R. v. Handule, 2023 BCSC 1031

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Handule, 2023 BCSC 1031 Date: 20230613 Docket: 29445-1 Registry: Vancouver Rex v. Abdulkadir Handule and Abdullah Abdullahi Before: The Honourable Justice Winteringham Oral Reasons for Sentence Counsel for the Crown: M. Barrenger T. Fik Counsel for Abdulkadir Handule: P. McMurray Counsel for Abdullah Abdullahi: S. Wright Place and Date of Sentencing Hearing: Vancouver, B.C. August 23, 2022 and April 21, 2023 Place and Date of Judgment: Vancouver, B.C. June 13, 2023 Table of Contents I. OVERVIEW ... 3 II. CIRCUMSTANCES OF THE OFFENCE .. 5 III.

IMPACT OF THE OFFENCE .. 8 IV. LEGAL FRAMEWORK .. 9 A. General Principles of Sentencing . 9 B. Sentencing Range for Forcible Confinement 12 C. Firearms . 21 D. Role of Race and Ethnicity in Sentencing . 21 E. Pre-Trial Custody . 28 V. CIRCUMSTANCES OF MR. HANDULE AND MR. ABDULLAHI 30 A. Mr. Handule . 30 B. Mr. Abdullahi 35 C. Addresses to the Court 41 VI. ANALYSIS .. 42 A. Mr. Handule . 42 B. Mr. Abdullahi 48 VII. CONCLUSION AND ORDERS .. 60

I. OVERVIEW [ 1 ] On June 15, 2022, Abdulkadir Handule and Abdullah Abdullahi were convicted of forcible confinement of Arnold Hue between July 2–4, 2019 contrary to s. 279(2) of the Criminal Code , R.S.C. 1985, c. C-46 . Based on the findings made, I acquitted the two men of kidnapping contrary to s. 279(1) (

a) of the Criminal Code . A third man, Obinna Njoku, was acquitted of both offences. [ 2 ] The Crown alleges Mr. Hue was taken at gun point from his vehicle at Metrotown Mall, transported to a nearby condominium at 1103- 4960 Sanders Street, Burnaby, BC (the “Condo”) , and held for ransom until the police rescued him two days after his abduction. Mr. Handule and Mr. Abdullahi took the position that Mr. Hue was not taken against his will. Rather, they say Mr. Hue willingly participated in a ruse intended to look like a kidnapping for ransom as an effort to extort money from Mr.

Hue’s criminal associate(s). [ 3 ] I was not satisfied that the Crown had proven beyond a reasonable doubt that Mr. Hue had been taken against his will. However, I was satisfied that circumstances evolved such that Mr. Hue became the victim of a forcible confinement. The findings of fact made are consistent with the unlawful confinement commencing when Mr. Handule took Mr. Hue’s iPhone and wiped its contents. I was not able to make any findings on what the plan to ransom Mr. Hue was and the offenders’ motives in this regard. [ 4 ] I am now required to pass sentence.

These reasons for sentence should be read in conjunction with the Reasons for Judgment indexed at: R. v. Handule , 2022 BCSC 1018 [ Judgment Reasons ]. [ 5 ] The Crown takes the position that Mr. Handule should be sentenced to ten years incarceration, the maximum sentence prescribed by the Criminal Code for this offence. The Crown submits that though Mr. Handule did not have a criminal record at the time this offence was committed, he has since been convicted by a jury (February 2022) of second-degree murder for killing two men in Ontario. Mr.

Handule’s criminal record shows that he was sentenced on July 21, 2022 for two counts of second-degree murder, aggravated assault and discharge of a firearm with intent. He received a sentence of life imprisonment (parole eligibility after 20 years), a mandatory weapons prohibition and seven years concurrent for the offences of aggravated assault and discharge of a firearm. [ 6 ] The Crown submits that he committed the unlawful confinement while on the run from the authorities in Ontario. The Crown points to the circumstances of the unlawful confinement, including the use of firearms and Mr.

Handule’s moral blameworthiness to support its position that the maximum sentence is warranted here. [ 7 ] Mr. Handule concedes he is serving a life sentence following his conviction for two counts of second-degree murder. The convictions are under appeal. He submits that his culpability for the incident involving Mr. Hue does not warrant the maximum sentence. He submits that a sentence of six years is appropriate. He submits the Crown has overstated the gravity of the offence in a manner that is inconsistent with the findings made by the Court.

He also points to the available social context evidence presented as well as the difficult conditions he experienced during his time in pre-trial detention. Based on receiving enhanced credit for time spent in pre-trial detention, Mr. Handule submits that a net sentence of time served is the just and fit sentence. The Crown agrees that Mr. Handule is entitled to some credit for pre-trial detention, but not the enhanced credit as sought. [ 8 ] With respect to Mr. Abdullahi, the Crown seeks a sentence of 4–5 years incarceration. The Crown asserts that Mr.

Abdullahi’s moral blameworthiness is high and he has a prior conviction for firearms related offences where he received a penitentiary sentence of five years. [ 9 ] Mr. Abdullahi puts forth a position far below that sought by the Crown. He asks the Court to consider a sentence of two years less a day, to be served in the community. Mr. Abdullahi relies on an Impact of Race and Culture Assessment (“IRCA”) describing the role ethnicity and systemic discrimination have played in his life and in his involvement with the criminal justice system. Mr.

Abdullahi also points to significant injuries he suffered in connection with this offence. Mr. Abdullahi, Mr. Handule and Mr. Njoku attempted to flee from the police by scaling down the apartment building where Mr. Hue was being held. Mr. Abdullahi fell from the eighth or ninth floor. The fall was captured on video by a police officer stationed some distance away. The depiction was horrific. Mr. Abdullahi’s injuries are debilitating and life-long.

He submits that the Court can properly take his physical and psychological condition into account. [ 10 ] Regarding the impact of race and ethnicity, the Crown submits that Mr. Handule and Mr. Abdullahi have failed to “point to any connection between evidence of systemic racism and the circumstances explaining their criminal conduct.

The type of offence committed and the gravity of it, mean that social context has a minimal impact on sentencing.” [ 11 ] The Crown seeks ancillary orders for both men including a DNA order (pursuant to s. 487.04 of the Criminal Code , forcible confinement is a primary designated offence for obtaining a DNA order) and a lifetime weapons prohibition (pursuant to s. 109(1) (

a) of the Criminal Code , unlawful confinement is an offence where a mandatory prohibition order is required where violence was threatened and the accused is subject to a sentence of ten years or more). [ 12 ] Mr. Handule and Mr. Abdullahi do not oppose the DNA orders or the firearms prohibition as they are mandatory under the Criminal Code . II. CIRCUMSTANCES OF THE OFFENCE [ 13 ] I very briefly summarize the circumstances of the offence. [ 14 ] In the days leading up to his confinement, Mr. Hue testified that he was tasked to collect and deliver $3,000.

He was directed to collect some money from an undisclosed person and then deliver that money to another unidentified person at Metrotown mall. On July 2, 2019, after receiving $3,000 at roadside from an unidentified male, Mr. Hue drove to the Metrotown mall and parked his vehicle in the parkade. This is where he met up with Mr. Abdullahi, Mr. Handule and Mr. Njoku. The initial interaction was not captured by video as Mr. Hue had parked his vehicle in an area of the parkade that was out of view of the video surveillance cameras. Mr. Hue ended up in

Mr. Njoku’s vehicle and the four men drove a few blocks away to the Condo. [ 15 ] The four men arrived at 4960 Sanders Street, Burnaby. Mr. Abdullahi and Mr. Handule went with Mr. Hue up the elevator to suite 1103. [ 16 ] For the first several hours, Mr. Hue stayed in the second bedroom at suite 1103. He was later able to use the washroom and take water from the refrigerator. [ 17 ] Within hours of Mr. Hue’s arrival at suite 1103, Mr. Handule took Mr. Hue’s iPhone and directed Mr. Hue to erase its contents; thereafter, Mr. Handule used the iPhone.

After searching electronic devices, the police located text messages between staycheffin@gmail.com (“SC”), believed by the Crown to be Mr. Handule, and stayneatalways@icloud.com (“SNA”). The person communicating as SNA was not identified. [ 18 ] The text communications between SC and SNA began within hours of Mr. Hue’s arrival at suite 1103. [ 19 ] On July 3 and 4, 2019, Mr. Handule and Mr. Abdullahi created videos of Mr. Hue. The evidence showed that SC emailed the videos to SNA. Though Mr. Hue was aware that the videos were staged, he was fearful about what was going to happen to him. [ 20 ] Mr.

Hue testified about some of the events that occurred while he was confined, including videos that were taken of him. Mr. Hue testified that he knew the videos were staged and described what had occurred. The evidence shows that these videos were transmitted to SNA. The videos were tendered in evidence and Mr. Hue described what was occurring. Based on Mr. Hue’s testimony, Mr. Abdullahi and Mr. Handule participated in the making of the videos. [ 21 ] The videos depicted Mr. Hue in a degrading context. One video series showed Mr. Hue in his underwear, in the bathtub, with a gun pointed at him.

A second video showed Mr. Hue with a long-blade knife pointed at him and a substance (seemingly blood) on the bathtub. Another video showed Mr. Hue laying on his stomach on the bed in the second bedroom. His feet and hands are bound with purple twine, and a man with a hoodie is standing over him, pointing two guns at his head through a pillow. Another video showed Mr. Hue crying as he recited a memory about his grandmother. [ 22 ] As indicated in his testimony, Mr. Hue knew that the videos were simulations.

Nevertheless, I concluded that the videos were disturbing and degrading. [ 23 ] I found that whatever the scheme was to obtain valuable consideration for Mr. Hue, it was not going well. I also found that at some point during July 4, 2019, plans were underway to release Mr. Hue. [ 24 ] Mr. Hue was at the Condo from approximately 8:00 p.m. on July 2, 2019 through the time of the police arrival at approximately 10:20 p.m. on July 4, 2019, and at no time did Mr. Hue leave the Condo. [ 25 ] The day following the encounter at the Metrotown Mall, the police learned Mr. Hue was at the Condo.

They maintained watch over it before attempting to enter on July 4, 2019. [ 26 ] On July 4, 2019, at approximately 10:20 p.m., the police entered the Condo. As the police implemented their plan to set off an explosive at the door, a male believed to be Mr. Abdullahi opened the door, looked into the hallway, saw the police, and retreated into the Condo, locking the door behind him. After detonating a noise device, the police entered the Condo, but Mr. Handule, Mr. Abdullahi and Mr. Njoku were no longer there. [ 27 ] Mr.

Hue was located in a bedroom, on the floor between the bed and exterior wall. [ 28 ] The police, stationed on the rooftop of another apartment building, saw Mr. Handule scaling the exterior of the building traversing from the 11 th floor to the fifth or sixth floor. [ 29 ] Based on these observations, a number of police officers went to suite 503. The police located Mr. Handule laying on his stomach on the balcony of suite 503. Located about two to three inches from Mr. Handule’s feet was a Glock model 26 semi-automatic pistol, 9 mm Luger caliber, a prohibited firearm under s. 84(1) of the Criminal Code .

The Glock was loaded, with a round in the chamber and multiple rounds in the magazine. I found that the Glock was connected to the events in the Condo. The police also seized $1,450 in cash (eight $100 bills and thirteen $50 bills) from Mr. Handule. [ 30 ] The police saw Mr. Abdullahi fall to the ground from an upper balcony. The fall was alarming and captured by video. [ 31 ] At 10:25 p.m., the police located Mr. Abdullahi in a rhododendron bush, 4–5 feet from the wall of the building. He was given medical assistance and taken to the hospital by ambulance. The police located a few items close to where Mr.

Abdullahi fell, including a cell phone later determined to be Mr. Hue’s. [ 32 ] The police conducted an extensive search of the Condo. Relevant to this sentencing hearing, the police recovered a Desert Eagle semi-automatic firearm in the kitchen, wrapped in plastic bags and later recovered Mr. Handule’s DNA from the Desert Eagle. Purple twine was recovered from the living room, and the twine can be seen in the simulated videos. [ 33 ] Mr. Handule was arrested at the scene and has been in custody since his arrest. The Crown agrees that Mr.

Handule be credited for pre-trial custody time from the date of his arrest to the date he was sentenced for the Ontario murders. However, the Crown does not agree that he receive the enhanced credit as requested by Mr. Handule. [ 34 ] Mr. Abdullahi was arrested on July 4, 2019, but spent time at the hospital and then GF Strong Rehabilitation Centre. He was discharged at the end of September 2019 and has been the subject of Release Orders since September 25, 2019. The Release Order was amended from time to time but essentially had house arrest conditions, with an electronic monitoring condition.

III. IMPACT OF THE OFFENCE [ 35 ] Mr. Hue presented a victim impact statement. Though I did not believe Mr. Hue’s story about the kidnapping and being taken against his will, there was ample evidence to establish that he was forcibly confined for almost 48 hours. In the victim impact statement, Mr. Hue stated that since the incident he has had trouble sleeping, and continues to fear for his own safety and that of his family, including his new spouse. He lost his job as a result of the incident. He stated that for the first year, he had trouble interacting with others.

He also described the impact on his parents and spouse and their worry for him during the time he was missing. Overall, he described feeling as if he was “incapable of moving forward with the future…feeling ashamed of what had happened.” [ 36 ] I would also comment on the impact of those residing at 4960 Sanders Street. Video footage was played during the trial showing the residents in the lobby after the police had evacuated residents from their suites. It was evident in that footage that people were scared, not knowing what was going on, witnessing a heavily armed police presence in their homes. Whether Mr.

Hue was somehow complicit at the beginning, the events that transpired impacted others. IV. LEGAL FRAMEWORK [ 37 ] At this sentencing hearing, counsel identified four legal issues for the Court’s consideration:

a) general principles of sentencing;

b) sentencing range for forcible confinement;

c) applicability of social context evidence; and

d) availability of enhanced credit. A. General Principles of Sentencing [ 38 ] The principles of sentencing have evolved in the Canadian common law and are now largely codified in the Criminal Code .

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. [ 39 ] As set out in s. 718 , the objectives of sentencing include: the denunciation of unlawful conduct; deterrence of the offender and others from committing further offences; separation of the offender from society where necessary; rehabilitation of the offender; reparation for harm done; and the promotion of a sense of responsibility in the offender, including acknowledgment of the harm done. [ 40 ]

Section 718.1 of the Criminal Code speaks to the overall animating principle of sentencing, namely that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 41 ]

Section 718.2 of the Criminal Code sets out a number of specific principles that a court must consider when imposing sentence, and these include:

a) the principle that a sentence should be increased or reduced to take account of any mitigating or aggravating circumstances the court finds to exist in respect of the matter before it;

b) the parity principle, which requires that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances;

c) the totality principle, which requires that where consecutive sentences are imposed, the total sentence should not be unduly long or harsh;

d) the restraint principle, which requires that an offender should not be deprived of liberty if a less restrictive sanction is appropriate; and

e) the principle that all available sanctions other than imprisonment should be considered if they are reasonable and consistent with the harm done to the victim and the community. [ 42 ] I will say something more about proportionality. [ 43 ]

Section 718.1 contains two distinct elements: any sentence imposed must be proportionate. A proportionate sentence is a sentence that: (

i) reflects the gravity of the offence, and (ii) the degree of responsibility of the offender. [ 44 ] In its discussion of proportionality, the Supreme Court stated in R. v. Bissonnette , 2022 SCC 23 at para. 50 , that sentencing must in all circumstances be guided by the cardinal principle of proportionality. The sentence must be severe enough to denounce the offence but must not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence.

The Court also indicated at paras. 50–51 that: [50] […] Proportionality in sentencing is considered to be an essential factor in maintaining public confidence in the fairness and rationality of the criminal justice system. The application of this principle assures the public that the offender deserves the punishment received

[51] It follows that “a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending” […] Proportionality has a restraining function, and in this sense serves to guarantee that a sentence is individualized, just and appropriate. [Citations omitted.] [ 45 ] In other words, the gravity of the offence and the moral blameworthiness of the offender are two separate factors. The principle of proportionality requires that full consideration be given to each of them: R. v.

Proulx , 2000 SCC 5 at para. 83 . [ 46 ] The gravity of the offence includes two components: (1) the harm or likely harm to the victim, and (2) the harm or likely harm to society and its values: R. v. Ellis , 2022 BCCA 278 at para. 130 .

As stated by the Court of Appeal in Ellis at para. 129 , the gravity of the offence is usually assessed by referring to the essential elements of the offence including the mens rea requirement, the degree of harm that can flow from the prohibited conduct, and the legislated penalty provisions. [ 47 ] In Ellis at para. 131 , the Court of Appeal noted: [131] The gravity of an offence is not focused on the circumstances of the offender, including their personal characteristics or aspects of the offender's social context or background that may provide an explanatory context for the choice to commit the offence.

Those factors are relevant to an assessment of the offender's personal responsibility or blameworthiness, which represents a different aspect of the proportionality analysis. [Citation omitted.] [ 48 ] As a result, a sentencing judge must be careful not to focus solely on the circumstances of the offender. Such an approach skews the proportionality analysis by failing to properly give the gravity of the offence due weight and consideration. [ 49 ] I will say more about the proportionality analysis and the place for social context evidence shortly. B.

Sentencing Range for Forcible Confinement [ 50 ] The Court of Appeal made clear in Ellis at para. 118 , that exceptional circumstances are not required to justify a departure from a sentencing range, including a sentence that is substantially below the bottom of the range, or even non-custodial. Rather, the sentencing judge’s task is to fashion a fit and proportionate sentence. [ 51 ] BC courts have used the sentencing range approach for some time. The Court of Appeal in R. v.

Williams , 2019 BCCA 295 at para. 57 , described the sentencing range approach: [57] This Court has adopted the approach of sentencing ranges because, in our view, they provide an optimal balance between furthering parity and individualization in a sentence. Sentencing ranges are not more rigid than starting points but simply reflect an overview of sentences that have previously been imposed for a particular offence.

They are intended to assist judges in arriving at a sentence that is consistent with sentences for similarly situated offenders, in similar circumstances—furthering the principle of parity— without constraining the judge’s discretion to go outside of the range to properly reflect the unique circumstances of the offence or the offender. They do not set out “practical minimum and maximum sentences.” […] [ 52 ] At this sentencing hearing, counsel put forth very different ranges. The Crown relies on authorities consistent with the maximum sentence or very close to it.

In light of the Court’s findings of fact, defence counsel submits the range is much lower. [ 53 ] In support of its sentencing position, the Crown invites the Court to consider kidnapping cases. Despite the acquittal for kidnapping, the Crown submits that Mr. Handule and Mr. Abdullahi’s conduct reflected a kidnapping, having the hallmark elements of that offence. They also rely on R. v. Vu , 2012 SCC 40 , to support their submission. In Vu at para. 25, the Court referred to kidnapping as “simply an aggravated form of unlawful confinement”.

In that regard, the Crown asserts that the Court should consider the factors set out by the Court of Appeal in R. v. Crawford , 2014 BCCA 175 (also indexed as R. v. Brar ), when sentencing an individual for the offence of kidnapping. The Crown contends four of the factors set out in Crawford at para. 23 , are relevant here, namely:

a) the purpose of the kidnapping, specifically whether it is carried out for ransom or as a means of extorting payment or repayment from the victim;

b) the length and conditions of the confinement;

c) the extent to which there is violence, torture or significant physical injuries; and

d) the circumstances in which the kidnapping ends. [ 54 ] I appreciate the Crown’s position that kidnapping is an aggravated forcible confinement; thus, the Crawford factors are relevant to evaluating the gravity of the forcible confinement. However, the difficulty with the Crown’s position is this. Parliament dictated a very different maximum penalty for kidnapping than it did for forcible confinement. Kidnapping carries a possible life sentence, whereas forcible confinement has a maximum sentence of ten years. Kidnapping also involves moving the victim against their will, forcible confinement does not.

The Supreme Court described moving the victim as “insidious” since it makes it harder for police to locate them: Vu at para. 32. Fundamentally, kidnapping is a graver offence than forcible confinement and I am hesitant to rely on sentencing authorities for a crime that the offenders did not commit. [ 55 ] In R. v. Tse , 2010 BCSC 1273 , Justice Davies set out the range of sentence for extortion, kidnapping and forcible confinement. Justice Davies was sentencing a number of persons convicted of some or all of these offences and he set out the ranges applicable in the circumstances.

[56] In Tse, Davies J. convicted six accused of kidnapping, forcible confinement and extortion of three individuals taken from theirhomes and held for approximately 25 days. During their captivity, two of the victims were beaten and tortured by the accused, whichincluded tying the victims to a chair, covering their mouths and striking them with a taser. The accused extorted $1.7 million from thevictims and only released them after photographing the victims and threatening to harm them and their families if they went to the police. [57] I have included a lengthy excerpt from Tse for two reasons. First, Davies J. provides a helpful

summary of sentencing forkidnapping type offences. Second, Davies J. provides an insightful discussion about the role maximum penalties play in the sentencingprocess. Justice Davies stated at paras. 110–118: I was referred to many cases by Crown counsel and counsel for all of the accused concerning the appropriate range of sentencing for theoffences for which these offenders have been convicted.

Those authorities satisfy me that in the case of kidnapping for ransom the usual range of sentence will be from seven years to life inprison, but that in cases involving lengthy periods of confinement of victims, sentences below 10 years will be rare. A sentence of morethan 18 years in prison will also be rare, even when a lengthy period of confinement is accompanied by the use of violence and weapons. As stated by Chief Justice Finch in R. v.

Deo, 2007 BCCA 626 [Deo], at para. 13, each case requires inquiry into the infinite range ofpersonal circumstances of those convicted of that crime, as well as the infinite variety of circumstances that can occur in the commissionof the crime. Like kidnapping, the maximum sentence for extortion under the Code is life in prison. A "usual" range for sentencing for extortion is,however, more difficult to ascertain from the decided case law in that in many respects it is treated as an included offence or an equaloffence to the offence of kidnapping for ransom.

Bearing in mind that life in prison is the maximum sentence for extortion and bearing in mind the similarity of the offence of kidnappingfor ransom in the circumstances of a period of confinement involving the use of threats, violence and torture to obtain funds, I amsatisfied the appropriate range of sentencing for extortion in this case should be similar to the range of sentencing for kidnapping forransom. Under the provisions of the Code, the maximum sentence for unlawful confinement is 10 years in prison.

The range of sentencing forcases of unlawful confinement is infinite because of the myriad of circumstances in which the offence may arise, the personalcharacteristics of the offender, the nature and length of the confinement and its purpose. Also as with extortion, it may in many cases bean included offence of kidnapping for ransom. In R. v. Mills (1998), (BC CA), 129 C.C.C. (3d) 313 (B.C.C.A.), Mr.

Justice Donald said at para. 17: The classic form of kidnapping, that which attracts penalties in the 10-years-to-life range, usually involves a carefully planned schemefor ransom with a period of confinement much longer than several hours and where the victim is bound, gagged, and sometimesblindfolded. This case is technically a kidnapping but in my opinion it is more like the second group of cases. It bears a greaterresemblance to an extortion or a robbery accompanied by a relatively short period of confinement. ... In that case, Donald J.A. put the appropriate range at four to six years.

That range of four to six years is not applicable in this case because of the existence of detailed planning, continuing use of threats, use ofviolence and torture, and the total imprisonment of these three victims for approximately 25 days. [58] Justice Davies also commented on the use of the maximum penalty stipulated in the Criminal Code. At paras. 119–120, hestated: In R. v. L.M., 2008 SCC 31, the Supreme Court of Canada considered when it might be appropriate to impose the maximum penaltyunder the Code for a particular offence. At paras. 18-21, Justice LeBel for the majority stated: [18] ...

The Criminal Code provides for a maximum sentence for each offence. However, it seems that the maximum sentence is notalways imposed where it could or should be, as judges are influenced by an idea or viewpoint to the effect that maximum sentencesshould be reserved for the worst cases involving the worst circumstances and the worst criminals. As can be seen in the case at bar, theinfluence of this notion is such that it sometimes leads judges to write horror stories that are always worse than the cases before them.

Asa result, maximum sentences become almost theoretical: In the end the difficulty with maximums is that they may be seen as almost theoretical rather than as an indication of how seriously anoffence is to be treated in the "ordinary" case. [...] [19] As Morin J.A. noted in his dissenting reasons, human nature is such that it will always be possible for a court to imagine a worsecase than the one before it.

Morin J.A. rightly pointed out that it is important for a judge, when deciding whether the maximum sentencecan or should be imposed for a given offence, to avoid contemplating fictitious situations in this way. This approach is consistent withthis Court's recent case law. [20] In R. v. Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16, the Court acknowledged the exceptional nature of the maximumsentence, but firmly rejected the argument that it must be reserved for the worst crimes committed in the worst circumstances.

Instead,all the relevant factors provided for in the Criminal Code must be considered on a case-by-case basis, and if the circumstances warrantimposing the maximum sentence, the judge must impose it and must, in so doing, avoid drawing comparisons with hypothetical cases: ... terms such as "stark horror", "worst offence" and "worst offender" add nothing to the analysis and should be avoided. All relevant

factors under the Criminal Code ... must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely ... and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case-by-case basis. ... [21] Even where a maximum sentence is imposed, therefore, regard must be had to the trial judge's discretion, the individualized nature ... and the normative principles set out by Parliament in ss. 718 , 718.1 and 718.2 Cr. C.

There is still a place in criminal law for maximum sentences in appropriate circumstances. I am satisfied that in this case the appropriate range for sentencing for unlawful confinement is from five to 10 years in prison. [ 59 ] In determining the range to be 5–10 years for unlawful confinement, Davies J. noted the aggravating factors, which included the “gang-like” nature of the offences, the repeated use of violence and threats of violence and the length of the imprisonment of the victims in degrading conditions for 25 days. In its written submission, the Crown provided this helpful

summary of the circumstances of the three persons in Tse convicted of unlawful confinement. The length of sentences for forcible confinement for each accused varied with the role that they played in the offence. For example: • Mr. Ly was sentenced to fives years for forcible confinement. Ly was only at the residence where the victims were being held for the first two or three days. Ly, who had an extensive criminal record, was also involved in the initial kidnapping and extortion of the three victims. • Mr. Vandrick was sentenced to eight years in jail for forcible confinement.

Vandrick spent 14 days assisting in the confinement of the victims and was involved in (although not directly) their kidnapping. Vandrick was sentenced to less time than some of the other accused because he was a first-time offender, had expressed remorse, and had excellent prospects of rehabilitation. • Tse and Nguyen were sentenced to ten years for forcible confinement. Both were noted to be the leaders of the kidnapping, giving directions to the other accused, and were found to have been present for the entire time the victims were held.

While Tse had a dated criminal record, Nguyen had spent most of his adult life in prison. [ 60 ] In my view, in Tse , Davies J. made clear that the range of sentencing for unlawful confinement was from 5–10 years. However, before reaching that determination on the facts before him, Davies J. also made clear that the range of sentencing for cases of unlawful confinement “is infinite”, given the range of circumstances in which the offence can arise (para. 115). [ 61 ] In R. v.

Hernandez, 2009 BCSC 474 , Justice Silverman sentenced three men involved in kidnapping a young man, holding him captive for eight days and moving him at gunpoint [1] to three different houses in the Lower Mainland. Two of the three men were convicted of kidnapping and unlawful confinement. The third was convicted of unlawful confinement. All three men were sentenced to eight years for the unlawful confinement charges. With respect to the man convicted of unlawful confinement only, Silverman J. found that he was connected to all three houses, that he had knowledge about the movement of Mr.

McMynn and was a participant in his confinement. Justice Silverman stated at para. 47: Concerning Mr. Vu, there are many less cases available for confinement charges than there are for kidnapping charges. In Caissi , in circumstances which are at least as aggravating as the case at bar, the Court of Appeal increased a sentence to nine years. In Mulvahill , which I have already referred to, the confinement aspect of that case attracted a sentence of six years. [ 62 ] Notably, in R. v. Vu , 2011 BCCA 112 , aff’d in 2012 SCC 40 , the Court of Appeal allowed a Crown appeal of Mr.

Vu’s kidnapping acquittal, and remitted the matter to this Court for sentencing on the kidnapping charge. The Crown nonetheless submits that Hernandez is still an authority for an eight-year sentence for unlawful confinement. [ 63 ] To assist in calculating the appropriate sentencing range in this case, defence counsel referred the court to the following authorities: • R. v. McCann , 2011 BCSC 1590 ; • R. v. Eddy , 2019 BCSC 2151 ; • R. v. Violette , 2009 BCSC 1557 ; • R. v. Widdifield , 2018 BCCA 62 ; • R. v. Brown , 2022 BCSC 2372 (also indexed as R. v. Ball ); • R. v. Dragani , 2018 BCCA 225 ; and • R. v.

Owusu-Boamah , 2023 ONSC 496 . [ 64 ] Because of the judicial commentary about forcible confinement, I highlight McCann , Eddy , Brown , and Dragani . [ 65 ] In McCann , the accused was 43 years old, with no prior criminal record and a good employment history. He was found guilty of two counts of unlawful confinement and two counts of assault causing bodily harm. Justice Schultes sentenced him to imprisonment of two years less a day for each count after finding that Mr.

McCann had a grudge against the victims from what he perceived to be their role in an earlier home invasion and theft of prescription pain killers. Mr. McCann was present when others bound the victims, assaulted them and demanded money from them. [ 66 ] In Eddy , the two accused were in a relationship and one worked as an escort. Both had criminal records. The victim suffered from quadriplegia and the two accused confined him as they attempted to obtain money from him for anticipated services. The facts in Eddy

are unique and Justice Verhoeven stated as much when he passed sentence to each of six months in custody to be followed by two years probation. In reaching his decision, Verhoeven J. provided a useful

summary of some of the sentencing authorities for forcible confinement. In so doing, he stated, at paras. 88–89: The case authorities do not establish any kind of appropriate range of sentence for the charge of unlawful confinement, standing alone. In most cases, the unlawful confinement occurs concurrently with other offences, such as assault. In a sense, the domestic assault and confinement cases of Paradis and MacKinnon [and Fagg ] are somewhat closer to the circumstances in the case at bar, while still being very different from the unique circumstances found in this case.

Leaving aside Narayan , which I consider completely inapplicable, the other cases span a range of six months to two years, although, as noted, in many cases other offences are involved, and several of the cases involve significant planning and premeditation. [ 67 ] In Brown , Justice Riley imposed a sentence of 22 months, to be served pursuant to a conditional sentence order (CSO) and followed by a probation order of 12 months. Mr. Brown pleaded guilty to the offence of forcible confinement with respect to his involvement in a scheme where the victim was confined for a number of days and subjected to violence.

Justice Riley accepted that Mr. Brown’s role in the offence was limited to attending a prearranged meeting and ushering the victim into a vehicle at the outset of the confinement. Later, others physically subdued the victim and drove him to another location. Justice Riley accepted that there was no evidence that Mr. Brown knew of or was directly involved in the victim’s confinement and cruel mistreatment. Justice Riley indicated that the cases applicable to the circumstances of Mr.

Brown suggested a sentencing range from 22–36 months: [41] […] I should stress that the parties cited many other cases in which much more substantial jail sentences have been imposed for the offence of forcible confinement. However, for the most part those cases involve forcible confinement in conjunction with other crimes or they involve offences where the offender’s role and culpability were much more substantial than that of Mr.

Brown. [ 68 ] In Dragani , the Court of Appeal upheld a provincial court judge’s sentence of 90 days (to be served intermittently) for break and enter into an occupied dwelling and forcible confinement. The two men attended at a residence to retrieve money or property from the victim. They grabbed the victim outside of the home, bound his hands, covered his head, took him inside, tied his legs and administered a beating. They did not expect others to be present in the home, but the victim’s parents and brother were in the residence.

The two men pointed an imitation gun at them, covered their heads and bound their hands with plastic straps. The victim’s brother, hiding in his bedroom, called 911. The two men did not have a criminal record and had taken significant steps towards rehabilitation. [ 69 ] In upholding the sentence, the court in Dragani found that the judge’s finding of exceptional rehabilitative steps by the offenders that justified departure from the ordinary sentencing range was supported by the evidence and entitled to deference.

Justice Savage stated, at para. 74: […] a judge can order a sentence outside the range as long as it is in accordance with the principles and objectives of sentencing: a sentence outside the range is not necessarily unfit: R v. Nasogaluak , 2010 SCC 6 at para. 44 ; Lacasse at paras. 57–61.

Where there is an arguable case of exceptional circumstances, two inquiries are commonly emphasized: (1) has the offender concretely demonstrated that he or she has turned his or her life around since his or her arrest; and (2) would the fundamental purpose of sentencing as set out in s. 718 of the Criminal Code be better served by a custodial or non-custodial sentence: Burnett at para. 30. [ 70 ] As I consider the sentencing range for forcible confinement, I have been guided by the Crawford factors as a framework for assessing the gravity of the events.

At the same time, I bear in mind the maximum penalty for forcible confinement is significantly different than the maximum penalty for kidnapping. [ 71 ] The Crown submits that the Crawford factors point to a high gravity, given the alleged financial motive and premeditated plan to abduct Mr. Hue. These submissions are not consistent with my findings of fact. Based on the evidence presented, I was unable to conclude what the scheme was to extract consideration for Mr. Hue. I find these factors neutral. I accept that while confined Mr. Hue was subject to degrading treatment.

This factor increases the gravity of the offence. However, the period of the confinement, about two days, was short relative to some of the cases cited. There was also no violence against Mr. Hue. These factors lessen the gravity. In my Judgment Reasons , I also found that there was a plan to release Mr. Hue and that this plan was underway when the police entered the Condo. I have thus found that the circumstances in which the imprisonment ended, to be somewhat neutral. [ 72 ] In sum, I follow Davies J.’s articulation of the range for cases of unlawful confinement to be infinite.

In Tse and Vu , the cases involved periods of confinement that were much longer than here. In addition, the trial judge in Tse found the victims had been subjected to violence. In this case, counsel agree that violence was not used. [ 73 ] Based on the findings of fact made, my view is that the range is more in the 2–6 years. [ 74 ] In identifying the range to be 2–6 years, I considered that Mr. Hue was held for almost 48 hours, as well as the making and sharing of degrading videos, seemingly as part of a plan to extort money in exchange for Mr. Hue.

I also considered the impact on the members of the community who were ordered to evacuate their homes and observed the presence of heavily armed police as the perpetrators attempted to escape. C. Firearms [ 75 ] The presence of firearms is an important factor when assessing the gravity of the offence. The cases make clear that offences involving firearms and the misuse of firearms must take into account deterrence and denunciation to aptly reflect society's condemnation of the improper use of firearms in our communities. Justice Dickson, in R. v.

Kachuol , 2017 BCCA 292 , expressed this sentiment as follows, at para. 25: In recent years, Canadian courts have become increasingly concerned by the proliferation of handguns, gun violence and the dire consequences for our society. Guns are inherently, often lethally, dangerous, all the more so when they are possessed for an illicit

purpose. As a result, their possession and use is highly regulated and, if unlawful, criminalized to ensure public safety, express society’s condemnation and punish offenders. To the extent possible, courts strive to achieve these goals when imposing sentences for firearms- related offences by prioritizing deterrence and denunciation, following customary sentencing ranges in all but exceptional cases and fully accounting for aggravating factors where they exist. [ 76 ] I would place Mr.

Handule at the higher end of the 2–6 year range identified because of his direct connection to the use of firearms in this offence. D. Role of Race and Ethnicity in Sentencing [ 77 ] Courts across the country have been called upon to recognize the overrepresentation of Black individuals within the criminal justice system. Courts are now called upon to ameliorate systemic practices that have led to this current reality. [ 78 ] A judge tasked with sentencing racialized individuals is required to assess the role of race and ethnicity at the sentencing stage.

In the past few years, courts in Nova Scotia, Ontario and BC have attempted to tackle the overrepresentation of racialized individuals in the criminal justice system. [ 79 ] I address some of the key authorities on this point. [ 80 ] In Nova Scotia, the courts were grappling with the overrepresentation of Black men in jail. [ 81 ] In R. v. Anderson , 2021 NSCA 62 , a young Black man received a CSO for offences related to his possession of a loaded firearm.

The sentencing judge relied on, in part, social context evidence when determining the sentence imposed satisfied the principles of sentencing. [ 82 ] The Crown appealed the sentence, arguing at the outset that the sentence was demonstrably unfit. However, as the appeal progressed, the Crown’s position “evolved” from one of substance to one of process (para. 74). The Crown’s position eventually turned to an emphasis on the need for guidance for courts tasked with applying the principles of sentencing to Black offenders.

That is, the Crown (and multiple intervenors) sought direction from the Court about how to properly assess race in the sentencing process, in light of the bleak statistics showing the overrepresentation in jails. [ 83 ] Justice Derrick thoughtfully explained the value of an IRCA in crafting an appropriate sentence for a young Black man.

Justice Derrick noted that the court endeavoured “to address these questions in the context of the conditional sentence regime, and sentencing more broadly.” (para. 2) [ 84 ] At paras. 3–9, Derrick J.A. described the task of the Nova Scotia Court of Appeal: Directly relevant to this appeal is the now widely accepted fact that certain groups in society are disproportionately incarcerated, notably Indigenous offenders and Black offenders. Parliament introduced the conditional sentencing regime in an "attempt to remedy the problem of overincarceration".

As the Ontario Court of Appeal observed in Borde nearly twenty years ago, the underlying reasons for the over-representation of Indigenous offenders in Canada's prisons - poverty, substance abuse, lack of education, lack of employment opportunities, and vulnerable, marginalized communities - are also factors in the over-representation of offenders of African descent . We are now well aware that the disproportionate incarceration of Black offenders reflects the systemic discrimination and racism that permeates the criminal justice system. As the Supreme Court of Canada very recently noted, since R. v.

Parks , "courts have acknowledged the wide range of ways the criminal justice system can disproportionately affect accused persons" who are Indigenous or racialized. In Parks , the Ontario Court of Appeal noted the existence of anti-Black racism in Nova Scotia as identified by the Royal Commission on the Donald Marshall, Jr. Prosecution: Examination of racism as it impacts specifically on black persons suggests that they are prime victims of racial prejudice. In Nova Scotia, anti-black racism has been described by both blacks and non-blacks as "pervasive": W. Head & D.H.

Clairmont, Discrimination Against Blacks in Nova Scotia: The Criminal Justice System, A Research Study Prepared for the Royal Commission on the Donald Marshall Jr. Prosecution (Halifax: Royal Commission on the Donald Marshall Jr. Prosecution, 1989) at pp. 43-47; see also Nova Scotia Royal Commission on the Donald Marshall Jr. Prosecution, Findings and Recommendations, vol. 1 (Halifax: Royal Commission on the Donald Marshall Jr. Prosecution, 1989) (Chair: T.A. Hickman C.J.N.S.) at pp. 148-84...

Anti-Black racism was described in Parks as a pervasive societal phenomenon: "Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes". Black people were identified as "among the primary victims" of the "evil of racism". Systemic racism was identified in Mr. Anderson's experience: the judge heard evidence about it and, as I will describe, its reality was reflected in her approach to his sentence. The experience of African Nova Scotian offenders like Mr. Anderson must be better reflected than it has been in the sentencing process and outcomes.

In its intervention the Criminal Lawyers' Association has said: "...it is time that the distinct mistreatment of Black people in society be given its due recognition in criminal sentencing". This appeal gives us the opportunity to take up the challenge set by the Supreme Court of Canada in R. v.

Friesen for appellate courts to "set a new direction, bringing the law into harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders ..." Appellate courts have a responsibility in such circumstances to equip judges sentencing offenders of African descent with the tools to craft fit sentences. Where current sentencing practices in relation to African Nova Scotian offenders do

not further the objectives of sentencing to "effectively deter criminality and rehabilitate offenders", then "those practices must change" inorder to meet the needs of those offenders and their communities. [85] In Anderson, the Nova Scotia Court of Appeal set out an analytical framework to guide judges tasked with sentencing racializedindividuals. [86] Similar sentiments were expressed by the Ontario Court of Appeal in R. v. Morris, 2021 ONCA 680. The Crown appealed asentence imposed for a handgun offence committed by a then 23-year-old Black individual.

Sitting as a panel of five, the Ontario Courtof Appeal stated, at para. 1: It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality inCanadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably thecriminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure iton a daily basis. Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased.

This appeal requires the courtto consider how trial judges should take evidence of anti-Black racism into account on sentencing. [Citations omitted.] [87] Our Court of Appeal has similarly looked to social context evidence when considering the fitness of the sentence imposed for awoman with a substance use disorder. In Ellis, the social context evidence related not to race but to drug addiction, yet the Court’scomments are still instructive. In Ellis, the Crown appealed from a suspended sentence and 12 months probation imposed for traffickingand possession of fentanyl for the purpose of trafficking.

The sentencing judge determined that the appellant and similarly-situatedoffenders should no longer be subject to the generally applicable sentencing range of 18–36 months of imprisonment established in R. v.Smith, 2017 BCCA 112. The Court of Appeal allowed the appeal and increased the sentence to three years probation.

In so doing, thecourt spoke to the role of social context evidence, particularly in the proportionality analysis. [88] The Court of Appeal agreed with Morris regarding social context evidence, noting that it can provide a basis upon which a trialjudge can conclude that the fundamental purpose of sentencing is “better served by a sentence which, while recognizing the seriousnessof the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender througha sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism”: Ellis at para. 76, citingMorris at para. 79. [89] On this point, in Ellis, Justice Dewitt van Oosten wrote at paras. 78–81: In my view, the use of social context evidence for the purposes identified in Morris is consistent with long-standing sentencing practicesand principles, and logically fits within the existing statutory and common law sentencing framework.

It has long been the case that an offender's background may properly affect a sentencing court's assessment of moral blameworthiness. In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 at paras. 66-69 and R. v. Ipeelee, 2012 SCC 13at paras. 73-77, theSupreme Court of Canada affirmed the critical importance of this principle in the context of s. 718.2(

e) of the Criminal Code specific tothe sentencing of Indigenous offenders. Non-Indigenous offenders are also entitled to present background information as a basis for a finding of diminished moral culpability.Lived experiences involving "social and economic deprivation, historical disadvantage, diminished and non-existent opportunities, andrestricted options" can be highly relevant to assessing blameworthiness: Anderson at para. 146.

As explained in Morris, "an offender'slife experiences can ... influence the choices made by the offender, and can explain, to some degree at least, why an offender made achoice to commit a particular crime in the specified circumstances" (at para. 75). [90] The cases have also examined whether the defence needed to establish a causal link between the offending behavior and socialcontext evidence before that evidence could properly be used.

The Ontario Court of Appeal in Morris, rejected the need for a strict causalrelationship but noted at para. 97: [97] There must, however, be some connection between the overt and systemic racism identified in the community and thecircumstances or events that are said to explain or mitigate the criminal conduct in issue [...] Absent some connection, mitigation ofsentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender'scolour.

Everyone agrees there can be no such discount. [Citations omitted; emphasis added.] [91] The BC Court of Appeal agreed with the Ontario approach rejecting the need for a strict causal relationship. The Court agreedthat there must be “some connection” between the systemic racism identified in the community and the circumstances of the event thatare said to explain the offending behaviour: Ellis at para. 83. Yet, the purpose of establishing “some connection” is not to prove a causallink between the social context and the crime.

Rather, it is to ensure that the sentencing process is focused on the offender’s personalcircumstances and background such that the social context evidence “can reasonably inform the individualization of the sentence”: Ellisat para. 88. [92] The “some connection” standard was also considered in R. v. Peart, 2022 BCSC 680. Peart concerned a violent and forciblesexual assault where the victim had been restrained by the offender during the assault. Mr. Peart submitted that anti-Black racism couldbe considered as a mitigating factor in his case.

Justice Jackson reviewed the principles in Morris, and accepted that she could considerthe effect of racism on Mr. Peart. However, Jackson J. ultimately found that Mr. Peart failed to establish some connection betweenevidence of anti-Black racism and his experiences of discrimination and the offence committed; thus, these factors could not serve tomitigate Mr. Peart’s culpability (paras. 36–38).

[ 93 ] On this point, it is my view that Justice Marchand’s comments in R. v. Kehoe , 2023 BCCA 2 , should be kept in mind. In Kehoe , the court allowed the sentence appeal because the sentencing judge accepted, without analysis, the Crown's submission that Gladue principles should play a very limited role because Mr. Kehoe was disconnected from his Métis community and culture. The Court found that the sentencing judge erred in law and failed to consider the role Canada's colonial history and assimilationist policies may have played in bringing Mr. Kehoe before the Court.

On the point of causal connection, Marchand J. recognized how difficult it would be to demonstrate a causal link between Mr. Kehoe’s heritage and his offence. He stated, at paras. 46–47: In many cases involving the sentencing of Indigenous offenders, Canada's assimilationist policies have been so successful that the offender may be largely or completely disconnected from their Indigenous culture, community and support: Hamer at para. 115.

In such cases, an obvious tension arises in the task of balancing (1) the well-known principle that it is not necessary to establish a direct causal link between systemic and background factors and the offence at issue with (2) the requirement that it is nevertheless necessary to "evaluate relevant information about the significance of a person's Indigenous identity and the individual's circumstances as an Indigenous person": Hamer at para. 117. As with all of the challenges in the sentencing process, we rely on the wisdom and experience of the sentencing judge to strike the right balance. In R. v.

Whitehead , 2016 SKCA 165 , the Saskatchewan Court of Appeal helpfully observed: [63] The link between systemic or background factors and moral culpability for an offence does not require a detailed chain of causative reasoning.

Instead, the analysis is based on inferences drawn from the evidence based on the wisdom and experience of the sentencing judge ... [64] In applying this approach, sentencing courts must pay careful attention to the complex harm that colonization and discrimination have inflicted on Aboriginal peoples. [ 94 ] Though decided in the context of an Indigenous man, Marchand J.’s words are also apt here. [ 95 ] In sum, the recent jurisprudence from Nova Scotia, Ontario and our province recognizes the role of systemic racism in the over- representation of racialized individuals in the Canadian criminal justice system.

I am satisfied that judges must factor pervasive systemic racism into the proportionality analysis when crafting a just and appropriate sentence. Social context evidence can also inform the weighing of specific deterrence and rehabilitation in determining the sentence. While the offender must prove some connection between the systemic racism and the circumstances that mitigate or explain their conduct, the aim is not to prove causation.

Rather, they only need to show a discernible nexus between the social context and their personal circumstances such that the social context evidence can inform their sentencing: Ellis at para. 88 . [ 96 ] In my view, and for the reasons set out more fully below, I must consider Mr. Handule’s and Mr. Abdullahi’s life as young Black men growing up in Canada and the impact of discriminatory policies, often subtle but sometimes not.

That is not granting a “race discount.” Rather, it is, as Derrick J.A. noted, an attempt to recognize the underlying reasons for the over-representation of Black individuals in our criminal justice system. [ 97 ] To this end, Derrick J.A. highlighted the role of IRCAs in sentencing. She stated this at paras. 124 and 125: The role of IRCAs in the sentencing of African Nova Scotian offenders will serve to enhance the credibility of the criminal justice system in the eyes of a broad and diverse public by increasing the likelihood of the sentences imposed being seen as just and appropriate.

Respect for the law and the maintenance of a just, peaceful and safe society is not achieved by putting disproportionate numbers of Black and Indigenous offenders behind bars having left unaddressed, in the context of sentencing, the deeply entrenched historical disadvantage and systemic racism that more than likely had a hand in bringing them before the courts. The historic discrimination and racism to which African Nova Scotians have been subjected is antithetical to societal values of equality and inclusion.

The Supreme Court of Canada in R. v Nasogaluak , addressing, in the context of sentencing, the impact of a Charter breach, recognized the role of the Charter in the sentencing regime: "A sentence cannot be "fit" if it does not respect the fundamental values enshrined in the Charter ". This principle is to be applied purposively. The sentencing process as a whole must accord with Charter values, including the right to equality before and under the law.

Differential treatment may be needed in order to serve the goals of substantive equality otherwise how are historic inequalities confronted and addressed, ongoing systemic discrimination ameliorated, and continued disadvantage avoided? [ 98 ] Justice Derrick’s comments about differential treatment and substantive equality require me to consider the historical disadvantage and systemic inequality that brought Mr. Handule and Mr. Abdullahi into the criminal justice system. Adherence to the constitutional notion of substantive equality demands nothing less. E. Pre-Trial Custody [ 99 ] Counsel agree that Mr.

Handule is entitled to be credited for the time he spent in pre-trial detention to the date of his life sentence in July 2022. At the statutory credit of 1.5:1, that would mean an effective 36 months credit. In addition, Mr. Handule takes the position that this credit should be enhanced to reflect the harsh conditions endured during the COVID-19 pandemic and while housed at the Toronto South Detention Centre. [ 100 ] In R. v. Fulton, 2021 BCSC 2721 , Justice Skolrood, as he then was, addressed the issue of enhanced pe-trial credit.

He spent some time examining the Ontario authorities on this issue and provides a helpful

summary of how the issue has been dealt with in that province: [67] The issue of enhanced credit appears to have received more judicial attention in Ontario than British Columbia. Of particular note is the recent Court of Appeal decision in Ontario in R. v. Marshall , 2021 ONCA 344 , where Justice Doherty said at paras. 50 to 53:

[50] Before I move to Marshall #2 , I propose to make some observations about the calculation of the “ Duncan ” credit. A “ Duncan ” credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 “ Summers ” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody … The “ Duncan ” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody.

The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “ Duncan ” credit: R. v. Morgan , 2020 ONCA 279 . [51] It is also important to appreciate and maintain the clear distinction between the “ Summers ” credit and the “ Duncan ” credit. The “ Summers ” credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence.

The “ Summers ” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “ Summers ” credit is statutorily capped at 1.5:1. It is wrong to think of the “ Summers ” credit as a mitigating factor.

It would be equally wrong to deny or limit the “ Summers ” credit because of some aggravating factor, such as the seriousness of the offence … [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 … 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. [68] As indicated by Justice Doherty, difficult or harsh pre-trial custody conditions cannot be used to enhance pre-trial credit beyond the statutory maximum of 1.5:1.

However, it may be a mitigating factor in determining a fair sentence. [ 101 ] Justice Skolrood also considered the impact of COVID-19 and enhanced credit. He was satisfied, based on the circumstances before him, that he could take into account the impact of COVID-19 on Mr. Fulton’s pre-trial detention noting it was not a mathematical calculation but rather a mitigating factor relevant to determining a reasonable and fit sentence. [ 102 ] In

summary, I can evaluate whether Mr. Handule experienced particularly harsh pre-trial incarceration conditions, including because of COVID-19, and this is a mitigating factor to be considered in determining his sentence. V. CIRCUMSTANCES OF MR. HANDULE AND MR. ABDULLAHI [ 103 ] The IRCA provided for Mr. Abdullahi comprehensively set out the impact of race and culture on Mr. Abdullahi. As for Mr. Handule, the Crown agreed that the IRCA provides relevant social context evidence to his circumstances as well. A. Mr. Handule [ 104 ] Mr. McMurray, Mr.

Handule’s counsel, tried to facilitate an IRCA to more fully explain how discriminatory policies and systemic racism have impacted Mr. Handule. Unfortunately, the report writers were unable to complete the assessment because of Mr. Handule’s transfers between Ontario and BC. However, counsel agree that some of the social context factors set out in the report prepared for Mr. Abdullahi have equal application to Mr. Handule. I agree and have relied on aspects of the report, including information on the communities that Mr. Handule experienced. I have also had the benefit of written submissions from Mr.

McMurray that assist in understanding Mr. Handule’s circumstances. [ 105 ] I start there. [ 106 ] Mr. Handule is now 27 years old. He was 23 years old when he committed this offence. The murders for which he was convicted occurred when he was 22 years old. [ 107 ] Mr. McMurray submitted that Mr. Handule “grew up in very difficult circumstances in a large family raised by a single parent in an area where violence and shootings were common place.” [ 108 ] Mr. Handule’s parents immigrated to Canada in the 1990s. They left war-torn Somalia in the mid-1990s and came to Canada as convention refugees.

In the IRCA, the author notes that thousands of Somalians have migrated to Canada since the mid-1980s. They migrated to escape human rights abuses under the governing regime and the civil war that ensued after the regime fell in 1991. In the IRCA, the author chronicles the challenges Somalian refugees faced when they arrived in Canada. [ 109 ] Of his eight siblings, Mr. Handule is the eldest male. His parents separated when he was very young and he was raised by his mother in a single parent home. His father has been absent for most of his life and contributed little to the family.

The IRCA noted that nearly half of Black children live in one parent homes, and that the absence of a father contributes to high rates of school failures and gang involvement as there is less parental supervision of children.

[ 110 ] Growing up in the Jane and Finch area of Toronto raised unique challenges for Mr. Handule.

According to the IRCA, “the area became notorious for its predominance of gangs, drugs and criminal activity…factors such as the lack of social services, recreational facilities and overcrowded schools are a few of the reasons for the increased crime in that community.” [ 111 ] I accept that young people growing up in underserved communities, such as the Jane and Finch area, face significant barriers due to racism, lack of access to educational and recreational opportunities, lack of access to healthcare, and enduring economic hardship.

The IRCA notes: The government began failing this neighborhood in its early years and as the years went by, high-rise apartments were built along Jane Street, which would later become known as the Jane-Finch corridor.

Unfortunately, by the mid-1970s, the neighborhood became known for several social issues as the community rapidly grew with a large concentration of low-income households. [ 112 ] Admitting that racism, histories of slavery and colonization continue to create gaps for racialized and Indigenous people, efforts are underway by the Ontario government to address inequities in under-resourced communities. In 2020, the provincial government in Ontario put in place a three-year anti-racism strategic plan to break down barriers and advance racial equity through reviewing government policies, programs and services.

As stated in the IRCA: the plan is to also reduce disparities for Black Ontarians in the child welfare, justice and education systems by launching initiatives that allow better understanding while creating a collaborative government approach that will break down intergenerational impacts of slavery and systemic racism. [ 113 ] All that is stated to acknowledge the existence of racism and discriminatory practices in our institutions, including schools, healthcare and criminal justice systems. [ 114 ] There is no doubt that some children will escape from under-resourced communities unscathed. Mr.

Handule is not one of them. From a young age growing up in the Jane/Downsview area of Toronto, he reported several shootings in the vicinity of his home. The first occurred when he was about 11 years old. [ 115 ] Sadly, Mr. Handule stated that his family would sometimes travel to the United States to stay with family in order to have a break from the violence in Toronto. [ 116 ] Mr. Handule finished high school in Toronto and began working in the construction industry doing carpentry as an apprentice.

Shootings continued until he decided to leave the community in 2017 and move to Calgary and then to Vancouver. [ 117 ] Mr. Handule submitted that he specifically left Toronto because of the shootings, having been shot at four times within a five-block radius. He submitted that he purchased a firearm for protection, in part because of these shootings and because he knew his brother had some involvement with gang activity. [ 118 ] Periodically, Mr. Handule would return to Toronto to visit. He had become interested in the rap music scene in Toronto which had grown since his departure.

While in Vancouver, he worked with a sound engineer and produced several music videos under the name “21Neat”. His brother also performed rap under the name “22Neat”. [ 119 ] As noted earlier, Mr. Handule was charged and convicted in the shooting death of two men at a club in downtown Toronto on June 30, 2018. The shooting victims were involved in the rap/hip-hop community. Counsel indicated they also had gang connections in Toronto. Mr. Handule left Toronto before he was charged with the murders. [ 120 ] Mr. Handule’s departure from Toronto did not mean an escape from gun violence.

While the brothers were in Calgary, Mr. Handule saw his younger brother shot and killed in December 2019. [ 121 ] I pause to acknowledge the Crown’s submission on this point. That is, that Mr. Handule’s possession of the firearm on July 4, 2019 was connected to his fear of retaliation for events relating to his brother and/or the incident at the Toronto club. I agree with the Crown’s submission that the Court should not place any weight on this submission because no evidence was tendered to support it. [ 122 ] Mr.

Handule submitted that he left Toronto due to death threats and arrived in Vancouver only a short while before his arrest on July 4, 2019. [ 123 ] He submits that the following are mitigating factors:

a) he did not have a criminal record at the time of the offence;

b) he was a young person, aged 23 at the time of the offence;

c) he grew up in an under-resourced community where violence and shootings were common-place and he has experienced the adverse impacts of discriminatory policies relating to housing, education and the criminal justice system; and

d) he spent 24 months in detention in Toronto and the Lower Mainland and most of his pre-trial detention time was spent on 23 or 24 hour a day lockdown, in part due to COVID-19 protocols and the consequent staffing shortages. [ 124 ] Mr. Handule tendered some evidence of lockdowns at the Toronto South Detention Centre during the time he was detained at that facility. This document was entered as an exhibit. I highlight portions of the document. [ 125 ] From August 22, 2019–July 30, 2021 (when Mr. Handule was transferred out of Ontario), the

summary indicates that there were 453 lockdowns, either full or partial. From November 12, 2021–May 16, 2022, there were 81 lockdowns, either full or partial. [ 126 ] Based on the

summary report provided, I cannot determine whether Mr. Handule was impacted by all 534 lockdowns. Some of

the lockdowns were partial meaning that not all units at the Toronto South Detention Centre were impacted. However, the report indicates that there were several full lockdowns impacting Mr. Handule. The report, specific to him, also indicates that he was impacted by isolation protocols sporadically totalling just over forty days. In addition to the

summary, I received submissions from counsel about the conditions of Mr. Handule’s detention. I accept Mr. McMurray’s submission that Mr. Handule has spent almost the entirety of his pre-trial custody in isolation, in both Ontario and BC, due to COVID-19 outbreaks, COVID-19 protocols, and consequent staffing shortages. For him, this has meant 23 hour per day lockdown, no access to rehabilitative programs, no visitors, and no repeated exposure to COVID-19. [ 127 ] With respect to rehabilitation, Mr.

Handule submits that the Court should not take his second-degree murder convictions and this unlawful confinement offence as indicative that he is entrenched in a “gang lifestyle” which will persist long into the future. Rather, he asks this Court to sentence him as a young man, who committed this offence in circumstances where he was not seeking financial gain, but really acting out of desperation and who was on the run because of his fear of retaliation for what others believed he had done. [ 128 ] In R. v.

Knauff , 2023 BCCA 174 , the Court of Appeal reminds sentencing judges that it is an error to treat evidence of post- offence convictions as aggravating circumstances that warrant the imposition of a higher sentence for an offender. However, post- offence convictions can be considered in the assessment of the offender’s prospects for rehabilitation and risk to the safety of the public (para. 27). [ 129 ] Later in these reasons, I explain how I have assessed Mr. Handule’s prospects for rehabilitation and risk to public safety in light of his second-degree murder convictions. B. Mr. Abdullahi [ 130 ] Mr.

Abdullahi was born on March 7, 1987 in Saudi Arabia. He was 32 years old when he committed this offence and is now 36 years old. [ 131 ] Mr. Abdullahi’s parents were from Somalia, but his father fled to Saudi Arabia after high school because he would have to serve in the military for one year during the ongoing civil war. Mr. Abdullahi left Saudi Arabia for Canada when he was nine years old. He described being raised in a strict Muslim family with six siblings.

He described his parents as supportive and loving, and that his father financially supported the family but he was required to work in Saudi Arabia during Mr. Abdullahi’s youth. Though his father visited the family from time to time, Mr. Abdullahi’s mother bore the burden of raising the seven children. [ 132 ] He described his first years in Canada as difficult ones where he experienced racism and discrimination. In the IRCA, it was noted that: The impact and consequences of African history have created systemic barriers that prevent people from fully participating in all parts of society.

This is especially true for Black Ontarians of all backgrounds. Whether they are recent immigrants or descendants of people who were enslaved, Black Ontarians live a shared present-day experience of anti-Black racism. Mr. Abdullahi reported that the lack of English language skills made it more challenging for him to grasp class content, and eventually [he] started missing school. [ 133 ] Mr. Abdullahi dropped out of high school in grade 10. The IRCA provided a comprehensive description of the experience for Black students, like Mr. Abdullahi, where English is a second language.

The pervasiveness of discriminatory practices extends beyond harassment from other students. The IRCA sets out that “school disciplinary practices have served to reinforce the unwantedness of Black students that is reflected in the education system.” [ 134 ] When Mr. Abdullahi first came to Canada, the family moved to the Dixon neighborhood of Toronto, an area highly populated by those of Somalian origins.

The IRCA noted that despite the media’s portrayal of the Dixon neighborhood as being filled with drugs and gangs, community members have done much to make a better name for the community through its diversity, cultural beauty and hard work of individuals living there. However, Mr. Abdullahi’s family decided to move from Dixon to the Jane and Finch neighborhood, in part because of his difficulties with school. He stated that he moved because his mother was trying to distance him from the negative influence of drugs and guns in the Dixon neighborhood. [ 135 ] Mr.

Abdullahi described his early observations of the new neighborhood, stating: … he used to see older boys walking around his neighborhood openly carrying guns hanging out of their pockets while rolling dice. This he shared he often saw in front of their complex.

He noted it was appealing to him at that time as a young Black boy who did not have a sense of belonging or way to fit in at school. …due to ongoing negative experiences at school, he eventually gave up on school leading him to the streets as a means of survival and belonging. [ 136 ] In the IRCA, the author describes a number of deaths that have impacted Mr. Abdullahi. This included the death of a young man when Mr. Abdullahi was 12 years old. He considered the deceased to be a role model and like an older brother to him.

His death was a loss for him for many reasons, including because he viewed him as a positive Black male role model. His death was a loss for many young Black children in Dixon because of this man’s efforts to support them. Mr. Abdullahi saw this man fall from the 12 th floor of his apartment. The IRCA has a vivid recounting of what Mr. Abdullahi witnessed and I need not repeat it here. Needless to say, the experience traumatized him and he remains saddened by his role model’s death. [ 137 ] In addition to his mentor, Mr. Abdullahi has experienced the following:

a) When he was in grade 9, the death of a close friend from an accidental gunshot wound.

b) The loss of a childhood friend from gunshot wounds. Mr. Abdullahi and this childhood friend spent fives years together while in custody (for different offences) and he was shot shortly after he was released from custody.

c) The death of a friend by Toronto police following “a gunshot exchange”.

d) Death of a friend from the Jane and Finch community.

e) The death of a close friend, who was shot in the head, and whom Mr. Abdullahi held until he succumbed to his gunshot wound. [ 138 ] I note as well that the IRCA writer has independently corroborated most of these events where feasib

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