R v Abdisalam, 2021 MBCA 97

Citation: R v Abdisalam, 2021 MBCA 97 Date: 20211117 Docket: AR21-30-09573 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Karen I. Simonsen Madam Justice Lori T. Spivak BETWEEN : HER MAJESTY THE QUEEN ) W. Y. Martin White ) for the Appellant ) Respondent ) M. E.

Carlson ) for the Respondent - and - ) ) Appeal heard and WALID MAHAMED ABDISALAM ) Decision pronounced: ) November 8, 2021 ) (Accused) Appellant ) Written reasons: ) November 17, 2021 simonsen JA (for the Court) : [ 1 ] After entering guilty pleas, the accused received a sentence of three and one-half years’ imprisonment for robbery with a weapon and the mandatory minimum one-year consecutive sentence for use of an imitation firearm (see the Criminal Code at sections 85(2) (a), 85(3) (a), 85(4) ), followed by one year of supervised probation.

This is his sentence appeal. [ 2 ] The accused asserts that the sentencing judge (the judge) erred by not adequately considering his immigration consequences; overemphasizing his youth record when considering parity of sentence with the co-accused (who received a sentence of two years plus the minimum one-year consecutive sentence); and underemphasizing or ignoring the effect that his undiagnosed post- traumatic stress disorder (PTSD) had on his moral blameworthiness.

The accused also argues that the sentence was unfit. [ 3 ] At the hearing, we granted leave to appeal, but dismissed the appeal with reasons to follow. These are those reasons. [ 4 ] The offences were committed after the 16-year-old victim approached the accused, the co-accused and a third male in Portage Place Mall, looking to purchase marihuana. They took him to a secluded area of the mall outside the view of surveillance cameras. The third male left. As the victim stood against the wall, the accused and the co-accused took his iPhone, vaporizer and $20 in cash.

The accused waived an imitation firearm (the victim did not know whether it was real) in his face and the co-accused did the same with bear spray. As noted by the judge, “They taunted him, humiliated him, and terrified him in a gratuitous fashion after obtaining the items.” They pressed an object, possibly the imitation firearm, in the back of the victim’s head before letting him go. [ 5 ] At the time of these offences, the accused was 19 years of age, with a considerable youth record that included convictions for robbery.

He had been sentenced only six months earlier, and was still serving the community supervision portion of that sentence when he reoffended. [ 6 ] The accused is a permanent resident of Canada and a Somalian refugee. His family fled to South Africa when he was two years old and arrived in Winnipeg when he was 13. While in custody after these offences, he was diagnosed with PTSD as a consequence of childhood exposure to trauma and violence.

Information about the accused’s immigration situation provided at the sentencing indicated that, although he was open to a deportation order, his status as a protected person on whom refugee protection is conferred under the Immigration and Refugee Protection Act , SC 2001, c 27 meant that having him removed from the country would be “very difficult for the government to do.” [ 7 ] The standard of review applicable to sentencing decisions is deferential.

Absent an error in principle that had a material impact on the sentence or a sentence that is demonstrably unfit, an appellate court should not intervene (see R v Friesen , 2020 SCC 9 at para 26 ).

[ 8 ] As for the first three grounds of appeal, we see no error.

In our view, those grounds of appeal essentially ask this Court to reweigh sentencing factors. [ 9 ] The judge was clearly aware of and considered the accused’s immigration status, stating that “the chances of him being forced to leave Canada are not necessarily that great, but it is still a risk . . . [a]nd that unknown obviously, can be quite concerning not only to him, but also to his family.” As well, it was open to the judge to conclude that, because of the accused’s prior criminal record, he was not entitled to a sentence similar to that of the co-accused, who was a first-time offender. [ 10 ] Furthermore, the judge reasonably found, based on the expert evidence before him, that the accused’s PTSD caused by childhood experiences did not excuse his conduct, but “at least help[ed] explain perhaps how this particular person ha[d] got to this particular point in his life.” On appeal, the accused argues that the judge, in assessing his moral culpability, failed to take into account his experience with anti-Black racism as a youth, which he says is connected to his PTSD.

The issue of racism was not argued before the judge.

Moreover, counsel for the accused acknowledges that, unlike the situation in R v Anderson , 2021 NSCA 62 and R v Morris , 2021 ONCA 680 , there was no evidentiary foundation before the judge regarding overt and systemic anti-Black racism or its impact on this particular accused. [ 11 ] With respect to the fitness of the sentence, this Court has, in R v Okemow , 2017 MBCA 59 , held that the starting point is two to four years for armed robbery where the victim is a vulnerable employee (see para 114); this Court further held that a street- mugging robbery where the victim is seriously harmed “will, as a general rule, result in a penitentiary sentence, even for a youthful first offender with reasonable prospects for rehabilitation” (at para 119).

This robbery was serious as it involved some degree of pre-planning and an attack by two armed assailants on a young victim with the use of considerable violence — and the accused had a criminal record. [ 12 ] Given the guidance provided in Okemow , and considering all of the circumstances of the offence and this offender, we are of the view that the sentence for robbery with a weapon, while at the high end of the range of what might be considered appropriate, was not unfit. [ 13 ] Furthermore, as we have stated, the judge imposed the minimum sentence on the offence of use of an imitation firearm. [ 14 ] For the foregoing reasons, there is no basis for intervention by this Court with respect to the total sentence imposed.

In the result, leave to appeal was granted, but the appeal was dismissed. JA JA JA