Court File and Parties

COURT FILE NO.: CR-20-40000272-0000 DATE: 2021-10-07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

• and -

Jacob Owusu-Sarpong

Counsel: Daniel DeSantis and Brianne Bovell, for the Crown Tony Bryant, for Mr. Owusu-Sarpong

HEARD: October 1, 2021

Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s. 486.4(2.1) of the Criminal Code of Canada

Reasons for Sentence

KELLY J.

[1] Mr. Jacob Owusu-Sarpong has been found guilty of the following offences arising out of a home invasion robbery and a search warrant executed on his home thereafter:

Count	Office	Section
1	Being unlawfully in a dwelling house.	349(1)
2	Forcible entry.	72(1)
3	Robbery.	343
4	Forcible confinement.	279(2)
5	Aggravated assault.	268(1)
6	Assault with a weapon.	267(a)
7	Sexual assault with a weapon.	272(1)(a)
10	Possession of a loaded restricted or prohibited firearm.	95(1)
11	Possession of a firearm contrary to a court order.	117.01(1)

[2] Mr. Owusu-Sarpong was tried by the Court, sitting without a jury. He now appears before me for sentencing. Crown counsel submits that a global sentence of 16 years’ imprisonment is warranted. Counsel for Mr. Owusu-Sarpong submits that a global sentence of 12 to 14 years’ imprisonment is appropriate. Counsel both agree on the ancillary orders.

[3] For the reasons set out below, I find that the appropriate sentence is a global one of 16 years’ imprisonment, less presentence credit of 3 years, 3 months for a further sentence of 12 years, 9 months to serve. The ancillary orders to be imposed are as follows:

a. An order under s. 487.051 of the Criminal Code, that Mr. Owusu-Sarpong provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database;[^1]

b. An order under s. 109 of the Criminal Code for life;

c. Forfeiture pursuant to s. 490 of the Criminal Code;

d. A SOIRA order for a period of 20 years pursuant to s. 490.013(2)(b); and

e. A non-communication order pursuant to s. 743.21 regarding Dr. C.J., Ms. A.J., Ms. B.M. and all other known members of Dr. C.J.’s family.

[4] What follows are my reasons.

Factual Overview

[5] As set out in my Reasons for Judgment,[^2] I found that Mr. Owusu-Sarpong was involved, with another, in a home invasion robbery on September 27, 2018. This was not their first visit to the area. On September 21, 2018, three men, dressed in construction gear had been in and around the area of the home located at G[…] Street in Toronto. They appeared to be “casing” it in advance of their return visit on September 27, 2018.

[6] On the date of the home invasion robbery, Dr. C.J. was getting ready for work when two males dressed in construction clothing knocked on his door. Dr. C.J. opened the door following which the males, armed with what appeared to be handguns, entered the home demanding to know the location of the “safe” and the “money.” Dr. C.J. advised there was no safe in the home and only a small amount of money in his wallet. Dr. C.J.’s answers did not deter the perpetrators.

[7] During the home invasion, Dr. C.J. was beaten, forced into the basement, had his pants and underwear removed, and was tied up. When the perpetrators left the home, Dr. C.J. freed himself. He went to a neighbour’s home and the Toronto Police Service (“TPS”) was called. Dr. C.J. was taken to Sunnybrook Health Sciences Centre (“Sunnybrook Hospital”).

[8] After the TPS conducted a search of the home and it was cleaned professionally, Dr. C.J.’s stepdaughter found a Band-Aid on the floor of the master bedroom walk-in closet. It was seized by the TPS and sent to the Centre of Forensic Sciences. A DNA profile was generated. In January 2019, the National DNA data bank returned a single DNA profile presumptively matching that of Mr. Owusu-Sarpong.

[9] A further investigation into Mr. Owusu-Sarpong began. Amongst other things, data searches and surveillance were conducted. Eventually, an Information to Obtain was provided for judicial authorization in support of a search warrant for Unit 1104, 4500 Jane Street in the City of Toronto. This was a residence connected to Mr. Owusu-Sarpong.

[10] The search warrant was granted and on August 14, 2019 it was executed. Found during the search, amongst other things, were the following: three hard hats, two construction vests, a construction shirt, zip ties, a taser, a loaded firearm, and a pellet gun. The DNA profiles from a bloodstain swab found on the inside front headband of the yellow hard hat and a bloodstain swab from the inside edge of a white hard hat could not be excluded as belonging to the victim of the home invasion, Dr. C.J..[^3]

[11] Various witnesses were called at trial, including Dr. C.J., other civilian witnesses and several members of the TPS. Mid-trial, Mr. Owusu-Sarpong changed his plea on Counts 10 and 11 from not guilty to guilty. I accepted the change in plea. The trial proceeded thereafter with evidence regarding the home invasion on September 27, 2018.

[12] After having considered the totality of the evidence (including Mr. Owusu-Sarpong’s evidence), the Court found Mr. Owusu-Sarpong guilty of Counts 1 to 7 (dealing with the home invasion). Pursuant to his guilty pleas, Mr. Owusu-Sarpong was also found guilty of Counts 10 and 11 (dealing with the firearm seized during the execution of the search warrant).[^4]

Additional Facts

[13] At the time of the sentencing submissions, Crown counsel sought to prove that Mr. Owusu-Sarpong was one of two males depicted in videos possessing and discharging a firearm as an aggravating factor on sentencing. This application was made pursuant to s. 724(3) of the Criminal Code and R. v. Gardiner.[^5]

[14] Admissions were made with respect to the three video clips seized. They included the following: (i) that three video clips showing two males displaying firearms and then discharging them were located on a cell phone with a number belonging to Mr. Owusu-Sarpong; (ii) that the date, time and location of the three videos are unknown; and (iii) that, “Mr. Owusu-Sarpong does not admit that he is present in any of the three video clips.”

[15] After having been shown a photograph of Mr. Owusu-Sarpong admitted at trial and the three video clips, I have no problem concluding that it is Mr. Owusu-Sarpong who is possessing and discharging a firearm in the video clips introduced at sentencing.

[16] The photo entered as an exhibit at trial[^6] shows Mr. Owusu-Sarpong wearing the following:

a. a black flat cap with the letters “DTU” on the front;

b. a white or light grey long sleeved shirt;

c. black track pants with red stripes down the sides; and,

d. a black Louis Vuitton cross body bag (it has black and grey checks with silver zippers).

[17] Photos of items seized and photographed at the time of the execution of the search warrant show the following items located in Mr. Owusu-Sarpong’s room:

a. A black flat cap;

b. Black track pants with red stripes down the sides with an Adidas logo;

c. A black Louis Vuitton cross body bag. It, too, has black and grey checks with silver zippers; and,

d. A silver handgun with a black grip.

[18] All three video clips show that one of the males (similar in appearance to Mr. Owusu-Sarpong) is wearing the following:

a. a black flat cap with letters on the front;

b. a white or light grey long sleeved shirt;

c. black track pants with red stripes down the sides; and,

d. a black Louis Vuitton cross body bag (with black and grey checks with silver zippers).

[19] In the first video clip, the male wearing the abovementioned clothing (and who I find is Mr. Owusu-Sarpong) is holding a firearm (a handgun) in his right hand that is silver with a black grip. In the second video clip, he is shown holding the firearm, exclaiming “Happy Birthday” and then discharging the firearm four times into the air. The firearm, in both clips, is similar in appearance to the one found during the execution of the search warrant. In the third video clip, the second male discharges his firearm seven times.

[20] As I have stated above, I have no difficulty concluding that the male wearing the clothing described (i.e., black track pants with red stripes, and so forth), and who is possessing and firing the handgun four times after exclaiming “Happy Birthday,” is Mr. Owusu-Sarpong. Crown counsel has proven this aggravating fact beyond a reasonable doubt.

[21] These are the facts upon which Mr. Owusu-Sarpong is being sentenced. I will now turn to a consideration of the impact of these offences.

Victim Impact

[22] Dr. C.J. is a 69-year-old cardiologist at Sunnybrook Hospital. He is a widower, having lost two spouses to cancer. He is a father, stepfather, and grandfather. At the time of the home invasion, he was sharing the home at G[…] Street with his stepson who had left for work.

[23] As described in great detail in my Reasons for Judgment, Dr. C.J. suffered significant injuries during the home invasion. Those included the following:

a. Displaced fracture of his left-hand pinky finger for which he had surgery on October 2, 2018.

b. Right radial fracture of the wrist for which he had surgery on October 3, 2018.

c. Right thumb tendon rupture.

d. Displaced fractures in right ribs 6, 7, 8, 9, 10, and 11.

e. Nasal fracture.

f. Lacerations requiring sutures in the following places: three locations on the scalp parietal and lip.

g. Abrasion on his back.

h. Hearing loss to the right ear caused from post-traumatic tympanic perforation for which he had surgery on February 22, 2019.

i. Bruised, swollen eyes.

j. Psychiatric issues for acute stress, delirium, sleep disruption, flash backs, and symptoms of post-traumatic stress disorder.

[24] At trial, when shown a picture of himself taken at Sunnybrook Hospital after the incident, Dr. C.J. testified, “I can hardly recognize myself in this picture. Several people came to visit me that morning down in emerge, and they walked by. They didn’t – they couldn’t tell it was me.” When asked to describe how he felt after having been beaten and some of his clothing removed, Dr. C.J. stated:

I felt terrible, and I felt that this was, by this point, definitely the worst day of my life, and I was afraid I might die. I was not sure whether I was going to survive this brutal beating, and it was absolutely horrendous. Definitely the worst day of my life.

[25] Dr. C.J. provided a Victim Impact Statement that may be summarized as follows:

a. Dr. C.J. says that the assault “has had profound effects” on his life. He describes the physical, financial, and emotional impacts of the assault. He suffered multiple injuries as described above. He had casts on both arms for six weeks and had ongoing pain symptoms in his right wrist and left hand.

b. Dr. C.J. describes that “[e]ven the simplest tasks were difficult.” Dr. C.J. continues to have pain and decreased mobility of his left fifth finger and right wrist. His injuries have affected his ability to work and to complete even simple activities, such as buttoning a shirt. Dr. C.J. also experienced decreased hearing in his right ear due to perforation of his eardrum. There was some improvement after surgery, but he may have to use hearing aids. Dr. C.J. says that while some of the physical effects of the assault have improved, some of the injuries will have “lifelong” effects.

c. Due to Dr. C.J.’s injuries, he could not work for three weeks and then returned to work with a decreased workload and capabilities. This impacted his medical practice as colleagues had to cover some of his work duties and appointments were postponed. His income dropped by 35%.

d. Dr. C.J. has had 47 visits to physicians and 27 appointments with an occupational therapist related to his hand injury. For the first six weeks after the assault, he had to take a cab to work. Dr. C.J.’s house was sold because of the “emotional and physical impacts.”

e. Dr. C.J. describes the assault’s emotional impact as “major” and “ongoing.” He continues to have flashbacks to the assault. He remains hypervigilant while walking in certain circumstances and is apprehensive about men wearing bright reflective construction vests. Dr. C.J. describes that he will “become anxious if there is any sense of risk of potential harm” from those around him.

f. The emotional impacts of the assault have also impacted Dr. C.J.’s interactions with his children, family, colleagues, and friends. Others have noticed that Dr. C.J. is “anxious and risk averse” in many of his activities. Dr. C.J. repeats, in conclusion, “September 27, 2018 was the worst day of my life.”

[26] Various other members of Dr. C.J.’s community provided Victim Impact Statements, which may be summarized as follows:

Ms. A.J.: A.J. is Dr. C.J.’s sister. She helped look after him immediately after and during his surgeries. She continues to provide emotional support. A.J. describes witnessing “firsthand his disorientation, fear, temporary memory loss, physical injury and embarrassment at being dependent on others.” She says that watching her brother go through this “was very emotionally distressing and disturbing.” Further, A.J. states, “It was heartbreaking for me to see such an accomplished, kind, well regarded and high energy person change in this way.”

A.J. was emotionally affected. She experienced her own anxiety and “distrust in a joyful future.” This experience has “permeated the life” of her family. A.J. describes that “[t]he attack has had a ripple effect and shaken the extended family”.

V.: V. is Dr. C.J.’s partner. They met in March 2018 after Dr. C.J.’s second wife died of cancer. She recalls receiving a phone call on September 27, 2018 about the assault and being in shock. She did not recognize Dr. C.J. when she went to the hospital because his face was so disfigured. V. says, “There isn’t a day that goes by that I don’t think about it.” She says they both lost their innocence and sense of security that day.

V. describes that “[i]t has been devastating to see Cam suffer both physically and emotionally during these past three years.” It has triggered increased anxiety and depression in V. and her daughters. Her biggest fear is whether they can move forward.

Family members of Dr. C.J.: Dr. C.J.’s family describes him as “one of the good guys.” As a cardiologist at Sunnybrook Hospital for the last 37 years, he has cared for thousands of patients, helping them live longer and better lives. Dr. C.J. has had a difficult personal life, as he has been widowed twice due to cancer. He is known as a “gentle, mild-mannered man with unbounded energy” and as someone whose “grandkids mean the world to him.” The home invasion has “created permanent and omnipresent emotional trauma for our family and has taken much from us.”

The family’s relationship with Dr. C.J. has changed; it has gone from “one of enjoyment and him supporting us to one of us supporting him.” Dr. C.J. is no longer able to engage in many activities that he previously enjoyed. Since the attack, Dr. C.J. “has become increasingly reclusive and quiet.” Visits and holidays are not the same. The events of September 2018 “created deep and permanent emotional trauma” for their family due to the impact of the brutal attack on Dr. C.J., the “overwhelming and paralyzing anxiety” in the family’s lives, and the meaningful loss in the family’s ability to find joy.

Dr. Bradley H. Strauss: Dr. Strauss served as Chief of the Heart Program and Head of the Division of Cardiology at the time of these offences. He describes Dr. C.J. as a senior and highly respected member of the Division of Cardiology and the Department of Medicine at Sunnybrook Health Sciences Centre and the Faculty of Medicine at the University of Toronto.

Dr. Strauss describes the impact on Dr. C.J.’s colleagues when they heard about the attack and the injuries. It left them “with a real sense of loss of general security” and a “heightened level of anxiety.” Dr. Strauss also describes the organizational and financial effects of Dr. C.J.’s assault. Dr. C.J. was absent from work for three weeks and when he returned to the workplace, he could not fully carry out his duties. This meant his colleagues had to carry heavier workloads. All areas of the workplace felt the loss of Dr. C.J., including the medical students and residents who lacked Dr. C.J.’s highly proficient teaching. There were also delays in diagnosis and treatment where no one could replace Dr. C.J.. Dr. Strauss included a quote from one of Dr. C.J.’s colleagues, stating that “[o]ne of the best things about working in Sunnybrook’s echo lab is Dr. C.J.’s sense of humour and overall good nature.” After the assault, the colleague describes Dr. C.J. as withdrawing from everyone. In conclusion, Dr. Strauss states that there were “significant and long-lasting effects on the cardiologists and staff” at Dr. C.J.’s workplace.

Personal Background

[27] I will now turn to a consideration of Mr. Owusu-Sarpong’s background.

[28] Mr. Owusu-Sarpong’s background may be summarized as follows:

a. Mr. Owusu-Sarpong is 32 years of age. He was born on October 28, 1988 in Ghana. He is a Canadian citizen.

b. Mr. Owusu-Sarpong has immediate family in Toronto including his mother, older sister, and younger brother. He has an older brother who currently lives in Alberta. They continue to support him despite his criminal troubles.

c. Mr. Owusu-Sarpong graduated from high school and was admitted to York University. He started university in the fall of 2007 but discontinued his studies when he was convicted of a criminal offence in 2008. He resumed his studies at York University in the fall of 2010 after he was released from custody. He did not complete his degree.

d. Mr. Owusu-Sarpong has been employed in a number of capacities, including as a fitness instructor at Skydome and on his own. He was employed at Medieval Times from 2010 to 2014. Prior to that, he was employed by the City of Toronto in the farming and agricultural department.

e. While incarcerated at the Toronto South Detention Centre (“TSDC”), he has pursued visits with social workers, and he has made efforts to contribute by assisting other inmates. (More will be said about this below.)

f. Mr. Owusu-Sarpong has shown an interest in writing and is making efforts to publish a book.

Criminal Record

[29] Mr. Owusu-Sarpong has a criminal record with the following entries:

2008: Mr. Owusu-Sarpong was convicted in Oshawa for failure to comply with his recognizance and obstructing a peace officer. He received a sentence of 1 day, in addition to 24 days of presentence custody for failure to comply and 5 days for obstructing police, consecutive.

2009: Mr. Owusu-Sarpong was convicted of possessing a firearm with ammunition. He received a sentence of 22 months (in addition to 7 months of presentence custody). He was subject to a mandatory prohibition order pursuant to s. 109 of the Criminal Code.

2015 (April): Mr. Owusu-Sarpong was convicted of assault for which he received a suspended sentence of 12 months, in addition to 45 days of presentence custody. For the conviction of failing to comply with the conditions of his undertaking he was given a sentence of 12 months of probation.

2015 (December): Mr. Owusu-Sarpong was convicted in Brampton for flight from a police officer. He received a fine of $400 and was prohibited from operating a motor vehicle for 18 months.

2016 (July): Mr. Owusu-Sarpong was convicted of assault and two counts of failing to comply with his undertaking. He was sentenced to 1 day in custody in addition to 84 days of presentence custody. He was placed on probation for 12 months. He received one day concurrent for each charge of failing to comply.

2016 (August): Mr. Owusu-Sarpong was convicted of failing to comply with his undertaking. He received a suspended sentence with probation for 12 months in addition to presentence custody of 12 days.

Community Support

[30] Mr. Owusu-Sarpong has support in the community as shown by the letters filed on his behalf. They may be summarized as follows:

Ms. Dora Owusu-Sarpong: Dora is the sister of Mr. Owusu-Sarpong. Their family grew up in the Jane and Finch neighborhood after immigrating from Ghana. Their parents divorced and they were raised by a single mother, who worked every day. She describes that “life on the streets was difficult.” There were turf wars, dog fights, drug trafficking, smoking of marijuana, and they were aware of frequent shootings in the area. She describes her brother as “very brilliant, intelligent, and smart” and “determined to move his mother out of the projects.” After their father left and their older brother moved away for work, Mr. Owusu-Sarpong had to become the man in the house and Dora wrote that “it was difficult for Jacob to make the correct decisions or better choices for himself and the future.”

The family is “here to support and provide help anyway” they can. Mr. Owusu-Sarpong is described as having a special bond with his nieces and nephews. He helps care for them. Dora describes that “this can be a lesson for him and when he returns home one day, he can become a much better person.” Their family believes he can still be a productive and supporting family member, especially to his nieces and nephews. The family is troubled by Mr. Owusu-Sarpong’s offences but are in a position to support him in the future.

Mr. Gary A. Newman: Mr. Newman is a freelance Assets-Based Community Developer and Trauma Counselor. He has known Mr. Owusu-Sarpong since 2012 when Mr. Owusu-Sarpong successfully participated in a 36-week leadership project. He supported Mr. Owusu-Sarpong to obtain employment with Medieval Times and continue his education at York University. Between 2017-2019, Mr. Owusu-Sarpong expressed a “desire to give back to the community in a meaningful way.” He was hired by Mr. Newman for a few projects, including an intergenerational cooking club for seniors and youth, a special consultation with the TPS Community Liaison Officer, and as co-founder of a book club for youth ambassadors who have a history of conflict with the law. He describes how Mr. Owusu-Sarpong has corresponded with him “to better understand what roles trauma and exposure to trauma might play in how he sees and conducts himself.”

Ms. Showaita Manchanda: Ms. Manchanda is a Registered Clinical Social Worker employed at the Toronto South Detention Centre. She was assigned to Mr. Owusu-Sarpong’s unit. Mr. Owusu-Sarpong inquired about programs and services offered by the Social Work Department at the TSDC, which led Ms. Manchanda to bring him materials to read. They engaged in lively discussions with others on the unit. Mr. Owusu-Sarpong wrote a book while incarcerated. She describes Mr. Owusu Sarpong’s “desire to one day publish this book and go on speaking tours where he can empower others to rise from perceivably disadvantageous positions.” She reached out to a well-known author, David Chariandy, who agreed to support Mr. Owusu-Sarpong’s literary journey.

Ms. Manchanda also describes that Mr. Owusu-Sarpong approached her for assistance “in facilitating ‘educational-style programs’ on the unit.” He then prepared lessons and activities on a weekly basis for the inmates on the unit. These activities “forced the inmates to think outside of their lived experience, question what they have being [sic] told/taught about gangs/violence/social media and other relevant topics.” Ms. Manchanda says that staff would often use “positive terminology when describing their interactions with him: helpful, supportive in managing crises on the unit given that he was one of the older males, and respectful of the staff and their directives.” He also mentored some of the younger men on the unit.

Ms. Manchanda says that she only writes letters for a select few inmates whom she has personally interacted with, who have shown an interest in rehabilitation, and have demonstrated a genuine desire to be something more. She believes that Mr. Owusu-Sarpong has these attributes.

Ms. Lindsay Jennings: Ms. Jennings is a volunteer at the TSDC. She facilitates a resilient reintegration program at the TSDC. Prior to the pandemic, the program met once a week and it now operates virtually. She is also the program coordinator for Book Clubs for Inmates and involved in the Lace-Up Initiative, which assists people in a pre-release program who are being held in remand at the TSDC. She describes Mr. Owusu-Sarpong as “a young Black man with great potential and most of his life ahead of him.” He wants to get married and play an active, loving role in his children’s lives. He is also described as “a very supportive uncle.”

Presentence Incarceration

[31] Mr. Owusu-Sarpong has been incarcerated at the TSDC since his arrest on August 14, 2019. As of October 7, 2021, Mr. Owusu-Sarpong will have spent 786 days or close to 26 months in custody.

[32] Since his incarceration, and up until September 3, 2021, Mr. Owusu-Sarpong has been subject to 387 lockdown days. Of those lockdown days, 280 of them were longer than 3 hours. He advises that there have been two weeks of lockdowns since then. Many, if not all, were the result of staff shortages. The restrictions on inmates, due to the COVID-19 pandemic, commenced in March 2020.

[33] Mr. Owusu-Sarpong provided an affidavit to the Court describing the conditions of his presentence incarceration. It may be summarized as follows:

a. He had to deal with medical issues arising from his arrest (a concussion and tissue damage to his rotator cuffs). While he received medical attention, it was minimal and slow in coming.

b. During lockdowns, the inmates are confined to their cells to eat, sleep, and so forth. Showers are not provided regularly and maintaining basic hygiene is difficult.

c. Regular contact with family is difficult. All visits are conducted virtually and are impersonal. They last for about 20 minutes. Many visits are cancelled due to the lockdowns and staff shortages. The pandemic has exacerbated these problems.

d. There is limited access to yard time.

[34] There are three misconducts recorded while Mr. Owusu-Sarpong was incarcerated at the TSDC. A form generated by the TSDC indicates that Mr. Owusu-Sarpong refused to lock up and attempted to influence others to do the same; he was involved in a physical altercation in a cell; and he was involved in another altercation, resulting in the victim sustaining facial injuries and requiring hospitalization. The form does not indicate whether Mr. Owusu-Sarpong was found to have committed such misconducts.

[35] I will now turn to a consideration of the law.

The Law

a. General Principles

[36] In determining an appropriate sentence for Mr. Owusu-Sarpong, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, R.S.C., 1985, c. C-46, which provides as follows:

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 that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[37] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).[^7]

[38] Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.[^8]

b. The Range

[39] There are various sentences that can be imposed for the offences committed by Mr. Owusu-Sarpong. The sentences set out in the Criminal Code range from a sentence not exceeding two years (forcible entry) to imprisonment for life (robbery).

[40] Both Counsel have provided helpful written submissions and cases in support of their positions on sentencing. The materials demonstrate that the positions advanced by counsel are within the range of appropriate sentences for a home invasion robbery and the possession of a firearm in breach of a prohibition order.

[41] I have reviewed all the cases provided. R. v. Wright[^9] was referred to by both counsel as a guide when sentencing for home invasion offences. It, together with the other cases, suggest the following:

a. Home invasion offences are serious.

b. Home invasions are characterized by the perpetrators’ forced entry into the home for purposes of committing a theft or robbery, while knowing that (or being reckless as to whether) the home is being occupied. The acts committed are accompanied by the use or threatened use of violence, together with confinement of the occupants of the home.

c. Home invasions represent a violation of the sanctity of the home and the security that the homeowners feel while there.

d. Home invasions are frequently perpetrated against vulnerable individuals.

e. Sentences imposed for home invasion offences range from four years to thirteen years in jail.[^10]

f. Sentencing ranges provide guidelines for imposing similar penalties for similar offences of a similar nature by similar offenders. However, they are just that—guidelines.

g. Ranges are to be flexible. Each sentence must be imposed based on the facts underlying the offence and the particulars of each individual.

h. The principles of denunciation and deterrence are primary principles when considering a sentence for a home invasion.

i. A lengthy penitentiary term is warranted when an individual is convicted of a home invasion offence because everyone has the right to feel secure in their own residence.[^11]

[42] Both counsel have also provided cases dealing with firearms. What the cases show is that there is a theme consistent in all authorities dealing with firearms, especially in the City of Toronto. This is a theme that is often referred to regardless of the level of court: firearms pose a significant danger to our community to such an extent that exemplary sentences must be imposed that denounce such conduct and deter others from possessing such dangerous weapons.[^12]

[43] The sentences for possessing a firearm and for breaching a court order must be consecutive to the sentence for the home invasion. Those charges represent separate and distinct offences from that of the home invasion. The offence of breaching the court order is a distinct offence from that of possessing the firearm.[^13]

[44] I have reviewed the cases provided and considered them in my analysis. Although the cases assist me in determining the governing principles that must guide my decision, a careful review of them demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. As Chief Justice Lamer noted in R. v. M. (C.A.),[^14] “there is no such thing as a uniform sentence for a particular crime”.

[45] The circumstances of any case, including this one, can be readily distinguished from any other case. Despite this, and as I have stated above, prior decisions assist in defining the principles that I must apply, in determining the appropriate range of sentence and the factors that place Mr. Owusu-Sarpong within that range.

c. Presentence Incarceration

[46] In certain circumstances, particularly when harsh conditions prevailed during presentence incarceration, mitigation greater than the 1.5 days credit set out in s. 719(3.1) of the Criminal Code may be appropriate. In considering whether any enhanced credit should be given, the court will consider the conditions of the presentence custody and the impact of those conditions on the defendant. If the court finds that there is an adverse effect on the defendant flowing from the presentence conditions, the sentence can be reduced further to reflect the added mitigation for the conditions of the presentence incarceration.[^15]

[47] The Ontario Court of Appeal has recently addressed the issue of presentence incarceration in the case of R. v. Marshall,[^16] commencing at para. 52:

52 The "Duncan" credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. Because the "Duncan" credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

53 Often times, a specific number of days or months are given as "Duncan" credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the "Duncan" credit, only one of presumably several relevant factors, there is a risk the "Duncan" credit will be improperly treated as a deduction from the appropriate sentence in the same way as the "Summers" credit. If treated in that way, the "Duncan" credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 2004 CanLII 39056 (ON CA), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge's calculations, the "Duncan" credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody.

[48] Based on these legal principles and others referred to below, I will now turn to a consideration of the fit sentence.

The Fit Sentence

[49] I find the following are the mitigating factors to be considered on sentencing:

a. Mr. Owusu-Sarpong has the support of his family, including his mother and sister. He was unable to have real contact with either of them due to the restrictions imposed at the TSDC due to the pandemic.

b. Mr. Owusu-Sarpong has prospects. He was admitted and attended at York University, and he has obtained pro-social employment in the past.

c. Mr. Owusu-Sarpong has been able to maintain contact with social workers to assist him in his rehabilitation. They speak well of him, which demonstrates the possibility that he can be rehabilitated.

d. Mr. Owusu-Sarpong has been subject to many days of lockdowns, none of which appear to have been caused by his own behaviour. The records show that the lockdowns have been the result of staff shortages and the pandemic. As a result, the conditions in the TSDC have been harsh.

e. Despite the many entries on his criminal record, Mr. Owusu-Sarpong has never been to the penitentiary.

[50] I find the following to be the aggravating factors considered on sentencing:

a. This was a horrific home invasion. Dr. C.J., a 69-year-old man, was viciously attacked and sexually assaulted in his own home. He was a vulnerable victim.

b. There was planning and deliberation involved. There were construction costumes used to gain access to the home. It worked. Dr. C.J. believed that Mr. Owusu-Sarpong and his accomplice were City of Toronto employees and opened his door to them.

c. There was a pre-visit to assess the area a week earlier—September 21, 2018—showing that (again) the home invasion was planned.

d. A get-away car was employed to assist in a quick exit.

e. There were three persons involved. Dr. C.J. was outnumbered in his home, two to one. The third was in the get-away car.

f. The home invasion occurred in the early morning hours and in daylight.

g. A firearm or imitation firearm was used in the home invasion. Dr. C.J. believed that Mr. Owusu-Sarpong and his accomplice had firearms. Whether or not they were real, the threat of firearms had an intended and traumatizing effect on Dr. C.J..

h. Supplies were used to facilitate the home invasion robbery: zip ties were used to restrain him, a taser was used, gloves were worn, and so forth.

i. The sense of security and safety in the home has been stripped away from Dr. C.J. and his family. Dr. C.J. has made significant changes to his life. The home has been sold.

j. The violence used in this case was gratuitous. Dr. C.J. was hit, primarily on his face, with a hard object. The blood splatter shown in the photographs is illustrative of the force used.

k. His hands and feet were tied, his finger was broken, he was stripped from the waist down and tasered.

l. Dr. C.J. defined this as the worst day of his life and feared he might die.

m. There were significant injuries as described above. In particular, Dr. C.J. suffered significant injuries to his wrist.

n. There has been a longstanding impact of his injuries, including his ability to work in his chosen profession. In addition, his ability to socialize and be active with his family has been affected forever.

o. There has been an intense commitment to deal with the effects of his injuries: 27 appointments with an occupational therapist, continued physiotherapy, 47 visits to physicians, and so forth.

p. There has been resultant career limitation. Dr. C.J. was absent from work for three weeks and could only return to a job that he loves part-time. There was a loss of income from reduced work hours. There were other challenges, including using a keyboard. Others in his department had to assist, thus affecting the members of his team.

q. There has been significant emotional trauma. He has flashbacks. There is a restriction of his activities due to fear. There is an emotional trauma on extended family and his colleagues.

r. Family, friends, and colleagues have been negatively affected. There is a constant suspicion of those wearing construction clothing, which acts as a trigger for continued trauma.

s. This was the family home of Ms. B.M. from ages 3 to 26. She, and her brother, were no doubt traumatized from seeing their family home splattered with blood and the belongings of their deceased mother ransacked.

t. The community in which the home invasion occurred affected John Ross Robertson, a public school that buttresses the property. The school went into lockdown having been advised that a violent robbery had taken place at G[…].

u. Mr. Owusu-Sarpong has a criminal record, including an entry for possession of a restricted firearm with ammunition. He has also been convicted of assault in addition to five convictions for breaching court orders.

v. At trial, Mr. Owusu-Sarpong testified that he carried a firearm in self-defense. This is contradicted by the video evidence showing that he celebrates birthdays by putting people at risk by randomly discharging his firearm in public.

w. Mr. Owusu-Sarpong possessed the firearm in breach of three court orders. He breached a s. 109 order that arises from his former possession of a firearm. He was subject to two s. 110 discretionary weapons prohibition orders at the time of the offences.

x. Mr. Owusu-Sarpong was incarcerated for a prior firearms offence. He was not deterred from possessing a firearm as a result thereof.

y. Mr. Owusu-Sarpong testified and admitted that he is part of a drug trafficking enterprise. It is to be inferred that the firearm was part of the operation of that enterprise.

z. The firearm was carelessly and dangerously stored. This firearm was in a home where others were at risk, including his mother and two others that occupied the apartment.

aa. The prevalence of gun violence in our city is high. Firearms cause significant injuries and sometimes death to members of our community.

Conclusion

[51] In this case, there has been a violation of the sanctity of the home and the sense of security that people feel when they are inside their homes. The appropriate sentence imposed for this violent home invasion and possessing a firearm in breach of a court order must be one from which our society feels protected. Overall, I find that the primary sentencing objectives in this case are denuciation and deterrence.

[52] The sentence must deter others from committing similar crimes, without crushing the hopes of Mr. Owusu-Sarpong. However, Mr. Owusu-Sarpong deserves a sentence that addresses the appropriate legal principles in consideration of his background and the facts. I cannot say with certainty that there is no hope for rehabilitation and I do not disregard such a possibility. I also cannot ignore the principle of totality.

[53] In reaching my conclusion about the fit sentence I am mindful of the fact that this is Mr. Owusu-Sarpong’s first visit to the penetentiary and of the direction of Rosenberg J.A. in R. v. Borde,[^17] that “a first penitentiary sentence should be as short as possible.” Mr. Owusu-Sarpong is a fairly young man. That said, the jump principle is not applicable in light of the seriousness of these offences, including the moral blameworthiness of Mr. Owusu-Sarpong.

[54] I have also considered the principle of restraint.[^18] That said, the principle of restraint must yield to a certain degree to concerns associated with deterrence, denunciation, and protection of the public. A significant penitentiary sentence is required.[^19] In considering the proportionality requirement, the gravity of the offences is extremely serious, as is the degree of responsibility of Mr. Owusu-Sarpong.

[55] In all of the circumstances, I find that the appropriate sentence is a global one of 16 years. But for the principle of totality and the mitigating circumstances of Mr. Owusu-Sarpong serving part of his sentence during the pandemic and the significant lockdowns due to staff shortages (i.e. pursuant to Duncan and Marshall), I would have had no hesitation in imposing a sentence of 18 to 19 years’ imprisonment.

[56] Mr. Owusu-Sarpong will be given credit for time spent in presentence custody in accordance with s. 719 (3.1) of the Criminal Code and Summers.[^20] Mr. Owusu Sarpong has been in custody for almost 26 months. Enhanced at 1.5 days for each day spent in presentence custody, Mr. Owusu-Sarpong will be given credit for 39 months.

[57] For the abovementioned reasons, I find that a global sentence of 16 years less 3 years, 3 months is appropriate. Mr. Owusu-Sarpong will be required to serve a further 12 years, 9 months in custody.

[58] Mr. Owusu-Sarpong’s record will be reflected as follows:

Count	Office	Sentence
1	Being unlawfully in a dwelling house.	5 years concurrent.
2	Forcible entry.	Stayed on consent.
3	Robbery.	10 years less 3 years, 3 months for a further 6 years, 9 months to serve.
4	Forcible confinement.	2 years concurrent.[^21]
5	Aggravated assault.	10 years concurrent to count 3.
6	Assault with a weapon.	Stayed.[^22]
7	Sexual assault with a weapon.	2 years concurrent.
10	Possession of a loaded restricted or prohibited firearm.	5 years consecutive to Count 3.
11	Possession of a firearm contrary to a court order.	1 year consecutive to Count 3.

[59] The following ancillary orders are imposed:

(i) an order under s. 487.051 of the Criminal Code, that Mr. Owusu-Sarpong provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database; and

(ii) an order under s. 109 of the Criminal Code for life;

(iii) forfeiture pursuant to s. 490;

(iv) a SOIRA order for a period of 20 years, pursuant to. s. 490.013(2)(b); and

(v) A non-communication order pursuant to s. 743.21 regarding Dr. C.J., Ms. A.J., Ms. B.M. and all other known members of Dr. C.J.’s family.

Kelly J.

Released: October 7, 2021

COURT FILE NO.: CR-20-40000272-0000

DATE: 20211007

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

jacob owusu-sarpong

reasons for Sentence

Kelly J.

Released: October 7, 2021

[^1]: Aggravated assault, sexual assault with a weapon, and robbery are primary designated offences.

[^2]: R. v. Owusu-Sarpong, 2021 ONSC 5114.

[^3]: Mr. Owusu-Sarpong brought an application pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”). He submitted that his s. 8 rights to be secure against unreasonable search and seizure had been “infringed or denied”. As such, he sought to have the items seized during the search of Unit 1104, 4500 Jane Street excluded from the trial pursuant to s. 24(2) of the Charter. That application was dismissed in separate written reasons.

[^4]: Mr. Owusu-Sarpong was found not guilty of Counts 8 and 9 as Crown counsel conceded that they had not proven beyond a reasonable doubt that Mr. Owusu-Sarpong possessed a firearm as defined by the Criminal Code.

[^5]: 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368.

[^6]: Exhibit 38H at trial.

[^7]: See R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, aff’d 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773.

[^8]: See R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at pp. 557-559.

[^9]: (2006), 2006 CanLII 40975 (ON CA), 83 O.R. (3d) 427 (C.A.), at paras. 13-24.

[^10]: See also R. v. Garrell, 2018 ONSC 3001, where Dambrot J. observed, at para. 32, that the range for home invasions is between 4 and 13 years, “with the high end of the range being appropriate for offences involving violence or sexual assaults.”

[^11]: See e.g., R. v. S.(J.), 2006 CanLII 22101 (ON CA), 81 O.R. (3d) 511 (C.A.).

[^12]: See R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.); R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773.

[^13]: See R. v. Ferrigon, 2007 CanLII 16828 (ON SC), [2007] O.J. No. 1883 (S.C.).

[^14]: Supra note 8, at p. 567.

[^15]: R. v. Duncan, 2016 ONCA 754, at paras. 6-7

[^16]: 2021 ONCA 344.

[^17]: (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 3

[^18]: See R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1(C.A.).

[^19]: See R. v. Reesor, 2019 ONCA 901, at para. 8

[^20]: 2013 ONCA 147, 114 O.R. (3d) 641, aff’d 2014 SCC 26, [2014] 1 S.C.R. 575

[^21]: Counsel for Mr. Owusu-Sarpong submitted that this Count should be stayed, pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. I disagree. I find that the use of the zip ties to confine Dr. C.J. is a separate offence from the home invasion robbery as they tied him up and left him in such a state when they fled the home. As such, he was forcibly confined following the home invasion robbery.

[^22]: I declined to stay this Count, pursuant to Kienapple. Despite the argument of Crown counsel, I find that the use of the taser was part of the home invasion robbery.