COURT FILE NO.: CR-14-30000319-0000 DATE: 20170329 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – LIBAN OMAR Defendant/Applicant

Counsel: M. Savage, for the Crown D. Derstine and J. Shanmuganathan, for the Defendant

HEARD: January 6, 2017

MOLLOY J.:

REASONS FOR DECISION #5 (Sentence for Contempt of Court)

A. INTRODUCTION

[1] Liban Omar was tried before a jury on a charge of first degree murder. As a result of an undercover “Mr. Big” operation, the Crown elicited numerous statements by Mr. Omar in which he acknowledged having committed the murder and provided extensive detailed information about the circumstances in which it was carried out. In an earlier ruling, I found those statements to be admissible. [1] Mr. Omar testified in his own defence, alleging that the murder had been committed by a third party whom he refused to name and stating that this third party had given him all of the information about the murder that he later passed on to the undercover officers. I advised Mr. Omar he was required to answer the questions posed by the Crown as to the identity of this person. I warned him of the consequences of continuing to refuse to answer, both with respect to the fact that I would cite him for contempt and the fact that his refusal to answer could have a negative impact on the jury’s perception of his own credibility. I gave him the opportunity to seek legal advice on the issue. Having availed himself of that opportunity, he still refused to answer. Accordingly, I cited him for contempt and directed that the issue would proceed before me at the conclusion of his trial.

[2] Ultimately, after lengthy deliberations, the jury found Mr. Omar not guilty of any offence. Only the contempt of court issue remained outstanding. I therefore released Mr. Omar from custody on bail. When the contempt matter came back before me, Mr. Omar conceded that his refusal to answer constituted contempt of court. The only remaining issue is the appropriate sentence for that contempt.

[3] For the reasons that follow, I find that the appropriate sentence is three years. If Mr. Omar was telling the truth about the “mystery man” [2] who he said described to him in great detail the brutal killing of Mr. Farah, then his failure to name that man has enabled the killer to escape justice. Alternatively, if Mr. Omar was lying about the existence of the “mystery man,” his refusal to answer proper questions on cross-examination prevented the authorities from being able to expose that lie and helped to secure his acquittal. Either way, at least in part, Mr. Omar’s contempt in the face of the court enables a vicious murderer to walk freely in our community. In my view, these circumstances put Mr. Omar at the highest end of the sentencing range for offences of this nature. I am further of the view that he should receive no credit for the time spent in custody on the murder charge.

B. BACKGROUND

[4] Abdulaziz Farah was shot to death just after midnight on September 8, 2012, while he was on his knees begging for his life. The shooting occurred on a residential street in the eastern end of Toronto and much of it was caught on video by a homeowner’s surveillance camera. The video shows that the initial shots were fired within Mr. Farah’s car, while he sat in the driver’s seat. He tumbled out of the car, crawling and dragging himself along the street while his assailant shot at him several more times and also beat him. The assailant then administered the fatal shot, which entered Mr. Farah’s head near his right jaw. The murderer fled in Mr. Farah’s car. Although the actions of the murderer were recorded on video, his face could not be seen and no identification could be made.

[5] The deceased, Mr. Farah, was a drug dealer. There were rumours on the street as to who was responsible for his murder. Early in the investigation, police attention was focused on Mr. Omar. In an attempt to obtain evidence as to Mr. Omar’s suspected involvement, the police set up an elaborate undercover operation in which an undercover officer befriended Mr. Omar and ultimately introduced him to others who were suggested to be part of a sophisticated criminal organization. This undercover operation, colloquially referred to as a “Mr. Big” sting, continued for two months. In the course of that time, Mr. Omar made numerous statements implicating himself in the murder, including more than one statement in which he admitted being the shooter.

[6] Mr. Omar was arrested on December 19, 2012 and charged with first degree murder. He elected to be tried by a jury. His trial in this Court started before me on April 5, 2016 with pre-trial motions, one of which was a defence motion to exclude all statements Mr. Omar made to undercover officers during the Mr. Big operation. I ruled that the statements were admissible, subject to some editing to remove portions of the recordings that were irrelevant and/or prejudicial. [3]

[7] Jury selection commenced on May 6, 2016 and the evidence began on May 9, 2016. The Crown’s evidence included: the video tape of the shooting; testimony of witnesses who heard Mr. Farah begging for his life and also the gunshots; evidence of undercover officers as to what Mr. Omar told them about the killing; the recordings and transcripts of things Mr. Omar told those officers (including his confession that he had murdered Mr. Farah); and substantial evidence corroborating details of Mr. Omar’s statements to the undercover officers.

[8] The corroborative evidence included the following:

• Mr. Omar’s DNA was found on a straw in the front seat of Mr. Farah’s car and his palm print was on the exterior driver’s door.
• Mr. Omar told the main undercover officer that he took the victim’s gun and ring from the stash box in his car. He described the location of the stash box. Prior to that, forensic officers had examined the car, but had not found the stash box. Upon receiving this information, they located the stash box. It was empty.
• Mr. Omar told one of the undercover officers that he shot Mr. Farah with a 40 calibre PT 24/7 Pro Ruger with a 15 cartridge magazine. On previous occasions, Mr. Omar had told the main undercover officer that the murder weapon was a 40 calibre Taurus, and in his evidence at trial, he also testified that it was a 40 calibre Taurus. At the time of the Mr. Big operation, the police had not recovered the murder weapon, but knew the calibre and a number of possible models it could have been. Subsequently, the actual firearm was recovered. It is a 40 calibre PT 24/7 Pro Taurus with a 15 cartridge magazine.
• Mr. Omar told the undercover officers that he sold the murder weapon to a guy in Ajax. The gun was subsequently found in the possession of a man stopped by police in Ajax.
• Mr. Omar told the undercover officers that after the shooting, he took the victim’s car and drove it along the 401 to Ajax. This is confirmed by the records of the victim’s cell phone, which was in the car and could be tracked.
• Mr. Omar told the undercover officers that he took the victim’s 9 mm. Kel Tec and that a friend of his in Scarborough was holding it. Although they repeatedly pressured him to get the gun, offering to buy it back or to even rent it for a week, Mr. Omar never gave it to them. Quincy Daniels, a friend of Mr. Omar’s, was subsequently found in possession of the Kel Tec. Mr. Daniels testified that Mr. Omar told him he had hidden the Kel Tec in a ravine behind a day care centre in Ajax and that he had gone and stolen it from there.
• Mr. Omar told the undercover officers that he took a ring from Mr. Farah and sold it to his friend Gavin Daley. The police executed a search warrant at Mr. Daley’s home and found the ring belonging to Mr. Farah.
• Mr. Omar told the undercover officers that Mr. Farah was first shot in the car while Mr. Farah was in the driver’s seat. He said Mr. Farah then tumbled out of the car and described him crawling around on the ground while he, Mr. Omar, took further shots at him. He said Mr. Farah was begging for his life. Finally, he said he put the gun to Mr. Farah’s right chin area and shot him in the head, which was the fatal shot. He said he started with 15 cartridges in the clip and at the end had only three left. This was largely consistent with the videotape of the murder and eye witnesses.
• Mr. Omar told the undercover officers that he got Mr. Farah’s car stuck in the mud and he had to get a tow truck to pull it out. In fact, when the car was recovered it had lots of mud on the exterior and inside the footwell of the driver’s seat area. A tow truck company was called on the afternoon of September 8 to Kingston Road and Harwood to deal with Mr. Farah’s Acura. The cell phone number that placed that call is a number that also appears on Mr. Omar’s cell phone records. The tow truck driver testified that he went to the location and a car appeared which dropped off a black male. He told the male that he would not be able to pull the car out with his truck without getting stuck himself. He was unable to identify the man he was speaking to and was unable to identify Mr. Omar in a photo lineup shown to him on February 4, 2013, but said the man was taller than him and that he was 6’1”. After returning from the party on November 30, Mr. Omar gave to the primary undercover officer the shoes he said he was wearing at the time of the murder. They had lots of mud on them.
• Mr. Omar told the undercover officers that before dumping the car he cleaned it, wiped it clean with Windex, and burned out the area of the centre console. He said he locked it and threw away the keys. When the car was found, it was locked and the keys were missing. There had been some attempt to wipe the exterior as it was smeared in various places. The centre console was partially burned.

[9] At the close of the Crown’s case, Mr. Omar elected to testify in his own defence. He maintained that he had nothing to do with the murder of Mr. Farah and that he was lying when he told the undercover officers he had been involved. He testified that he had been trying to impress people, whom he believed to be criminals involved in lucrative crimes, so they would accept him into their organization. He claimed to have been suffering from the effects of his uncontrolled diabetes, as well as being drunk at the time of his incriminating statements (an allegation denied by all of the police witnesses).

[10] Mr. Omar provided an explanation for his detailed knowledge of the shooting and the things taken from Mr. Farah’s car. He testified that at some time after midnight on the night of the murder, he was outside his parents’ home in Ajax smoking a cigarette when he was approached by a friend of his. He said he had known this man for a number of years and that the man was also involved in drug dealing with Mr. Farah. Mr. Omar and this “mystery man” went into the house and down to the basement where the man showed Mr. Omar a gun (specifically, a PT 24/7 40 calibre) and said he had just shot Mr. Farah with it. According to Mr. Omar, this man then described the shooting in detail and gave him the murder weapon to dispose of. He said the “mystery man” also gave him a ring that had belonged to Mr. Farah. Mr. Omar said he sold the gun to a guy suggested by his friend Gavin Daley and then gave the ring to Mr. Daley. The “mystery man” then gave Mr. Omar a sports bag containing another gun belonging to Mr. Farah, which Mr. Omar said he threw away in a ravine.

[11] Mr. Omar also provided an explanation for his knowledge of Mr. Farah’s car and the fact that his DNA and fingerprints were found there. He admitted being involved with Mr. Farah in drug dealing and said he had been in Mr. Farah’s car a number of times and had seen him put things into and take things out of the stash box on prior occasions. Mr. Omar said that the real killer told him: where he had parked the car after the murder; that it was covered in mud; that he cleaned it up, including taking it through a car wash; that he burned the compartment in the middle of the front seat; and the location where he had ultimately left the car after cleaning it up. Mr. Omar denied that he had done any of these things himself.

[12] Although I repeatedly ordered Mr. Omar to divulge the identity of the man who had given him this information, he adamantly refused to do so. I warned him of the potential consequences of being found in contempt of court for refusing to answer. Even after I gave him time to obtain legal advice and to reflect on the position he was taking, he maintained his refusal to answer. Mr. Omar remained courteous throughout, but refused to comply with my order. He said that he did not personally fear the man who had given him the information. However, he was afraid that if it became known in the community that he had “snitched” then he and other members of his family would be in danger. He said that there was no way the police could protect him from this threat.

C. THE JURY VERDICT

[13] The jury deliberated on its verdict over a period of several days. Apart from Mr. Omar’s fingerprint on Mr. Farah’s car and his DNA on a straw in the front seat, there was no direct evidence linking Mr. Omar to the killing. Everything hinged on the statements Mr. Omar had made to the undercover officers. As I have noted above, there was considerable evidence corroborating Mr. Omar’s description of the murder and Mr. Omar was connected to both the murder weapon and jewellery stolen from the murder victim. On the other hand, Mr. Omar gave multiple versions of the shooting to the undercover officers, particularly at the beginning of the operation. Also, some details provided by Mr. Omar were not fully consistent with what actually happened. For example, he described the bullet entering Mr. Farah’s head near the chin and blowing explosively out of the back of his head, whereas the bullet actually remained inside the skull. Also, in determining the weight to give to Mr. Omar’s statements to the undercover officers, the jury was instructed to take into account the youth, inexperience and other particular vulnerabilities of Mr. Omar, as well as Mr. Omar’s evidence as to how he obtained the information about the circumstances of the killing that he had disclosed to the undercover officers.

[14] Ultimately, the jury found Mr. Omar not guilty. It follows from that verdict that the jury was not satisfied beyond a reasonable doubt that Mr. Omar shot Mr. Farah. I am bound by that result and any express or implied factual implications arising from it. Further, in sentencing Mr. Omar, I cannot take into account any fact that is inconsistent with the jury’s verdict. [4]

[15] Mr. Derstein, on behalf of Mr. Omar, relies upon R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont. C.A.) in which the Ontario Court of Appeal held, at para. 14:

Fundamental to this ground of appeal is the concept that an acquittal is more than a finding of not guilty and is in law a declaration of innocence for all purposes. This must be so, because the verdict of not guilty restores to the accused the presumption of innocence. In Grdic v. The Queen (1985), 19 C.C.C. (3d) 289 (S.C.C.) at p.293 Lamer J. quoted with approval from Friedland in Double Jeopardy, supra, at p. 129:

As a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence.

[16] Lamer J. dealt with this issue again in a similar manner in R. v. Grant (1991), 67 C.C.C. (3d) 268 (S.C.C.) at p.279. The Court of Appeal in Verney quoted a brief passage from the Supreme Court of Canada’s decision in Grdic. It is instructive to consider that quote in a larger perspective as follows (at pp. 293-294):

There are not different kinds of acquittals and, on that point, I share the view that "as a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence" (see Martin L. Friedland, Double Jeopardy (1969), Clarendon Press, Oxford, p. 129; also Chitty i, 648; R. v. Plummer, [1902] 2 K.B. 339 at p. 349. To reach behind the acquittal, to qualify it, is, in effect, to introduce the verdict of "not proven", which is not, has never been, and should not be part of our law.

However, this does not mean that, for the purpose of the application of the doctrine of res judicata, the Crown is estopped from re‑litigating all or any of the issues raised in the first trial. But it does mean that any issue, the resolution of which had to be in favour of the accused as a prerequisite to the acquittal, is irrevocably deemed to have been found conclusively in favour of the accused: see R. v. Carlson, [1970] 3 O.R. 213; contra, Villemaire v. The Queen (1962), 39 C.R. 297 at p. 300. This is so even though the judgment might well be the result of a reasonable doubt on that issue, and even when the judge has said so or expressed views that indicate clearly that his finding, though inuring to the benefit of the accused, had been arrived at with reluctance and the judge has suggested that it is not conclusively in favour of the accused.

[17] The decision in Verney and the two Supreme Court of Canada decisions it relied upon (Grdic and Grant) were all cases involving the principle of issue estoppel (or double jeopardy). The issue was whether, following an accused’s acquittal on a charge, subsequent charges could go behind the initial acquittal. In each case, the courts held that this would raise the problem of inconsistent verdicts. That is not the issue before me. The charge before me is wholly independent of the murder charge, even though it arose during the course of the murder trial.

[18] In my view, the case law dealing with the effect of a jury verdict on sentencing is more directly relevant in this context than is the case law on double jeopardy. In Brown, [6] the Supreme Court of Canada adopted the approach taken by the English Court of Appeal and adopted the following excerpt from an article by D.A. Thomas [7] setting out the test as follows:

[T]he Court of Appeal has developed the principle that where the factual implication of the jury's verdict is clear, the sentencer is bound to accept it and a sentence which is excessive in the light of the facts implied in the verdict will be reduced. ... This principle can only apply however where the factual implication of the jury's verdict is clear; where ... the factual implication is ambiguous, the court has held that the sentencer should not attempt to follow the logical process of the jury, but may come to his own independent determination of the relevant facts.

[19] Clearly, I am bound by the jury’s verdict of acquittal. I also cannot make any findings against Mr. Omar that would be necessarily inconsistent with that acquittal. However, I cannot know what was in the minds of the jurors when they reached that verdict, nor the basis for it. Obviously, no reasons were given. No specific findings of credibility were made. In particular, I cannot know whether the jury believed Mr. Omar’s testimony about the “mystery man” who gave him all the details of the murder or his explanation for not revealing the name of that man. It could have been the case that the jury found that the circumstances of the Mr. Big operation were such that any statements flowing from it could be given little weight, particularly when viewed against the various conflicting versions of the event given by Mr. Omar to the officers over time. Or it could have been the case that concerns about the statements to the police combined with Mr. Omar’s evidence caused the jury to have a reasonable doubt as to his guilt. It is entirely possible that the jury found Mr. Omar not guilty, without being satisfied that somebody else committed, or even probably committed the murder. I simply do not know.

[20] Accordingly, in my opinion, for the purposes of sentencing, I am not bound to accept the evidence of Mr. Omar at trial as being true. I must not make any findings that are inconsistent with his acquittal on the murder charge, but that does not require me to make a positive finding that Mr. Omar did not provide the name of the “mystery man” because he was afraid for his own life or that of his family. What I cannot do, however, is make a positive finding that Mr. Omar was actually the real murderer and invented the story about the “mystery man” to cover up his own crime. Such a finding would be inconsistent with his acquittal by the jury.

D. PRINCIPLES OF SENTENCING

[21] Contempt in the face of the court is a criminal offence and subject to the same general principles of sentencing as apply to all criminal convictions.

[22] The principle of proportionality is an overarching and fundamental consideration in determining the appropriate sanction for an offence. This principle requires that the sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” [8]

[23] The Criminal Code provides that the fundamental purpose of sentencing is “to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society” by the imposition of just sanctions that reflect specified sentencing objectives. [9] Those sentencing objectives are:

(a) denunciation of the unlawful conduct and of the harm to victim or the community as a result of the unlawful conduct; (b) specific deterrence of the offender before the court and general deterrence to others who might be tempted to engage in similar unlawful conduct; (c) separation of the offender from society, where necessary; (d) rehabilitation of the offender; (e) reparation of harm to any victims or the community; and (f) promoting a sense of responsibility in offenders and acknowledging the harm done to victims and the community. [10]

[24] In this case, there is no necessity to separate the offender from society, nor is the objective of reparation particularly relevant. Rehabilitation is always an objective of sentencing, but in this case the focus is more on ensuring that any sentence does not interfere with the rehabilitation efforts of Mr. Omar, rather than on fashioning a sentence that will itself be rehabilitative. Accordingly, of these listed objectives in sentencing, the most operative factors in this case will be denunciation and deterrence.

[25] The Criminal Code stipulates that an offender should not be deprived of his liberty if less restrictive sanctions would be appropriate in all the circumstances. Sentencing judges are required to consider all available sanctions other than imprisonment that are “reasonable in the circumstances and consistent with the harm done.” [11] However, the sentence must still be a fit one in light of the other sentencing objectives and principles.

[26] In determining a fit sentence, the sentencing judge must take into account any mitigating or aggravating circumstances and must bear in mind that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” [12]

[27] Finally, before imposing a sentence, the judge may, and almost invariably does, take into account any time spent in custody by the person “as a result of the offence.” [13]

E. APPLICATION OF THE SENTENCING PRINCIPLES TO THIS CASE

Mitigating and Aggravating Factors

[28] Liban Omar is now 24 years old, and as such should be treated as a youthful offender.

[29] At the time of the Mr. Big operation, Mr. Omar was still missing a number of credits to graduate from high school. Since that time, he has completed, or virtually completed, those credits and taken a couple of university level courses. He is currently enrolled in a college-level math course to be completed between January and June, 2017. He hopes in the future to study electrical engineering at college. It is to his credit that he has upgraded his education.

[30] Mr. Omar has the benefit of decent, loving parents who provide a stable, pro-social home environment for their children. Since his release from jail following the jury verdict, Mr. Omar has been living in the Ajax home of his parents. I accept that he has not gotten into any trouble with the law during that time and that he is assisting his mother in household chores and caring for his disabled younger sister. These are mitigating factors.

[31] Mr. Omar’s criminal past is an aggravating factor. He has a Youth Court conviction for possession of a firearm. It is apparent from his discussions with the undercover officers and from his testimony at trial that up until the time of his arrest he was engaged in a life of crime, including drug trafficking. His lifestyle was completely self-indulgent, partying at night with his criminally-connected cronies, drinking to excess and taking illicit drugs, and then sleeping for most of the day. In pursuing that lifestyle, he was no stranger to firearms. During that time, he lived with his parents who provided him with everything he needed. He did not need to traffic in drugs to support himself; he did so to sustain his self-indulgent lifestyle.

[32] Mr. Omar is an insulin-dependent diabetic, a condition that was diagnosed while he was in custody at the Roy McMurtry Youth Centre. Prior to his arrest on the murder charge, his diabetes was largely out of control. He often failed to take his insulin on a regular basis and indulged in a lifestyle that was extremely unhealthy. While in custody, his medical condition was stabilized and that appears to have continued since his release. I do not see Mr. Omar’s medical condition as having any impact on sentencing. The correctional authorities are well able to monitor and control his diabetes. Indeed, he was considerably healthier in prison than when he was responsible for his care.

[33] Although refusing to comply with a direct order to answer proper questions, Mr. Omar’s conduct was not otherwise disrespectful of the court. At the time of the sentencing hearing, he apologized for his conduct and stated that he regretted it. He also stated he did not mean to mislead the court. However, he has still not named the person he says was the murderer. His contempt remains unpurged. Although he has orally apologized for his conduct, I do not accept those words as a sign of true remorse. Thus, Mr. Omar does not have the benefit of remorse as a mitigating factor.

Proportionality and the Gravity of the Offence

[34] There is a broad range of conduct that can constitute contempt in the face of the court. At one end of the spectrum are intemperate remarks that are disrespectful of the court. At the other end is conduct that results in justice being frustrated, for example, where a killer goes free because a witness refused to testify. Mr. Omar’s conduct is at the highest end of that spectrum.

[35] Mr. Omar had detailed knowledge of the circumstances of the shooting that were not known to the public. He was directly involved in disposing of the murder weapon, another handgun owned by Mr. Farah, and other property stolen from Mr. Farah. He knew where Mr. Farah’s car had travelled after the shooting, and what had been done with it after the fact. Either he was the lone gunman who shot Mr. Farah, or he knows the identity of that man. Either way, he has frustrated the course of justice by his refusal to answer proper questions. If he was lying about the existence of this “mystery man,” he effectively insulated himself from cross-examination by preventing the police from investigating the possibility or impossibility that the person he named did the killing. If he was not lying about the existence of the real killer, his refusal to give that name to the police has resulted in a murderer going free. Neither alternative is consistent with achieving justice.

[36] I agree with the Crown’s submission that Mr. Omar’s contempt is worse than a mere witness who refuses to answer questions when summonsed to court to testify. Mr. Omar did not have to testify; he chose to testify. Having chosen to do that, he swore to tell the whole truth – and he then refused to do so.

Alleged Mitigating Impact of Mr. Omar’s Stated Reason for Contemptuous Conduct

[37] Mr. Omar testified that he could not reveal the identity of the “mystery man” who shot Mr. Farah because he was afraid that, if it became known that he had “snitched,” he or members of his family would be killed. He elaborated that his brother looks a lot like him and might be killed as a result of mistaken identity. He insisted that the police would not be able to protect him, although he had made no inquiries in that regard.

[38] In advancing this factor as mitigating, Mr. Derstine (on behalf of Mr. Omar) pointed out that Mr. Omar had personally experienced “street justice” in a violent and traumatic manner when he was abducted and tortured by a group of men he said were associates of Mr. Farah.

[39] I have no doubt that Mr. Omar was in fact beaten up after Mr. Farah’s murder. He was found unconscious near the hospital entrance and admitted to hospital, where his injuries were documented. I also accept, given the timing, that this may have been some sort of “street justice” in connection with Mr. Farah’s death. However, I do not believe Mr. Omar’s version of this event. Mr. Omar is an accomplished liar. In his numerous conversations with the undercover officers he described many things that were complete fabrications, often with a richness of detail that was extremely compelling. Sometimes, he lied for no apparent reason. Indeed, I would consider his lying to be compulsive. Dr. Gojer, (a forensic psychiatrist who testified on the pre-trial motion with respect to the Mr. Big operation) described his lying as “pathological.” From listening to Mr. Omar and watching him, it is impossible to tell whether he is telling the truth or lying. He has no compunctions whatsoever about lying whenever he feels like it. I would not trust his word, standing alone, for anything.

[40] There are details about his alleged kidnapping and torture that are clearly untrue. In particular, he claims his assailants held him down and tortured him by burning his face with a blowtorch in order to force him to give up the name of the person who killed Mr. Farah. His actual injuries are listed and described in the hospital records. There were no burns to his face. Even his own mother testified at trial that she got cream to apply to the bruises on his face. She did not mention anything about burns. Mr. Omar was not burned on the face, and he most certainly was not held down and systematically tortured by burning his face with a blowtorch. It may or may not be the case that Mr. Omar’s assailants were trying to extract information from him about the murder. It might also be the case that they were giving him a beating believing him to be the murderer. Or, the beating might not have had anything at all to do with Mr. Farah’s death. I do accept that Mr. Omar is familiar with street violence in the criminal sub-culture. I take it no further than that.

[41] Mr. Omar may, or may not, have a legitimate fear for his own safety. I do not know. However, I do not believe there is any real concern about the safety of his family members if he were to obey the court order to testify. That is simply, in my view, far-fetched.

[42] I do accept that in the criminal sub-culture in which Mr. Omar was immersed, it is not unheard of for persons who are seen to be “snitches” or “rats” to receive some kind of retribution at the hands of other criminals. However, the justice system cannot be seen to condone (or perhaps even encourage) that mentality by reducing the sentences of criminals who cite this as a reason for refusing to comply with court orders. Brave and honest men and women testify routinely in our criminal justice system with respect to crimes they have witnessed. Mr. Omar was not forced to testify; he chose to do so. Even if he had a legitimate fear of retribution if he told the whole truth, about which I am skeptical, I would not reduce his sentence for contempt. Mr. Omar said himself he did not actually fear the “mystery man” who gave him this information, but rather was simply afraid of being labelled a “snitch.” The court cannot countenance, much less reward, that kind of behaviour or attitude. I am reminded of the words of Binnie J. in R. c. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, who, in referring to the accused’s explanation for not calling the police when he believed his life was in danger, stated as follows:

Accordingly, there was evidence that subjectively, as a self-styled criminal, he felt his only options were to kill or be killed. He wishes the jury to judge the reasonableness of his conduct by the rules of his criminal subculture, which is the antithesis of public order.

[43] Mr. Omar’s stated concern about being labelled a rat or snitch is not a mitigating factor and I will not reduce his sentence because of it.

Denunciation, Deterrence and Rehabilitation

[44] Denunciation is one of the most influential factors in sentencing for crimes of this nature. Contempt of court is a crime that strikes at the heart of the justice system. It is fundamental to the integrity of our system of justice that orders of the court be respected and obeyed. For the rule of law to prevail, citizens must have faith in the ability of the justice system to enforce the laws enacted by Parliament. For that reason, when a person deliberately disobeys an order of the court, such conduct must be denounced, not just by words but also by action. A significant sentence is required.

[45] In United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, the Supreme Court of Canada noted that the power of the court to impose punishment for contempt of court rests on,

... the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.

[46] For similar reasons, deterrence is an important factor in sentencing for contempt of court. As stated by the Ontario Court of Appeal in R. v. DaSilva: [16]

... The purpose of a sentence of imprisonment for contempt of court is to protect the integrity of the administration of justice. It is in the interest of every member of society that the law should be respected and that it should be properly administered in a dignified and orderly way. In this case, individual punishment and deterrence is important, but a sentence of imprisonment will also send a message to the community about the seriousness of a breach of every citizen’s social duty in assisting in the administration of justice.

[47] In R. v. Jacob, 2008 MBCA 7, 231 C.C.C. (3d) 553, the Manitoba Court of Appeal endorsed general deterrence as a primary sentencing objective in cases such as these. Scott C.J.M. held as follows (at paras. 25-26):

The purpose of criminal contempt is explained by Mr. Justice E. G. Ewaschuk¸ Criminal Pleadings & Practice in Canada, 2nd ed., looseleaf (Aurora: Canada Law Book, 2007) as follows (at para. 29:0040):

Criminal contempt is aimed at punishing public acts which tend to bring the administration of justice into disrepute and interfere with the due administration of justice. It is directed at the protection of the integrity of the administration of justice. Its general purpose is to protect the fairness of the trial process.

General deterrence is the principal factor to be considered when a witness refuses to testify. See Neuburger. The highest custodial sentences for contempt are imposed when a witness refuses to be sworn or to give evidence. See Clayton C. Ruby, Sentencing, 6th ed. (Markham: LexisNexis Canada Inc., 2004) at para. 23.445.

[48] Mr. Derstein argues that in recent years doubt has been cast on the effectiveness of the length of incarceration as a general deterrent to crime, citing R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 in which the Supreme Court of Canada referred to various scholarly articles and studies and stated that, “[d]oubts concerning the effectiveness of incarceration as a deterrent have been longstanding.” [18]

[49] The issue in Nur was the constitutionality of a mandatory sentence for possession of a firearm. The applicability of general deterrence in that situation is markedly different from the one that arises here. A person who refuses to testify, or refuses to answer particular questions put to him while testifying, is making a calculated decision to do so. Typically, and in this case, that person will have access to legal advice before making that decision. Such advice will include information about the likely punishment that will be meted out if the individual persists in defying the court’s order. Thus, for this particular offence, the sentences imposed in prior cases have a very direct impact on influencing others not to engage in similar behaviour. If the courts are seen to be lenient in their sentencing for contempt of court, we can expect witnesses to do a cost/benefit analysis in determining whether or not to comply with the judge’s order to answer the questions asked and to decide against compliance. Accordingly, I remain of the view that deterrence, both general and specific, is a very important factor in sentencing for contempt of court.

[50] Rehabilitation does not play a significant role, except that any sentence imposed should not be so crushing as to interfere with Mr. Omar’s plans to rehabilitate himself. He has made some strides in upgrading his education, which hopefully will assist him in abandoning his previous criminal lifestyle. He has done much of that by correspondence, which can continue during the period of incarceration I am considering as appropriate for this offence. I do not see the need to reduce the sentence that would otherwise be appropriate in order to achieve rehabilitation objectives.

The Parity Principle

[51] As much as possible, similar offenders should be given similar sentences for crimes of a similar nature. This is, of course, the ideal. However, the application of the principle is not always easy. The offence can be committed in a number of different contexts and the circumstances of the offender are infinitely variable. There are also not many reported cases dealing with the appropriate sentence for contempt of court, and none that counsel have cited or I have found in which the offender gave evidence to save himself by implicating someone else he refused to name. It is therefore difficult to find many parallels.

[52] The maximum sentence is five years. [19] I have not seen any cases in which that sentence was imposed.

[53] The defence relies on the Ontario Court of Appeal decision in R. v. Ayres (1984), 15 C.C.C. (3d) 208 (Ont. C.A.) in which a trial judge had imposed a sentence of 18 months for contempt of court. Mr. Ayres had previously been jointly charged with two other individuals with the offence of first degree murder. He pleaded guilty to manslaughter and, while serving his sentence for that conviction, was brought to court to testify at the first degree murder trial of one of the other co-accused. He refused to testify on the grounds that he would be punished by other inmates if he gave evidence. The Court of Appeal set aside the contempt conviction on the grounds that the accused had not had a fair trial on that charge. The Court also commented that although the sentence imposed by the trial judge was within the range of appropriate sentences, it was “at the upper end of the range.” This decision is quite dated, having been decided in 1984, and is merely obiter on the issue of sentencing.

[54] In R. v. Bidesi, 2016 BCSC 171, Butler J. of the British Columbia Supreme Court, reviewed the history of sentencing for contempt of court and concluded that, up to 1995, the highest sentence imposed by a Canadian court had been two years in prison. [21] The Crown argued in Bidesi that the range had increased from that date such that for a refusal to testify in a murder trial with the refusal having an impact on the verdict, the high end of the range was four to five years. Justice Butler disagreed. After an extensive review of the more recent authorities, he held that the high end of the range for a first offender was three years, and for a second offence four years. I have reviewed those authorities and agree with Butler J. that the top end of the range is three years, with that sentence being reserved for serious cases (such as murder) where the witness was vital to the prosecution. [22]

[55] There are three recent Ontario decisions that I find to be particularly relevant, all of which relate to a murder in Ottawa in which three men were charged with first degree murder: Yegin; Esrabian and Saleh. The murder was described as an execution-style killing by drug traffickers. In 2008, Mr. Yegin was called as a witness in the trial against Mr. Esrabian. Prior to the trial, Mr. Yegin had given a statement to the police, assisted the police in locating the body of the victim and testified at the preliminary hearing. However, because of a threatening letter Mr. Yegin received, he refused to testify at trial. Mr. Yegin was also charged with first degree murder in connection with the same killing, but was acquitted. Mr. Yegin had been engaged in a life of crime for the preceding 20 years (which was an aggravating factor), but was polite and respectful to the court notwithstanding his refusal to testify (which was mitigating). Notwithstanding Mr. Yegin’s refusal to testify at trial, Mr. Esrabian was convicted of first degree murder. The trial judge, Roy J., cited Mr. Yegin for contempt and in February 2009 sentenced him to three years in prison for that contempt. [23] The Ontario Court of Appeal upheld that sentence on March 31, 2010, [24] with a brief endorsement stating:

The justice system depends on witnesses who testify as required. The justice system’s response to those who prefer to remain aligned with their criminal cohorts rather than do their duty as citizens must be firm and direct – significant jail terms above and beyond whatever other period of incarceration the individual is, or might be, facing for his own participation in the relevant events must be imposed.

We agree with the trial judge, “a strong message” must be given in circumstances like this. Those who choose not to testify in serious criminal cases will face “serious consequences”.

[56] Meanwhile, in January 2010, Mr. Yegin again refused to testify, this time at the trial of Mr. Saleh in connection with the same murder. The trial judge in that case, McKinnon J., sentenced Mr. Yegin to four years for that contempt of court and stated that he would have imposed the maximum sentence of five years but for Mr. Yegin’s polite and respectful conduct in the courtroom. [25]

[57] Also in the trial of Mr. Saleh, Mr. Esrabian refused to testify. McKinnon J. referred to the fact that Mr. Esrabian had refused to answer one question in a prior proceeding and had been sentenced to two years for that contempt. Therefore, for reasons similar to the decision in relation to Mr. Yegin, McKinnon J. sentenced Mr. Esrabian to four years for the second contempt conviction.

Conclusion

[58] In my view, the situation before me is the most serious form of contempt. This was a charge of first degree murder in the execution style killing of a man, already wounded, on his knees begging for his life. Justice was not done in this case as a result of Mr. Omar’s refusal to answer directly relevant questions, while voluntarily testifying to provide evidence in his own defence. Denunciation and deterrence require a substantial penalty. There are little, if any, mitigating circumstances that would warrant a reduction in what would otherwise be a fit sentence. I find Mr. Omar to be deserving of a sentence at the highest end of the range.

[59] I believe I am constrained by the range of sentences imposed in other cases and the principle of parity. I agree with the submission of the Crown that the appropriate range is from two to three years, and possibly up to four years. I was not referred to and am not aware of any case such as this one where an accused chose to testify in his own defence and then refused to answer relevant questions. In my view, that is a circumstance that could well justify pushing the range above three years in this case. However, in view of the youth of the accused and the steps he appears to have taken to improve his situation in life since being released from prison, I find three years to be the fit and proper sentence.

F. CREDIT FOR TIME SERVED ON MURDER CHARGE

[60] Following his arrest for first degree murder, Mr. Omar was held in custody and was not released until the jury verdict acquitting him, a period of approximately 3 ½ years. Mr. Derstine submits that I should give some credit to Mr. Omar for the time he served in prison awaiting trial prior to his acquittal. If that time was credited at either 1.5 to 1 or on a straight 1 to 1 basis, Mr. Omar would serve no further time. If credited at .5 to 1, there would be a remaining 1 ¾ years to serve.

[61] Section 719(3) of the Criminal Code provides:

In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.

[Emphasis added]

[62] All of the time Mr. Omar spent in custody was in relation to the first degree murder charge. I am sentencing him for contempt of court. The time he spent in custody is, therefore, not “as a result of the offence” for which I am now sentencing him, and s. 719(3) does not apply. [26]

[63] Mr. Derstine submits that even where s. 719(3) does not apply, I have a discretion to take into account the time served by Mr. Omar in this case as part of the “complete picture” of Mr. Omar’s circumstances. He points out that there is some factual nexus between the contempt and the time served on the murder charge because the contempt was committed during the murder trial and “but for” the murder charge, there would have been no contempt and that the 3 ½ years he served is time he will never get back.

[64] Prior to the murder, Mr. Omar was engaged in a life of crime and violence. He confessed, indeed bragged, to undercover officers about having committed the execution-style murder and said this was related to drug trafficking. His DNA was inside the victim’s car and his fingerprints were on the door. On his own evidence he assisted in covering up the crime by disposing of the murder weapon and another illegal firearm and getting rid of jewellery taken from the deceased. It is scarcely surprising that he was held in custody pending his trial. His own conduct, both before and after the murder, brought about that result, regardless of whether or not he committed the murder.

[65] I find Mr. Derstine’s “factual nexus” argument to be specious. One could equally say that “but for” Mr. Omar’s decision to testify, he would not have committed contempt, or “but for” the fact that he got out of bed that morning, he would not have committed contempt. However, the fact remains that neither of these factors caused the contempt conviction. Mr. Omar was convicted of contempt because he refused to comply with a lawful order of the court. The fact that he was on trial himself, as opposed to having been subpoenaed as a witness, does not create any kind of causal relationship between the charge before the court and the contempt. I see no basis for treating this case as any different from other cases in which credit is sought for time served on a wholly separate offence.

[66] This is not a situation in which an offence was committed while an accused was on bail for another charge and that bail was thereupon revoked. In that situation there is some connection between the second offence and the time served in relation to the first offence and cases which have given credit for time served in those circumstances are distinguishable. All of the time served by Mr. Omar was solely because of the murder charge.

[67] The specific and general deterrence goals of sentencing in contempt cases would be undermined if individuals in custody who committed contempt of court were permitted to simply apply time they had “banked” on other charges instead of serving time on the contempt charges. Witnesses considering their options when ordered to testify should be very clear that any sentence they might receive for refusing to testify would be in addition to any time they had already served on something else.

[68] Mr. Derstine relies on the decision of Doherty J.A. in R. v. Wilson, 2008 ONCA 510, 236 C.C.C. (3d) 285. [27] In that case, an offender was released on bail on a charge of importing cocaine. While on bail, he was charged with committing a number of robberies. He was convicted on both sets of charges. However, the cocaine conviction was later reversed by the Court of Appeal and, given the delay in getting to a new trial, the charges were stayed. However, the accused had served 494 days in custody on the cocaine charge by the time the stay was entered, the equivalent of two years less a day. Justice Doherty held that it was appropriate to consider this time served as a circumstance that had changed since the time the accused was originally sentenced on the robbery charges. He further held that if he were to reassess the sentence for the robberies he would have imposed a sentence of 12 years, rather than the 10 year sentence imposed by the trial judge. However, he would also have allowed a two year credit for the time served on the cocaine charge in light of all the circumstances.

[69] It is important to note that although Justice Doherty’s reasons are styled as being separate concurring reasons, he was in fact in dissent on this issue. Rosenberg J.A. wrote the majority reasons, concurred in by Rouleau J.A., and specifically rejected the approach taken by Doherty J.A., stating at paras. 42-43:

The time the appellant spent serving his sentence for importing was not in any sense part of the “punishment” for the robbery offences; that sentence was punishment for the importing offence. To now give the appellant credit for time spent serving a sentence for another offence would distort the sentencing regime.

To give effect to this submission would permit accused to “bank” time spent in custody. If this appellant can use the time he spent serving his drug offence sentence as credit for his robbery sentences, then an accused who years earlier spent time in custody for a prior offence of which he was acquitted should also be able to ask a trial judge to take that prior time into account. I can see no basis in principle for allowing credit in this case, and not giving an accused credit for time spent in custody on a prior offence that was not used up because the accused was acquitted of that prior offence at trial…

And further, at para. 45:

But, at the end of the day when it comes time to sentence an offender the court can only take into account factors that relate to the particular offence under consideration. The fact that an offender, like the appellant, still happens to be in the appeal system when a flaw in relation to a totally unrelated conviction comes to light is not, in my view, a principled reason for giving that offender credit for the time he or she spent serving the sentence for that unrelated conviction.

[70] In Yegin, [28] Roy J. considered whether to give credit to the contemnor for time served on a first degree murder charge for which he was subsequently acquitted. Mr. Yegin was charged with contempt in May, 2008. He was acquitted on the murder charge in December, 2008. After Mr. Yegin’s acquittal on the murder charge, he remained in custody. At the time of sentencing on the contempt in February, 2009, Roy J. did not give any credit to Mr. Yegin for the time spent in custody prior to May 2008 when he was cited for contempt. He did gave him a two-for-one credit for the time in custody solely on the contempt charge (from December 2008) and a further one-for-one credit for the period from May to December 2008 when he was in custody on both the murder and contempt charge. With respect to time between May and December 2008, Roy J. relied on Wilson and determined that some consideration could be given for time spent in custody with respect to both the murder and contempt charges, but not on a two-for-one basis. Thus, he gave credit on a one-for-one basis from May to the December acquittal, and on a two-for-one basis thereafter, for a total credit of one year. On appeal, the Court of Appeal upheld the sentence and the credit without commenting on the appropriateness of the credit given. The situation in Yegin is to be distinguished from Mr. Omar’s circumstances. Mr. Yegin was detained in custody following his acquittal on the murder charge, and obviously would have been detained even if his acquittal on murder and citation for contempt were simultaneous. Therefore, his custody prior to his acquittal can be seen, at least in part, to be due to the contempt. However, Mr. Omar was never held in custody with respect to the contempt charge. He was released immediately upon being acquitted of murder. None of his time in custody is attributable to the contempt.

[71] I see no principled basis to give Mr. Omar any credit for the time he spent in custody on the murder charge. I recognize, as did the majority in Wilson, that there can be circumstances in which time spent in custody on another charge may be “part of the complete picture for understanding a particular offender.” [29] However, I do not see anything about the situation before me to warrant such a credit or reduction in this case.

MOLLOY J.

Released: March 29, 2017