R v Omer, 2022 SKCA 147

Court of Appeal for Saskatchewan Docket: CACR3450 Citation: R v Omer, 2022 SKCA 147Date: 2022-12-21 Between:Mohamed Hassan OmerAppellantAndHis Majesty the KingRespondentBefore: Jackson, Tholl and Kalmakoff JJ.A.Disposition: Conviction appeal dismissed; sentence appeal allowedWritten reasons by: The Honourable Mr. Justice ThollIn concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice KalmakoffOn appeal from: Provincial Court, SaskatoonAppeal heard: November 8, 2022Counsel: Thomas Hynes and Aleida Oberholzer for the Appellant Erin Bartsch for the Respondent Tholl J.A. I.

INTRODUCTION [1] Mohamed Omer was convicted of aggravated assault and other offences arising out of a violent carjacking, in which theoccupant of the vehicle was stabbed several times and severely injured. He was sentenced to seven-and-a-half years of incarceration, lesscredit for pre-sentence custody. Mr. Omer appeals from both conviction and sentence. The primary issue at trial was identity. Mr. Omerasserts that the trial judge erred in his treatment of a crucial witness’s testimony by failing to properly apply the principles from R vVetrovec, (SCC), [1982] 1 SCR 811. On his sentence appeal, Mr.

Omer argues that the trial judge failed to account for hispersonal circumstances, particularly the fact that he is a Black Sudanese refugee, leading to an error with regard to the principle of parity. [2] For the reasons that follow, I would dismiss the conviction appeal, grant leave to appeal the sentence, and allow the sentenceappeal. II. BACKGROUND [3] On the morning of May 27, 2020, Taris Martell was the passenger in a van that pulled into the parking lot of an apartmentbuilding in Saskatoon. The driver, who was her cousin, exited the van and went into the building, leaving Ms.

Martell alone in the vehicle,with the keys in the ignition and the vehicle running. Shortly thereafter, a man jumped into the driver’s seat of the van and immediatelyattacked Ms. Martell with a knife. He slit her throat and stabbed her multiple times. After suffering numerous wounds, Ms. Martell openedthe passenger door and fell to the ground outside the vehicle. Her assailant drove away with the van. Ms. Martell’s cousin came out of thebuilding and rushed to her aid. Ms. Martel’s injuries were extensive and life-altering. [4] Approximately half an hour later, in an area near where Ms.

Martell was attacked, Tamara Borycki called 911 and reportedthat a man had attempted to take her truck, but she had fought him off, and he had fled. The description Ms. Borycki gave to the policematched the general description of Ms. Martell’s assailant. Ms. Borycki also described him as carrying a messenger bag. Police attendedand, 11 minutes after the 911 call, located Mr. Omer hiding in a backyard in Ms. Borycki’s neighbourhood. Mr. Omer attempted to flee,but he was apprehended with the assistance of a police service dog. He provided a false name to the police. When they searchedMr.

Omer, the police located, among other things, two folding knives, the key to the stolen van, and a slingshot. The sleeve of his jacketwas ripped and bloodstained. The van was located in the same neighbourhood. A different witness had seen a person matchingMr. Omer’s general description exit that same vehicle and another witness had seen a man of the same description near the van. [5] Mr.

Omer was charged with aggravated assault (s. 268(1)), carrying a knife for the purpose of committing an offence(s. 88(1)), theft of the van (s. 333.1(1)), and breaching a judicial interim release order (s. 145(5)(a)), all contrary to the Criminal Code. [6] A few months after the attack, Carlo Carmona was arrested for unrelated drug charges, and, when contacted by an officer whowas investigating the carjacking, he gave a statement regarding the incident. Mr. Carmona testified as a Crown witness at the trial.Mr. Omer was his long-time friend and lived in a neighbouring apartment building. Mr.

Carmona said that, on the evening of May 26,2020, the night before the attack, he and his roommate were visiting with Mr. Omer, who was upset and confused about the whereaboutsof his children. The next morning, Mr. Omer awakened Mr. Carmona’s roommate by firing slingshot projectiles at his bedroom window.Mr. Carmona went down to the street to speak with Mr. Omer, who was angry and aggressive. Mr. Omer told him that he had dreamedthat his daughter had died, and, as Mr. Carmona was talking to him, Mr. Omer was yelling up at Mr. Carmona’s window as if he believedhis daughter were in that apartment. Mr.

Carmona gave Mr. Omer a cigarette and tried to convince him that his children were safe inanother city. Mr. Omer then walked away and started checking cars to see if they were unlocked. Mr. Carmona returned to his ownapartment, but quickly decided that he should go back downstairs to talk to Mr. Omer.

[7] Mr. Carmona testified that he again spoke to Mr. Omer, and, after some further interaction, they eventually ended up at anearby apartment building. He watched Mr. Omer check additional vehicles until a van pulled up and parked. Mr. Carmona spoke to thedriver of the vehicle, who had exited the van and was using the apartment buzzer system. He then observed Mr. Omer walking back homeand intercepted him, urging him to have a coffee. The driver of the van had entered the building he had been buzzing and had goneupstairs. By that point, Mr. Omer had noticed the running van and Mr.

Carmona told him, “No Omer, there’s somebody sleeping. …[T]here’s someone in there”. Together, they walked towards Mr. Omer’s apartment building, but Mr. Omer turned around. Mr. Carmonatold him, “Don’t do it”, because he knew that Mr. Omer was going towards the van and wanted the vehicle. He testified that he lookedaway because he did not want to see what was going to happen next. The next thing Mr. Carmona heard was Ms. Martell screaming andcrying. Mr. Carmona saw the van leave. He did not see who was driving the vehicle, but Mr. Omer was gone as well. Mr. Carmonanoticed Ms.

Martell’s cousin coming down the stairs, so he left the scene and went back to his own apartment. Mr. Carmona had just beenreleased from jail with a condition in his probation order to reside at his mother’s house on a 24-hour curfew, and he did not want to befound to be in breach of that requirement. [8] Surveillance video from the apartment building was obtained, which showed the incident. At trial, Mr. Carmona identifiedhimself and Mr. Omer in the video, along with his own voice speaking to Mr. Omer and testified that the person walking towards the vanwas Mr. Omer. The person identified by Mr. Carmona as Mr.

Omer is seen in the video entering the driver’s door of the van. The videocontinues to immediately show Ms. Martell falling out of the van, screaming and crying, and the van promptly being driven away withoutanyone else entering or exiting the vehicle. III. TRIAL AND SENTENCE DECISIONS [9] The trial took place in Provincial Court. The Crown called evidence from Ms. Martell, Ms. Borycki, several police officers, awitness to authenticate the surveillance video, and Mr. Carmona.

In addition, an agreed statement of facts was tendered which, inter alia,set out the evidence of a member of the public who had witnessed an individual exiting the van on the morning in question and theevidence of another individual from the same neighbourhood, who saw a male of a similar description walking in the vicinity of the van.There was no defence evidence. [10] The trial judge began his oral decision by noting the fact that an aggravated assault had occurred was not in controversy. Heidentified the issue as whether the Crown had proven beyond a reasonable doubt that Mr. Omer was the perpetrator. Mr.

Omer was astranger to Ms. Martell. She had never seen him before or after the incident. However, during her testimony, she identified Mr. Omer inthe prisoner dock as the person who had attacked her. The trial judge described Ms. Martell’s in-dock identification and found that, whilehe was not prepared to dismiss this aspect of her evidence, he would not necessarily accept it if it were not supported by other evidence. [11] Turning to Mr. Carmona’s evidence, the trial judge reviewed that evidence with regard to identity and noted that itcorresponded very closely with the surveillance video.

The portions of his reasons that are relevant to the conviction appeal are as follows: The only possible concern with respect to that evidence is the trustworthiness, if I can put it that way, of Mr. Carmona as a witness.Mr. Carmona was basically unshaken in his testimony. The question was raised as to whether or not this would [be] properly the subject ofa Vetrovec-type warning, even to myself, that is, that Mr. Carmona is sufficiently an unsavoury witness, that his evidence should beapproached with caution and relied on only if it is, in some way, substantiated by other evidence.

First of all, I don’t consider Mr. Carmona to be an unsavoury witness in terms of the Vetrovec case from the Supreme Court. Certainly heis not a saint. When he saw Mr. Omer heading towards a vehicle in which he knew there was someone that he believed was asleep,knowing that Mr. Omer intended to steal that vehicle at the very least, he turned away. He chose not to do anything. He chose not to watch.When -- when Ms. Martell was on the ground, when her friend tried to help her up and couldn’t, Mr. Carmona’s response was not to assist,but again to turn away. As I say, he is definitely not a saint.

He has something of a record for false statements of various kinds, not perjury,I note, but nonetheless. He does, however, have no motive to lie in this. His evidence was consistent throughout. He simply identifiesMr. Omer as the person that is seen with he, himself, and is with Mr. Carmona in the videos. Furthermore, if this is a Vetrovec situation, there is confirmation provided by Ms. Martell. There is the additional confirmation of events,roughly a half an hour later. I am satisfied that Mr. Omer was the person referred to throughout by the witnesses at the other extendedscene.

Obviously he is the person who the police arrested, and I note that he has been in custody continuously since then. Walking backthrough the chain of witnesses, I am satisfied, not that I have to be in -- with respect to this, but I am satisfied beyond a reasonable doubtthat he is the person who got out of the stolen van in the first place. And I note as part of that conclusion that the [van] key was found onhim upon his arrest. [12] The trial judge also reviewed the evidence regarding the weapon used in the attack and the messenger bag that the assailantwas carrying. In the end, he found Mr.

Omer guilty of aggravated assault, carrying a knife for the purpose of committing an offence, andthe theft of the van. Mr. Omer was on a release order at the time of the offences, so he was also convicted of breaching the provisions ofthe order that required him to keep the peace and be of good behaviour and to not be in the driver’s seat of a vehicle: R v Omer (26 March2021) Saskatoon, Provincial Court (Sask) [Conviction Decision]. [13] In crafting a sentence, the trial judge reviewed the relevant sentencing principles and, again, summarized the facts of the case.He described the serious injuries received by Ms.

Martell and their lasting effect on her. He cited the severity of Ms. Martell’s wounds andlife-altering injuries, the viciousness and callousness of the attack, the random unprovoked nature of the assault and carjacking in broaddaylight, and the use of a weapon, as aggravating factors. The level of planning and deliberation engaged in by Mr. Omer, as evidenced byhis immediate assault on the victim whom he knew was in the vehicle before he entered it, was also highly concerning for the trial judge.Turning to mitigating factors, the trial judge stated that he could find none. He determined that Mr.

Omer’s expression of sympathy forthe victim did not demonstrate any remorse or acceptance of responsibility. He did not otherwise discuss Mr. Omer’s personalcircumstances. [14] The trial judge reviewed the case law filed by the parties and stated that R v Durocher, 2002 SKCA 17, 217 Sask R 88, R vGamble, 2012 SKQB 249, 404 Sask R 25, R v Knife, 2015 SKCA 82, [2015] 12 WWR 469, leave to appeal to SCC refused, 2016

12160, and R v Ratt, 2021 SKCA 7, leave to appeal to SCC refused, were the most relevant to his decision on thesentence. After doing so, he determined that the appropriate range in this case was seven to eight-and-a-half years. He found seven-and-a-half years of incarceration to be the proper sentence for the aggravated assault conviction. In the interests of totality, he imposed variousperiods of lesser concurrent time for the other convictions. After credit for pre-sentence custody, Mr.

Omer’s period of incarceration wasset at six years and two months: R v Omer (16 April 2021) Saskatoon, Provincial Court (Sask) [Sentencing Decision]. IV. ISSUES [15] The issues in this appeal are as follows: (

a) Did the trial judge err in the Conviction Decision in his assessment of Mr. Carmona’s evidence in light of the principles fromVetrovec? (

b) Did the trial judge err in the Sentencing Decision by failing to properly take into account Mr. Omer’s personal circumstancesin determining the sentence to be imposed? V. ANALYSIS A. Conviction appeal [16] Mr. Omer asserts that Mr. Carmona was an unsavoury witness whose credibility was highly suspect. He points out thatMr. Carmona has a criminal record, including convictions for offences that involved dishonesty, such as fraud and using a forgeddocument. Mr. Omer highlights Mr.

Carmona’s discreditable behaviour in allegedly turning away from the incident so that he wouldpurposefully not see what was going to happen and subsequently not offering any help to Ms. Martell. He notes that Mr. Carmona did notgive a statement to the police until he was in custody, many months later, and was a serving prisoner at the time of his testimony at thetrial. He equates Mr. Carmona’s testimony with that of a jail-house informant, asserting that he held his information hostage until he wasin custody. Based on all of this, Mr. Omer argues that it was an error for the trial judge to find Mr.

Carmona not to be an unsavourywitness, not apply a Vetrovec caution, and not view this testimony with extreme skepticism. He also contends that the trial judge erred byfinding that Mr. Carmona had no motive to lie when there was no evidence one way or the other on this issue. Lastly, he asserts that thetrial judge erred by giving any weight to Ms. Martell’s in-dock identification when he was considering the evidence that supportedMr. Carmona’s testimony. [17] The Crown contends that there was no requirement for the trial judge to self-instruct with regard to Vetrovec and submits thathe approached Mr.

Carmona’s evidence with the appropriate caution. It argues that, in any event, the trial judge looked for evidence tosupport Mr. Carmona’s testimony and found that it existed in abundance. The Crown asserts that the trial judge did not err in stating thatMr. Carmona had no motive to fabricate his testimony. It argues that Ms.

Martell’s in-dock identification was entitled to be consideredwithin the totality of the evidence. [18] When there are red flags about the credibility of a witness because of concerns about their immoral character traits or criminallifestyle, or both, the principles from Vetrovec are engaged.

In Vetrovec, the solution to the vexing problem of determining the veracity ofunsavoury or untrustworthy witnesses was discussed by Dickson J. (as he then was) in the following terms (at 831–832): I would only like to add one or two observations concerning the proper practice to be followed in the trial court where as a matter ofcommon sense something in the nature of confirmatory evidence should be found before the finder of fact relies upon the evidence of awitness whose testimony occupies a central position in the purported demonstration of guilt and yet may be suspect by reason of thewitness being an accomplice or complainant or of disreputable character. … What may be appropriate, however, in some circumstances, isa clear and sharp warning to attract the attention of the juror to the risks of adopting, without more, the evidence of the witness.

There isno magic in the word corroboration, or indeed in any other comparable expression such as confirmation and support.

The idea implied inthose words may, however, in an appropriate case, be effectively and efficiently transmitted to the mind of the trier of fact. … All of thisapplies equally in the case of an accomplice, or a disreputable witness of demonstrated moral lack, as for example a witness with a recordof perjury. [19] The principle from Vetrovec was elaborated upon by Fish J. in R v Khela, 2009 SCC 4, [2009] 1 SCR 104: [2] … But where the guilt of the accused is made to rest exclusively or substantially on the testimony of a single witness of doubtful creditor veracity, the danger of a wrongful conviction is particularly acute. [3] It is therefore of the utmost importance, in a trial by judge and jury, for the jury to understand when and why it is unsafe to find anaccused guilty on the unsupported evidence of witnesses who are “unsavoury”, “untrustworthy”, “unreliable”, or “tainted”.

For presentpurposes, I use these terms interchangeably. And I mean to include all witnesses who, because of their amoral character, criminal lifestyle,past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth — even when they have expressly undertaken byoath or affirmation to do so. [4] I hasten to add that a specific instruction is sometimes required in this regard not because jurors are thought to be unintelligent, butrather because they might otherwise be uninformed.

It is meant to bring home to lay jurors the accumulated wisdom of the law’sexperience with unsavoury witnesses. Judges are alert to the concern that unsavoury witnesses are prone to favour personal advantage overpublic duty. And we know from recent experience that unsavoury witnesses, especially but not only “jail-house informants”, can beconvincing liars and can effectively conceal their true motives for testifying as they have: see R. v. Sauvé (2004), (ONCA), 182 C.C.C. (3d) 321 (Ont.

C.A.), at para. 76. [5] Without a cautionary instruction, however, jurors may appreciate neither the need nor the reasons for skepticism and particular scrutiny

in dealing with witnesses of this sort. Essentially for that reason, trial judges may — and in some cases must — include in their charges “aclear and sharp warning to attract the attention of the juror[s] to the risks of adopting, without more, the evidence of the witness”(Vetrovec v. The Queen, (SCC), [1982] 1 S.C.R. 811, at p. 831). (Emphasis in original) [20] In addition to Vetrovec and Khela, Mr.

Omer relies on R v Smith, 2018 SKCA 42, 363 CCC (3d) 559, R v Brooks, 2000 SCC11, [2000] 1 SCR 237, and R v Brass, 2007 SKCA 94, 226 CCC (3d) 216, leave to appeal to SCC refused, asillustrative of the problem with accepting the testimony of unsavoury witnesses without supporting evidence. It is crucial to recognize thatVetrovec and its progeny are all decisions made in the context of appeals which challenged jury instructions.

In a jury trial, it is incumbentupon a trial judge to warn jurors about the dangers of accepting the evidence of an unsavoury witness and to inform them about the needto look for other evidence that supports such a witness’s testimony. This is necessary because jurors are not experienced in such mattersand need to have their attention specifically drawn to this concern. A failure to address this potential issue, when necessary, can result in amisdirection to the jury.

However, in a judge-alone trial, there is no need for a trial judge to self-instruct on this concept. [21] It has been written many times that judges are deemed to know the law and are not required to overtly self-instruct on everylegal issue, particularly the basic principles of criminal law with which they are regularly confronted: R v Burns, (SCC),[1994] 1 SCR 656 at 664; R v G.F., 2021 SCC 20 at para 74, 459 DLR (4th) 375; and R v Tessier, 2022 SCC 35 at para 45, 473 DLR (4th)317.

As noted in the excerpt above from Khela, “Judges are alert to the concern that unsavoury witnesses are prone to favour personaladvantage over public duty” (at para 4).

As such, trial judges in judge-alone trials are not required to explain in their reasons that they haveconsidered and applied Vetrovec: see also R v Chevers, 2011 ONCA 570 at paras 3–4, and R v Wolff, 2019 SKCA 103 at para 61, 380CCC (3d) 223. [22] The decision to provide or not provide a Vetrovec warning to a jury for any particular witness, based on an assessment of thenature of that witness, is a discretionary decision: Brooks at para 4, Smith at para 43, R v Wolfe, 2021 SKCA 39 at paras 162–164, 404CCC (3d) 141, and R v Wilson, 2021 SKCA 87 at paras 94–96, 407 CCC (3d) 199.

In a judge-alone trial, determining whether a witness isunsavoury, and thus requiring special scrutiny, is no less of a discretionary decision. I see no basis upon which this Court could interferewith the trial judge’s decision that Mr. Carmona was not an unsavoury witness and his consequent decision that Vetrovec was not directlyengaged. But this determination is irrelevant, because the trial judge explicitly demonstrated that he was aware of potential credibilityproblems with Mr. Carmona and plainly described the evidence that he looked to in order to find confirmation for his testimony.

In otherwords, the trial judge applied the caution from Vetrovec, even though he had found Mr. Carmona not to be an unsavoury witness. [23] The video evidence, which is inherently objective in nature, was found by the trial judge to be powerful evidence. With theexception of a description of Mr. Omer’s clothing, the video matched Mr. Carmona’s testimony in its material aspects. The othersupporting evidence, upon which the trial judge commented, included the following: (

a) Ms. Martell’s evidence (which included her in-dock identification of Mr. Omer); (

b) the chain of witnesses who placed a person of Mr. Omer’s description in the vicinity of where the van was located shortlyafter it was stolen; (

c) the presence of the key for the stolen van on Mr. Omer’s person, when he was searched a short time after the attack; (

d) the knives found on Mr. Omer during the police search; and (

e) the description of the messenger bag that was carried by the assailant. When he was arrested, Mr. Omer was wearing the same clothing as the individual seen in the surveillance video. In addition, while notmentioned by the trial judge, even the presence of a slingshot on Mr. Omer’s person – a seemingly insignificant detail in Mr. Carmona’stestimony – was confirmed by the police. All this evidence provided highly convincing support for Mr. Carmona’s testimony. [24] Mr. Omer argues that the trial judge erred by placing any weight on Ms. Martell’s in-dock identification. I do not find merit inthis assertion.

The trial judge was required to consider the in-dock identification evidence, albeit with the appropriate level of trepidation:R v Hibbert, 2002 SCC 39 at paras 49–50, [2002] 2 SCR 445; R v Hay, 2013 SCC 61 at para 41, [2013] 3 SCR 694; and R v Clark, 2022SCC 49. As explicitly stated by the trial judge, he approached this identification evidence with great caution, and it is obvious that hewould have given it very limited weight on its own. He made this clear by stating, “That is not necessarily to say that I would accept[Ms.

Martell’s] few seconds of observation in the course of this brutal assault were it not supported by other things. I don’t have to makethat decision because that identification is supported by other evidence”. As noted above, the totality of the evidence fully supported theidentification of Mr. Omer as the assailant. An error is not revealed in this aspect of the Conviction Decision. [25] With regard to Mr. Omer’s attempt to paint Mr. Carmona as a jail-house informant, I observe that he does not fit the mould: seeR v Sauvé (2004), (ON CA), 182 CCC (3d) 321 (Ont CA) at paras 76–77. Mr.

Carmona did not seek to testify to analleged confession made to him by Mr. Omer, which is one of the hallmarks of the classic jail-house informant. He did not approach thepolice seeking favour. He gave a statement to the police while he was in custody, but that is the only touchstone present here. In histestimony, Det. Sgt. Chad Malanowich explained that he tried several times to speak to Mr. Carmona without success. Mr. Carmonatestified that he did not speak to police at the time of the incident because he was worried about having breached his probation conditions.It was only once Mr.

Carmona was in custody, and had no reason to fear the repercussions from any breach, that he was willing to give astatement. In his examination-in-chief, Mr. Carmona testified that the police approached him to provide a statement, and he was notexpecting any benefit as a result. He was not challenged on any of these assertions during cross-examination. To the limited extent thatcategorizing Mr. Carmona as a jail-house informant might be relevant, it is my view that he does not fall into that category. The trial judgedid not err by failing to treat him as such. [26] Lastly, I am not persuaded by Mr.

Omer’s argument that the trial judge erred by relying on his finding that Mr. Carmona hadno motive to lie. This was a common sense observation that he was entitled to make on the basis of the circumstances of Mr. Carmona’sinvolvement in the matter: R v Gerrard, 2022 SCC 13 at para 4, 468 DLR (4th) 389 (WL), and R v Jolibois, 2022 SKCA 120 at paras 20–

27 . In any event, this determination added little, if anything, to the mountain of evidence that provided confirmatory support for Mr. Carmona’s testimony. [ 27 ] The trial judge subjected Mr. Carmona’s testimony to a careful credibility assessment. His evidence was overwhelmingly supported and confirmed by the other evidence. There is no error revealed in the trial judge’s treatment of his testimony. The conviction appeal should be dismissed. B. Sentence appeal [ 28 ] Mr. Omer seeks leave to appeal his sentence for aggravated assault, pursuant to s. 675(1) (

b) of the Criminal Code . He does not appeal the sentences for the other three offences or take issue with the ancillary orders. [ 29 ] As set out in R v Lacasse , 2015 SCC 64 at paras 41–44 , [2015] 3 SCR 1089, this Court can only intervene if the sentencing judge has made an error in principle that had an impact on the sentence or if the sentence is demonstrably unfit.

It is an error in principle to fail to consider an offender’s personal circumstances or a relevant mitigating factor when imposing a sentence: R v Friesen , 2020 SCC 9 at para 26 , 444 DLR (4th) 1, and R v Dillon , 2022 SKCA 17 at para 2 , 92 MVR (7th) 214. [ 30 ] Mr. Omer asserts that the trial judge erred by failing to take into account the fact that he is a Black Sudanese refugee. He says that this should have been evaluated in a manner akin to how Gladue factors are considered for Indigenous offenders.

This leads to his contention that the trial judge improperly distinguished Ratt , Knife , and Gamble on the basis that they involved Indigenous offenders where Gladue considerations were relevant. He recognizes that s. 718.2 (

e) of the Criminal Code explicitly directs the courts to pay particular attention to the circumstances of Indigenous offenders, but he asserts that the trial judge’s distinguishment of the cases, on the basis of the presence of Gladue factors, was an error because every sentencing must take account of how the particular offender’s personal history and background bears on their personal responsibility.

He points to R v Morris , 2021 ONCA 680 , 74 CR (7th) 390, and R v Anderson , 2021 NSCA 62 , 405 CCC (3d) 1, as examples of cases where other courts have recognized the extent to which being a member of a racialized minority can have an impact on an offender’s moral culpability. Overall, Mr. Omer argues that the trial judge erred in principle by failing to recognize and consider the effect that his personal circumstances had on his moral blameworthiness.

Additionally, he argues that the parity principle was not respected and submits a sentence in the range of four-and-a-half to six years, less credit for pre- sentence custody, should have been imposed. [ 31 ] The Crown asserts that the trial judge did not err by failing to speculate about matters that were not in evidence. It points out that, at the sentencing hearing, Mr. Omer did not claim to have suffered any oppression or disadvantages in his life, and there is no factual record upon which to base such a claim.

The Crown further argues that the trial judge did not err in identifying the range of sentences and imposed a sentence that was appropriate for this offence and this offender. [ 32 ] It is helpful to frame the analysis by fully reproducing the part of the sentencing submissions where Mr. Omer’s counsel described his personal circumstances: My friend rightly indicates that we -- we don’t know much about Mr. Omer, so certainly I’ll start there with his circumstances. He is 45 years old, Your Honour. He’s originally from Sudan and he advises that in March 2004 he moved to Canada from Sudan.

He came by himself as -- for an asylum, as a refugee and indicates that his parents are still back in Sudan, as well as his four brothers and his two sisters. So he doesn’t have much for family here. He advises that in 1996 he was last back in Sudan, so it’s been some time since he’s seen his family, although he does talk to them on the phone from time-to-time. … [S]o he then moved to India for some education, post-secondary, and from India moved to Canada in 2004. … The university education he received in India was a Bachelor of Arts and an MBA. So he does hold that education.

And again has been separated from his family ever since, unfortunately. He advises that he does have some employment experience in Canada. He’s done some stucco work and some construction contracts. That’s -- that’s been most of his work here in Canada, Your Honour. He’s been unable to use his bachelor or his MBA while in Canada. Now, as we -- as we heard about at the trial, Your Honour, he does have children. He has two children ages 16 and 14. He isn’t in contact with the mother and he indicates their mother is not really involved in their life. He has had some issues with -- with their apprehension as of late.

And again as my friend indicated that was certainly an issue around the time of this offence, where his children seemed to be apprehended, he didn’t know where they were. They were in Edmonton, unfortunately, with the mother’s family and -- and he’s had some instability with the children and I’ll get into a bit of his instability and as to why that occurred. But essentially that’s been a major issue in his life. He’s currently going through a family law, Child and Family Services proceeding regarding that right now and has other counsel on that.

So I understand that the children are now back in Saskatchewan, but he still hasn’t seen them in some time. And again he’s going through that proceeding as we speak to see what his rights will be and what kind of contact he can have with the children, so obviously that’s of significant concern. Now, as I’ve indicated, Your Honour, he -- he’s had some personal issues that have led to this instability with the children. He has had alcohol issues and methamphetamine issues in the past, and the recent past.

He advises he did try to address those through the Calder Centre where he spent one month in inpatient treatment. This was shortly before this offence occurred, so this was February to March of 2020.

Now, he described this as very helpful, something that he’d like to continue and -- and should be ongoing. And -- and again though it is --it is interesting that that was just before this offence, Your Honour. But nonetheless he has sought out that treatment and would like tocontinue to do so. And he indicates that’s -- those addictions issues are what caused some issues with the children as well in -- in nothaving contact with them. Although he lacks family support here, Your Honour, he does have the support of his girlfriend, Samantha.

They’ve been together off andon for about five years and indicates that he still talks to her every day while in custody. She was actually in attendance at the courtappearances and has been seeking updates from myself regarding the proceedings, so she’s certainly a good support for him. He was also able to connect with the Sudanese Community Association here in Saskatoon. And has -- has some friendships that haveformed from that. He indicates he has a good friend Hader (phonetic) from that association. Hader is the chairman of the SudaneseCommunity Association.

I’ve spoken to him and he’s aware of the charges, the situation Mr. Omer is in and seems to continue to offersupport and has also asked about the proceedings. So he has some support from that society. In asking Mr. Omer, Your Honour, what kind of involvement he had in that association, he indicates that he was helping newcomers fromSudan essentially, organizing programs if needed. He -- he was involved for about four years. And also did some brief teaching of Arabicon weekends for children.

So that’s a very positive time in his life and unfortunately some of these addictions’ issues have kind of stepped in and issues with hisfamily to -- to overrun that. But I do note that is a mitigating factor that certainly would be good if he could continue that work. He doeshave again some good pro-social supports from that organization and -- and it was positive for him. [33] A pre-sentence report was not requested, and no other reports, cases, or academic articles related to the general circumstancesof racialized offenders were filed at the sentencing hearing.

Defence counsel (who is not the same as appellate counsel) did not ask thetrial judge to take any account of the fact that Mr. Omer is a Black Sudanese refugee, nor did she equate his circumstances to those thatwere at issue in Gladue. To the contrary, at one point in her submissions, counsel stated that the sentencing jurisprudence could bedistinguished on the basis of the absence of Gladue factors and said, “there are several Gladue factors in consideration [in thejurisprudence] that we don’t have in Mr. Omer’s case”. There was no claim that Mr.

Omer had suffered from racism, oppression, ordisadvantage as a result of his race or refugee status. There was no request to take judicial notice of such facts. There was simply noevidence or submissions regarding these issues. It is evident that, at the sentencing hearing, Mr. Omer was not attempting to rely on thiscircumstance. By noting that there were no factors comparable to the ones that Gladue directs sentencing judges to address, defencecounsel acknowledged that Mr. Omer was not relying on similar factors in relation to his own moral culpability.

The argument that thetrial judge should have considered these factors as mitigating and as having affected Mr. Omer’s moral culpability was not broached at allwith the trial judge; it is entirely new on appeal. [34] The situation at hand stands in stark contrast to those in Anderson and Morris. Both of those cases involved an offender arguingat the sentencing hearing that their experiences as racialized persons were relevant sentencing considerations. Substantial evidence wasprovided in support of their positions. In Anderson, the offender was a Black Nova Scotian convicted of firearms offences.

At sentencing,a formal Impact of Race and Culture Assessment report was filed, and the court heard viva voce evidence from the two authors of thereport and two other witnesses with regard to the issue, which was the central focus of the sentencing hearing. In Morris, the offender wasa Black Torontonian convicted of firearms offences.

Like in Anderson, the issue of the effect of racism was front and center at the firstinstance hearing and involved the tendering of significant amounts of evidence, including formal reports, along with extensive submissionsthat directly addressed this issue. [35] In the matter at hand, this Court is left in the same place as the trial judge with regard to considering what effect, if any, racismand marginalization should have on the determination of a proper sentence for Mr. Omer. In other words, a factual vacuum.

On appeal,counsel did not seek to supplement the record with fresh evidence to assist with the analysis of this issue. The bare fact that Mr. Omer is amember of a racialized minority does not entitle him to a reduction in sentence: R v Chanlaquay, 2015 SKCA 141 at para 36, [2016] 4WWR 242. [36] This Court is generally hesitant to consider issues that were not raised in the trial court, although less so in a sentence appeal.As here, the necessary evidence is often absent as a result of the concern not having been addressed in the first instance.

Additionally, wedo not have the benefit of a trial judge’s findings and analysis: see R v Kishayinew, 2021 SKCA 32 at paras 19–25, and R v Albus, 2015SKCA 121 at para 13, 90 MVR (6th) 200. [37] Courts are now well aware of the disproportionate rate of incarceration of racialized offenders and the systemic problems thatplague the criminal justice system in this regard: R v Gladue, (SCC), [1999] 1 SCR 688, R v Ipeelee, 2012 SCC 13,[2012] 1 SCR 433, Anderson at para 5, Morris at para 1, and R v C.P., 2021 SCC 19 at paras 88–89, 457 DLR (4th) 553.

For Indigenousoffenders, it is an error in principle for a sentencing judge not to inquire about the presence of Gladue factors when evidence orsubmissions presented during sentencing could reasonably lead the sentencing judge to conclude that the offender is Indigenous: R vWhitestone, 2018 SKQB 83 at para 2, Gladue, Ipeelee, and s. 718.2(

e) of the Criminal Code. However, this principle does not extend tothe point where it can be said to have been an error for the trial judge to not have addressed this aspect of Mr. Omer’s circumstances in theabsence of evidence and in the face of submissions that not only did not seek to have the trial judge take account of them, but actuallyindicated that Gladue-equivalent factors did not exist. It was not for the trial judge to second-guess counsel on this issue. [38] If this discrete portion of Mr.

Omer’s personal circumstances represented the whole of the concerns with the sentence in thematter at hand, that might be the end of the road. However, a review of the sentencing decision reveals that the trial judge failed to accountfor any of Mr. Omer’s personal circumstances when determining his sentence.

The only mention of his circumstances comes in thefollowing excerpt from the Sentencing Decision: In terms of mitigating factors, I have listened carefully to the submissions of counsel and I have been able to find no mitigating factors.Even his expression of sympathy is not an expression of remorse because he does not accept responsibility. He is expressing sympathy forwhat has happened to Ms. Martell in the same way that any of us might express sympathy for this unfortunate event which has occurred. Itis, however, different in his situation because he is the unfortunate event that occurred to Ms. Martell.

But he doesn’t acknowledge that

and he does not express any remorse for that. He is certainly entitled to take that position and his lack of remorse is not an aggravating factor, it is, however, the lack of a mitigating factor. [ 39 ] Sentencing is a highly individualized process. The personal circumstances of each person who comes before a court for sentencing are relevant and must be considered. This includes not only any asserted disadvantages caused by racism or immigration status, but also all of the relevant factors that allow a sentencing judge to tailor the sentence to the offender in front of them. Here, the bare fact that Mr.

Omer is a Black Sudanese refugee did not translate into a mitigating factor or have an automatic effect on his moral culpability. However, other personal information was provided that should have been considered as bearing on his moral culpability. Particularly, I note that the following circumstances were presented to the trial judge: (

a) Mr. Omer, at the time of the offence, was in a distraught state because his children had been apprehended, and he was acting in a confused and disoriented manner when he attacked Ms. Martell and stole the van; (

b) Mr. Omer has alcohol and methamphetamine addiction issues, which he had recently tried to address through an inpatient treatment program; and (

c) Mr. Omer had little family support, because of distance, but did have some pro-social supports through his involvement with the Sudanese Community Association. [ 40 ] While the trial judge indicated that he had listened carefully to counsel’s submissions, there is no indication that any of these circumstances were factored into tailoring the appropriate sentence for Mr. Omer. To the contrary, he explicitly found nothing mitigating in Mr. Omer’s circumstances. In my view, this represents an error in principle. Given the sentence imposed, I find that this error had an impact on the sentence.

As a result, the sentence for the aggravated assault must be set aside and this Court must determine a proper sentence. This does not mean that the sentence will necessarily change, but it falls to this Court to consider the appropriate sentence afresh. [ 41 ] In crafting a proportionate sentence, I must take into account s. 718 to s. 718.2 of the Criminal Code . While all of the sentencing objectives must be considered, the nature of this offence requires emphasis on denunciation and deterrence: Ratt at para 70 . [ 42 ] With regard to his personal circumstances, Mr.

Omer was in a disoriented and agitated state when he attacked Ms. Martell. This arose because of his anxiety and uncertainty regarding the well-being of his children, one of whom he feared had died. He also had a substance abuse problem, but he was attempting to address it and had attended an inpatient treatment program. These factors affected his conduct on the day he committed the offences.

While these personal circumstances may or may not be related to the fact that he is a Black Sudanese refugee, they are his personal circumstances and must be accounted for in the determination of a fit sentence. [ 43 ] However, despite these circumstances, there is no doubt that Mr. Omer’s level of moral culpability remained high. He was looking for a vehicle to steal and chose to enter the van with the intent to take it, knowing that there was an occupant and after having been warned by his friend not to do it.

This demonstrates deliberation and a determination to commit the offence, despite the harm it would create. Upon entering the vehicle, he immediately initiated a vicious and senseless attack on the non-resisting and helpless victim. After inflicting horrible wounds, he drove away, leaving Ms. Martell injured and lying on the ground with life-altering injuries. [ 44 ] Regarding the gravity of the offence, this carjacking took place in broad daylight and involved a total stranger as a victim. The level of violence used in this random attack was extreme and gratuitous. Ms.

Martell suffered very serious and debilitating injuries which will have life-long effects on her. The gravity of the offence is very high. [ 45 ] For aggravating factors, I observe that Mr. Omer has a criminal record, which includes eight driving offences, two convictions for failure to appear or attend court, and one conviction for obstructing a peace officer. He also has one prior conviction for a violent offence in 2010: an assault with a weapon for which he received six months of incarceration, plus probation. This is not the first time that he has used a weapon to assault someone.

Importantly, the circumstances of the current offence and the significant effect of Mr. Omer’s actions on Ms. Martell are highly aggravating, as noted in my discussion above. [ 46 ] Turning to mitigating factors, although the trial judge determined that Mr. Omer did not express remorse, he did express some sympathy for Ms. Martell, which provides some limited mitigation. In addition, he has been attempting to address his addictions issues. Mr.

Omer lacks any direct family support because of geographical distance, but he has connected with the Sudanese community in Saskatoon and has gained some pro-social supports. He was also attempting to address his addictions. [ 47 ] Mr. Omer asserted that the sentence he received did not properly take parity into account.

Section 718.2 (

b) of the Criminal Code requires that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. Parity has been described as the practical expression of the fundamental principle of proportionality: Friesen at paras 30– 33 and R v Courtoreille , 2022 SKCA 110 at paras 55–60 . With the principle of parity in mind, I find that the decisions in Ratt , Knife , Gamble , R v Klassen , 2015 SKCA (SentDig) 32, R v Crawford , 2018 SKCA (SentDig) 19, and Durocher provide useful guidance on the appropriate sentence in this matter.

However, the process of sentencing must always remain highly individualized. [ 48 ] In Ratt , the offender punched a man in the face, damaging some of his teeth and causing a deep cut that required stitches. Mr. Ratt was convicted of aggravated assault, among other offences. He had a long criminal record, including 21 offences involving violence, use or possession of firearms or other weapons, and threats. He had two prior convictions for aggravated assault. There were also significant Gladue factors.

This Court determined that the circumstances of the offence and the offender required that protection of the public be placed at the forefront. Justice Kalmakoff noted that the sentences for aggravated assaults in Saskatchewan generally fall in the range of two to four years; however, he observed that sentences above the four-year mark are not unusual in “situations in which the offence involves the use of firearms, a home invasion, an offence committed against an infant or young child, or an offence resulting in permanent and disabling injuries to the victim” (at para 82). Mr.

Ratt received a sentence of five years and six months. [ 49 ] The offender in Knife was convicted of stabbing two fellow inmates in the penitentiary. The two victims were stabbed multiple times by Mr. Knife and his accomplices but were not seriously injured. The Crown unsuccessfully applied to have Mr. Knife designated as a dangerous offender. Like Mr. Ratt, he had a long record of violent offences, one of which was manslaughter, and significant Gladue factors. This Court determined Mr. Knife should be designated as a dangerous offender but upheld a determinate sentence of eight years.

In doing so, Lane J.A. noted the following about the range for similar aggravated assaults: [103] The sentencing judge in this case correctly noted that the range for similar aggravated assaults involving a similar level of violence with similar aggravating factors is seven to eight-and-a-half years.

See, e.g.: R v Keepness , 2010 SKCA 69 , 255 CCC (3d) 457 (seven years); R v Fulton , 2012 ONCA 781 , 105 WCB (2d) 612 (nine years); R v Larose , 2013 BCCA 450 , 344 BCAC 159 (seven years); R v Agyeman , 2012 ONCA 893 (eight years). [ 50 ] In Gamble , this Court upheld a sentence of seven years and six months after Mr. Gamble was convicted of aggravated assault. He and two other gang members had confined a man, threatened him, branded him with a knife, and cut off a portion of one of his fingers. Mr.

Gamble had significant Gladue factors, which reduced his moral culpability. [ 51 ] The offender in Klassen beat his roommate with a hammer, causing significant injuries. He was an alcoholic and a drug addict, who committed the offence in the midst of a three-day cocaine binge. He received a sentence of six years, which was upheld on appeal to this Court. [ 52 ] In Crawford , a dispute arose over a backpack, and Mr. Crawford stabbed the victim 20 times, only stopping when police officers, who happened to be driving nearby, intervened. He was sentenced to four years and six months. Mr.

Crawford had a lengthy criminal record with prior violence. The sentence was upheld on appeal to this Court. [ 53 ] Lastly, in Durocher , Gerwing J.A. imposed a sentence of eight years for an aggravated assault conviction, which arose out of a stabbing that left the victim with long-term physical and emotional disabilities. Mr. Durocher also had a long criminal record, which included violent offences.

As indicated in Ratt (at para 84 ), Durocher appears to be an outlier, but, as in the matter at hand, this Court found the fact that the offence was particularly brutal and arbitrary in nature to be highly concerning. [ 54 ] Taking all of these factors into account, it is my view that a proportionate sentence for the aggravated assault is six years of incarceration, minus a credit for pre-sentence time in custody in the amount of one year and four months. This leaves a sentence of four years and eight months, commencing on the original date of sentencing.

The senseless brutality and random nature of this attack, coupled with the permanent and disabling injuries suffered by Ms. Martell, requires a significant sentence. It is my view that a six-year period of incarceration accounts for Mr. Omer’s personal circumstances, reflects his moral culpability, and addresses the significant gravity of this offence. It also gives appropriate emphasis to restraint, denunciation, deterrence, and rehabilitation, while respecting the principle of parity. VI. CONCLUSION [ 55 ] The appeal from conviction is dismissed. Leave to appeal from sentence is granted.

The sentence appeal is allowed to the extent of substituting a period of incarceration of six years for the aggravated assault, minus a pre-sentence credit of one year and four months, resulting in a sentence of four years and eight months, commencing from the original date of sentencing (April 16, 2021). The rest of the sentence, including the ancillary orders, remains as ordered by the trial judge. “Tholl J.A.” Tholl J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.