R v Sumaili, 2023 MBPC 63

CITATION : R v Sumaili , 2023 MBPC 63 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) L. Cheyne ) for the Crown – and – ) ) Rodrigue Sumaili ) M. Lorange (Accused) ) for the Accused ) ) ) Reasons for Decision ) Delivered November 28, 2023 CHOY, P.J. [ 1 ] This is the sentencing of Rodrigue Sumaili. On August 28, 2023, he pleaded guilty to contravening the Criminal Code by being unlawfully in a dwelling house contrary to section 349(1) , assault contrary to

section 266 and theft under $5,000 contrary to

section 334 (b). The matter was then adjourned for the preparation of an Impact of Race and Culture Assessment (“IRCA”). On October 20, 2023, I heard submissions on sentencing and reserved my decision. The main issue in this sentencing is whether in Mr. Sumaili’s circumstances it would be appropriate to impose a conditional sentence order. Facts [ 2 ] In the early morning hours of April 23, 2022, Mr. Sumaili was in his home neighbourhood in Winnipeg. He was intoxicated, walking home from a bar when he came up to a Nissan Rogue parked in a driveway.

He entered the vehicle and took a Ziploc bag of horse treats (which looked like powdery white pills) and some loose change. [ 3 ] Mr. Sumaili then went to the residence and entered through the side door. He found a purse and took a bank card out of it. One of the homeowners was in the basement and heard noise. When he came upstairs, he encountered Mr. Sumaili, who immediately ran out the side door. The homeowner chased Mr. Sumaili and tackled him to the ground. Mr. Sumaili struggled to escape, during the course of which he bit the homeowner’s forearm, breaking the skin.

A neighbour then came to assist and 911 was called. Police arrived within minutes to find Mr. Sumaili being held down by the residents, but still resisting. [ 4 ] Police took custody of Mr. Sumaili, who remained uncooperative. When asked for his name, he gave a false name to police. He was charged with the offences and was later released on an undertaking when sober. Crown Position [ 5 ] In sentencing submissions, the Crown took the position that Mr. Sumaili should go to jail for two years less a day, followed by two years of supervised probation.

The Crown argued that the sentence should be in line with the 2012 Manitoba Court of Appeal case R v Duerksen , 2012 MBCA 41 , which established a range of two years in prison for the offence of break and enter. While the pleas entered by Mr. Sumaili were to the offence of being unlawfully in a dwelling house, the Crown submitted that he was given a break on the specific pleas and that there is overlap between the offences.

Defence Position [ 6 ] Defence counsel submitted that the appropriate sentence would be two years less a day, to be served as a conditional sentence order, followed by a period of supervised probation. It was argued that, taking into account Mr.

Sumaili’s lack of a previous criminal record, his traumatic upbringing and experiences with racism, the potential immigration consequences, and the high potential for rehabilitation, this was a case which warranted a departure from the general starting point as set out in Duerksen . [ 7 ] For the reasons that follow, I am satisfied that the principles and objectives of sentencing can all be met in this case by the imposition of a conditional sentence order for two years less a day, followed by a two-year period of supervised probation. Sentencing Principles [ 8 ]

Section 718 of the Criminal Code sets out a number of objectives a sentencing judge should bear in mind when imposing a sentence, which include: denouncing unlawful conduct; deterring the offender and other persons from committing similar offences; where necessary, separating the offender from society; assisting in the offender's rehabilitation; providing reparations for harm done to victims or to the community; and promoting a sense of responsibility in the offender, acknowledging the harm done to victims and to the community.

[ 9 ]

Section 718.1 identifies the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 10 ]

Section 718.2 sets out other sentencing principles a Court should take into consideration including regard for aggravating or mitigating factors, the principle of parity, the effect of combined consecutive sentences resulting in an unduly long or harsh sentence, and the principle of restraint in imposing imprisonment, with particular attention to the circumstances of Aboriginal offenders. Particulars of Mr. Sumaili [ 11 ] Although a pre-sentence report was not prepared, an IRCA report was filed which contained a detailed history of Mr. Sumaili. [ 12 ] Mr.

Sumaili is a 25-year-old male originally from the Democratic Republic of Congo. He has a mother with whom he is very close, and five sisters. [ 13 ] Mr. Sumaili and his family experienced a very traumatic emigration from his country of birth. He was about five or six years old at the time. Mr. Sumaili’s father worked for a company which he learned had been employing child labour. He reported his discovery to the United Nations, but then became targeted, and had to go into hiding. When the rebels came to the family home and did not find him, they sexually assaulted his mother and sisters, and beat Mr. Sumaili.

The family went to the hospital but did not report the incident as the police were under the control of the rebels. Two days later they fled their home out of fear for their lives. Mr. Sumaili does not believe his father to have survived. [ 14 ] The family became refugees and settled in camps near the border and then in Uganda where they remained for several years. Mr. Sumaili recalls witnessing horrific war related events including seeing dead bodies and people being murdered. The living conditions in the camps were deplorable. They lived in a mud house, with limited access to food and drinkable water.

Disease, and notably malaria was rampant. Aid was sometimes available from the United Nations, and fellow refugees in the camp would try to help each other out. It was a very difficult time for his mother who struggled to provide for her six children. She also became involved in a relationship with an abusive partner, who is father to her younger daughters. [ 15 ] The family applied for refugee status and eventually were assigned to go to Canada in 2012. They had only two months to prepare before boarding a plane.

When they arrived in Canada, it was extremely cold and they had to adjust to very new surroundings. [ 16 ] With the assistance of The Welcome Place, the family found first an apartment, and then later a house in a safe neighbourhood just outside Winnipeg. Mr. Sumaili initially attended a French elementary school for grade eight, but then transitioned to an English language program for grades nine to twelve. He achieved high marks in math, and average marks in other courses.

During his high school years, he went through a rebellious stage and was placed in care with Child and Family Services for approximately one year. During that time, he lived in a youth shelter and participated in group programming. [ 17 ] Mr. Sumaili has held various forms of employment, both part-time and full-time since 2015. He has worked as a stocker, a cashier, and in construction, installing flooring and building windows and doors. Any income earned by Mr. Sumaili is shared with his mother and his sisters, and he feels an obligation to help provide for them.

He lived in his mother’s home until August 2021, when he bought a house with his girlfriend and moved out. That relationship has now ended, and he has returned to live with his mother. [ 18 ] Mr. Sumaili’s health is impacted by seizures he experiences due to brain damage he suffered after consuming diseased meat. He also admits to suffering from alcohol dependency, and uses marijuana on a daily basis. There is some use of illicit substances, but he says that it is limited. [ 19 ] Overall, Mr. Sumaili presents as an intelligent man who is still young and struggling to establish his place in society.

He has a strong relationship with his immediate family and feels a high degree of responsibility towards them. He has encountered significant trauma in his life and has not spent much time addressing his physical and mental health challenges. He suffers from alcohol abuse but is able to recognize that this is a problem.

Impact of Race and Culture Assessment (IRCA) [ 20 ] An IRCA is a type of pre-sentence report which details information about a person’s racial and cultural background to assist the sentencing judge in assessing how the person’s background might be connected to their involvement in the criminal justice system.

IRCA reports, particularly in Manitoba, are a relatively new development in sentencing intended to address the problem of overrepresentation of racialized individuals in the criminal justice system. [ 21 ] In 2021, the Ontario Court of Appeal in R v Morris , 2021 ONCA 680 , and the Nova Scotia Court of Appeal in R v Anderson , 2021 NSCA 62 , each issued a decision addressing anti-Black racism in the context of sentencing.

Both decisions emphasize the need to take into account background and systemic factors which have contributed to the offending behaviour. [ 22 ] As stated in Anderson at paragraph 146 : The moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism, as was done in this case. The African Nova Scotian offender’s background and social context may have a mitigating effect on moral blameworthiness.

[ 23 ] Similarly, in Morris , the Court stated (at para 13): Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718 . [ 24 ] Anderson at paragraph 121 recognized that the social context information supplied by an IRCA can assist in: - Contextualizing the gravity of the offence and the degree of responsibility of the offender. - Revealing the existence of mitigating factors or explaining their absence. - Addressing aggravating factors and offering a deeper explanation for them. - Informing the principles of sentencing and the weight to be accorded to denunciation and deterrence. - Identifying rehabilitative and restorative options for the offender and appropriate opportunities for reparations by the offender to the victim and the community. - Strengthening the offender’s engagement with their community. - Informing the application of the parity principle: “Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s.718.2(e)”[ R v Ipeelee , 2012 SCC 13 , at para 79] . - Reducing reliance on incarceration. [ 25 ] As noted earlier, use of an IRCA in sentencing is a relatively new development in Manitoba.

In order for sentencing judges to have confidence in relying on IRCA reports to determine sentences, the reports must provide neutral and unbiased information. As stated in Anderson (at para 109 ): “To be a credible resource for the courts, IRCAs need to be prepared to a high professional and authoritative standard.” Similarly, Morris speaks to the admission of “objective and balanced” social context evidence (at para 13; 144). [ 26 ] In a recent Manitoba case, Mr. Justice Martin in R v Kyriakakos , 2023 MBKB 150 , expressed concern about the objectivity of an IRCA report, and in particular, a

section contained under the subheading “Snapshot of Systemic Anti-Black Racism in the Criminal Justice System” (see para 29). He commented that the report inappropriately tilted towards advocacy. I note that an identical subheading was contained in the report filed in this case, and I suspect was authored by the same writer. [ 27 ] While the IRCA report filed in this case contained extremely informative content about Mr. Sumaili’s personal background experiences and the history of Congolese communities in Canada, I did have reservations about generalization of some information it provided.

Certain portions of the report tended to homogenize all Black people in Canada and their experiences. [ 28 ] I understand the Black community in Canada to be very diverse and composed of families and individuals with very different family histories. For example, the experience of a third-generation Black Nova Scotian will be very different from a Black person in Toronto or a recent African immigrant in Manitoba. The individualized nature of sentencing requires caution that we not make inappropriately broad generalizations.

So, for example, the references in the IRCA report to “Post-Traumatic Slave Syndrome” would not seem applicable to Mr. Sumaili who has experienced extremely traumatic events, but to my knowledge has no history of enslavement in his family. [ 29 ] I do recognize, however, the common experience of Black persons in Canada being subjected to systemic racism. It is insidious and results in pervasive disadvantage in many areas of life.

It can manifest in a variety of ways, including social isolation, economic deprivation, limited academic success, constrained choices and opportunities, and inequitable application of the law, most notably reflected in the over-representation of Black individuals in the criminal justice system. [ 30 ] I take judicial notice of the existence of anti-Black racism in Manitoba and its impact on Mr. Sumaili is acknowledged. In so doing, I do not need to find a causal link between systemic and background factors and the commission of the offence. There does, however, need to be a connection.

As explained at paragraph 97 of Morris : There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence.

Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount. Social Context Factors Applicable to Mr. Sumaili [ 31 ] The IRCA summarizes the various individual, interpersonal and systemic factors that have shaped Mr. Sumaili’s life experiences as follows: - War, displacement and resettlement – growing up in a country riddled by armed conflict and being subjected to transient and substandard housing conditions have had a lasting impact. Mr.

Sumaili struggles with depression and has experienced malnutrition and

disease in ways that would be unknown to many Canadians. - Childhood trauma – having witnessed the violent assaults of his family members as well as strangers has had a lasting impact on Mr. Sumaili. The IRCA suggests that these traumatic events have influenced his need to constantly protect and provide for his family. - Fatherlessness – The IRCA speaks of studies which observe that the absence of a father or paternal figure in Black men’s lives has significantly impacted their sense of identity. I suspect that the absence of a father figure may have an effect on all children, and not just Black men.

The IRCA observes that Mr. Sumaili has had to be self-sufficient while simultaneously providing for his family and suggests that these survival tactics have resulted in making poor decisions such as stealing. - Poverty – As a result of war and displacement, high poverty rates are experienced by many Congolese communities. Displacement has also exposed those seeking refuge to precarious situations including lack of access to food, clothing, shelter and overall safety. Mr. Sumaili recounts his impoverished life and witnessing others stealing growing up.

He eventually adopted the habit as a child to help support his family. The IRCA suggests that these early experiences played an important role in the decisions he made later in life which included stealing for fear of not having enough to sustain him and his family. - Health Concerns – Mr. Sumaili reports a history of headaches and seizures related to epilepsy, and depression. Not wanting to burden his family, he has not shared his ongoing struggles with his family. Seeking mental health support is also stigmatized in his culture and viewed by many as a personal weakness. The IRCA suggests that Mr.

Sumaili struggles with deep emotions but has not sought help to address his concerns. - Racism – Mr. Sumaili discloses experiencing racism in various settings growing up including school, his workplace and the community. The IRCA notes that prior to moving to Canada, he did not have to contend with negative stereotypes related to his Blackness. His experiences of discrimination in Canada have forced him to come to terms with his Black identity, anti-Black racism, feelings of being othered and its negative health consequences in his life. - Substance Use – Mr.

Sumaili shared that he was exposed to alcohol at a young age and has continued drinking alcohol. The IRCA suggests that Mr. Sumaili’s exposure to alcohol, drugs and a criminal subculture at an early age contributed to his addictions and involvement in criminal activities as a survival mechanism in his later years.

Sentencing Guideline [ 32 ] As a starting point, I recognize the Manitoba Court of Appeal’s statement in Duerksen (at para 4 ): “We have repeatedly held that, absent exceptional circumstances, someone who breaks into another’s home once should generally expect a sentence in the range of two years.” [ 33 ] I note that while the offence for which Mr. Sumaili has accepted responsibility is similar in nature to break and enter, the actual offences to which he pled guilty are unlawfully in a dwelling house, assault and theft under.

These offences are less serious than the offence of breaking and entering into a home. [ 34 ] The fact that the crime was not planned and was committed by Mr. Sumaili when he was intoxicated and coming home from a bar makes it less serious than if he were systematically breaking into people’s homes to steal. Aggravating Factors [ 35 ] Aggravating factors include the circumstances of the offence involving entry into a residence late at night when people may be expected to be in the home sleeping. Once detected by the homeowner, Mr.

Sumaili tried to flee, and then when apprehended, he injured the homeowner by biting him. There was no victim impact statement provided from the homeowners. [ 36 ] Additionally, when law enforcement arrived, Mr. Sumaili provided a false name to police. Mitigating Factors [ 37 ] The most predominant mitigating factor is the social context evidence outlined above. I accept that Mr. Sumaili’s life experiences as a refugee and his relocation to Canada have had a profound impact on his worldview.

He is highly protective of his family, and stealing was somewhat normalized for him as someone who has experienced extreme poverty, to the level of near starvation. [ 38 ] As a young person relocated to a new country, Mr. Sumaili had to manage not only culture shock, but also marginalization resulting from his racial identity. Excessive reliance on alcohol is a predictable coping mechanism, and I note that intoxication played a significant role in Mr. Sumaili’s offending behaviour. [ 39 ] Despite the turbulence of his childhood years, Mr.

Sumaili has experienced some success as an adult, maintaining steady employment in various jobs and at one point was able to purchase a three-bedroom detached house in a good neighbourhood with his girlfriend, although that relationship has now ended. A significant potential for rehabilitation is present. [ 40 ] Also mitigating is the fact that at age 25, he has no prior record, and indeed has never been arrested nor pulled over or stopped by police in the past.

He has taken responsibility for his actions by way of a guilty plea and has been on release for approximately 18 months with no further involvement. [ 41 ] At the hearing, Mr. Sumaili expressed remorse for his actions and indicated an intention to work on himself. He acknowledged use of alcohol as being an issue for him and said he was prepared to engage in counselling, although I note that he has not yet engaged in any formal programming. Immigration Consequences

[ 42 ] Another factor to consider is the potential immigration consequences to Mr. Sumaili. His status in Canada is that of a permanent resident. If he is sentenced to prison for six months or more, he will lose his ability to appeal a finding of inadmissibility based on serious criminality under the Immigration and Refugee Protection Act .

As discussed by the Supreme Court of Canada in R v Pham , 2013 SCC 15 , collateral immigration consequences are a relevant factor that a sentencing judge may take into account in determining an appropriate sentence, provided the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

Availability of Conditional Sentence Order [ 43 ] In deciding whether it would be appropriate to impose a conditional sentence, a sentencing judge must consider four factors which arise from the case R v Proulx , 2000 SCC 5 (see para 46): - That the charge carry no minimum sentence; - That the length of the sentence imposed be less than two years; - That the imposition of a conditional sentence not unduly endanger the community; and - That the sentence be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [ 44 ] In this case, the first two criteria are easily met.

None of the charges carry a minimum sentence. The length of the sentence proposed by both the Crown and defence counsel is less than two years. [ 45 ] With respect to endangerment to the community, there was no risk assessment contained in the IRCA, but the Crown conceded that Mr. Sumaili should not be considered to be a risk to the community. There were no weapons found on his person and he has been on strict bail conditions for 18 months without incident. While he did plead guilty to a charge for simple assault, this occurred in the course of him being apprehended. I do not view Mr.

Sumaili to be an outwardly violent man and I accept that there would be no risk to the community if a conditional sentence were imposed. [ 46 ] It is the final factor where the Crown rests its opposition to a conditional sentence order for Mr. Sumaili. The Crown argues that the gravity of the offence and the need for deterrence and denunciation requires that custody be imposed. Gravity of the Offence and Degree of Responsibility of Mr. Sumaili [ 47 ] When considering the gravity of the offence, any crime involving breaching the security of another person’s residence is serious.

When it occurs in the middle of the night when people may be expected to be asleep and vulnerable heightens the seriousness. In the circumstances of this case, however, I note that there is no indication that entry was forced, it was not premeditated, and minimal property was affected. Any unlawful entry of a residence is serious, but if viewed on a spectrum, this was at the less serious end. [ 48 ] As listed above, there are many social context factors which mitigate Mr. Sumaili’s moral culpability.

I accept that his early life experiences all informed his views toward stealing, which was not only normalized, but necessary for survival at certain stages of his life. Substance use has also affected his decision-making, and Mr. Sumaili was highly intoxicated on the night in question. The fact that the house which he broke into is on the same street as his mother’s residence tells me that this clearly was not well thought out by Mr. Sumaili. [ 49 ] While denunciation and deterrence are important objectives in sentencing, so too is rehabilitation, which in Mr. Sumaili’s case seems very achievable.

He is an intelligent person and has high potential to become a productive member of society. He recognizes his addiction to alcohol and is willing to work at recovery. I find that there will be greater benefit to both Mr. Sumaili and the public good if he is permitted to rehabilitate himself in the community rather than being incarcerated. He will be subject to strict conditions, including the requirement to attend, participate and complete rehabilitative programming.

The requirement to comply with conditions is onerous and still provides significant denunciation and deterrence. [ 50 ] While not a primary consideration, I do take into account collateral immigration consequences. The imposition of a conditional sentence order preserves the possibility for Mr. Sumaili to continue his life with his family in Canada. [ 51 ] I am satisfied that when all of the factors are taken into account, the totality of the circumstances support the imposition of a conditional sentence order.

It is a restorative sentence which recognizes inequities caused by systemic discrimination, while still achieving the objectives of sentencing set out in

section 718 of the Code . [ 52 ] Mr. Sumaili’s sentence will therefore be as follows: A sentence of two years less a day, to be served in the community as a conditional sentence, concurrent on all three charges. [ 53 ] In addition to the statutory conditions set out in

section 742.3(1) of the Code , Mr. Sumaili will be subject to further conditions as follows: 1) Report to your supervisor within two working days and thereafter as directed; 2) You are not allowed to consume or possess alcohol, drugs or prescription drugs, except in accordance with a medical prescription;

3) You are not allowed to own, possess or carry a weapon; 4) You must attend, participate and complete counselling as directed and supervised by your Supervisor, including addictions counselling, either with AFM or as directed by your Supervisor; 5) You must not contact or communicate with [REDACTED]; 6) You must not attend within 100 metres of their home, work, school or place of worship; 7) You must reside at [REDACTED], Winnipeg, and you cannot change your residence without prior approval of your Supervisor or the Court; 8) You must observe an absolute curfew subject to the following exceptions and travel related thereto: a.

For purposes of employment or educational programming; b. For purposes of complying with the terms of this order as directed by your Supervisor, including attending scheduled meetings, and attending assessments, programming or counselling; c. Attending at your place of worship, reported in advance to your Supervisor; d. For regularly scheduled medical or dental appointments, with prior written approval of your Supervisor; e. For four hours once per week to attend to personal business, as approved in advance by your Supervisor; f.

In the event of a medical emergency involving you or a member of your immediate family, and such absence is to be reported to your Supervisor within 48 hours; g. Such further and other exceptions as may be approved in advance by your Supervisor; 9) You must provide your Supervisor with your work or school

schedule for each week in advance, and advise of any changes; 10) You must submit to curfew checks by a peace officer, your Supervisor or their designate by answering your telephone or presenting yourself at the door of your residence; 11) You must not attend any licenced business primarily engaged in the sale of alcohol, such as pubs or bars; 12) You must carry a copy of your CSO at all times when you are outside your residence and produce it upon request by any peace officer. [ 54 ] Following the period of house arrest, Mr. Sumaili will be subject to a two-year period of supervised probation.

In addition to the mandatory conditions, the conditions will be as follows: 1) Report to a probation officer within two working days after the end of your Conditional Sentence Order, and thereafter as directed; 2) Attend, participate and complete any counselling as directed by your probation officer; 3) No contact or communication with [REDACTED]; 4) Do not attend within 100 metres of their home, work, school or place of worship. [ 55 ] Ancillary orders are as follows: - DNA Order – It is a secondary designated offence but given the circumstances surrounding the offence, I am satisfied that the public interest concerns outweigh Mr.

Sumaili’s privacy interests and I order him to provide a sample of his DNA within 60 days. This is to be attached to count two ( section 349(1) Criminal Code ). - Costs and victim fine surcharge – $202 for each charge, for a total of $606, to be paid within one year. Original signed by Judge Choy L. Choy, P.J.