R. v. Omardeen, 2019 ONCJ 449

CITATION: R. v. Omardeen , 2019 ONCJ 449 COURT FILE No.: 0611-998-18-1308 and 18-619 DATE: June 21, 2019 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — brandon omardeen Before Mr. Justice Richard H.K. Schwarzl at Orangeville Sentencing Submissions Heard on June 19, 2019 Reasons released on June 21, 2019 Ms. Liana Marcon.................................................................................................. for the Crown Ms.

Jennifer Hue................................................................................................ for the Accused SCHWARZL, J.: REASONS FOR SENTENCE 1.0: INTRODUCTION [ 1 .] On March 20, 2019 and following an eleven day trial I found the offender, Brandon Omardeen, guilty of the following indictable criminal offences contained in Information 18-1308 arising from an incident in Orangeville on July 31, 2017: Count #2 – Pointing a Firearm,

section 87; Count #3 – Possession of a Firearm Without a Licence, section 91(1); Count #4 – Discharging a Firearm With Intent to Endanger, section 244(1); Count #5 – Breach of Probation,

section 733.1; Count #6 – Breach of Recognizance, section 145(3); and Count #7 – Possessing a Firearm Knowingly Without a Licence; section 92(1). [ 2 .] In accordance with the request of both parties, a judicial stay is entered on Count #7. [ 3 .] At the sentencing hearing for these offences held June 19, 2019, the offender entered pleas of guilty to two other criminal offences enumerated in Information 18-619 arising during a period between February and June, 2018: Count #1 – Breach of Recognizance, section 145(3); and Count #3 – Breach of Probation,

section 733.1(1). [ 4 .] The position of the Crown on the 2017 offences is a global sentence of 7 years less pretrial custody of 691 days with enhanced credit on a 1.5:1 basis as well as DNA orders, lifetime firearms prohibition orders, and a forfeiture order. They seek a sentence of 9 to 12

months consecutive for the 2018 breach offences. [ 5 .] The position of the Defence regarding the 2017 offences is a total sentence of 5 years, minus presentence custody. Of the 691 days spent in jail, the offender asks that 219 days be given enhanced credit at a ratio of 2:1, with the balance being credited at 1.5:1. He does not oppose any of the ancillary orders being sought.

With respect to the 2018 breaches, the offender submits that 30 days concurrent to each other, but consecutive to the 2017 crimes is appropriate. 2.0: Circumstances of the Offences 2.1: The Offences from July 31, 2017 [ 6 .] On Monday July 31, 2017 the offender was sharing a home in Orangeville with his family, including his brother Stephon Jaggernauth. In the afternoon, the offender was the passenger in Jaggernauth’s car. They drove past the nearby home of Manav Lahore where they both swore and yelled at Lahore, apparently as a reprisal for a road rage incident some days earlier between Jaggernauth and Lahore.

Lahore and his friend Neeraj Lal then drove to the offender’s house whereupon they were chased away on foot by both the offender and Jaggernauth, who pointed an imitation handgun at them. A short time later Lahore and Lal returned to the offender’s house. On arriving and slowing down, the offender, who was alone, emerged from his garage with a loaded rifle and fired a single shot at Lahore’s van. The bullet struck the upper edge of the right rear passenger door frame, just inches above the window.

Lahore and Lal drove away and reported the incident to police. [ 7 .] In response to the complaint, the police went to the offender’s house. After failing to use non-violent means to get the offender to surrender and uncertain where the rifle was, officers entered the house with assault rifles and a police dog. The offender remained hidden until discovered hiding in a basement bathroom where he was arrested.

No firearm was ever found, but a number of starter pistols, blank starter pistol ammunition, and a live 7.62 mm rifle round were located within the offender’s home. [ 8 .] At the time of the incident, the offender was on bail for the crimes of Assault with a Weapon, Assault Causing Bodily Harm, and Breach of Recognizance. He entered into the recognizance of bail on May 5, 2017. He was also on probation for Flight from Police, Impaired Driving, Driving while Disqualified, and Identity Fraud. One of the conditions of his bail required him to not possess any weapons.

His probation order required him to keep the peace and be of good behaviour. [ 9 .] When these offences occurred, the offender was also serving an intermittent sentence on weekends for the offences of for Flight from Police, Impaired Driving, Driving while Disqualified, and Identity Fraud. He had failed the report to the jail the weekend of July 28 – 30, 2017 and was thus unlawfully at large at the time these crimes.

During his interview with police after his arrest for these crimes, he told the officer that he regularly smuggles drugs into the prison to help him cope with being behind bars. [ 10 .] Following his arrest, the offender was released on bail but his bail was later cancelled. He has 691 days of presentence detention. 2.2: The 2018 Breach of Court Order Offences [ 11 .] The offender was released on bail for the July 2017 offences on December 6, 2017, which bail was amended on consent on December 28, 2017.

One of his conditions was house arrest, with an exception in the presence of his sureties or either one or both of Haniff Omardeen and Shameen Omardeen. Between February and June 2018 the Offender violated this condition by living apart from them for months. At the time of this breach, the Offender was bound by the same probation order he was subject to when he committed the July 2017 offences.

That order required him to obey all laws, which he clearly did not in the circumstances. 3.0: CIRCUMSTANCES OF THE OFFENDER 3.1: Personal Circumstances of the Offender [ 12 .] The offender was 29 years old at the time of sentencing. [ 13 .] He comes before the Court with 8 sentencings and 18 convictions as a youth between 2004 and 2008, and with 15 sentencings and 22 convictions as an adult between 2008 and 2017. As an adult offender, there is a five year gap between 2012 and 2017.

Included in his criminal record are 11 breaches of various court orders (including breaching a firearms prohibition order); two instances of being unlawfully at large; two convictions for weapons dangerous; one conviction for carrying a concealed weapon; and four convictions for violent offences, including robbery and assault causing bodily harm. Having garnered 23 sentencings and 40 convictions over a span of

15 years demonstrates a pattern of long term recidivism. [ 14 .] The presentence report in this case states that the offender has done poorly while on probation over the years. [ 15 .] The parties agree that at the time of the July 31, 2017 offences the offender was subject to a firearms prohibition order, although he was not charged with breaching that order. [ 16 .] The offender is the father of three children, from whom he has been estranged for some time. One of the offender’s goals is to reconcile with his children. [ 17 .] He was raised by his mother and stepfather, who passed away in late 2016.

The offender was, and remains devastated, by the loss of his stepfather. Unable to cope with the loss, the offender began abusing alcohol again, having first becoming a “problem drinker” at age 17. He resumed his criminal behaviour shortly after the loss of his step-father. He has never committed himself to managing his substance abuse problems, grief, and anger but at this hearing said that he is now ready to deal with his underlying issues. However, given his track record, the prospects of rehabilitation are not encouraging at this stage. [ 18 .] The offender completed high school.

He began a post-secondary programme in graphic design but dropped out after his step- father died. Since then he has earned income from being a tattoo artist. [ 19 .] The offender has very supportive family and friends as evidenced by the six character letters filed on his behalf. Their letters, however, must be read through the rose-coloured lenses of devoted love. His family’s love and support clearly gloss over or ignore the long-term dangerous conduct displayed by the offender. Several of these same family members were present in the home when the offender committed these offences.

Haniff Omardeen and Shameen Omardeen are two people who wrote character letters, who were also both named in a supervisory role in his recognizance of bail on the July 31, 2017 offences. They appear to have not reported his absence between February and June 2018. The offender is clearly prepared to perpetrate serious crimes in spite of family support, which is obviously long-standing but passively condoning of his behaviour. 3.2: Pre-Sentence Custody of the Offender [ 20 .] The offender has spent his 691 days in pre-sentence detention at the Maplehurst Detention Centre in Milton.

The offender has been in segregated custody at his request for 219 of those days. This because he expressed concerns for his safety in the general population as his uncle was a police officer well known to other detainees. He felt that he was considered a “rat” by other inmates. He was also subject to 31 days of lockdowns. [ 21 .] The offender provided an affidavit setting out the conditions of his detention.

He noted being subject to lockdowns, restricted access to showers and telephone communications, bugs in his cell, and faulty ventilation and plumbing. [ 22 .] The offender submits that his request for segregation was due to the institution’s failure to keep him safe in the general population. The difficulty with this submission is that that there no evidence that this was in fact the case. Having said that, it would be unreasonable to force the offender to wait to be actually threatened or assaulted before moving him to a place of safety.

Nevertheless, his move to segregation was voluntary. [ 23 .] It was submitted that while in segregation he was deprived of services and privileges afforded to those in the general population. He has asked me to ascribe pre-sentence credit for the 219 days in segregation as well as 31 lockdown days at a ratio of 2:1, or 438 days.

The Crown submits that the offender has not established that any of his presentence detention should be assessed at 2:1. [ 24 .] The offender submits that the 691 days presentence custody credit should be assessed as follows: # of Days Ratio Enhanced PTC 472 1.5:1 708 219 2:1 438 Total 691 1,146

By the offender’s submission, I ought to give him presentence credit of 1,146 days or 38¼ months. [ 25 .] The Crown submits the 691 days of presentence detention be calculated in this way: # of Days Ratio Enhanced PTC 691 1.5:1 1,037 1,037 days is 34½ months, being 4¼ months less than the offender proposes. [ 26 .] In R. v. Duncan , 2016 ONCA 754 (Ont.

C.A.) it was held that particularly harsh presentence conditions can provide mitigation apart from and beyond the 1.5:1 credit referred to in section 719(3.1) of the Criminal Code after the court considers both the conditions of incarceration and the impact of those conditions on the offender. [ 27 .] Upon considering the evidence, the submissions, and the authorities referred to by counsel, I am not satisfied that the offender should be credited with enhanced presentence custody beyond the customary 1.5:1. [ 28 .] With respect to him being in segregation, there are couple of factors at which militate against further enhanced presentence credit. [ 29 .] First his statement that he was deprived of services and privileges does not jive with relevant Ministry of the Solicitor General documents from the Maplehurst Detention Centre, filed at the sentencing hearing by the offender.

Under the heading “Summary of Privileges and Access”, the Lockdown

Summary states that the offender has had full access to all privileges (showers, dayroom, phone, and TV access) and daily access to a fresh-air yard unless on full lockdown. The Ministry documents state that detainees are entitled to a shower every three days. The offender states in his affidavit that he was getting access to a shower every other day when not subject to lockdown. Thus, it would appear that on his own evidence he experienced a material benefit for being in segregation by having more frequent showers than other inmates.

Even if he was wrong, there is no evidence he was treated differently from anybody else. [ 30 .] Second, the offender was in segregation of his own choice. The Segregation Decision/Review Form shows that his conditions of detention were not particularly harsh.

The form notes the offender’s continual rejection of frequent offers to be housed in alternative accommodations, and documents steps taken to minimize the negative effects of segregation including shower, yard, phone, TV, book access, a suitable cell partner, and continued encouragement to try another living unit. [ 31 .] Regarding lockdowns, Ministry records report that the offender was involved in 31 lockdowns in 691 days, which is less than 5% of his time in detention. Of these lockdowns, 11 were full while the remaining 20 were partial.

The offender’s evidence that during lockdowns he experienced stress, anxiety and hopelessness and was denied access to family, lawyer, or showers ignores the fact that 95% of the time, he was not enduring such experiences.

Thus, it cannot be said that when considering the overall conditions over the entire period of his detention that his conditions were harsh, or if they were, that they were particularly so. [ 32 .] I am therefore not persuaded that the offender suffered any particularly harsh conditions and, if he did, I am not satisfied that any negative impact sufficient to justify super-enhanced presentence credit.

As a result, presentence custody of 691 days is credited at 1:1.5 being 1,037 days or 34½ months. 4.0: Mitigating and Aggravating Factors 4.1: M itigating Factors [ 33 .] In mitigation of sentence I take into account the following: (

a) He entered pleas of guilty to the 2018 breach offences; (

b) The offender has sincere family support, but the mitigating impact of this is diminished by its limited impact on his criminality; (

c) He appears amenable to addressing his many issues including substance abuse, grief, and anger; (

d) There is a gap in his record between 2012 and 2017; and (

e) He appears motivated to change his ways so as to restore his relationship with his children.

4.2: Aggravating Factors [ 34 .] There are a large number of aggravating features to these offences and this offender. They include: (

a) He is a very dangerous person; (

b) He has a lengthy criminal record replete with violence offences, weapons crimes, and breaches of court orders; (

c) When he committed the crimes in July 2017 he was serving a jail sentence (for which his was unlawfully at large) and at the same time was on both bail and probation; (

d) When he committed the crimes in July 2017 the offender was subject to a firearms prohibition; (

e) The circumstances of the July 2017 offences were especially serious. The offender escalated a situation between his brother and the victims by first helping insult Lahore, then in aiding his brother by chasing after Lahore on foot, then shooting at Lahore’s van. Despite his family being present in the house, the offender had a loaded rifle available to him which he fired at the victims in an occupied residential neighbourhood. But for sheer luck the bullet could well have struck either victim, or indeed a neighbour or other bystander, instead of their van; (

f) At the time of the July 2017 offences the offender was well aware of his underlying personal issues but had not done anything about them; (

g) The prospects of rehabilitation are limited given his past failures to do so under many prior probation orders; (

h) Gun violence is rare in Orangeville. The actions of the offender are a grim stain on the community’s sense of safety; and (

i) With respect to the breach of court orders in 2018, they were blatant and extended breaches lasting months and committed brazenly in the face 11 prior breaches of court orders. 5.0: THE SENTENCE [ 35 .] Balancing the competing mitigating and aggravating features, I find that a total sentence of 5 years on the 2017 offences and 30 days on the 2018 breaches as recommended on behalf of the offender do not adequately address the overarching need for deterrence, both general and specific, and denunciation. 5.1: Information 18-1308 (The July 2017 offences) [ 36 .] The appropriate sentences on Information 18 -1308 in this matter is as follows. [ 37 .] Count #4 (section 244(1)): 7 years less presentence custody credited at 34½ months for a net sentence of 49½ months from today.

There will be a lifetime

section 109 firearms prohibition, a primary in-custody DNA order, and a forfeiture order. [ 38 .] Counts #2 (section 87), and #3 (91(1)): 3 years concurrent to each other and concurrent to Count #4. These two counts will also see lifetime

section 109 firearms prohibitions and secondary in-custody DNA orders. [ 39 .] Count #5 (section 733.1), and #6 (section 145(3)): 9 months concurrent to each other and concurrent to Count #4. There will be a secondary in-custody DNA order regarding Count #6 (section 145(3)). [ 40 .] There will also be a

section 743.21 order on Counts #2 through #6 inclusive prohibiting the offender from communicating or associating in any way with either Manav Lahore or Neeraj Lal while serving the sentence. 5.2: Information 18-619 (The 2018 Breach Offences) [ 41 .] Count #1 (section 145(3)): 11½ months consecutive to Count #4, Information 18-1308 and secondary in-custody DNA order. [ 42 .] Count #2 (section 733.1): 11½ months concurrent to Count #1 (section 145(3)).

[ 43 .] The recognizance of bail violated by the offender will be marked for estreatment. 5.3: Net Sentence [ 44 .] For the reasons provided, the net sentence for the Offender on both Informations before me is time served credited as 34½ months plus 61 months (49½ months plus 11½ months) as well as accompanying ancillary orders. _______________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice