His Majesty the King v. Yusuf Aden

Oshawa Court File No.: CR-21-15495 Date: 2022-09-16 Ontario Superior Court of Justice

Between:

His Majesty the King

– and –

Yusuf Aden

Counsel: Frederick Stephens, for the Crown Shaleem Gill, for the Defendant

Heard: August 24, 2022

Reasons for Sentence

Leibovich J.

[1] On November 30, 2021, Mr. Aden was found guilty of break and enter in a dwelling house, assault and unlawful entry before Justice Salmers, sitting without a jury. Justice Salmers passed away before sentencing Mr. Aden. Accordingly, pursuant to s. 669.2 of the Criminal Code, this case has been transferred to me for that purpose. The sentencing hearing was adjourned at the request of the defence while they awaited the preparation of an enhanced pre-sentence report. Eventually, all the necessary materials were filed and sentencing submissions were heard on August 24, 2022. The Crown seeks a four year sentence. The defence seeks a sentence of less than two years to be served in the community. The matter was adjourned to today, September 16, 2022, for the imposition of sentence.

Facts Pertaining to the Offence

[2] In the very early hours of May 9, 2018, Matthew Chan-Neil and his partner, Kayla Fernandez, had just gone to bed in their home at 667 Blackwood Boulevard in Oshawa. They had two young children in the house who were sleeping and there were two other persons who were asleep in their basement room.

[3] Mr. Aden and others arrived at the residence in the early hours of May 9, 2018. Mr. Chan‑Neil and Ms. Fernandez heard the doorbell ring or a knock at the front door. They were not expecting anybody. Mr. Chan-Neil went downstairs to investigate. When he got to the front door and turned the door handle or opened the door a little, Mr. Aden, who was outside the door, violently pushed the door open so that it hit Mr. Chan-Neil’s head and knocked him back. Mr. Chan-Neil punched Mr. Aden, after which he was faced with another man who had come in. As Mr. Chan-Neil faced that second man, Mr. Aden jumped on Mr. Chan-Neil’s back with his arms across Mr. Chan-Neil’s chest. Mr. Chan-Neil then forcefully backed Mr. Aden into a wall in the hallway, breaking a hole in the wall. Mr. Chan-Neil then leaned forward and grabbed a sword left near the door for protection. Mr. Chan-Neil more than once thrust the sword backwards towards Mr. Aden who was still on Mr. Chan-Neil's back. The sword hit and injured Mr. Aden, causing a large slashing cut to his right arm and stab cuts in his right armpit area. Mr. Aden let go and fell to the ground.

[4] For several minutes, Mr. Chan-Neil continued fighting with other men who had entered the house with Mr. Aden. During the fight, at least one of those men, not Mr. Aden, was carrying either a real or an imitation handgun with which he threatened Ms. Fernandez and Mr. Brightman. After a few minutes of fighting, all the men, including the first man, ran from the house.

Facts Pertaining to Mr. Aden

[5] Mr. Aden was 19 years old at the time of the offence. He has no criminal record.

[6] A pre-sentence report and an enhanced pre-sentence report were prepared. The enhanced pre-sentence report was prepared by the Sentencing and Parole Project (SPP), which is a non-profit organization that prepares Enhanced Pre-Sentence Reports (EPSR) for Black people marginalized by poverty and racial inequality.

[7] Mr. Aden is the youngest of five biological children born to his parents. He has three sisters: Nimo (age 40), Jamila (age 27), and Rahma (age 26) and one older brother, Mohamed (age 31). Mr. Aden has six other half siblings: one on his maternal side, and five on his paternal side. His parents separated and his mother raised the children alone. His father has been absent throughout his life. He is of Somali descent and Muslim faith.

[8] Mr. Aden reported experiencing bullying in school in addition to poverty within his family and neighbourhood. He believed that some of the bullying at school was racially motivated and he got into fights, one of which resulted in a two-week suspension when he was in grade 2. Mr. Aden experienced racism from one of his teachers. Mr. Aden believed that he was under a lot of scrutiny and was criticized because of his name and ethnicity.

[9] After grade 8, he went to Somalia for what he believed was a vacation but ended up staying there for almost four years in total. His mother wanted her boys to understand the religion and culture in Somalia and felt that leaving her children there helped build their character. Mr. Aden understood that his mother left him in Somalia because he got into fights in school and believed that she wanted him to “better himself, become disciplined and mature”.

[10] His life in Somalia was challenging. At the beginning, he observed bombings and killings, lived in poverty and was bullied by his peers in the community where he lived. He reported feeling suicidal. He was looked at differently because he did not know how to speak Somali. He was often criticized for coming from Canada or what his family members referred to as the “White country”. Mr. Aden was perceived to “have money” and was rejected when he made claims about the hardships he experienced with his family.

[11] Mr. Aden described tensions in his family due to his resistance against their attempted and sometimes successful use of physical discipline while he lived there. (His mother also used physical discipline with him in Canada.) As a result, Mr. Aden became transient and lived with different family and friends in various villages and cities in Somalia. Through his time there, Mr. Aden learned to cook using minimal ingredients and on coals, which was a common cooking method used in the villages and cities he visited. These skills have been helpful to him as he has progressed in life as he reports that he currently cooks for his family.

[12] Towards the end of his stay in Somalia, Mr. Aden was encouraged by his mother to participate in Quran studies before returning home. Overall, Mr. Aden believed that going back to Somalia helped him to know his background and was a “whole new experience” that made him become more mature and in touch with his family.

[13] He returned to Canada in 2015 and he completed grade 12 in 2018. He attended a community college for a computer engineering program. He discontinued after one semester due to a hand injury. He had surgery on his hand and it took him two years to heal. He was recovering from this injury at the time of the offences.

[14] Mr. Aden has been working in the used car industry for the past six to seven months. He has also been working as a part-time mechanic helper for the past seven months at his auto mechanic shop, Nasscar Auto Service. His employer stated that he has a good work ethic and is well liked by co-workers and customers.

[15] The author of the pre-sentence report wrote:

All personal collaterals contacted portrayed the subject in positive terms, such as caring, hard working, responsible and family oriented. There were no concerns regarding the subject’s current lifestyle, attitude, or peer group.

The subject stated that he did not have the best childhood and the lifestyle he had in Somalia was traumatic for him. He stated a willingness to comply with any court ordered conditions if placed on community supervision. He would benefit from counselling to address underlying childhood issues, anger management and problem-solving skills.

[16] The author of the enhanced pre-sentence report noted that Mr. Aden associated with the wrong people:

As previously mentioned, Ms. Ahmed believed that Yusuf’s choice in friends was problematic and felt this was especially true towards the end of high school and with his entrance into college. She believed that Yusuf had good friends when he was younger who ended up going to college and university and acquired good jobs but she reported that he “cut them off”. Rahma agreed with her mother’s sentiments about Yusuf’s friends and believed that he used poor judgment in choosing them and believed that he knew what he was doing. Yusuf also shared that the people he was associating with as an adult placed him in the wrong environments and in retrospect believes that they did not have his best interests in mind. He recalled his mother’s cautions about some of his friends and the trouble they would get him into, but he was unable to receive her guidance at the time. Yusuf believes as a result of his charges he has been able to evaluate his friends and has changed his friend group.

[17] The author of the enhanced pre-sentence report concluded:

Yusuf has always been connected to his community and within the last two years he has made an impact on the lives of various clients who access the services of Hidaayah House. Yusuf is passionate about the support he is providing and sees his contributions as helping him in his own personal journey.

Yusuf’s collaterals contributed to the report and spoke about him in positive terms with the exception of his choice in friends. Since the offence, Yusuf reported making changes to the people he associates with as he believed lack of attention to this area in the past has played a role in his outcomes.

Yusuf is young and has the ability to turn his life around following this experience. His current circumstances have created barriers to his progression and he has expressed concern about the outcome he will face. He articulated many dreams and aspirations to become successful in the future, and Yusuf believes with the support from his family and community who encourage him that he will be able to reach the goals he has set for himself.

[18] A number of reference letters were filed at the sentencing hearing. Two of his sisters filed letters of support. A grade 11 English teacher provided a letter of reference. He stated:

In my classroom Yusuf was constantly trying to get better and help other students in class. His work ethic is unmatched from the time he arrived in class. Furthermore, he is an active member of Friday Night Basketball Program. Yusuf had been very helpful to the school culture. Subsequently, through his association with Friday Night Basketball Program, he was instrumental in organizing a basketball game that raised $1500 between the Toronto Police and Churchill students. The money went towards building a library for Spanish Town High School in Jamaica.

[19] Abdifatah Hussein, Co-Founder of Hidaayah House, provided a letter to the court. He stated that Mr. Aden has volunteered at Hidaayah House for the past five years. He stated that:

For the time that I have known Yusuf he has shown a number of admirable qualities that make him an incredibly important community development leader. He is honest, trustworthy, and has an understanding of exactly how youth in our communities not only make mistakes, but how they can learn from each one on their journey to being productive members of society. His lived experience in this journey himself has made him more reflective, thoughtful, and understanding then [sic] most people who we encounter during this work. We would love to continue working with him on our journey to opening our own community centre in the near future, and we appreciate all that he has done for us so far.

Aggravating and Mitigating Factors

[20] The aggravating factors are:

a) This was a home invasion offence;

b) At the time of the offence the home was populated with children; and

c) One of the victims received some light injuries from the assault.

[21] The mitigating factors are:

a) Mr. Aden was young, 19 at the time of the offence;

b) Mr. Aden has no criminal record;

c) Mr. Aden himself was injured during the offence;

d) Mr. Aden had a difficult upbringing. He faced discrimination here in Canada and discrimination of a different sort when he returned to live in Somalia for three years at the insistence of his mother;

e) He has support from his family;

f) He has support from his community; and

g) He has excellent prospects of rehabilitation.

Law and Analysis

[22] Section 718 of the Criminal Code describes the purpose of sentencing:

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.

[23] Further, s. 718.1 of the Criminal Code provides that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[24] Mr. Aden and his cohorts broke into a family home and assaulted the victim. Section 348.1 deems that the break and enter of a home is an aggravating offence. The section states:

Aggravating circumstance — home invasion

348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,

(a) knew that or was reckless as to whether the dwelling-house was occupied; and

(b) used violence or threats of violence to a person or property.

[25] Justice Salmers in his reasons for judgment found that the Crown had proven beyond a reasonable doubt this aggravating factor.

[26] The principle of restraint, set out in ss. 718.2(d) and (e) still operate even when those offences require the imposition of a term of imprisonment; R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at paras. 124, 125, 130.

[27] The Crown submits that a sentence of four years is appropriate to denounce and deter this conduct, the violent entry of a household and assault on its owner.

[28] Home invasions are of particular concern. As stated by the Court of Appeal in R. v. Wright, 2006 CanLII 40975 (ON CA), [2006] O.J. No. 4870 (QL), 83 O.R. (3d) 427, at para. 14:

As this court also noted in S.(J.), supra, at para. 34, home invasion offences are particularly troubling "because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes – highly cherished values in our society – and because they are frequently perpetrated against vulnerable individuals." They must therefore be dealt with sternly by the courts.

[29] General deterrence and denunciation play a significant role in sentencing for such offenders: R. v. Lawrence, 2020 ONCA 841, at para. 24. Penitentiary sentences are often imposed for such cases, usually starting in the range of four years and moving upwards depending on the circumstances of the offence and the offender, although reformatory sentences have also been given depending on the circumstances. R. v. Wright, however, did not create a minimum floor of four years: R. v. Jacko, 2010 ONCA 452, 101 O.R. (3d) 1; R. v. Whalen, 2011 ONCA 74.

[30] In this case, Mr. Aden is a youthful first offender. If a period of incarceration must be imposed it must be as short as possible to reflect his rehabilitative potential. As stated by the Court of Appeal in R. v. S.K., 2021 ONCA 619, at para. 12:

Where a term of incarceration must be imposed because of the nature of the offence, for a young first offender, the term "should be as short as possible and tailored to the individual circumstances of the accused." R. v. Priest at p. 12. In R. v. Kwakye, 2015 ONCA 108, [2015] O.J. No. 707 (QL), this court noted that rehabilitation remains an important factor, when sentencing a young first offender on any offence, including manslaughter. R. v. Jacko, 2010 ONCA 452, 101 O.R. (3d) 1 provides another example: perpetrators of a serious home invasion had their sentences reduced on appeal to two years less a day and a conditional sentence in order to better reflect their rehabilitative potential.

[31] Past cases, or precedents, create sentencing ranges to help guide the court. But sentencing is an individualized process and sentencing ranges are not meant to handcuff the court. As stated recently by Fairburn J.A. in R. v. Mohamed, 2020 ONCA 163, at para. 28:

Sentencing is not a purely mathematical exercise with floors below which and ceilings above which the sentence cannot go. Sentencing ranges are guidelines, but not hard and fast rules: Lacasse, at para. 60; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (S.C.C.), at para. 44. As Wagner J. (as he then was) noted in Lacasse, at para. 58, there will “always be situations that call for a sentence outside a particular range”. Those situations will sometimes arise from the sentencing judge’s impressions and findings regarding the unique circumstances of the case, including the uniqueness of the individual who is being sentenced.

[32] The Crown relies heavily on the case of R. v. Burke, 2011 ONSC 1150 and submits that Mr. Aden is similarly situated to Burke and should receive a similar sentence. In that case, Ms. Burke had been good friends with one of the victims for many years preceding the robbery. On the night of the offence, the offender sneaked two men into the building where the friend lived with her mother. The friend, the friend's mother, and the friend's sister were at the home. The two robbers demanded money and drugs. The sister told them repeatedly that she had neither, but the robbers were undeterred. Both the friend and the mother were physically assaulted by pushes, punches, and kicks. The robbers ransacked the apartment and searched for cash and drugs. The invasion concluded with the robbers stealing the sister's laptop computer and purse and running out of the apartment. The victims suffered significant impact. Ms. Burke was 31 years old and a first offender. She had planned the robbery. She expressed remorse and she appears to have turned her life around significantly in the last few years and be genuinely focussed on a productive career. She is described as a loving mother and has strong support from family and friends and has expressed remorse for her actions. The trial judge, at para. 31, stated that:

This was a calculated and vicious crime. The lives of three women were torn asunder. They suffered severe physical and psychological damage. And because Ms. Burke exploited their friendship in organizing the robbery, their trust has been eroded as well. They no longer can tell their friends from their enemies.

[33] A sentence of four years was imposed.

[34] I find Burke to be of limited assistance and guidance. The circumstances of the offence were more severe, the offender’s role more significant, the victim impact more pronounced and the offender was not youthful.

[35] In my view, a reformatory sentence of two years less a day is appropriate. I say so for the following reasons:

a) The circumstances of the offences are serious but not as serious as others where penitentiary sentences are typically imposed. Mr. Aden was one of four individuals who broke into the victim’s residence and assaulted the victim. An invasion of one’s home can only be considered terrifying. A term of imprisonment must be imposed to denounce this behaviour and to deter others and to protect the sanctity of the home. However, I do note that Mr. Aden was convicted of break and enter, and assault. This was not a robbery and the motivation of the attack is unknown. The physical injuries suffered by the victim were not severe. He suffered some bruising and a small cut. The victim and his wife did not provide a victim impact statement. Mr. Aden, during this incident, was stabbed by the victim with a sword and had to obtain medical treatment. He still has the scar;

b) Mr. Aden was 19 at the time and does not have a criminal record. He is a youthful first offender and, as set out above, the case law requires any first term of imprisonment to be as short as possible;

c) Mr. Aden had a very difficult childhood. He essentially grew up without a father. He experienced racism for his skin color and religion. He then spent over four years in Somalia where he had to integrate into a new culture and suffered discrimination again for being too white as he lived in Canada. He suffered physical discipline at home with his mother and even more physical discipline while in Somalia; and

d) Despite this difficult upbringing and having to adjust to relocating to Somalia for over 4 years before returning, by all accounts, Mr. Aden has excellent prospects of rehabilitation and has support in the community and with his family. The material filed indicates that Mr. Aden recognizes the danger presented by the peers he is associating with.

Should and Can the Sentence be Served in the Community?

[36] In R. v. Morris, the Ontario Court of Appeal considered the appropriateness of using the conditional sentence regime in sentencing for gun offences. The court stated at paras. 124 and 125:

The restraint principle plays a specific and important role in sentencing for serious crimes like crimes involving the unlawful possession of loaded handguns. Because of the seriousness of crimes involving the possession of loaded handguns, some term of imprisonment will usually be required to reflect the seriousness of the crime.

The requirement of a sentence of imprisonment does not, however, end the operation of the restraint principle. That principle requires the court, if it determines that a sentence of less than two years imprisonment would be appropriate, to consider whether the term of imprisonment could be served in the community under a conditional sentence: Criminal Code, s. 742.1. The restraint principle favours conditional sentences over-incarceration if a conditional sentence is consistent with the proportionality principle: see R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149, at para. 21.

[37] Mr. Aden is a black male. The Court of Appeal in R. v. Morris stated at para. 129 that:

The use of conditional sentences when sentencing young Black offenders, in appropriate cases, also carries the added advantage of addressing, at least as it relates to the offender before the court, the ongoing systemic problem of the over-incarceration of young Black offenders.

[38] In R. v. Morris, the Court of Appeal did not find that a conditional sentence was appropriate given that Mr. Morris was in custody on other charges. A conditional sentence was not suggested by counsel. However, the Court of Appeal noted at para. 180:

We would observe, however, that all other factors being equal, had Mr. Morris been before the courts exclusively on these charges and had a conditional sentence, like that ordered in Anderson (NSCA), been available, the trial judge would have had to give that option serious consideration.

[39] In my view, given the strong mitigating factors involved in this case, a conditional sentence with strict terms can meet the objectives of denunciation and deterrence while continuing to support the accused's rehabilitation efforts. Mr. Aden has a strong support network. He is not a threat to the community. He has been released pending trial and pending sentencing without incident. Incarcerating Mr. Aden at this stage would stifle his rehabilitation efforts for no tangible gain.

Conclusion

[40] Mr. Aden was convicted of counts 1, 3 and 6 (break and enter in a dwelling house, assault and unlawful entry, respectively). Counsel both agree that counts 3 and 6 should be Kienappled. For count 1, I sentence Mr. Aden to two years less a day to be served in the community upon the mandatory terms set out in s. 742.3(1) of the Code, and the following conditions:

• Remain in your residence at all times, subject to the following exceptions and the travel related to those exceptions:

o scheduled meetings with your conditional sentence supervisor;

o attendance at your place of worship, reported in advance to the supervisor;

o medical appointments for yourself, reported in advance to the supervisor;

o attendance for counselling as may be recommended by the supervisor;

o employment on a schedule reported in advance to the supervisor;

o such further and other exceptions as may be approved in advance by your supervisor.

• Have no contact with Matthew Chan-Neil, Kayla Fernandez, Lucas Brightman;

• Have no contact or association with anyone known to you to have a criminal record; and

• Have no possession of any drug/medication without a valid prescription in your own name.

[41] In addition, I order a DNA sample be taken, within 96 hours and I impose a 10-year s.109 order. Mr. Aden has now been on judicial release for over four years without incident. I do not feel an additional probationary period is necessary.

Leibovich J.

Released: September 16, 2022