R. v. Obeing, 2023 MBKB 78

Date: 20230512 Docket: CR 20-01-38323 (Winnipeg Centre) Indexed as: R. v. Obeing Cited as: 2023 MBKB 78 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING, ) ) Chantal R. Boutin, Monique Cam ) for the Crown ) - and - ) ) OKOTH OBEING, ) ) Alex Steigerwald, Mitchel R. Merriottaccused.) for the accused ) ) Judgment Delivered: ) May 12, 2023 SENTENCING McKELVEY J. INTRODUCTION [1] Okoth Obeing (“Obeing”) has been found guilty of the second degree murder of Balvir Toor (“Toor”) (R. v. Obeing, 2023MBKB 48).

The killing took place March 19, 2020, at 5:09 a.m., on the streets of the City of Winnipeg. [2] The sentence for an adult offender convicted of second degree murder is life imprisonment with no parole eligibility until theperson has served at least 10 years and not more than 25 years (s. 745(

c) of the Criminal Code of Canada, R.S.C., 1985, C-46.). Therelevant case law with respect to imposing parole ineligibility for more than 10 years is set out in R. v. Shropshire, 1995 (SCC), [1995] 4 SCR 227: 29

Section 742(

b) of the Code provides that a person sentenced to life imprisonment for second degree murder shall not be eligible forparole "until he has served at least ten years of his sentence or such greater number of years, not being more than twenty-five years, ashas been substituted therefor pursuant to

section 744". In permitting a sliding scale of parole ineligibility, Parliament intended torecognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees ofmoral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10years and a maximum of 25, the latter being equal to that prescribed for first degree murder.

The mere fact that the median periodgravitates towards the 10-year minimum does not, ipso facto, mean that any other period of time is "unusual". ..... 31 If the objective of s. 744 is to give the trial judge an element of discretion in sentencing to reflect the fact that within second degreemurder there is both a range of seriousness and varying degrees of moral culpability, then it is incorrect to start from the proposition thatthe sentence must be the statutory minimum unless there are unusual circumstances.

As discussed supra, a preferable approach would beto view the 10-year period as a minimum contingent on what the "judge deems fit in the circumstances", the content of this "fitness"being informed by the criteria listed in s. 744. As held in other Canadian jurisdictions, the power to extend the period of paroleineligibility need not be sparingly used.

[3] In evaluating whether parole ineligibility should be increased above 10 years, s. 745.4 of the Criminal Code permits thesentencing judge to consider the character of the offender, the nature of the offence, the circumstances surrounding the commission ofthe offence and the jury recommendation, if any. It is also necessary to consider other factors such as an assessment of futuredangerousness, denunciation, deterrence, as well as age, criminal record, brutality, motive, type of assault, drugs, alcohol, viciousness ofthe attack, use of a weapon, and vulnerability of the victim.

Such factors have been outlined in the case law: R. v. Schuff, 2021 MBCA54. THE OFFENCE [4] On March 19, 2020, Obeing requested taxicab service on Burrows Avenue, in the City of Winnipeg. Upon entering the taxicaboperated by Toor, Obeing began swearing and talking quickly. Toor requested upfront fare payment and was provided with it, albeitObeing continued a profanity-ladened diatribe before striking the Plexiglas shield that separates the driver and backseat passenger areawith his fist.

He briefly calmed his behaviour before moving to the middle of the backseat where he was able to access the front throughthe partition break. He then forcefully stabbed Toor 17 times, while repeatedly saying, “You fuckin’ piss me off”. Obeing fled thescene and disposed of the knife. After his arrest, he lied to the police with respect to any involvement in the killing before ultimatelyadmitting to his role in Toor’s demise.

During the course of his videotaped statement with members of the Winnipeg Police Service,Obeing expressed an animus towards those of South Asian heritage; an animus towards taxicab operators who request upfront farepayment and, as a consequence, show him disrespect; frustrations with his life circumstances; and anger fueled by his interaction withanother Winnipeg taxicab operator just prior to entering Toor’s vehicle. [5] Obeing suffers from bipolar disorder Type I, for which medication is required, and an intellectual disability.

Those factors andothers were considered during the course of trial and were found, in the circumstances, to not support a finding of not criminallyresponsible (“NCR”) for the offence. That said, Obeing’s mental health constitutes a factor to be considered during the sentencingprocess. THE OFFENDER [6] Obeing, now 23 years old, has a limited 2017 youth record which involves possession of a scheduled substance, fraud under$5,000, six failures to comply with undertakings and a failure to comply with a sentence under s. 137 of the YCJA.

Along withcommunity service, Obeing was made subject to probationary orders because of those offences. His adult record reflects an October 29,2019 conviction for mischief under $5,000 related to a July 22, 2019 incident involving damage to a taxicab. A one-year probationaryorder with conditions was imposed, along with a $3,368.67 restitution order. [7] While in custody with respect to this murder charge, Obeing has been involved in four assaultive incidents with other inmates forwhich he has received time in segregation.

One such altercation occurred on June 17, 2021, when Obeing, after admitting to the assault,advised that the other inmate was “pissing him off”. Further, he conceded that he was having difficulty managing his behaviour andrequired a medication adjustment. At the time, he was documented by Corrections staff as having ongoing mental health struggles with aneed for “Psych” to be notified (Exhibit S1, Tab 4, p. 7). [8] Obeing has taken and completed two programs over his three years in custody.

He is described as an active program participantand generally regarded as polite and respectful within the institution. [9] The Obeing family moved from Sudan and Ethiopia to Canada when he was eight years old. The family resided in an Ethiopianrefugee camp for a period of time prior to their arrival. Obeing’s upbringing was traumatic and unstable, which ultimately resulted in apossible PTSD diagnosis. He was described at trial by his brother as a happy, energetic youth with a behavioural change noted in 2015.This coincided with the bipolar disorder Type I diagnosis.

That disorder over the years has resulted in Obeing experiencing periods ofelation and depression, including manic and hypermanic episodes. He has been hospitalized several times because of manic behaviour.As indicated, he was diagnosed in his teens as having an intellectual disability. [10] Obeing had difficulties at school primarily related to an inability to interact well in the English language along with academicweaknesses. He was followed during this time by Child and Adolescent Psychiatrist Dr. Brian Chaze who monitored his medication andclinical stability.

That said, he was not always compliant with his medication regime. Obeing’s overall cognitive abilities falls withinthe extremely low range at the first percentile as determined by Psychologist, Dr. Zoe Therrien. His functioning and background havebeen documented in the trial decision. It is noteworthy that when he is not suffering from a manic episode, Obeing is considered to be arespectful, polite and engaged individual. [11] Obeing is a permanent resident of Canada and, as a result of this conviction, will face immigration/deportation consequences: R.v. Gardiner, 2019 MBCA 63 .

VICTIM IMPACT STATEMENT [12] A victim impact statement was prepared by Toor’s three children who outlined the devastation to them, their mother, andextended family, as caused by Obeing’s actions. As a consequence of the murder, the family moved to Edmonton, as they no longer feltsafe in Winnipeg. What had our father done wrong, he was the nicest and kindest human being we knew and he was brutally murdered for just trying toprovide for his family.

How were we supposed to feel safe in a city where a person is murdered for just working and providing for hisfamily. [13] The devastation and grief experienced by their mother was described in terms of the consequences she has suffered, which

include sleep disruption, physical concerns, financial issues, and emotional distress. The victim impact statement also outlines the painendured by the family as a result of hearing the trial testimony and the loss experienced: We felt more confident and could easily make decisions because we knew that he’s standing behind us and will never let us fall down. He was our biggest support system. Everything was much easier and less complicated when he was around. We never got a chance totell him what he was to us and how much we loved him. We just never thought of saying all these things to him.

Maybe because wewere just so happy to be around him and assumed that he knows what we feel. But, we just wish that we would have got the chance tohug him tightly and let him know what he was to us. We miss being around him and calling him “daddy ji”. We just wish that godwould have given us a little more time to be around him and make more memories. He was the best person and the best father we couldever ask for. We miss him a lot and just wish that he comes back somehow. It is really unfair that a man who was smiling and doing hisjob lost his life for no reason.

Our father was a blessing in our lives and everything changed that day... We cannot express how hard it isto live without him. Without question, Obeing’s unconscionable act has resulted in an overwhelming deprivation to the Toor family accompanied by manycrushing and also ongoing consequences yet to be endured. CROWN SUBMISSIONS [14] Crown counsel are seeking a 15 year period of parole ineligibility. The nature of the murder, the character of the accused andthe circumstances surrounding the commission of the offence were argued to support the articulated period of parole ineligibility.

Thenature of the crime being the stabbing of a vulnerable taxicab operator and the circumstances surrounding its commission were submittedto be most egregious and require the imposition of a 15 year parole ineligibility period. [15] The Crown outlined the nature of the offence, being Obeing’s repeated stabbing of Toor during which he displayed intent andconscious control of his actions. He was motivated by rage, animus, feelings of being disrespected, and racism.

That said, Obeing was20 years old at the time and it is conceded that he was suffering from mental health issues which constitute a mitigating factor in thesecircumstances. However, the fact that mental illness can be mitigating and relevant to lessen moral blameworthiness is contended, in thiscase, not to translate to a significant reduction in what would be an appropriate period of parole ineligibility (R. v. Lagimodiere 2022BCSC 425; R. v. Haly, 2012 ONSC 2302). The primary issues that motivated Obeing’s actions were not mental health ramifications, butinstead were animus, rage, and racism.

A higher period of parole ineligibility would have been sought by Crown counsel, but forObeing’s impaired mental health [16] On March 19, 2020, Obeing was subject to court orders to keep the peace and be of good behaviour, a curfew restriction, and hewas not to own or possess a weapon. An additional aggravating factor, as argued, relates to Obeing’s lack of remorse in his mocking ofToor’s demise during his police statement and the showing of a remarkable indifference to the suffering he had inflicted. He said hewanted to hurt Toor who had allegedly disrespected him.

The racism exhibited towards those of South Asian heritage was contended toincrease the level of parole ineligibility in order to properly ensure the protection of the public, deterrence and denunciation (R. v. Gray,2013 ABCA 237; R. v. Keshane, 2005 SKCA 18). DEFENCE SUBMISSIONS [17] Defence counsel submits that a period of 10 years’ parole ineligibility is appropriate in this tragic case which has resulted in aninnocent man’s death. [18] While Obeing’s actions were fuelled by animus, disrespect, and racism, it is argued that mental illness and an intellectualdisability significantly affected his functioning.

The impact on his moral culpability because of those factors serves to lessen the weightto be afforded to denunciation, deterrence, and to the public’s protection. The defence relies on decisions such as R. v. Lincoln, 2009BCSC 1181, R. v. Sobczyk, (MBCA), and R. v. Salifu, 2019 ONSC 483, in support of the contention that when theactions are fuelled, in part, by mental health issues, there is a mitigation of the period of parole ineligibility to be served; treatment andrehabilitation become the operative considerations.

Obeing’s attack was not calculated, but instead was the result of rage experiencedwithin the confines of a manic episode. [19] Obeing’s character portrays a difficult upbringing, part of which was spent in an Ethiopian refugee camp. His life was unstableand impacted by intergenerational trauma, along with substance abuse issues. His criminal record is limited. Further, because Obeing isa permanent resident of Canada, he will be subject to deportation from this country. [20] Obeing does not have a violent past, and the four custodial assault incidents were minor in nature.

Further, the in-custody eventof July 17, 2021, is illustrative of his ongoing mental health struggles. Those struggles have occurred since 2015 and have resulted inhospitalizations with impaired mental health existing before the killing, at the time of the killing, and after the killing. [21] The defence acknowledges that this murder was vicious in nature. However, in cases such as Lincoln and Salifu, 10 years’parole ineligibility was ordered despite those murders being characterized as gruesome and horrific.

In Salifu, the accused’s murder ofhis mother was described as being “... more vicious and terrible than most” (para. 52). In this case, there is a need to reduce theemphasis from denunciation and deterrence with a shift towards treatment. [22] Defence counsel argued that this killing, like the circumstances in Salifu (para. 64), would not have occurred “but for” Obeing’smental health issues.

Further, it would be inappropriate to speculate on his future dangerousness as that will be determined by the ParoleBoard at the relevant time after an appropriate assessment of his risk factors: Salifu, paras. 48-49, 53; Sobczyk, para. 3. PURPOSE, OBJECTIVES AND PRINCIPLES OF SENTENCING [23] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the

maintenance of a just, peaceful and safe society by imposing just sanctions. [ 24 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Here, the offence of second degree murder is extremely egregious in terms of the killing of a vulnerable victim and the manner in which it was undertaken. The attack on Toor constituted a heinous act of violence against a victim who was unknown to Obeing. [ 25 ]

Section 718 of the Criminal Code sets out a number of objectives a sentencing judge should bear in mind when sentencing. The objectives of the sentence in this case include: • denouncing unlawful conduct; • deterring the offender and other persons from committing offences; • because it is necessary to do so, separating the offender from society; • assisting in rehabilitating the offender; • providing reparations for harm done to the family and to the community; and • promoting a sense of responsibility in the offender, and acknowledging the harm done. [ 26 ] Additionally, regard must be had to s. 718.2 of the Criminal Code which includes the aggravating factor of, 718.2(a)(

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour... or on any other similar factor, [ 27 ] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

The mitigating factors with respect to Obeing are: • a youthful offender; • support of family and friends; • a willingness to undertake and access programming, treatment, and supports while in custody; • mental health issues; • an impulsive act; • an unrelated criminal record, albeit there have been acts of violence while in custody; • a difficult and traumatic upbringing.

The aggravating factors include: • possession of a weapon; • taking advantage of a vulnerable and helpless victim; • showing a completely callous disregard for the harm and suffering he caused; • the use of extreme threats and violence when committing the offence; • a lack remorse or insight; • that his actions were motivated by bias, prejudice, or hate based on race or ethnic origin; • a mocking of Toor and indifference with respect to the suffering he had inflicted as expressed during his police statement; • the enormous loss experienced by the Toor family; • his actions were in contravention of probationary court orders; • the undertaking of a killing on Winnipeg’s streets.

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. CASE LAW [ 28 ] Crown counsel relies on the following cases: • R. v. Oigg , 2006 MBQB 68 • R. v. Schuff , 2021 MBCA 54

• R. v. Bennight , 2012 BCCA 461 • R. v. Lagimodiere , 2022 BCSC 425 • R. v. Haly , 2012 ONSC 2302 • R. v. Gray , 2013 ABCA 237 • R. v. Keshane , 2005 SKCA 18 R. v.

Oigg , 2006 MBQB 68 [ 29 ] The Oigg decision sets out the principles and factors relevant to parole ineligibility as regards a murder conviction: [11] The principles relevant to s. 745 have been distilled by Ewaschuk in his text entitled Criminal Pleadings and Practice in Canada , 2 nd ed. (Toronto: Canada Law Book Inc., loose leaf) as follows: 18:0820 Principles and factors re ineligibility for parole re murder The following principles and factors, as specified in ss. 745 and 745.1 of the Criminal Code , must be considered in determining a fit period of ineligibility for parole on conviction for second degree murder: (

a) an increased period of ineligibility for parole on conviction for murder is not to be considered “unusual” because the objective of s. 744 [now 745.4] is to give the trial judge an element of discretion to reflect the fact that with second degree murder there is both a range of seriousness and varying degrees of culpability, so that the order of parole ineligibility must fit the circumstances; (

b) the judge should not apply a period of ineligibility so as to implicitly reject a finding of the jury that the crime did not fall within the category of first degree murder; (

c) any recommendation of the jury made pursuant to ss. 745.4 [745.2] or 745.5 [745.3]; (

d) character of the accused, including previous record, life-style, age, relevant medical and psychiatric evidence, and the rehabilitative potential of the accused, as an aspect of his character; (

e) the nature of the offence and circumstances surrounding its commission including the participants and their respective roles in the crime and the attacks on, and injuries done to others present at the time of the crime; so that an “increased period of ineligibility” may be merited where the murder is committed in the “course of another crime” particularly a crime of violence; (

f) mitigating circumstances; (

g) regard to public opinion; (

h) deterrent to others; and (

i) denunciation of the crime itself, having regard to its nature and the circumstances being of such a kind that justify a lengthier banishment from society than the more ordinary types of second degree murder requiring a sentence of life imprisonment without eligibility for parole for ten years. The judge must determine the “fit period” of ineligibility for full parole on the merits of each case. The real emphasis in determining the fit period of ineligibility is on the “protection of society” by way of specific and general deterrence and denunciation of the offence. The eventual rehabilitation of the offender is of less significance and is better left to be assessed by the

parole authorities. Denunciation of the crime cannot justify a longer period of parole ineligibility beyond that required by general and specific deterrence,and isolation for the public’s protection, if the latter factors would produce a sentence commensurate with the gravity of the crime. The jury’s recommendation is not the most persuasive factor in determining the fit period on ineligibility for parole, but considerableweight must be given to the jury’s recommendation. (au​thorities omitted) R. v.

Schuff, 2021 MBCA 54 [30] The accused was convicted of second degree murder as a consequence of a vicious attack upon the deceased. Twenty-three stabwounds were inflicted along with extensive blunt force trauma. The principle aggravating factors included the accused’s criminal recordand the viciousness of the assaultive behaviour. The sentencing judge, after a consideration of the s. 745 factors, imposed a 15-yearparole ineligibility period, which was upheld by the Manitoba Court of Appeal. R. v. Bennight, 2012 BCCA 461 [31] The accused was convicted of second degree murder after violently beating the victim.

The period of parole ineligibility was setat 18 years by the sentencing judge which was upheld by the British Columbia Court of Appeal.

MacKenzie J.A. outlined theappropriate principles to be considered with respect to s. 745.4 of the Criminal Code: [18] The following principles apply to the decision to impose an extended period of parole ineligibility: • Under s. 745.4 of the Criminal Code, the sentencing judge must consider the character of the offender, the nature of the offence, thecircumstances surrounding the commission of the offence, and the recommendation of the jury (if any). • The general sentencing principles of denunciation and deterrence and the judge’s assessment of the offender’s future dangerousnessare relevant factors: R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227, 102 C.C.C. (3d) 193. • Parole ineligibility greater than 10 years is justified when there is some particularly aggravating feature: Cerra, at para. 17 (perDonald J.A.). • There are two broad groupings of cases where parole ineligibility is extended beyond 10 years: parole ineligibility periods from 12to 15 years and parole ineligibility periods from 15 to 20 years.

The latter group of cases relates to cases at the highest order of moralculpability or dangerousness: Cerra, at para. 26 (per Donald J.A.). • The possibility of a parole ineligibility period greater than 20 years remains in exceptional circumstances: Cerra, at para. 36 (perRyan J.A.). • Orders extending the period of parole ineligibility are highly discretionary and are part of the sentence pursuant to s. 673 ofthe Criminal Code. Such orders are therefore appealed pursuant to s. 687(1).

An appellant court should only interfere with a trial judge’ssentencing order if the court is convinced it is not fit or it is clearly unreasonable: Shropshire, at paras. 47-48. • The wide discretion granted to sentencing judges is fettered by the case law and general ranges of sentences for particular offences.However, while courts must consider ranges, they are guidelines rather than strict rules. A sentence outside the regular range is not

necessarily unfit, if it is in accordance with the principles and objectives of sentencing: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R.206 at para. 44. • Similarly, the two groups of parole ineligibility cases described in Cerra are intended as guidelines, not as binding categories withinwhich a particular case must be placed: R. v. White, 2011 BCCA 328 at para. 24. [32] In Bennight, the sentencing judge had also considered the issues of the accused’s brain injury and mental illness at the time ofthe offence when arriving at an appropriate parole ineligibility period.

Those issues were found to not constitute mitigating factors: [27] In my view, the judge correctly assessed the appellant’s mental disorder as relevant to the issue of moralblameworthiness or dangerousness, as required by Cerra. Although mental disorder in other cases may diminish moral culpability, it wasclearly open to the judge to find the appellant at a highest order of dangerousness, given his numerous convictions for violent offences,the extremely brutal killing for no apparent reason and the lack of evidence to mitigate a finding of future dangerousness. [emphasis in original] R. v.

Lagimodiere, 2022 BCSC 425 [33] The accused undertook a vicious machete attack upon a stranger for which he pled guilty to second degree murder. The accusedhad a history of abusing drugs along with mental illness (schizophrenia with a psychotic disorder). He had sought a NCR verdict at trialwhich was denied, even though a mental health disorder was determined to have existed at the time of the offence. The role of mentalhealth was found by Justice Gerow to be a relevant consideration that can reduce moral culpability at the time of sentencing even when itdoes not support an NCR finding.

The court held that the weight to be given to mental illness depends on the circumstances and is notalways mitigating (paras. 15-19). A 14-year period of parole ineligibility was decided to be appropriate. R. v. Haly, 2012 ONSC 2302 [34] The accused pled guilty to the offence of aggravated assault after stabbing the victim. He had no criminal record but sufferedfrom a major depressive disorder. That disorder was considered to be a factor that led to the offence and could serve to lessen moralblameworthiness and mitigate sentence depending upon the circumstances. The court held: [34] ...

Generally speaking, “for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causallink between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct”... Even where alink is established, if the offender’s mental illness makes him or her a continuing danger “[the illness] is not necessarily a reason toreduce what would otherwise be an appropriate sentence”... R. v. Gray, 2013 ABCA 237 [35] The accused was convicted of manslaughter after an attack on two Indigenous men.

The sentencing judge held that theunprovoked attack was motivated by bias, prejudice or hate based on race. Such a motivation cannot be tolerated in our society andrequired condemnation. R. v. Keshane, 2005 SKCA 18 [36] In Keshane, the accused pled guilty to an aggravated assault which was considered to be race based.

The court held that race-based crimes constituted aggravating circumstances and added to the seriousness of the offence charged and the sentencingconsequences: [42] Such attitudes are utterly abhorrent and highly destructive, no matter by whom they are held, and against whom they are directed.So are such associations. And when they manifest themselves in the commission of an offence, it falls to the courts to take them intoaccount and act upon them in keeping with the principles of sentencing found in

section 718.2(

a) of the Code. In other words, theoffender’s sentence should be increased in consequence. [37] Defence counsel relies on the following cases: • R. v. Shropshire, (SCC) • R. v .Lincoln, 2009 BCSC 1181 • R. v. Salifu, 2019 ONSC 483

• R. v. Labrie, 2011 QCCS 5490 • R. v. Sobczyk, (MBCA) R. v. Salifu, 2019 ONSC 483 [38] In Salifu, a jury found the accused guilty of his mother’s murder in the second degree and rejected a NCR claim. The accusedand his mother were described as having a somewhat volatile and troubled relationship, albeit overall it was considered to be a lovingone. At the time of the killing, mother and son had been engaged in an intense argument, which manifested into his rage-fuelledbehaviour.

That said, the accused had no criminal record or history of violence with the exception of a minor altercation with an uncle. [39] The accused expressed remorse soon after the killing, with the court finding, and Crown counsel acknowledging, that he sufferedfrom a mental illness, likely schizophrenia. The sentencing judge considered the evidence of the accused’s developing paranoia, thehearing of voices, along with his delusions and found: [46] In my opinion, without the mental illness, this homicide would not likely have occurred. Justice Dickson, as he then was,said in Pappajohn v.

The Queen, (SCC), [1980] 2 S.C.R. 120, at p. 138: There rests now, at the foundation of our system of criminal justice, the precept that a man cannot be adjudged guilty and subjected topunishment, unless the commission of the crime was voluntarily directed by a willing mind. [47] This crime was voluntary and it was directed by free will. However, Mr.

Salifu’s state was deeply affected by his mental illness.The mental and act elements of murder were formed under the influence of delusions and an explosive anger, both the product of mentalillness. [48] Although the mental illness does not negate the act or mental elements of second degree murder, it does substantially diminish Mr.Salifu’s responsibility and moral blameworthiness. Besides this, the mental illness substantially reduces the sentencing principles ofgeneral deterrence and specific deterrence, central in the vast majority of murder sentencings. Justice Strathy (as he then was) said in R.v.

Ellis 2013 ONCA 739, [2013] O.J. No. 5583, leave refused [2014] S.C.C.A. No. 53, 117 There is no doubt that an offender’s mental illness is a factor to be taken into account in sentencing. Where mental illness plays arole in the commission of the offence, the offender’s culpability may be diminished, punishment and deterrence may be ineffective orunnecessary and treatment and rehabilitation of the offender may be paramount considerations. As this court explained in R. v.Batisse, 2009 ONCA 114, 93 O.R. (3d) 643 (Ont.

C.A.), at para. 38: ... here the appellant’s mental health problems played a central role in the commission of the offence. In such circumstances, deterrenceand punishment assume less importance. As this court emphasized in R. v. Robinson (1974), (ON CA), 19 C.C.C. (2d)193, at p. 197, where offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence ismeaningless to them.

Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to thecommission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in casesof persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender. In such circumstances,the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the publicand that the offending conduct is not repeated.

This is especially so where a lengthy prison term may be regarded as counterproductive:see also R. v. Hiltermann (S.G.) (1993), (AB CA), 141 A.R. 223 (C.A.), and R. v. Peters (D.A.) (2000), 2000 NFCA55 , 194 Nfld. & P.E.I.R. 184 (Nfld. C.A.), at paras. 18-19. 118 In Batisse, Gillese J.A. found that the appellant’s mental health issues played a central role in the commission of the offence. Shewas described as having serious mental health challenges, which were the product of “an atrocious childhood and an abusive earlyadulthood” (at para. 39).

The court found that these mental health challenges led to the commission of the offence. The appellant wasremorseful and pleaded guilty. [40] The sentencing judge held that the nature of the offence constituted a violent and brutal attack which was aggravated by the factthat the tragic killing occurred within a familial relationship (para. 52). That said, the accused was mentally ill at the time. Thetreatment for the accused was considered to be the best option towards enabling release on parole.

A period of 10 years’ paroleineligibility was ordered along with the recommendation that psychiatric and psychological treatment be undertaken. R. v. Lincoln, 2009 BCSC 1181 [41] The accused was convicted by a jury of the second degree murder of her baby daughter. A consideration before the jury was aNCR defence based upon the accused having a borderline personality disorder, as well suffering the effects of fetal alcohol syndrome. The NCR defence was dismissed (para. 12). In terms of sentencing, the accused’s mental condition was afforded considerable weightand constituted a mitigating circumstance.

She was found to have a history of anger and aggression upon feeling frustrated, wronged orrejected. The “gruesome” attack upon her daughter was described as “frenzied”, but not calculated. There was also a history of seriousalcohol abuse. A 10-year parole ineligibility period was imposed. R. v. Labrie, 2011 QCCS 5490 [42] The accused was found guilty of second degree murder by a jury after a savage attack on the deceased who had been sleeping on

a Montreal bench. The accused was “seized with hallucinations” and had blacked out. The jury rejected a NCR defence. His historyincluded behavioural difficulties, a diagnosis of attention deficit hyperactivity disorder, possibly with narcissistic traits and substanceabuse. He had a minor criminal record. A life sentence was imposed with an obligation to serve a 10 year sentence before being eligiblefor parole. R. v. Sobczyk, (MBCA) [43] The accused was convicted of second degree murder with the sentencing judge raising parole ineligibility to 15 years.

The“senseless” killing was undertaken by the accused who was suffering from mental health issues. He was not found to be NCR, albeit,the Manitoba Court of Appeal held: [3] ... Nonetheless, it is quite apparent that this motiveless killing was the result of some mental aberration. In that circumstance,denunciation of the crime by a longer period of parole ineligibility, otherwise appropriate, is not called for... The period of parole ineligibility was reduced to 10 years.

SENTENCE [44] On March 19, 2020 (trial decision, para. 109): [109] [Obeing’s] racism, anger, frustration, and feelings of disrespect fuelled this impulsive act of violence. He had never before actedin such an overtly aggressive and violent manner, despite many manic episodes. The fact that the accused may have been suffering theeffects of his bipolar disorder and intellectual disability does not, in these circumstances, equate with an NCR finding. The accusedintended his act, he knew what he was doing and was able to understand the physical consequences that would flow from his actions.

Hewas not deprived of the capacity to appreciate the nature and quality of his act. As a consequence, the accused has not overcome thes. 16(2) presumption that every person is presumed not to suffer from a mental disorder until the contrary is proven on a balance ofprobabilities. Obeing’s actions were a consequence of his rage and feelings of being disrespected, albeit with the acknowledgment that he sufferedimpaired mental health, along with an intellectual disability.

The issue before me in this tragic case is the extent to which Obeing’smental illness/intellectual disability constitute mitigating factors at the time of the offence, along with an evaluation of the other relevantsentencing principles. [45] Unquestionably, Obeing has experienced a number of manic episodes over the years and has required hospitalizations. Theseepisodes were illustrated by psychosis, agitation, grandiosity, pressured speech, bizarre remarks, aggression, anger, and irritability.

Those factors, and particularly rage and aggression, were aggravated upon being requested by Toor, a taxicab operator of South Asianheritage, to provide upfront fare payment for taxicab service. This was considered by Obeing to be representative of disrespect. Further,in and around this time, he was demonstrating erratic and unpredictable behaviour. This behaviour continued for a period of time afterhis arrest and during interactions with police and Manitoba Corrections staff.

CHARACTER OF THE OFFENDER (see also paras. 6-11) [46] Obeing is a youthful offender (now 23, and 20 at the time of the offence) who, as indicated, has experienced mental health issuesover the years, accompanied by limited cognitive abilities. The bipolar disorder and the intellectual disability have resulted in the typesof aggression that were described in the trial decision including erratic and agitated behaviour, particularly when he is not compliant withtaking prescribed antipsychotic medication.

That said, there is little evidence of violent behaviour in his past. [47] The murder itself was rage induced – again, because of an animus towards those of South Asian heritage, an animus towardstaxicab operators who request upfront fare payment and, consequently, show him disrespect, and frustrations with his life circumstances. Obeing has a limited youth and adult criminal record. That said, he has been involved in four assaultive incidents while in custody.

While relatively minor in nature, these assaults demonstrate continuing anger management issues and a willingness to engage in violentbehaviour when upset by adverse circumstances. [48] Obeing is regarded as polite and respectful, particularly when on his medication, as testified to at trial by his probation officer,Amber Hamm; his brother; and Drs. Chaze and Waldman.

He has also undertaken programming while in custody - Introduction toHealthy Relationships and a Life Skills Communication Workshop. [49] Obeing’s background, as articulated in the trial decision, reflects instability, trauma and substance abuse, along with thedescribed mental health issues. NATURE OF THE OFFENCE [50] The nature of the offence was horrifically violent with Obeing forcefully inflicting 17 stab wounds to Toor’s person.

Toor wascompletely vulnerable at the time of the attack and could not have anticipated what was about to occur, even though Obeing showedvolatility from the time he entered the taxicab. Hamilton J.A., in R. v. Charlette (J.J.), 2015 MBCA 32, well articulated thevulnerability of taxicab operators being a group who work alone and often at night (paras. 37-39). That vulnerability leads to the need

for an enhanced emphasis on the sentencing principles of denunciation, deterrence, and public protection. [ 51 ] Toor was of South Asian heritage and had requested upfront fare payment. This enraged Obeing and precipitated his actions. Those actions must be denounced and deterred, not only in and of themselves, but as regards the racist element and the disregard shown for the taking of Toor’s life, which was illustrated throughout Obeing’s police statement.

CIRCUMSTANCES SURROUNDING THE COMMISSION OF THE OFFENCE [ 52 ] The circumstances surrounding the commission of the intended offence must be evaluated in the context of Obeing’s mental health issues. I am satisfied that Obeing’s mental illness, accompanied by the intellectual disability, does not diminish the act itself or the mental elements required for second degree murder. That said, Obeing’s state of mind was affected by his mental illness/intellectual disability which was exhibited by his rage-fuelled actions when he considered that he was being disrespected by someone of South Asian heritage.

This disrespect occurred very close in time with a similar encounter with a different taxicab operator. His anger was well demonstrated along with the racism that served to precipitate the attack on Toor. The killing was senseless, vicious, and brutal. While forcefully driving the knife into Toor’s body, Obeing repeatedly said that Toor had “fuckin’ piss[ed] me off”. His actions were also taken in defiance of a probationary court order to keep the peace, honour a curfew, and to not own or possess a weapon. As previously indicated, Toor was a vulnerable victim doing his job, in public, on the streets of Winnipeg.

Obeing’s lack of remorse and mocking of Toor during the police statement were also demonstrative of his animus , racism, reaction to his life circumstances, and feelings of being disrespected. CONCLUSION [ 53 ] The evaluation of this matter includes a review of the case law and excellent submissions by counsel. I am satisfied that cases such as Lincoln and Salifu , where 10 years’ parole ineligibility was ordered, present similar horrific and gruesome killings to that which occurred on March 19, 2020.

Those accused were also impacted by mental health concerns which, as defence counsel has suggested, serve to reduce the importance of denunciation, deterrence and public protection, and lends itself more towards an emphasis on treatment. However, in Salifu and Lincoln , distinguishing features exist such as the contacting of the police, no known motives for the killings and extreme remorse. Conversely, Obeing fled the scene, disposed of the murder weapon, lied to police with respect to his involvement and mocked Toor while demonstrating complete callousness for undertaking the killing – “who cares”.

He expressed the motives that fuelled his rage-induced racist actions. Impaired mental health and an intellectual disability played a role in Obeing ’s conduct, but not a principal role. Cases such as Bennight and Schuff in support of a 15-year parole ineligibility period are also distinguishable. The accused in those decisions presented with related and violent criminal records. [ 54 ] Denunciation, deterrence and the public’s protection must be observed in this case.

Additionally, the future dangerousness of Obeing, which, in part, has been demonstrated through his custodial assaultive behaviour, must be considered. I am satisfied that determination is best left to be evaluated by the Parole Board at the time of parole eligibility. Any assessment at this point would be speculative. Clearly, Obeing will not be released from custody if he continues to present in a dangerous fashion. [ 55 ] Obeing’s bipolar disorder and intellectual disability have impacted his moral blameworthiness and lessened his moral culpability.

Additionally, there is a need in cases such as this to recognize that treatment options and rehabilitation must be significant considerations. This is particularly so when specific and general deterrence may be less meaningful to those who act under the influence of mental health issues. [ 56 ] In this case, I am satisfied, while recognizing the need for deterrence, denunciation, and the public’s protection, that an appropriate period to set for parole ineligibility is 12 years. The sentence is life imprisonment for second degree murder.

The circumstances of this case, which include Obeing’s actions while under a court order, continuing anger management issues, possible dangerousness in the future, viciousness of the attack on a vulnerable victim, racisim, animus , and lack of remorse, serve to enhance the period of parole ineligibility from the 10-year minimum. Additionally, ancillary orders include the taking of DNA (s. 487.051) and a lifetime weapons prohibition pursuant to s. 109 of the Criminal Code . While in custody, every effort to access psychiatric and psychological treatment should be undertaken.

Treatment stands as the best option towards enabling parole in the future. J.