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| John L. Hill |
The trial was complex. Osman and the Wheyee brothers, Julius and Theophilius, were accused of killing Mohammed Najamus Saqib near Calgary on Sept.18, 2015. Saqib’s body was found burned inside the trunk of a car. Police theory was this was the result of a drug deal gone bad. Saqib was said to owe $4,000 to Osman and Saqib was unable to pay up.
There was no direct evidence of the murder and the Crown attorney based the prosecution on circumstantial evidence. After a number of unreturned telephone calls, on Sept. 17, 2015, Osman texted Saqib asking, “Where’s my money?” Saqib was ordered to attend Osman’s house where, it was alleged, Osman’s enforcers, the Wheyee brothers, lay in wait.
The Alberta Court of Queen’s Bench was unable to find evidence of intention to kill but found the three accused involved in illegally assaulting Saqib resulting in the victim’s death. On July 19, 2019, Justice Karen Horner found the three accused guilty, not of murder but of the lesser and included offence of manslaughter (R. v. Wheyee 2019 ABQB 548).
On appeal, Osman’s counsel raised the issues of police brutality and 33 weeks of isolation at the Calgary and Edmonton Remand Centres as reasons why Osman made statements that undermined his credibility at trial. Unfortunately, for Osman, the court held such allegations should have been raised at trial. Paragraph 106 of the judgment reads as follows:
[106] Second, Mr Osman is raising the issue of his involuntary segregation for the first time on appeal. The general rule on appeal is that a party to an appeal cannot raise a new issue that was not raised in the court below, particularly when it is an unfair surprise to the opposite party (here, the Crown) who would have tendered evidence on it at trial, had it known. This ground of appeal must fail because there is no evidence before this Court to support Mr Osman’s allegations.
The court determined that the 33 weeks of isolation could be used, “if proven,” in mitigation of his sentence.
This decision is a step backward in the fight to have solitary confinement recognized as the torture that it is. It is disingenuous for a court to maintain that it cannot hear allegations of such torture because it would not have been known in advance by the Crown. The Crown has full knowledge of how a prisoner has been kept and should have included conditions of confinement as part of its disclosure obligations.
Especially since the B.C. Civil Liberties case (British Columbia Civil Liberties Association v. Canada (Attorney General) 2018 BCSC 62) that found the use of solitary confinement unconstitutional, courts should be wary of ignoring allegations of its use. Otherwise, it becomes an invitation to continue the practice. Even if Osman can prove his 33 weeks in isolation (a task not too difficult because institutions must keep records of such placement), a reduction in sentence is not good enough. Courts should feel obligated to investigate any breaches of the Mandela Rules (solitary confinement in excess of 15 days) and hold authorities who continue the practice of prolonged solitary confinement to account.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.
Photo credit / Vector DSGNR ISTOCKPHOTO.COM
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