of violence.

V. Enhanced Pre-Sentence Report

[24] An EPSR was prepared by the Sentencing and Parole Project. These reports are designed to assist courts with sentencing black people marginalized by poverty and racial inequality. The author of the report, Ms. J. Pemberton, met with Mr. Alemu on six dates in the Fall of 2023 and interviewed collateral sources for additional information.

[25] After arriving in Canada as a teenager, Mr. Alemu struggled to adapt to his new life. He appreciated the care and support Ms. Bramwell provided but struggled to abide by the rules and expectations placed on him. He did not feel that his home was culturally sensitive to his integration.

[26] He experienced similar feelings of estrangement and frustration in the child welfare system. He ran away from the group home at least two or three times. He came to feel that being homeless was better than experiencing the oppressive conditions of the group home. He also felt that the child welfare system lacked cultural sensitivity and provided no programming appropriate for him.

[27] In school, he felt his teachers did not encourage him to succeed. They had low expectations of him simply due to his race and background. He was never able to reach his full potential accordingly. He did not finish high school because he was expelled from all schools in Ontario due to his involvement with violence. Ms. Bramwell met with school administrators who were unwilling to consider alternatives to expulsion. She felt strongly that he was mistreated and that this sent him into a “downward spiral into crime” as he lacked further educational opportunities.

[28] In 2016 or 2017 he relocated to the neighbourhood of Moss Park in Toronto. Drugs and crime tragically plague this part of the city. He lived in “trap houses” [1] and feared for his safety regularly due to the amount of violence he witnessed. He had to adapt to the realities of Moss Park which often led him to engage in crime. The residents of this area are also marginalized black and racialized people whom Mr. Alemu views as suffering. That suffering continues because of a lack of appropriate support for the community.

[29] Furthermore, he does not feel he can trust the police. He has had negative experiences with the police in the past and has been the victim of unjustified police violence. Due to his experiences as a child with the military in Ethiopia, he has a “low tolerance” for mistreatment by authority figures. [2] He will not be “intimidated” by police officers in Canada. [3]

[30] Mr. Alemu has been involved with the mental health system since he was a teenager. He was diagnosed by a psychiatrist at Waypoint in 2010 to have a psychotic illness and antisocial personality traits. He continues to suffer from depression and takes daily medications to treat his symptoms. He has previously worked with Sound Times and CAMH in Toronto. These organizations assisted him with obtaining housing and finding him a family doctor.

[31] Fundamentally, Mr. Alemu attributes his repeated criminal activities to the lack of “effective support” available to him and other racialized persons, the reality of the community where he must reside, and the inclination of authority figures to view him as untrustworthy. In the absence of a “good environment”, he has no opportunity to achieve future success. [4]

VI. Mr. Alemu’s Position

[32] Mr. Alemu began his submissions by telling me he knows what he did was wrong. He said the victim of the assault with a weapon charge was also from Ethiopia and he thought of him as his brother in this country. His actions were not premeditated and regrets his mistake. He has had time to reflect on his actions and knows that he must address what led him to commit these offences. I found him to be heartfelt and sincere when talking about this incident.

[33] He explained that he left Ethiopia to escape the instability he faced there. He still hopes to eventually return to be reunited with his family.

[34] He asked me to consider the difficult circumstances he continues to experience. He has made a great effort while in custody to plan for his release. He listed several organizations he hoped to connect with that could assist him with mental health supports, treatment and counselling. He has been traditionally unable to access the support he needs to break his cycle of offending and hopes that will change. He provided documents in support of his community reintegration plan.

[35] While in custody he was given the opportunity to take part in a work placement which he found rewarding. He has taken classes as well and provided certificates for me to consider.

VII. Position of the Crown

[36] Mr. Foreman submits a global sentence of 30-36 months is appropriate. He points to Mr. Alemu’s lengthy prior criminal record as an aggravating factor. The unprovoked assault with a weapon calls out for a denunciatory sentence. The victim was seriously injured. Furthermore, Mr. Alemu’s decision to enter occupied apartments unlawfully risked a violent confrontation with both of those innocent residents and could have resulted in tragedy.

VIII. Submissions of Amicus

[37] Ms. Lam submits I should pay particular consideration to Mr. Alemu’s difficult life and his experiences with systemic racism in Canada.

[38] Ms. Lam noted the role Mr. Alemu’s mental health and/or drug addiction may have played in the commission of these offences. It is not in dispute he was under the influence of drugs when the offences occurred. If I accept mental illness was a factor, the sentencing principles of deterrence and denunciation are less important.

[39] Mr. Alemu needs access to culturally appropriate resources. The challenge, unfortunately, is that neither the federal nor provincial custodial systems have many currently in place. While he bears responsibility for his crimes, his moral culpability is at least somewhat attenuated due to the disadvantages he has had to face his entire life.

IX. General Sentencing Principles

[40] Section 718 of the Criminal Code states that the “fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions”.

[41] A sentence must be proportionate to the gravity of the offence committed and the moral blameworthiness of the offender: Criminal Code section 718.1.

[42] The personal characteristics of the offender must be carefully considered at sentencing through an individualized approach: see R. v. Parranto, 2021 SCC 46, at para. 12.

X. Assault With A Weapon and Assault Causing Bodily Harm

[43] General deterrence and denunciation are the paramount sentencing principles for crimes of significant personal violence. In some cases, such as for youth first-time offenders, those principles may be attenuated.

[44] Assault with a weapon, and assault causing bodily harm (contrary to sections 267 (a) and (b) of the Criminal Code) are punishable by a maximum sentence of 10 years. The range of sentencing for these offences where significant injuries are caused to a victim or the risk of those injuries was paramount is between upper reformatory sentences of 18 months to two years less a day and penitentiary sentences as high as 4 years for offenders with prior records for similar behaviour: see R. v. Tourville, 2011 ONSC 1677; R. v. Seerattan, 2019 ONSC 4340.

[45] An unprovoked assault is even more deserving of stern punishment. In R. v. Hamlyn, 2016 ABCA 127, the Alberta Court of Appeal imposed a sentence of 21 months custody for an offender who had attacked a defenceless victim with a screwdriver. He caused injuries to the victim’s neck, head and face. It was a “violent, unprovoked attack” with potentially life-endangering consequences. Mr. Alemu’s assault was also unprovoked and unjustified.

[46] In R. v. Fisher, 2023 ONSC 1705, Justice Monahan sentenced an offender for an unjustified assault with a knife. He slashed the victim’s face causing a major laceration. The injuries were serious enough to constitute the offence of aggravated assault. He was sentenced to 3.5 years in custody. Had the assault occurred on the victim’s neck an even greater penalty would have been warranted: see para. 29.

[47] Mr. Alemu’s moral culpability for these offences is very high. Mr. Asegahegn was caught completely by surprise. His injuries were serious and could have been even more severe. It is not outside the realm of possibility that Mr. Alemu could have caused permanent, life-altering injuries by stabbing him in the neck. While he cannot be sentenced for something that did not occur, the risk that he took when he stabbed his victim was extremely high. That is a relevant aggravating factor to consider.

[48] When he used the weapon against Mr. Asegahegn, he was intentionally violating a term on his prior release order. Mr. Alemu’s decision to wield a weapon directly challenged one of the core provisions of this release order which was put in place to ensure the protection of the public. In the circumstances of this case, that must be reflected in a weighty consecutive sentence.

[49] Mr. Alemu has ten prior convictions for assault-related offences. He has received significant reformatory jail sentences for some of these prior crimes, including an 18-month effective jail sentence for assault with a weapon in 2018.

XI. Breaking and Entering Into A Residence

[50] Mr. Williams and Mr. Mills were both home when their apartments were broken into. Mr. Williams was confronted with the terrifying reality of an armed intruder staring him in the face under unknown circumstances. Both men were reasonably afraid for their safety.

[51] While I acquitted Mr. Alemu of the second charge of breaking and entering because I found he lacked the requisite intent for the offence as defined in the Criminal Code, I still find his unlawful entry into Mr. Mill’s apartment to be an aggravating factor. Whatever his reasons for being in the apartment, he had no lawful basis to be there and understandably caused Mr. Mills to fear for his safety.

[52] As stated by Justice Murray in R. v. Jaffary, 2013 ONSC 215, “It has often been acknowledged that breaking and entering represents a violation of the sanctity of the home and the sense of security people feel when in their homes both of which are highly cherished values in our society”: see para. 14. Everyone has the right to feel safe and secure in their own home: see also R. v. Chong, 2015 ONSC 7521, at para. 20; and R. v. Snow, 2007 ONCJ 426, at para. 6.

[53] An aggravating factor for a break and enter is that the dwelling-house was occupied at the time of the commission of the offence and the offender knew that or was reckless as to whether the dwelling-house was occupied: Criminal Code section 348.1(a). Mr. Alemu broke into these two apartments at a time when anyone might be reasonably expected to be there. He acted without any regard for the concerns of the potential residents. He was trying to avoid the authorities at all costs. He also stood at the ready with a knife when Mr. Williams confronted him, raising the very real spectre of violence occurring through his threatening behaviour: Criminal Code section 348.1(b).

[54] Penitentiary sentences are entirely reasonable for break and enter offences, especially for those with prior records for similar offences: see R. v. Alcorn, 2021 NSCA 75, at para. 34; R. v. Alves, 2009 ONCA 666; and R. v. Carvalho, 2006 CarswellOnt 2440 (Ont. C.A.). Mr. Alemu broke into these residences for the primary purpose of attempting to escape the authorities, and prior decisions of this court have imposed lengthy sentences even in this context: see for example, R. v. Johnson, 2009 ONCJ 686.

[55] A mitigating factor somewhat unusually present in this case is that during the trial Mr. Alemu apologized to both victims when he had the opportunity to cross-examine them. I found his expression of remorse sincere.

[56] However, Mr. Alemu has six prior convictions for break-and-enter-related offences. In 2014, he received an effective sentence of nearly 14 months in jail for one such offence.

XII. Threatening a Peace Officer

[57] Threatening to shoot a peace officer cries out for a denunciatory sentence. Officer Jardin, like all peace officers, was doing her job to keep the community safe when she was confronted by Mr. Alemu. When he told her he had a gun that was meant to intimidate her and prevent her from lawfully arresting him.

[58] This offence warrants a 90-day consecutive sentence by itself due to Mr. Alemu’s prior criminal record.

XIII. Anti-Black Racism

[59] In R. v. Morris, 2021 ONCA 680, the Ontario Court of Appeal held that social context evidence relating to an offender’s life experiences may be considered to mitigate the offender’s degree of personal responsibility for the offences. Courts should take judicial notice of the existence, cause and impact of anti-Black racism in Canadian society and consider any evidence of the specific effect of anti-Black racism on the offender himself: see para. 13.

[60] As stated by the Court of Appeal: It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society and in particular in the Greater Toronto Area.

[61] While an offender need not show a causal connection between his actions and the negative effects of anti-Black racism, the Court of Appeal did explain that there must be “some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue”: see para. 97. A court must have the proper foundation to be able to assess how racism may have affected the offender’s moral blameworthiness in a meaningful way: see R. v. Bakal, 2023 ONCA 177, at para. 67.

[62] Mr. Alemu’s life story is gripping and emotionally powerful. He suffered considerably as a child. He was torn apart from his family and culture and forced to adapt to an entirely new life as a teenager. While in Canada, he did not adjust well to the expectations placed on him in Ms. Bramwell’s home and ended up in CAS care. He was expelled from high school due to violent behaviour, although he claimed self-defence. He has not been able to maintain employment. Recently he has turned to drugs and suffers from mental illness but refuses medication and is reluctant to seek treatment. [5]

[63] Mr. Alemu found himself caught up in the justice system as a youth largely due to the very difficult group home environment he experienced. Once he began to accumulate findings of guilt, even for minor offences, he became trapped in a cycle of re-offending.

[64] Presently, Mr. Alemu feels unsafe when he resides in the community and commits offences, in part, to remain in custody. I agree with the submissions of Ms. Lam that it is highly likely his life experiences, including those with systemic racism, have contributed to his disengagement with social support networks and undoubtedly contributed to the fear he feels for his safety while in the community. That should be acknowledged by the court: see Morris (2021) at para. 100. I also agree that more could have been done for Mr. Alemu, especially at a very young age, to help integrate him into Canadian society. Had he been given an opportunity to engage with members of the Ethiopian community in the Greater Toronto Area, he would have benefitted from exposure to his culture, assistance with how to overcome the negative experiences he had, and presumably received mentorship if it was made available to him. As Mr. Alemu stated himself, “I am the way I am because of the struggles I have been through.” [6]

[65] Furthermore, Mr. Alemu’s expulsion from high school limited his educational opportunities which may have contributed to his unfortunate decision to embrace a criminal lifestyle: see, for example, R. v. Morris, 2023 ONCA 816, at para. 61.

[66] Nevertheless, I do not find that the evidence of Mr. Alemu’s prior experiences with bias or discrimination in Canada significantly reduce his moral culpability for these offences. Mr. Asegahegn was also a vulnerable Black man. He was suddenly and mercilessly attacked. Mr. Alemu’s decision to stab him was inexcusable. When he unlawfully gained entry to the other apartments in the building a few days later, it was done to evade capture. While his lack of trust in the authorities is understandable, it does not justify him invading the homes of innocent civilians or threatening an officer in the line of duty.

[67] Mr. Alemu’s circumstances are very different from the appellant in Morris (2021), who was a youthful first-time offender and had been denied the support and treatment he required to overcome his barriers to personal success: see paras. 44-49. There is no doubt that Mr. Alemu has lived in poverty, with few economic opportunities, for many years, and has been marginalized at times by systemic discrimination. Black and racialized Canadians who live in such an environment, as the Court of Appeal observed in Morris (2021), are often also unfairly subject to a “strong and aggressive police presence” which reinforces a view that Canadian society can be unjust: see para. 39. Mr. Alemu described his time in Moss Park as involving many encounters with the police, most of which he considers having been due to prejudicial attitudes. He told me more than once in court that he wishes to return to Ethiopia and does not feel like he belongs in Canada due to the difficult life he continues to have here.

[68] Yet Mr. Alemu has had many years to address his criminal behaviour. He has been provided with support services and rehabilitative programming through both custodial and non-custodial sentences. Unfortunately, Mr. Alemu has repeatedly chosen to not engage with these opportunities and his response to community-based supervision has been extremely poor. He continues to act out violently, even while in custody. For example, I was informed that one of his recent convictions, in 2018, for assault with a weapon occurred while he was in custody and the victim was another inmate.

[69] Social context evidence can also help explain why some offenders, like the offender in Morris (2021), may appear to have little to no interest in their long-term rehabilitation through educational or employment opportunities. When systemic or institutional bias has left them feeling unable to meaningfully integrate with the institutions they’ve encountered in the past, addressing that concern at sentencing may allow a court to craft a community-based sentence that will allow these offenders to take advantage of a genuine interest to improve themselves in the future: see Morris (2021) at para. 104.

[70] Considering all of the evidence in this case, I do not find this analysis applies to Mr. Alemu. He did not meaningfully engaged with any rehabilitative opportunities and never demonstrated a genuine desire to do so until recently. This includes culturally appropriate services. Indeed, Ms. Angela Woodcock, who has known Mr. Alemu for 15 years, and supported him the entire time, explained she helped him connect with Ethiopian community centres in the past. Despite that effort, he “burned bridges” and could no longer access some of these organizations. [7]

[71] I recognize that the effect anti-Black racism has had on Mr. Alemu should not necessarily be given less weight when considering his moral culpability for these offences solely because he is a recidivist: see Morris (2023) at para. 65. Nevertheless, he remains at a high risk of re-offending violently. His constant, dangerous criminal activity cries out for denunciation and the need to protect the public: see R. v. Tynes, 2022 ONCA 866, at para. 104. He is now 34 years old, with an almost unbroken record of offending for many years. If he returns to abusing illegal substances, he will likely re-offend violently yet again. Mr. Alemu will require years of treatment and active engagement with rehabilitative programming before any confidence can be placed in his newfound desire to lead a crime-free life.

[72] Importantly, Mr. Alemu will inevitably backslide into criminal behaviour if he does not have a structured plan for rehabilitation. [8] A lengthy probation order is therefore required.

[73] Mr. Alemu told Ms. Pemberton that because of his faith in God, he has experienced a change and has a new perspective on life. He has done well with a work placement while in custody on these charges and has participated in several rehabilitative programs. That is to his credit, and I hope that his desire to reform himself is genuine.

XIV. Mental Health and Drug Addiction

[74] Ms. Lam submitted I should consider whether Mr. Alemu’s mental health conditions and drug-addiction issues may have played a role in the offences before the court warranting some mitigation. While I am able to find that Mr. Alemu was diagnosed with schizophrenia, a personality disorder, and antisocial personality traits in the past, I have not heard any evidence that the offences were committed due to a mental health condition. It is not enough that Mr. Alemu suffers from these mental health concerns. As stated by the Court of Appeal in R. v. Fabbro, 2021 ONCA 494, at para. 25:

For mental health to be considered a mitigating factor in sentencing, the offender must show a causal link between their illness and their criminal conduct. That is, the illness must be an underlying reason for the conduct. And, there must be evidence that a lengthy sentence would have a serious negative effect on the offender such that it should be reduced on compassionate grounds.

[75] For example, in R. v. Barham, 2014 ONCA 797, at para. 8, the appellant’s diagnoses of schizophrenia and cocaine addiction were not considered to be mitigating because there was insufficient evidence to draw a connection between those conditions and the offences he committed: see para. 8.

[76] While it is not required for the offender to demonstrate that his mental health condition directly caused the offence, there must at least be evidence that it contributed to its commission: see R. v. Ayorech, 2012 ABCA 82, at para. 10.

[77] Mr. Alemu informed me that he was using crack-cocaine at the time of both sets of offences. I do not accept voluntarily consuming drugs and then offending violently or unlawfully entering occupied residences should be construed as mitigating. If anything, in these circumstances, it is aggravating: see R. v. L.P., 2020 QCCA 1239, at para. 111.

XV. The Appropriate Sentence

[78] The assault causing bodily harm count requires an 18-month custodial sentence. At the Crown’s request, I enter a stay of proceedings on the assault with a weapon count. The fail to comply charge (no weapons) warrants a consecutive 90-day jail sentence.

[79] Mr. Alemu broke into Mr. Williams’ apartment and stood there armed with a knife he stole in front of his victim. This could have ended in unimaginable tragedy. Additionally, he entered another apartment and caused Mr. Mills considerable fear. This is Mr. Alemu’s sixth break and enter conviction. He is sentenced to two years custody for this offence, consecutive.

[80] Threatening Officer Jardin with death warrants another 90-day sentence, consecutive. A fifteen-day sentence, concurrent, addresses the mischief count.

[81] The total appropriate sentence could therefore have been four years in custody.

[82] In R. v. Hills, 2023 SCC 22, the Supreme Court of Canada held that sentencing courts should consider how the conditions of incarceration would affect an individual offender. A sentencing court may reduce a sentence to reflect “the comparatively harsher experience of imprisonment for certain offenders”, including those who suffer from mental health issues or who may, unfortunately, live with the effects of systemic racism in prison: see para. 135. I have adjusted how much further custody should be imposed given Mr. Alemu’s vulnerabilities.

[83] Finally, I have considered the totality principle. The cumulative sentence I impose must not exceed Mr. Alemu’s overall culpability nor should it be so “crushing” as to remove all hope: see Criminal Code section 718.2(c); R. v. Ahmed, 2017 ONCA 76, at para. 79.

[84] Considering these factors, Mr. Alemu’s recent commitment to his rehabilitation, and Mr. Foreman’s entirely fair position for a global sentence, I reduce the overall sentence accordingly to thirty months.

[85] Mr. Alemu has been in custody for 433 days or approximately 14.5 months.

[86] I have considered the conditions of imprisonment Mr. Alemu has been facing at the TSDC: see R. v. Green, 2021 ONCA 932, at paras. 16-17. Mr. Alemu has been in and out of provincial jails for many years. He expressed frustration to me about his current experiences at the TSDC. He continues to be held in segregation, although I appreciate the reason he finds himself in that position is at least partially due to his own choices. He is nevertheless entitled to have this considered.

[87] Applying the entire amount of pre-sentence custody, he is entitled to Summers credit for 650 days or just shy of 22 months. While a further eight-month sentence would be justified to complete the 30-month sentence, I find he is entitled to substantial mitigation for the conditions he has faced at the TSDC. I therefore impose one further day in custody, concurrent on all counts.

[88] I impose a three-year probation order concurrent on all counts. This will hopefully assist him with his reintegration plans when he is in the community.

[89] There will be a 109 order for life on the assault-related charges.

[90] A DNA order is imposed on all eligible offences.

[91] I waive the victim fine surcharge on all counts. It would cause undue hardship for Mr. Alemu to pay them.

[92] Mr. Alemu is an inflection point in his life. If he re-offends violently or commits another residential break and enter, he will likely be facing future penitentiary sentences of an even greater length. However, if he truly embraces a commitment to his rehabilitation, and works with the community organizations that have offered him support, he can reintegrate into the community successfully.

Released: December 18, 2023 Signed: Justice Brock Jones

[1] A residence where illegal drugs are commonly used and/or sold. [2] EPSR, pages 7-8. [3] Mr. Alemu’s beliefs seem entirely sincere and well-founded given his life experiences. For clarity, I find that the police officers in this case acted professionally and appropriately during their interactions with Mr. Alemu. [4] EPSR at page 10. [5] Ms. Lam directed me towards a document entitled, Mental Health in Ontario’s East African Diaspora and Telemedicine Opportunities, prepared by the Munk School of Global Affairs at the University of Toronto. The authors of this report concluded that across the East African diaspora communities in Ontario, mental health services are often underutilized or inadequate. Cultural conceptions of mental health, and trauma-related conditions, often present as barriers to individuals accessing these services. In order to assist the correctional authorities find and implement appropriate mental health programming for Mr. Alemu, I am sending a copy of the document along with these reasons to the correctional authorities and probation services. [6] EPSR, page 17. [7] EPSR at page 7. [8] EPSR at page 14.