Sask. court rejects Sudanese man's appeal asking for leniency based on Gladue-like factors
Effects of racism and marginalization not presented: Court of Appeal
A conviction appeal heard in a Saskatoon courtroom last month from a Black Sudanese refugee asking for leniency based on his personal history was rejected — although his sentence was reduced by 18 months.
Mohamed Omer, 45, appealed both the aggravated assault conviction and the seven-and-a-half year sentence he was given for a violent carjacking in Saskatoon from 2020.
Court heard he slashed a woman's throat and stabbed her numerous times before stealing the van she was a passenger in before fleeing the scene.
According to court records recently published online, the woman fell out of the van and suffered life-altering injuries in the unprovoked attack. Omer was arrested shortly after the incident.
Among his arguments made before the Court of Appeal, Omer said the trial judge failed to consider his personal history — similar to how Gladue factors were considered in three cases the courts looked at — in crafting his sentence.
In court documents published to CanLii last week, Omer acknowledged the basis of his arguments paid particular attention to the circumstances of Indigenous offenders.
"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," the court documents said.
Gladue factors can include an Indigenous person's personal or family history, intergenerational traumas, alcohol abuse and histories with the child welfare or justice systems, among other factors.
Through his first trial, Omer's lawyer shared how the man left Sudan in 1996 to travel to India and immigrated to Canada in 2004. He'd been separated from his family back home since then.
WATCH | What are Gladue reports?
Omer faced numerous challenges with addictions and the law over the years, separating him from his children.
Case law presented during the appeal showed other courts in Canada factored how being a racialized minority impacted someone's moral culpability when sentencing Black men in Canada.
Failing to recognize and consider the effect his personal circumstances as a Black Sudanese refugee had on his moral blameworthiness was an error, Omer argued.
Omer also argued the trial judge did not respect the parity principle, which states similar sentences should be imposed on similar offenders for offenses committed within similar circumstances.
The courts were asked to consider a four-and-a-half to six-year sentence to respect the parity principle.
The Crown, however, argued the trial judge did not err by failing to consider Gladue-like factors, as they were not presented during the trial.
Omer, the Crown argued, did not claim to suffer from oppression or disadvantages in his life at the sentencing hearing and there was no factual record to base any of his claims.
The Crown also argued the trial judge did not err in identifying a range of sentences or imposing a sentence appropriate to Omer's offense.
When contacted on Tuesday, Omer's lawyer declined to comment further on the case.
Court left with 'a vacuum': decision
When presented with the facts of the case, the appeal judges ultimately agreed with the Crown's arguments.
Court documents said no Gladue factors, pre-sentencing reports or arguments were submitted during the trial, sentencing hearing or appeal hearing showing Omer's sentence required different considerations from the trial judge.
Though the case law presented by Omer was similar in nature, the appeal judges decision said the offender's race and personal history was highly focused on in those cases — something that didn't happen in Omer's trial until the appeal hearing.
"This court is left in the same place as the trial judge with regard to considering what effect, if any, racism and marginalization should have on the determination of a proper sentence for Mr. Omer. In other words, a vacuum," the court documents said.
"The bare fact that Mr. Omer is a member of a racialized minority does not entitle him to a reduction in sentence."
Personal factors slightly modify sentence
While factors like those in Gladue reports weren't taken into consideration, the deciding judges did take issue with how Omer's sentence was crafted.
They found the trial judge failed to consider any of the man's personal circumstances when sentencing him.
- A Gladue report changed his life. Like many other marginalized offenders, he didn't know it was his right
During his trial, Omer told the court he was in a distraught mental state and acting in a confused and disorientated manner when he committed his crime.
The appeal judges noted Omer told the courts he was attempting to address methamphetamine and alcohol abuse issues and he lacked family support during his first trial.
"These factors affected his conduct on the day he committed the offences," the decision said.
"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."
With the new factors in mind, the appeal judges noted Omer's moral culpability remained high and given the violent nature of his crime and the life-changing consequences for the woman he victimized, the gravity of his offense was high.
After comparing the 2020 incident to four other cases the appeal judges adjusted Omer's sentence from to six years from seven-and-a-half years, with credit for time served.
He is scheduled to spend another four years and eight months in jail.