R. v. Daher and Brightnose-Baker, 2023 MBKB 91

Date: 20230515 Docket: CR 21-01-38648 (Winnipeg Centre) Indexed as: R. v. Daher and Brightnose-Baker Cited as: 2023 MBKB 91 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING, ) ) Brent I. Davidson Bryton M.P. Moen ) for the Crown - and - ) ) JESSE JAMES DAHER and EVAN DANIEL BRIGHTNOSE-BAKER Accused. ) ) ) ) ) ) Michael P. Cook Emilie Cook for Jesse James Daher Laura C. Robinson Morgan K. Lawrence ) ) ) for Evan Daniel Brightnose-Baker ) ) JUDGMENT DELIVERED ORALLY: ) May 15, 2023 Champagne J . I.

INTRODUCTION [ 1 ] Jesse James Daher (“Daher”) and Evan Daniel Brightnose-Baker (“Brightnose-Baker”) have been convicted of second-degree murder for killing Mohamed Mohiadin Ahmed (“Mohamed”). This was a targeted attacked that took place on October 10, 2020, in a drug house at 1046 Royce Avenue (“Royce”) in Winnipeg, Manitoba. The two offenders were armed with weapons. Brightnose-Baker had a collapsible baton. Daher carried a sawed-off shotgun. The weapons were used to gain control of Mohamed and others in the residence.

Daher brandished the sawed-off shotgun and has been convicted of pointing a firearm at Jared Martel. [ 2 ] The offence of second-degree murder carries a mandatory life sentence. That means these two men may remain in prison for the rest of their lives. By law, they must serve a minimum 10 years before they can apply for parole. [ 3 ] At some point, they might be released on parole. It is never automatic. An offender must apply for parole and they may or may not be successful with their application. If they are released on parole, they must be supervised and abide by conditions for the rest of their lives.

Should they breach conditions of parole, they will be returned to prison. I repeat, they will be sentenced to life imprisonment. The only issue left to determine is whether the minimum ten-year period of parole ineligibility should be raised for either

or both of the offenders. [4] I have heard submissions from the lawyers and have the benefit of materials filed for this hearing. Exhibit S-1 is the Pre-Sentence Report (“PSR”) and Gladue Report for Daher. It includes his criminal record. Exhibit S-2 is the PSR and Gladue Report forBrightnose-Baker, Exhibit S-3 is the criminal record for Brightnose-Baker. Exhibit S-4 is the victim impact statements from the familyof Mohamed. Exhibit S-5 are materials confirming Daher has completed a number of audio books through New Life Ministries andExhibit S-6 is a collection of sentencing materials filed on behalf of Brightnose-Baker. It includes the PSR/Gladue report, the FASDJustice Program

Summary, the Manitoba FASD Centre Multidisciplinary report, the MATC

Summary of Psychological Testing and aletter from Ms. Lauren Schultz who is a representative of Community Living Disability Services and a strong support for Brightnose-Baker. The Position of the parties [5] The Crown submits the period of parole ineligibility should be increased to 20 years for Daher and 18 years for Brightnose-Baker. Counsel for Daher acknowledges the seriousness of the offence and the moral culpability of his client but argues 20 years isexcessive. Rather, counsel submit the period of parole ineligibility for Daher should be set at 14 years.

Counsel for Brightnose-Bakerprovided comprehensive materials about his Indigenous background that they say reduce his moral culpability and after considering allprinciples of sentencing submit his parole ineligibility should remain at the ten-year minimum. Principles of sentencing for murder [6] The parties and I agree on the principles of sentencing that apply when deciding parole ineligibility. The factors I must considerin determining parole ineligibility are set out in s. 745.4 of the Criminal Code, R.S.C., 1985, c. C-46.

They include the character of theoffender, the nature of the offence and the circumstances surrounding its commission. These factors are to be considered in the contextof general principles of sentencing found in s. 718 of the Code. [7] It is clear that increasing the period of parole ineligibility does not require unusual circumstances (R. v. Shropshire, (SCC)). [8] The Crown does not dispute that the principles from Gladue, Ipeelee and other similar cases apply when determining paroleineligibility for Indigenous offenders.

The Crown explains that they have considered and applied those important factors whenformulating their position in this case. [9] Everyone agrees that sentencing is very much an individualistic exercise. Every sentence must be proportionate to the gravity ofthe offence and the degree of the responsibility of the offender. Proportionality also applies to increasing parole ineligibility.Aggravating and mitigating factors will inform the decision to increase parole ineligibility (R. v. Schuff, 2021 MBCA 54). Victim Impact [10] Mohamed was 29 years old when he was brutally murdered.

Mohamed comes from a close-knit loving family. Family memberswere present throughout the trial and are here in the courtroom today. This horrific crime continues to traumatize the family. What theyhave lived through and heard in the courtroom, no family should endure. [11] Mohamed’s mother, brother and two sisters have provided victim impact statements. They have lost a son and brother who wasan integral part of the family. He had hopes and dreams. He was on his way to becoming an electrical engineer.

Mohamed wasthoughtful, respectful, intelligent and loving to his family. [12] The victim impact statements speak to their profound sense of loss. The circumstances of the murder have deeply hurt thisfamily. They are all traumatized. They suffer from fear, depression and anxiety. Mohamed’s mother feels guilty, as she was unable toprotect her son. Mohamed’s brother and sisters described the deep psychological and emotional scars that they will wear for the rest oftheir lives. [13] Perhaps the most remarkable aspect contained in their collective victim impact statements is trust in our justice system.

They donot seek revenge or vigilante justice. They believe in our laws and simply request justice be served. II. NATURE AND CIRCUMSTANCES OF THE OFFENCE [14] I now turn to the facts of this case. I pause to caution the family of Mohamed and the family, friends and supports of theoffenders that I will be speaking about serious and disturbing events. I do not wish to traumatize anyone.

If anyone wishes to stepoutside the courtroom for this portion of my decision, I will pause and ensure you are invited back in after I have covered the facts of themurder. [15] This case involves a violent, senseless death connected to the criminal drug subculture in Winnipeg. The victim and all civilianwitnesses who testified are or were heavy drug users. The drug of choice was predominately methamphetamine (“meth”), although somewitnesses consumed other hard drugs. The evidence clearly demonstrates that Winnipeg has a serious meth problem.

The police andcivilian witnesses testified about the crime, danger and violence associated with the criminal drug problem in the city. [16] Mohamed was murdered on October 10, 2020. Brightnose-Baker was 21 years old at the time. He had been in a relationshipwith Noreen Osborne. Ms. Osborne had just turned 18 years old when the offense took place. This young couple were both seriouslyaddicted to hard drugs including meth. [17] Ms. Osborne has a sister, Desiree Thomas. At the time of this offense, Ms. Thomas was in a relationship with Daher. They sharetwo young children.

Daher was 28 years old, deeply involved in the criminal drug scene and addicted to meth. These two couples spenta lot of time together. Brightnose-Baker looked up to Daher and considered him a brother.

[ 18 ] Theresa Derendorf had been in a long-term marriage that fell apart. She fell on hard times and ended up using drugs. She was addicted to meth. She met Ms. Thomas at some point and became close friends. She also became friends with Noreen Osborne, Brightnose-Baker and Daher. At the end of October 2020, she invited Desiree Thomas to come live in her suite on Austin Street.

Daher moved into the suite in the beginning of November. [ 19 ] Daher had previous run-ins with Mohamed including an incident on Victor Street. [ 20 ] On August 11, 2020, the Winnipeg Police Service (“WPS”) received a report of an assault at 204-505 Victor. Police were driving to the location came across Mohamed at 610 Ellice. The officer noted a laceration to the back of his head and that he was bleeding from his neck and hands. I accept that Daher assaulted Mohamed on this occasion. Daher told others he thought of Mohamed as a skinner and rat.

Brightnose-Baker believed the assault was over drug money. [ 21 ] On October 10, 2020, Daher had information that Mohamed was at the residence on Royce. Daher woke up Brightnose-Baker telling him they had a job to do. They went to the home. Daher masked and armed himself with a sawed-off shotgun and Brightnose- Baker with the collapsible baton. They went into the home through two different entry points covering any escape route. They found Mohamed in the living room. Mohamed tried to leave. Brightnose-Baker struck him with the baton.

Daher, brandishing the sawed-off shotgun, directed others in the home into a bedroom. Clearly, the target was Mohamed. [ 22 ] He was forced into the bathroom, tied up, beaten and tortured. The autopsy details over 40 injuries. There were multiple blunt trauma to the head with associated skull fractures and acute brain trauma. There were non-lethal sharp force injuries to the head, trunk and limbs. There were also blunt force injuries to the trunk and upper limbs. [ 23 ] There were gaping lacerations to the skull that were associated to comminuted skull fractures.

This means the bone has broken into a number of pieces. Significant force would have been required to inflict these types of injuries. The type of force required would be similar to swinging a baseball bat to the skull. Dr. Littman opined the head wounds and skull fractures were caused by at least three or four blows and up to 10 or more by a blunt object. Dr. Littman agreed that a number of different objects could have caused the injuries including a toilet tank lid. [ 24 ] Dr. Littman went on to describe many sharp force injuries. There were stab wounds to the back and the thighs of the body.

There were many lacerations caused by sharp force injures throughout the body. Some to the head, some to the arms and legs. He noted there was bleeding associated with the sharp force injuries that indicate the heart was still beating and Ahmed was alive when the injuries were inflicted. The sheer number of injuries suggest this was a prolonged attack. [ 25 ] Mohamed was screaming, begging for his life and crying for his family. The circumstances of the murder are extremely aggravating. There are no mitigating facts for the commission of this offence.

The aggravating factors include: - This was not a crime committed on impulse, rather it was a planned targeted attack. - Daher had previous run-ins with Mohamed. Daher had previously assaulted Mohamed on August 11, 2020. - Daher recruited Brightnose-Baker to ensure strength in numbers. It was two against one. - Both offenders were armed with weapons for their advantage and to gain control of Mohamed and others in the residence. In addition to the baton and sawed-off shotgun, the offenders used sharp edged weapons to inflict some of the wounds on Mohamed. - Others in the residence were threatened or assaulted.

Brightnose-Baker struck Jared Martel with the baton. Daher pointed the sawed-off shotgun at Martel. - This murder occurred while Mohamed was unlawfully confined. Mohamed recognized Brightnose-Baker and tried to leave the residence. Brightnose-Baker struck Mohamed multiple times with the baton to prevent him from leaving. That was the beginning of the forcible confinement. Mohamed was forced into the bathroom. He was assaulted and tied up to prevent his escape. Unable to defend himself, he was tortured and killed. Killing another while the victim is unlawfully confined is a serious aggravating factor.

Section 231(5) of the Code makes the killing of another who has been kidnapped or unlawfully confined first-degree murder irrespective of whether the murder was planned or deliberate. First-degree murder carries a sentence of life imprisonment and parole ineligibility is set at 25 years. - The assault was vicious and sustained. It took time to inflict all of these injuries. Mohamed was tortured he was made to suffer. Mohamed gave up the address to his home. After the murder, Brightnose-Baker tried to clean up blood in the residence.

Daher took a taxi to Mohamed’s home. - At various times, both of the offenders appeared to be proud and bragged about killing Mohamed. - Both offenders were on multiple probation orders when the murder took place. III. Character of Daher [ 26 ] Daher is a 30-year-old Indigenous man. He had a difficult childhood. His biological father was not around. His mother was only 16 when her son was born. She herself was still a youth who managed to raise her son while completing her grade 12.

His mother began a new relationship with a man when Daher was approximately 8 years old. [ 27 ] This man was physically and emotionally abusive to Daher. At the age of 12, he left home. It began a life of couch surfing, staying with friends. Sometimes he was homeless and living on the street. [ 28 ] He did have the support of his grandfather and uncle. He learned skills for stuccoing and carpentry. One positive factor for

Daher is that he has the support of his family. His mother, grandfather and other family members have attended court to show their support. Another positive aspect for Daher is he has recently completed some programing. He completed a number of audiobooks through New Life Ministries while in custody in June and July 2022. [ 29 ] I return to his background. At 19, his biological father entered his life. He was not a positive influence as his father has his own life long struggles and has been in and out custody most of his life. At times, the two worked together.

After long days, they would consume alcohol, which led to arguments and fights between the two of them. One positive note from the relationship with his biological father is that it exposed him to some cultural aspects from his father’s community in Ebb and Flow First Nation. [ 30 ] Daher began to use drugs at an early age. It started with marijuana. By grade 10, he was selling marijuana in his school and was expelled. Daher gravitated to harder drugs and by the time of these offences, he was deeply involved in the criminal drug scene. His drug of choice was meth.

He was a user and seller but primarily selling to support his own drug habit. [ 31 ] Daher met Desiree Thomas in 2017. Their relationship was based on shared experiences, significant substance use and housing instability. They share two children who are approximately three and five years old. The children are in the care of child and family services. Daher is concerned about his children. He has requested his mother to try gain custody of the children. She is working on it. [ 32 ] Like many Indigenous offenders, Daher has had a difficult life from an early age.

He left school in grade ten, suffers from substance addictions, lack of employment and stable housing. He does have insights about his life history. He notes the majority of his social circle in the community are not pro-social. He led a transitory lifestyle, consuming meth and associated with like-minded individuals. [ 33 ] The majority of individuals he would consider friends are either in custody or deceased. Friends have passed away because of substance use or from a violent offence. He estimates the loss of approximately 20 friends. [ 34 ] Daher has lived and embraced a criminal lifestyle.

For him the rule of law is defined by street justice, where might is right. He is a mature offender and has a lengthy criminal record with 21 convictions. He was bound by three probation orders at the time of the murder. He was prohibited from owning or possessing firearms. It is clear that court orders are meaningless to Daher. [ 35 ] In July 2020, he was convicted of uttering threats against Desiree Thomas, the mother of his children. The threats were conveyed over the phone while he was incarcerated at Milner Ridge Correctional Centre.

At the same time, he was also convicted for assault cause bodily harm for an incident where he and another inmate beat another prisoner at Milner Ridge. A two-on-one attack. Daher does not hesitate to act out with violence or threats of violence even while in custody. [ 36 ] While in custody for this murder, Daher assaulted another inmate who had damaged his property. His immediate response to a slight or the belief of a slight is to act out with violence. He believes skinners or rats are to be punished. [ 37 ] Daher told Theresa Derendorf that Mohamed was a “skinner”.

Daher told her he tortured and killed Mohamed when he was in the tub. He told her Mohamed was begging for his life and his face was beaten and broken so he stabbed other parts of his body. [ 38 ] Ten weeks after the murder of Mohamed, the police drove Theresa Derendorf home. The police had arrested her for a drug charge. Daher assumed she told the police about his involvement in the murder and that she was a rat. He had his friends beat and rape her. She knew she had to flee the city. [ 39 ] On January 12, 2021, she went to an apartment on Mountain to purchase a vehicle.

The door opened and Daher was on the couch with Desiree. Daher ran at her, pulled out a gun and put it to her face. He pulled the trigger while she put her hand up and pulled the trigger again. He was punching her, calling her a “rat” and trying to pull her into the suite. Blood was squirting out of her face. She could see the bathroom and tub in the suite and immediately believed he was going to drag her into it and kill her. She was fighting for her life, broke free from Daher and went to the hospital. She described the weapon as a handgun and later learned it was a pellet gun.

She has pellet fragments in the area of her right eye. She continues to suffer vision problems. The doctors removed the pellet from her hand. [ 40 ] As noted, Daher is committed to a life of serious violent crime. He has stated on his Facebook page “I don’t like being the bad guy, I love being the bad guy”. He is a high risk to reoffend. Daher has no remorse for his actions. The aggravating factors far outweigh any mitigating factors.

When I consider and apply the principle of proportionality, I find that this is a very serious offence and the moral culpability of Daher is at the highest end of the range. [ 41 ] I find Daher is a dangerous and violent man. The public is at serious risk with him in the community. I set the period of parole ineligibility for Jesse James Daher at 20 years. IV. Character of Brightnose-Baker [ 42 ] The law makes it clear that Brightnose-Baker is equally responsible for the commission of this horrific murder. All of the aggravating factors of the offence apply to Brightnose-Baker.

The principle of parity would suggest two offenders equally responsible for the same crime receive the same sentence. [ 43 ] The only real difference between the two offenders is their moral culpability. The Crown acknowledges Brightnose-Baker’s character is different from that of Daher. Because of that difference, they recommend Brightnose-Baker serve 18 years before he can apply for parole. Counsel for Brightnose-Baker submits the Crown does not appreciate the significance of Brightnose-Baker’s deficits and therefore fails to adjust their recommendation accordingly. [ 44 ] Brightnose-Baker is now 23 years old.

He suffers a tremendous disadvantage through no fault of his own. His mother was an alcoholic and he is assessed as suffering from partial fetal alcohol spectrum disorder (“pFAS”). His mother abandoned him shortly after birth. His father raised him for approximately 8 months when he was given to his grandmother, Edith Ross. He remained there until he

was approximately 12 years old. He became too much to handle and was subject to a voluntary placement agreement and later became a permanent ward of Awasis Child and Family Services. He suffers from feelings of abandonment, depression, anxiety and aggression. [ 45 ] It was around this time that Brightnose-Baker became involved with the criminal justice system. He has a criminal record with 49 convictions since 2012. I agree with defence counsel. His lengthy criminal record is directly attributable to the multitude of deficits and disorders that afflict him.

In addition to pFAS, he has Attention Deficit Hyperactivity Disorder, Conduct Disorder and Persistent Depressive Disorder. He suffers from addictions to meth and other hard drugs. [ 46 ] Those whom have worked with Brightnose-Baker understand the array of difficulties he is facing and have remarked at how well he can do with the proper support and supervision. He is fortunate to have the long time and ongoing support from Lauren Schultz who has worked with Brightnose-Baker since 2016. [ 47 ] Ms. Schultz works for Community Living Disability Services.

She explains that Brightnose-Baker will be eligible for their services when he is on parole. She notes that Brightnose-Baker’s history is tragic. Although he is a youthful offender, he is already institutionalized. He has been primarily incarcerated with periods of release. He would often leave his community placements after a brief stay. He would find himself in trouble and be placed back in custody. He appears more comfortable within the confines of an institution and more anxious with the unpredictable nature of life on the outside. [ 48 ] He is a very high risk to re-offend.

Most of his friends are people from the criminal drug culture or people he knows from inside jail. He denies gang membership but it appears he has been involved with multiple gangs while in custody. This is not surprising as he is a follower. He is a follower and a vulnerable person. When the police came into contact with him on August 11, 2020, following the assault on Victor Street, he was identified as a missing person. [ 49 ] I agree with defence counsel, Brightnose-Baker’s moral culpability is less than Daher. The murder was Daher’s idea. He asked Brightnose-Baker to join him.

Brightnose-Baker is a follower, so he went along and participated in the murder. Brightnose-Baker knows he did wrong and has demonstrated remorse for his actions. [ 50 ] The principle of proportionality requires balancing the seriousness of the offence with the reduced moral culpability of Brightnose-Baker. Defence counsel submits the proper balancing of these two factors that tug in opposite directions would see the period of parole ineligibility remain at 10 years. I disagree. [ 51 ] The seriousness of this horrific murder calls out for increased period of parole ineligibility.

I agree Brightnose-Baker has reduced responsibility for the murder because of his deficits and compromised ability to act on his own. However, the brutal nature of the murder and Brightnose-Baker’s recent record for crimes of violence require a sentence that will protect the community from future harm. Balancing all of the factors I must consider, I find an increased period of parole ineligibility for 14 years is fit and proper in the circumstances. V.

Conclusion [ 52 ] I have convicted Jesse James Daher and Evan Daniel Brightnose-Baker of second-degree murder for killing Mohamed Ahmed. [ 53 ] I sentence Jesse Daher to life imprisonment and set the period of parole ineligibility at 20 years. This means Daher must serve 20 years in prison before he can apply for parole. I sentence Mr. Daher to 4 years in prison for pointing the sawed-off shotgun at Jared Martel. The sentence will be served concurrently. [ 54 ] I order that Mr. Daher provide a DNA sample suitable for registration on the National Data Bank.

I order a lifetime weapons prohibition for Daher pursuant to s. 109 of the Code . [ 55 ] I sentence Evan Brightnose-Baker to life imprisonment and set his period of parole ineligibility at 14 years. This means Brightnose-Baker must serve 14 years before he can apply for parole. [ 56 ] I order that Mr. Brightnose-Baker provide a DNA sample suitable for registration on the National Data Bank. Pursuant to s. 109 of the Code, I order a lifetime weapons prohibition for Brightnose-Baker. [ 57 ] Given the sentences I have imposed, I waive costs and surcharge. _____________________________ J.