Court File No.: CR-21-50000020-0000 Date: 2023-01-18
Ontario Superior Court of Justice
Between:
His Majesty the King
- and -
Marc Owusu-Boamah
Counsel: K. Lockhart, for the Crown A. Stastny, for Mr. Owusu-Boamah
Heard: September 12 and November 2, 2022
Before: R. Maxwell J.
Reasons for Judgment on Sentence
[1] Following a trial, Mr. Owusu-Boamah was found guilty of kidnapping, extortion, using an imitation firearm to commit an indictable offence, administering a noxious substance, aggravated assault, fraud under $5,000, and failing to comply with a probation order. He appeared before me on September 12 and November 2, 2022 for a sentencing hearing and today, for judgment on sentence.
The Facts
[2] The facts as found following the trial are set out in my reasons for judgment cited as 2022 ONSC 3888 and will only be summarized briefly here.
[3] On January 25, 2020, Mr. Manov was kidnapped from a parking lot of a residential apartment building at 2645 Kipling Avenue, Etobicoke, by a group of masked men. Over the course of the next 12 to 14 hours, Mr. Manov was held against his will. He was repeatedly hit with a blunt object, believed to be a firearm. His captors threatened to kill him. The motivation was money. On previous encounters with the men in the weeks leading up to the kidnapping, Mr. Manov was instructed to pay $50,000. At trial, Mr. Manov did not explain why he was being extorted.
[4] Over the course of the evening of January 25, 2020, into the morning hours of January 26, 2020, his captors conducted transactions using accounts Mr. Manov held at the TD Bank to withdraw funds from his accounts. They also attended two Cash Money stores and conducted foreign currency exchanges using Mr. Manov’s debit cards.
[5] During the kidnapping, Mr. Manov was taken from the vehicle and while confined to a room, was drugged and tortured by having hot liquid poured over the mid-section of his body. He suffered second degree burns to his stomach, legs, arms, hands, neck, and nose, resulting in permanent scarring. He had lacerations on his wrists, consistent with having his hands bound, and bruising on his forehead, consistent with being struck with a hard object.
[6] Mr. Manov was transported inside the trunk of a car to a residential neighborhood in Mississauga. He was then removed from the trunk of the car and left in the roadway. He made his way to a home and rang the doorbell equipped with video surveillance to ask for help. Police and ambulance services attended and Mr. Manov was transported to the hospital for treatment.
[7] On February 4, 2020, Mr. Manov’s vehicle was recovered in the parking lot of a Tim Hortons in Brampton.
[8] I found that Mr. Owusu-Boamah played a central role in all parts of the kidnapping, in administering a noxious substance to Mr. Manov, and in committing an aggravated assault on Mr. Manov, in furtherance of the violent kidnapping and extortion. He was involved in the initial kidnapping, in the threatening and violence which took place in the car as Mr. Manov was transported around the city, in using Mr. Manov’s cards to withdraw and attempt to withdraw funds from his bank accounts, in negotiating foreign currency exchanges using an account in his name at two Cash Money locations, and in the drugging and torture that took place when Mr. Manov was held in a residence before being abandoned on the street.
Position of the Parties
[9] On behalf of the Crown, Mr. Lockhart seeks a global custodial sentence of 12 years, less pre-sentence custody. The Crown also seeks a DNA order under s. 487.051(2) of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”), a lifetime weapons prohibition under s. 109 of the Code, and a non-communication order under s. 743.21 of the Code.
[10] On behalf of Mr. Owusu-Boamah, Mr. Stastny submits that a custodial sentence in the range of 7-8 years less pre-sentence custody is appropriate in this case.
[11] To date, Mr. Owusu-Boamah has accumulated 671 real days in pre-sentence custody. When credited with an enhanced credit, pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 SCR 575 on a 1.5:1 basis, that is the equivalent of 1,007 days, or 33 months.
[12] Mr. Stastny argues that Mr. Owusu-Boamah should be given additional credit to account for the restrictive terms of his bail, pursuant to R. v. Downes, [2006] O.J. No. 555 (C.A.) and for harsh conditions while in custody at the Toronto South Detention Centre and the Central East Detention Centre, pursuant to R. v. Duncan, 2016 ONCA 754. He also asks that I take into consideration the fact that Mr. Owusu-Boamah has been incarcerated during the pandemic.
Background of the Offender, Mr. Owusu-Boamah
[13] A pre-sentence report was filed on the sentencing hearing.
[14] Mr. Owusu-Boamah immigrated from Ghana with is mother, father, and two older brothers when he was 9 years old. The family came to Canada for better education opportunities for the children. The family lives a pro-social lifestyle. Mr. Owusu-Boamah’s father, Joseph, is steadily employed as an immigration consultant and real estate agent. His mother is a personal support worker.
[15] Joseph Boamah advised that his son was respectful and did well in school when they first came to Canada but submitted to peer pressure once he enrolled in high school and started having disciplinary issues. He started to socialize with a negative peer group. He began drinking alcohol. He left school in Grade 10, seemingly because he began to have conflict with the law and was sent to a youth detention facility. In an effort to curb his behavioural issues, Mr. Owusu-Boamah was sent to live in Ghana from 2013 to 2017. He did well in Ghana, but returned to Canada.
[16] Between 2017 and 2018, his alcohol consumption increased as he tried to cope with the stress of losing his residence and breaking up with his girlfriend. Mr. Owusu-Boamah reported that he does not have difficulties with alcohol. He smoked marijuana socially.
[17] Mr. Owusu-Boamah eventually completed his secondary school education through an adult learning program.
[18] Despite his legal troubles, Mr. Owusu-Boamah enjoys a good relationship with his family. He disclosed that his conflicts with the law have put a strain on his relationship with his parents and siblings, but they remain supportive of him. No one in his immediate family has a criminal record.
[19] In terms of his work history, Mr. Owusu-Boamah has held jobs doing general labour, working with a real estate agent and with his father in his real estate business, and in a factory with his mother. His longest term of full-time employment was approximately 6 months. He aspires to have a career where he can help people.
[20] In terms of other factors relevant to his rehabilitation and the risk that Mr. Owusu-Boamah presents in the community, the author of the pre-sentence report identified several risk factors including poor decision-making and problem-solving skills, emotional management, and substance use. Mr. Owusu-Boamah’s father also described him as having low self-esteem and lacking in decision-making skills. Other collateral sources describe him as hard-working, enterprising, respectful, and caring to a fault, which others sometimes use to their advantage and at his expense.
Legal Principles
[21] The overriding purpose of sentencing is to encourage respect for the law and the maintenance of a “just, peaceful and safe society”. Section 718.1 of the Code provides that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence I impose must reflect the circumstances of the offence and the attributes of the individual responsible for the crime.
[22] Section 718.2 directs that a court must take into consideration the principle that a sentence should be increased or reduced for any relevant aggravating or mitigating factors related to the offence or the offender. Further, a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances.
[23] All available sanctions other than imprisonment, that are reasonable in the circumstances, should be considered for all offenders.
[24] Sentencing ranges and a review of similar cases are useful in ensuring that the parity principle is met and that similar penalties are imposed for similar offences of a similar nature involving similar offenders. Sentencing ranges are, however, only guidelines. The sentencing of an individual is, necessarily, an individualized process, as the Supreme Court reiterated in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
[25] There can be no question, for the offence of kidnapping, that the paramount principles which drive the sentence must be denunciation and deterrence, having regard for the seriousness of the offence and its impact on the community’s sense of safety and security.
[26] The comments from the British Columbia Court of Appeal in R. v. Poon, 2008 BCCA 64 aptly capture the gravity of the offence and the need for denunciation and deterrence in sentencing for kidnapping. At para. 27, the Court stated:
…kidnapping strikes at the heart of the community’s sense of safety and security. It is an offence that is intended to incite fear and terror in not only the person kidnapped, but also his or her family and friends, many times using that fear to extort money in return for that person’s safe return. Even when the victim is released without having sustained any permanent physical injuries, the psychological and emotional scars may be slow to heal, if they ever do. See also R. v. Lowman, 2006 BCSC 1565.
[27] It is for this reason, as the Court remarked in Poon, that periods of imprisonment of 10 years or more are appropriate in cases involving planned schemes of kidnapping for ransom: See also R. v. Powell, 2017 ONSC 7437.
[28] Particular features of this case increase the gravity of the offence and further amplify the need for denunciation and deterrence. First, the acts of Mr. Owusu-Boamah and his cohorts demonstrated that this was not an impetuous or spontaneous act. Rather, the actions of the group reflect a coordinated and planned attack on Mr. Manov which began in the weeks leading up to the kidnapping and culminated in the ultimate kidnapping.
[29] Second, the kidnapping incorporated an escalating degree of violence. The gratuitous violence inflicted on Mr. Manov during the kidnapping included threats with a weapon, drugging, and physical torture.
[30] Finally, the kidnapping extended over a period of 12 to 14 hours.
[31] In terms of Mr. Owusu-Boamah’s degree of responsibility, he bears a high degree of responsibility for his acts. I found that he was a principal actor in the kidnapping, the extortion, and the violence used in the kidnapping. While there is no evidence of who took what actions during the drugging and torture of Mr. Manov near the end of the kidnapping, I found that the only reasonable inference arising from the evidence is that Mr. Owusu-Boamah was present and played an active role in the commission of these offences, as a co-principal or as an aider, given the prominent role he played throughout the kidnapping in coordinating and executing the plan.
[32] Having regard to the gravity of the offence and the degree of responsibility of the offender, the principles of denunciation and deterrence, both general and specific, are of paramount importance. Mr. Owusu-Boamah’s prospects for rehabilitation are also a consideration, but in the circumstances, are secondary to the need for denunciation and deterrence.
Aggravating and Mitigating Factors
[33] Turning to the aggravating factors in this case, the most significant aggravating factor in this case is the impact the crime has had on the victim, Mr. Manov. Through his victim impact statement, he expressed the profound physical and psychological toll that the offences have had on him. Mr. Manov sustained second degree burns to 15% of his body and spent 12 days in the hospital. He has permanent physical scarring. In his victim impact statement, Mr. Manov described the pain of being burned with the boiling liquid as “the most excruciating pain I had ever felt in my life.” He was burned on his chest, torso, arms, legs, his head and neck area, and in his genital area. The injuries were horrific and the violation to Mr. Manov’s physical integrity, egregious.
[34] The psychological impact on Mr. Manov has been equally profound. He described thinking, during the kidnapping, that his captors would kill him and harm members of his family. He has nightmares about the events and fears for his life still. His anxiety about his safety and the safety of his family led him to leave his home of 13 years and relocate his family.
[35] Without question, the physical and psychological impact that the offences have had on Mr. Manov is a significant aggravating factor on sentence.
[36] Second, Mr. Owusu-Boamah has a criminal record which began in 2017. He was convicted of armed robbery, disguise with intent, conspiracy to commit an indictable offence and possession of property obtained by crime under $5,000 in April of 2017 and was sentenced to 12 months of probation on top of 12 days of pre-sentence custody. Thereafter, in June of 2018, he was convicted of failing to comply with a probation order and possession of a Schedule 1 substance and received a 60-day conditional sentence and 12 months of probation. He was then convicted, in August of 2019, of possession of a Schedule 1 substance for the purpose of trafficking and failing to comply with a recognizance. He was sentence to 130 days in jail, on top of 279 days of pre-sentence custody and 24 months of probation. In August of 2020, he was convicted of two counts of assault and received a suspended sentence, in light of 45 days of pre-sentence custody, and 12 months of probation. Finally, in July of 2020, he was convicted of possession of a Schedule 1 substance and received a suspended sentence, in light of 44 days of pre-sentence custody.
[37] Finally, Mr. Owusu-Boamah was subject to both a probation order and two weapons prohibition orders at the time of these offences.
[38] In mitigation, Mr. Owusu-Boamah is a relatively youthful offender, at 26 years old. His age, his pro-social and supportive family, and his reputation for being a hard worker provide some hope for his rehabilitation, although his prospect for rehabilitation is tempered by the fact that he has little insight into how he will re-route himself out of the lifestyle he has adopted. It is also significant that, notwithstanding his strong, pro-social family unit, Mr. Owusu-Boamah has chosen an anti-social lifestyle.
[39] I also consider, as a mitigating factor on sentence, the fact that Mr. Owusu-Boamah has spent significant periods of his pre-sentence custody under lockdown conditions.
[40] The Ontario Court of Appeal’s decision in Duncan provides that, in appropriate circumstances, particularly harsh pre-sentence conditions can provide mitigation apart from and beyond the 1.5:1 credit set out for pre-trial custody credit in Summers. Both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused should be considered in assessing the significance of the lockdowns as a mitigating factor on sentencing.
[41] The decision to award additional credit for harsh conditions of pre-sentence custody is discretionary. Credit for harsh conditions serves to ensure that the sentence is proportionate and individualized. There is no mathematical formula that must apply to determine the quantum of such credit: R. v. Brown, 2020 ONCA 196, at para. 13; R. v. Rajmoolie, 2020 ONCA 791, 155 O.R. (3d) 64, at paras. 14-16. Indeed, as the Court of Appeal for Ontario stated in R. v. Marshall, 2021 ONCA 344, at paras. 52 and 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.
[42] The practice of continuous and frequent lockdowns of prisoners has been denounced in numerous cases. I agree with the position expressed by many judges, including Goldstein J. in R. v. Jama, 2018 ONSC 1252, at para. 20, and Schreck J. R. v. Persad, 2020 ONSC 188, that lockdowns arising from staff shortages, and even those arising for security reasons, should not be seen as just the price to be paid by those in custody. See also R. v. Innis, 2017 ONSC 2779.
[43] Records from the Toronto South Detention Centre and the Central East Detention Centre were filed on the sentencing hearing and reflect that Mr. Owusu-Boamah spent approximately 40% of his time at the Toronto South Detention Centre, or 182 days, in either partial or complete lock down. He spent an additional 55 days in lockdown at the Central East Detention Centre.
[44] I accept that Mr. Owusu-Boamah spent a significant period of his pre-sentence custody in lockdown conditions which presented a hardship that must be taken into consideration in crafting a fit sentence
[45] Moreover, the entirety of Mr. Owusu-Boamah’s pre-sentence custody has occurred during the COVID-19 pandemic. Since the outbreak of the COVID-19 pandemic, a number of courts have addressed how the extraordinary circumstances created by the pandemic should impact on sentencing an accused.
[46] The Court of Appeal for Ontario in R. v. Morgan, 2020 ONCA 279, at para. 9, held that the impact of COVID-19 can be viewed as a collateral consequence for sentencing purposes. Indeed, at para. 8, the Court held that courts can take judicial notice of the fact that the unprecedented pandemic has had a significant impact on all Canadians.
[47] In Marshall, at para. 50 the Court specifically contemplated that the “very restrictive conditions” brought on by COVID-19 for those in custody are the kinds of circumstance that amount to “exceptionally punitive” conditions, warranting further consideration in assessing a Duncan credit.
[48] No evidence was filed or called on the sentencing hearing concerning the impact of the pandemic on Mr. Owusu-Boamah personally; however, I accept that, over the course of his pre-sentence incarceration, Mr. Owusu-Boamah was undoubtedly subjected to additional restrictions as a result of the COVID-19 pandemic, making the time he spent in pre-sentence custody more difficult.
[49] Finally, I also accept that between August 5, 2021, when Mr. Owusu-Boamah was granted a bail, and April 4, 2022, when he absconded, he was subject to restrictive bail conditions, including house arrest and GPS ankle bracelet monitoring. I accept that this significantly limited his ability to work and required him to remain in the company of his father at all times. The time Mr. Owusu-Boamah spent on restrictive bail conditions is an additional mitigating factor which I take into consideration in coming to a fit sentence in this case.
Sentencing Caselaw and Range of Sentence
[50] Mr. Lockhart provided a number of cases which, he submits, set out the applicable range of sentence for a kidnapping committed in comparable circumstances to the present case. The caselaw reveals that the range of appropriate sentences for offences such as this range, depending on the role played by a participant in a kidnapping scheme. The more central a role played, the higher degree of moral responsibility and therefore, the greater the sentence.
[51] In R. v. Lewers, [2012] ONSC 5332, the victim was kidnapped by three men and driven to Hamilton where he was held for ransom for 22 hours. He was beaten, his hands were bound with duct tape and he was burned with a hot iron. The kidnappers made threats to kill his mother. Trafford J. remarked on the planned and premeditated nature of the kidnapping scheme, the significant impact on the victim, and the accused’s prior criminal record. The mitigating factors included that the accused was youthful at 26 years old, had good family support, and a good work history. The accused was sentenced to 7 years and 6 months on top of the equivalent of 33 months of pre-sentence custody credit, for an effective sentence of 10 years.
[52] In R. v. Thind, 2011 ONSC 6635 (S.C.J.), the accused and three others forced their way into the victims’ apartment. The two victims, a mother and son, were bound and gagged. The son was tortured with scalding knives and strikes. The men left with his mother and demanded ransom from the son. The mother was released after 10 hours and after the police delivered the ransom. The accused then conspired to rob and commit a break and enter at another residential property. The trial judge recognized the serious aggravating factors in the offence including the gratuitous violence and the planning and deliberation. The ransom money was never recovered. The accused was youthful and had family support, but had a criminal record which included a prior conviction related to firearms. The trial judge sentenced the accused to 12 years for kidnapping, and shorter consecutive sentences for other offences, for a global sentence of 14 years, less pre-sentence custody credit of 4.5 years.
[53] R. v. Seip, 2019 CarswellOnt 19334 (C.J.) aff’d 2021 ONCA 101, the accused, acting as a “directing mind” with others, kidnapped three people over a drug debt. The victims were taken from their home. A co-accused shot one of the victims in the arm during the incident. One victim was taken to a hotel but escaped. The accused had a lengthy criminal record and the trial judge found the offence was motivated by greed. He was on a release at the time of the offences. The incident had a profound impact on the victims. In mitigation, the trial judge observed that the accused had a very difficult upbringing, struggled with mental health issues, and was the victim of child sexual abuse. He had the support of his family. The trial judge sentenced the accused to 10 years in custody less pre-sentence custody credit of 866 days.
[54] A few of the cases introduced fall closer to the range suggested by Mr. Stastny. In Powell, Campbell J. sentenced the accused to 7 years, less 4 years and 9.5 months of pre-sentence custody for his role in a violent kidnapping. The victim was abducted from a parking lot, confined against his will, and tortured by one of the other accused until he was rescued by the police. However, this case is factually distinguishable on the basis of the trial judge’s findings about the role the accused played in the kidnapping. He found that the accused was personally involved in the confinement of the victim, but was not involved in the violence inflicted on him. He was a member of the conspiracy to commit the kidnapping but was not one of its original members.
[55] In R. v. Jones, 2010 CarswellOnt 11258 (S.C.J.), varied 2012 ONCA 609, the victim was kidnapped and held for several hours as multiple co-accused search for another person. While the victim was held, the co-accused engaged in a shootout. The accused had a prior criminal record and was an active participant in the incident. In mitigation, the accused had strong family support. A significant mitigating factor, and one that is not present in this case, is that the accused pled guilty to the offence. He was sentenced to 10 years less pre-sentence custody, which was varied to 9 years on appeal for reasons that related to the calculation of pre-sentence custody credit.
The Appropriate Sentence in this Case
[56] Ultimately, sentencing for Mr. Owusu-Boamah is an individualized process and must be driven by the role he played in the offences, the gravity of the offences, and the aggravating and mitigating factors that are present.
[57] Given my finding that Mr. Owusu-Boamah played a central role in all parts of the kidnapping and the violence which occurred in the kidnapping, I do not agree that a sentence in the range of 7-8 years, as proposed by Mr. Stastny, meets the principles of sentencing. Factually, the severe impact of the offences on Mr. Manov and Mr. Owusu-Boamah’s central role in the execution of a premediated plan to extort and torture Mr. Manov makes the need for a sentence in the double-digit penitentiary range necessary.
[58] Having regard to the gravity of the offence, the degree of responsibility of the offender, and the aggravating factors in this case, the sentence I would have imposed, before considering the exceptionally harsh circumstances of lockdown, the pandemic, and restrictive bail conditions, is a sentence of 11 years.
[59] Having regard to the mitigating factors present in this case, I will reduce the sentence to 10 years, which in my view, still falls within the range of a fit sentence for the offences committed in this case, albeit at the lower end of the scale.
[60] Mr. Owusu-Boamah is entitled to 1007 days, or 33 months of pre-sentence custody credit pursuant to Summers. This leaves Mr. Owusu-Boamah with a remaining sentence of 87 months, or 7 years and 3 months.
[61] The sentence will be apportioned as follows:
- On count 1 of kidnapping, the pre-sentence custody credit of 1007 days will be noted, and a sentence of 6 years and 3 months will be imposed;
- On count 2 of extortion, a sentence of 3 years will be imposed, to run concurrent to the sentence imposed on count 1;
- On count 3 of using an imitation firearm while committing the indictable offence of kidnapping, a sentence of 1 year will be imposed, to run consecutive to the sentence imposed on count 1;
- On counts 4 and 5 of administer noxious substance and aggravated assault, a sentence of 6 years will be imposed, to run concurrent to the sentence imposed on count 1;
- On count 6 of fraud under $5,000, a sentence of 1 year will be imposed, to run concurrent to the sentence on count 1;
- On count 7 of failing to comply with a probation order, a sentence of 1 year will be imposed, to run concurrent to the sentence on count 1.
[62] Again, this breakdown leaves a total remaining sentence to be served, after credit for pre-sentence custody, of 7 years and 3 months.
[63] I make an order under s. 109 of the Code prohibiting Mr. Owusu-Boamah from possessing any firearms, crossbows, restricted weapons, ammunition, or explosive devices for life.
[64] There will also be an order under s. 487.051 of the Code authorizing the taking of a sample of a bodily substance that is reasonably necessary for the purpose of forensic DNA analysis. The offences of kidnapping and aggravated assault are primary designated offences under s. 487.051 of the Code and the order is mandatory. In the circumstances, I consider it appropriate to also make the order on the secondary designated offence of using an imitation firearm in the commission of an offence.
[65] Finally, I make an order pursuant to s. 743.21 of the Code that Mr. Owusu-Boamah have no communication, directly or indirectly, with Mr. Manov while he is in custody.
[66] I thank both counsel for their excellent advocacy.
R. Maxwell J.
Released: January 18, 2023