Court File and Parties

COURT FILE NO.: CR-21-30000023-0000 DATE: 20220531

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – OMAR WILLIAMS

Counsel: Rob Fried and Jason Gorda, for the Crown Louis Dallas, for Mr. Williams

HEARD: Feb. 18, May 10, & May 12, 2022

R.F. GOLDSTEIN J.

[1] On May 19, 2022 I sentenced Mr. Williams. I read my reasons in court but indicated that the written version would follow. The following are my written reasons.

The Offence And The Guilty Plea

[2] On March 18, 2020, Allan Wheeler and a friend were at home in his bedroom. His mother and uncle were also in the house. He lived in a bungalow on Tordale Crescent in Toronto. At about 10:00 pm that evening Omar Williams and two confederates barged into the house identifying themselves as police officers. They were all wearing masks and gloves. Mr. Williams was armed with a firearm. So was one of his two confederates. They went to Mr. Wheeler’s bedroom and demanded money. When he said he had none, one of the confederates struck him with a gun and kicked him. The men ransacked the bedroom, and then took $300 from Mr. Wheeler’s mother’s purse. They then fled.

[3] In the meantime, Mr. Wheeler’s mother escaped and called 911. Police officers arrested one of the confederates. Just before the arrest that confederate tossed a handgun away, which the police recovered. The gun had a round in the chamber and 10 rounds of ammunition in the magazine. The confederate had a second magazine with another ten rounds of ammunition. The confederate also had two balaclavas, a pair of gloves, and $70 in cash.

[4] Mr. Williams fled to a backyard shed and hid. A police tracking dog found him. With him was a loaded firearm with one round in the chamber and 10 rounds in the magazine. The police also located black gloves, a black balaclava, and $60 in cash.

[5] At the time, Mr. Williams was subject to two firearms prohibition orders.

[6] On February 18, 2022 Mr. Williams pleaded guilty to four offences:

• Robbery with a firearm contrary to s. 343(d) of the Criminal Code; • Break and enter contrary to s. 348(1)(b) of the Criminal Code; • Possession of a prohibited firearm with ammunition contrary to s. 95(1) of the Criminal Code; • Possession of a firearm contrary to a prohibition order contrary to s. 117.01 of the Criminal Code.

[7] Crown and defence jointly submit that I should impose a sentence of 6.5 years. They differ on the calculation of pre-sentence custody.

Mr. Williams’ Background

[8] Mr. Williams is a young man. He is originally from Scarborough but moved to Durham Region with his mother when his parents separated. In a pre-sentence report Mr. Williams reported to the probation officer that the move was disorienting. He experienced racism and difficulty with authority figures. Mr. Williams is obviously a very good athlete – he played sports in high school. He finished high school and did reasonably well academically. He was offered a football scholarship to the University of British Columbia. He was unable to attend, however – he was in jail. He has a reasonable work history. He worked full time as a delivery person for an appliance company for five or six years. He obtained a dump truck licence and worked in that field. As well, he has done different types of installation work. Mr. Williams is obviously capable of having a responsible job and supporting himself. Mr. Williams did report to the probation officer that he was traumatized when a cousin was shot and died in his arms, something that appears to have been corroborated by other family members. Having observed him testify, he is obviously an intelligent man.

Mitigating and Aggravating Factors

[9] The most important aggravating factor is the nature of the offence. Armed with a gun, Mr. Williams was part of a home invasion. He broke into a house and pretended to be a police officer. He may not have struck the victim with a gun, but he was certainly party to it. No doubt this was absolutely terrifying and traumatizing to the victims. He then broke into another place – not a house, but a shed on a nearby property – in an attempt to hide. Altogether, this was a most serious offence.

[10] Another aggravating feature is Mr. Williams’ criminal record. He has two previous convictions for armed robbery, although one was as a youth. During one of the robberies, Mr. Williams robbed a convenience store. As he put it, he was stealing stuff. In the other, he was armed with a gun. During the course of that robbery, he assaulted the store clerk, who lost teeth. He was also convicted of aggravated assault for that offence. It seems that Mr. Williams was involved in some very serious criminality as a young man. He appears to have left that lifestyle but ended up with the same bad crowd several years later and committed the robbery that is before the court.

[11] The most important mitigating factor here is the guilty plea. Mr. Williams has taken responsibility for the offence. According to the probation officer, “the subject takes full responsibility for his role in the offences. He does not engage in denial or minimization and does not attempt to deflect any blame onto his co-accused.” Mr. Williams told the probation officer that several emotional and traumatic events had conspired to put him in a frame of mind where he resumed contact with a “negative peer group.” Mr. Williams did apologize in court to the families he has harmed and expressed remorse. He indicated that he went through several hard things. He stated that was no excuse and wished to make positive changes. That is consistent with what he has told the probation officer and his family members. Mr. Williams filed an affidavit describing some of what he has experienced in custody. He stated the following in his affidavit:

I am terribly sorry for my actions on March 18th, 2020. Due to my traumatic experience in detention, I have learned from my mistakes and do not wish to return to jail. I have already started living a more pro social life by helping with maintenance work (i.e., sanding down and painting the bathroom), diffusing situations and becoming an advocate for the younger inmates in detention. Due to the strong support from my friends and family, I have two jobs already secured for when I am released. At my first job, Fountain Creations & Wellness, my duties would include installing and maintaining water features. At my second job, Canadian Appliance Source, my responsibilities would include delivering household appliances such as dryers and lawn mowers. In addition, I will be moving out of Scarborough and removing myself from any bad influences to live with my cousin in Durham Region. I also hope to seek mental health assistance for my depression and anxiety.

[12] As I have observed in other cases, many people express remorse when they plead guilty. Some mean it. Others do not mean it. Some people mean it but can’t help themselves and get into trouble anyway. I do think Mr. Williams’ expression of remorse is sincere, and I do believe he wants to stay out of trouble but time will tell.

[13] Having community support and having employment waiting for him are other important mitigating factors.

[14] Another mitigating factor is Mr. Williams’ medical issues. In his affidavit, Mr. Williams described how he was experiencing blood in his urine on July 17, 2021. He did not go to a hospital until November 9, 2021. He says that two urine tests were conducted, and the staff lost the first one. He did have a cystoscopy on December 13, 2021. He had a consultation with a urologist on March 17, 2021. He was supposed to have a follow-up cystoscopy test but none has been arranged yet.

[15] When I read Mr. Williams’ account in his affidavit, I was very concerned. Mr. Fried, Crown counsel, had the same reaction and contacted Toronto East Detention Centre to learn more facts. He did not challenge Mr. Williams’ account in his affidavit (although he challenged other aspects).

[16] I learned more facts from the medical department of the Toronto East. Mr. Fried arranged for a nurse from Toronto East to provide information about Mr. Williams’ condition and answer questions. The situation was not quite as bad as Mr. Williams initially described it, but in my view neither was there a completely adequate response. Mr. Williams first noticed that he was urinating blood in July 2021. He says that he made requests to see a doctor on multiple occasions. There is no evidence to contradict him on that point, and I am inclined to believe him. A request dated on September 14, 2021 is noted in the records. Lab work was ordered on September 16, 2021. Apparently, Mr. Williams’ range was in isolation from September 24 to October 7, 2021. Tests did follow in September and October 2021, as well as consultations with doctors.

[17] Let me pause to say that I find the initial response unacceptable. I believe Mr. Williams, based on the evidence about his day-timer, that he did notice urine in his blood on July 17, 2021 and did attempt to bring that to the attention of the authorities. It is unclear to me, and unacceptable, that nothing was done until September 14, 2021. The man had blood in his urine. Obviously as a trial judge I do not have any medical expertise, and I do not have the benefit of expert evidence, but it seems to me as a matter of common sense that anyone would know that blood in the urine is not a trivial matter.

[18] In any event, a doctor ordered tests on September 29, 2021 – two weeks after the first note was made. He did see a specialist on October 6, 2021 – three weeks after the first note was made. Mr. Williams reported severe abdominal pain on November 7, 2021. He was taken to the emergency room on November 9, 2021, after a doctor approved the visit. It is unclear to me why that took two days. He was obviously not malingering. As far as I’m aware, you can’t fake blood in your urine. A series of emergency tests were done at the hospital including an ultrasound which came back negative. Mr. Williams had telephone consultations with the urologist in November 2021 and January 2022. A cystoscopy was performed on December 13, 2021. The urologist has ordered another cystoscopy but it has not been booked due to uncertainty about where Mr. Williams will end up, and of course, there are hospital delays in a time of the Covid pandemic.

[19] All that said, in my view the authorities have taken what I would call a relaxed attitude towards this medical problem. There was not a failure, as Mr. Williams has received medical attention, but the response was inadequate, at least at first. There is no question that the authorities have a responsibility to see to the proper medical care of inmates. I find Mr. Williams’ health issue (and we still do not know exactly what it is) and the institutional response to be mitigating.

[20] I don’t entirely fault the institution, but if Mr. Williams were outside the gates of the Toronto East, he could have gone to see a family doctor or to a walk-in clinic virtually immediately. In a jail, of course, things cannot move quite as quickly. As well, this happened during a pandemic. There has been enormous pressure on the Toronto East, as there has been in all our jails. As well, from time to time the institution has been in outbreak. I agree that the institution did respond, but in my respectful view that response was simply too slow.

[21] A further mitigating factor is the conditions of incarceration. Mr. Williams described lockdowns and triple bunking at the Toronto South and the Toronto East. He also described problems with the quality of the food – apparently, inmates on his range went on a hunger strike for three days when served spoiled or frozen inedible food.

[22] Although Mr. Williams did describe how the conditions of incarceration have affected him, the Court of Appeal had this to say in R. v. Bristol, 2021 ONCA 599 at para. 11:

Lockdowns involve lack of showers and loss of physical activity. They also mean that prisoners are restricted to their cells for long periods of time. Individual evidence is not required to establish those basic effects which go beyond the difficult and restrictive circumstances offenders often encounter during pretrial custody and which are accounted for by the Summers credit.

[23] Mr. Williams also described conditions in custody during the pandemic. These conditions are well-known to this court. He contracted Covid-19 twice. His range was isolated and unable to shower, exchange clothing, or have visits – for obvious reasons. Even when not locked down jail visits from family or counsel have been limited. Access to social programs, social workers, and counselling for mental health problems has been limited. This is another mitigating factor.

[24] I do want to make one comment about Mr. Williams’ health. Mr. Williams has had covid twice, but he has also not been vaccinated. I am aware from my knowledge in this and other cases that all inmates have been offered the Covid-19 vaccine. I said the following in the bail context in R. v. Kongolo, 2021 ONSC 6619 at paras. 39-43, and I would apply those words in the context of this case:

In my view, a person who claims to be fearful of becoming infected with Covid-19 but refuses to be vaccinated is not credible (unless, of course, there is a valid medical reason for refusing). Such a person is refusing the most effective means of preventing transmission of the virus. Where an accused person has sought bail on the basis of fear of Covid 19, but refused vaccination a Court should simply not take the pandemic into account.

I am aware that some populations are suspicious of health authorities based on experiments carried out in the past, such as the horrifying Tuskegee Syphilis Study. I am also aware that there is much misinformation today about the Covid-19 vaccines, some of which is spread maliciously and deliberately.

That said, I take judicial notice that all responsible medical authorities, without exception, have urged people to become inoculated. In the recent case of R. v. Frampton, 2020 ONSC 5733, my colleague Phillips J. dealt with potential jurors who were not vaccinated. I adopt his observations at para. 6:

Data accumulated from around the world appears to show that the available vaccines are very effective. While preventive measures like plexiglass, distancing, masks, et cetera, likely have some salutary effect in reducing Covid-19 spread, it has become clear that the best available method to reduce the risk of transmission and the development of serious illness (or worse) is vaccination.

I also take judicial notice that the federal government has mandated that all federal public servants and members of the armed forces must be vaccinated — and that those who are medically ineligible must be frequently tested. I also take judicial notice that the federal government plans the same mandate for federally regulated industries, such as banking and air transport. The Ontario government has also mandated vaccination in many sectors. Private employers in Canada and around the world are also mandating vaccination. More than 80% of Ontarians are now fully vaccinated.

I make one other point: releasing accused people because they fear becoming infected with Covid-19 but have refused to be vaccinated would give exactly the wrong incentive and send exactly the wrong message.

Legal Parameters

[25] The most serious offence committed by Mr. Williams is robbery with a firearm, contrary to s. 343(d) of the Criminal Code. This offence carries a maximum penalty of life imprisonment. Where a restricted or prohibited firearm is used, the offence carries a minimum penalty of five years for a first offence and a minimum penalty of seven years for a second or subsequent offence as long as that subsequent offence was not committed ten years or more later: s. 344(1)(a) and s. 344(2) of the Criminal Code. This is actually Mr. Williams’ third armed robbery offence, although one was committed as a young offender. The Crown, however, did not give notice that it would seek the mandatory minimum pursuant to s. 727 of the Criminal Code and does not seek the mandatory minimum, although the joint submission is close: 6.5 years. Even the mandatory minimum is not sought, the earlier offences are obviously highly aggravating.

Sentence To Be Imposed

[26] As of May 19, 2022, Mr. Williams has been in custody for 784 days. At 1.5:1 that works out to 1,175 days, or just over 39 months: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; Criminal Code, s. 719(3.1). Before credit for harsh conditions are factored in, that would mean that Mr. Williams must serve about 40 months.

[27] Mr. Fried, for the Crown, suggests that an appropriate credit would be 16 months for the harsh conditions of custody in this case. Credit for pre-sentence custody cannot turn an otherwise fit sentence into an unfit sentence. He suggests that I should sentence Mr. Williams to a global sentence of two years less a day.

[28] Mr. Dallas, for Mr. Williams, relies on my case of R. v. Haj, 2022 ONSC 1457. In that case there was a joint submission for six years. Haj had spent about two years in custody. I credited him with time served. On a mathematical basis, that worked out to about 3:1, as Mr. Dallas has pointed out. Of course, I did not sentence Mr. Haj looking purely at the numbers. I sentenced based on what was fit for the offender – which was a sentence proportionate to the gravity of the offence and the degree of responsibility of the offender and after considering the mitigating and aggravating factors.

[29] As my colleague Forestell J. very aptly observed in R. v. Bernard, 2021 ONSC 5817 at paras. 24-26, sentencing has become more complex, but some principles remain consistent when considering pre-sentence custody:

Particularly harsh presentence conditions can justify credit beyond the ordinary credit for presentence custody (see R. v. Duncan 2016 ONCA 754 at para. 60).

The decision to award additional credit for credit for harsh conditions of presentence custody is discretionary and there is no mathematical formula that must be applied in determining the quantum of such credit. (See, for example: R. v. Rajmoolie, 2020 ONCA 791; and R. v. Brown, 2020 ONCA 196 at para. 13.)

Credit for harsh conditions can serve two functions. Taking into account the impact of the conditions on the offender and giving credit for them serves to ensure that the sentence is proportionate and individualized. In addition, credit for harsh conditions can serve a communicative function. It conveys the message to state actors that inhumane conditions are unacceptable. (See: R. v. Persad, 2020 ONSC 188.)

[30] Ordinarily, a sentence should reflect harsh conditions of custody that go beyond what is provided for in s. 719(3.1). As the Court of Appeal stated in R. v. Marshall, 2021 ONCA 344 at paras. 52-53:

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.

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…

[31] In my view, a fit sentence in this case must reflect the principles of sentencing, including denunciation, deterrence, and rehabilitation. This was a home invasion robbery with a firearm and must be strongly denounced. It is one of the most serious crimes in our law, reflecting the notion that a citizen should be safe in his or her home. A home invasion of this sort undermines that feeling of safety and security that should be a part of a civilized, democratic society. This sort of crime should also receive a significant denunciatory sentence as a matter of general deterrence.

[32] In this case, blending the principles of specific deterrence and rehabilitation are more challenging. Mr. Williams did have a significant gap in his record. That gap reflects what he has told us: that he managed to extricate himself from the world of crime and, as he put it, a negative peer group – but then, regrettably, went back to that group. His willingness to plead guilty and take responsibility without minimizing his involvement speaks well to his prospects for rehabilitation and I believe that he sincerely wishes to do better. And yet, this was his third armed robbery (albeit one as a young offender). That means a measure of specific deterrence is required.

[33] When I consider all the factors, I sentence Mr. Williams to a further 18 months in custody, allocated as follows:

• Robbery with a firearm contrary to s. 343(d) of the Criminal Code: 6.5 years or 78 months, with credit for pretrial custody totaling 60 months with 18 months left to serve; • Break and enter contrary to s. 348(1)(b) of the Criminal Code, 5 years, or 60 months, with credit for pre-trial custody totaling 60 months, with 1 day in custody, concurrent to the robbery count; • Possession of a prohibited firearm with ammunition contrary to s. 95(1) of the Criminal Code: 4 years with credit for pre-trial custody totaling 48 months, with 1 day in custody, concurrent to the robbery count; • Possession of a firearm contrary to a prohibition order contrary to s. 117.01 of the Criminal Code: 1 year, with credit for pre-trial custody of 1 year, with 1 day in custody, concurrent to the robbery count.

[34] There will also be a DNA order, as this is a primary designated offence, and a s. 109 order for life. There will be a non-contact order with the victims.

Released: May 31, 2022

COURT FILE NO.: CR-21-30000023-0000 DATE: 20220531

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – OMAR WILLIAMS

REASONS FOR JUDGMENT ON SENTENCING

R.F. Goldstein J.