R. v. Defoe, 2018 ONCJ 484

Ontario Court of Justice

Date: July 18, 2018

Court File No.: Newmarket 17 04127

Between:

HER MAJESTY THE QUEEN

— AND —

PHILLIP EDMOND DEFOE

Before: Justice David S. Rose

Heard on: July 18, 2018

Reasons for Judgment released on: July 18, 2018

Counsel

Ms. Thomas — Counsel for the Crown

Mr. East — Counsel for the defendant Phillip Defoe

Judgment

Rose J.:

1On April 24, 2018 I found Mr. Defoe guilty of Assault after a trial. He is before me now for sentencing.

2The facts are briefly that on April 24, 2017 the Complainant Mr. Pi was fishing with a rod at Adeline Park in Keswick. That morning Mr. Defoe entered the park and began talking to the fishermen who were there. Some of them testified at the trial. Each of the fishermen who testified was of Asian descent, like the complainant.

3On the morning of the incident Mr. Pi was fishing on the shore, minding his own business when he turned around and saw Mr. Defoe coming toward him. Mr. Defoe went to Mr. Pi's fishing bucket looked at his catch and threw the fish into the pond, because they were too small. Mr. Pi does not speak English, but he tried to explain that the fish don't grow that big, but to no avail. Mr. Defoe rushed at him with both hands pushing him. Mr. Pi fell backwards with his face to the sky. He fell into the pond.

4Mr. Pi was helped out of the water by his friends and other fishermen who were there. He was not injured, although as an 82 year old that is just a matter of good luck. He could easily have been injured.

5Mr. Pi suffered no physical injuries, however the incident has left him feeling generally fearful.

6Mr. Defoe has a criminal record with the following entries:

• 1974 Theft Under — 30 days jail and probation
• 1980 Possession of Counterfeit Money — 5 months jail and probation
• 1985 Possession of Narcotic — $500 fine
• 1985 Impaired Driving — $500 fine
• 2004 Impaired Driving — $700 fine and driving prohibition
• 2009 Fail to Comply with Recognizance and Drive Impaired — 30 days and probation and time served 7 months
• 2010 Drive Disqualified and fail to comply — Probation 17 days and 43 days pre-trial custody and driving prohibition
• 2015 Theft Under — 6 month conditional sentence and probation

7While Mr. Defoe's criminal record is continuous since 2004, and includes jail sentences, it does not have any entries for violence.

8The Pre-sentence report which was prepared describes Mr. Defoe as being opinionated. He has a past substance abuse issue and has mobility problems from three car accidents and playing sports. He has a strained marriage. Notably he has been involved in the community as both a patron and a volunteer at the local food bank. He is 61 years old. He has a back injury and has not worked for several years. He has a back surgery scheduled for July 25 at St. Michael's hospital and I am told that the surgery is invasive.

9The aggravating factors here are the unprovoked nature of the assault, and that it happened without any moral justification in a place where elderly persons such as Mr. Pi have every right to expect a considerable measure of peacefulness. A fishing hole is not the place that people go to in order to feel the rush and excitement of sports. It is the opposite. The assault on Mr. Pi therefore violated that sense of community trust. It is also aggravating that Mr. Pi is an octogenarian and therefore physically unable to defend himself. I agree with the Crown that the fact that the fisherman in Adeline park on the day were all of Asian descent is a backdrop to the offence but one which falls short of a finding of a racially motivated crime under s. 718.2(a)(i). On April 24, 2017 Mr. Defoe showed himself to be nothing more than a common bully. He completely fails to understand that elderly persons in the community deserve heightened respect rather than disrespect.

10The Crown seeks 4 – 6 months jail plus probation. The Defence seeks a 6 months conditional sentence. This is a summary election proceeding. And the maximum sentence is 6 months. I would not find that the nature of the offence, its effect on Mr. Pi and the nature of Mr. Defoe call out for a jail term at the maximum end of permissible sentences. That said, the Crown's suggestion of a jail sentence is not misplaced.

11Mr. Defoe is eligible for a Conditional Sentence under s. 742.1. It is a summary conviction offence for which a Suspended Sentence is not appropriate. The Pre-sentence report speaks favourably about Mr. Defoe's compliance with previous community supervision orders, and his current suitability for community supervision. I am therefore satisfied that he would not endanger the safety of the community. A conditional sentence fulfills both punitive and rehabilitative objectives, see R. v. Proulx (2000), 2000 SCC 5, 30 C.R. (5th) 1 (SCC). In this case both issues are in play.

12Having reflected on the sentencing considerations Mr. Defoe will be sentenced to a Conditional sentence of 6 months. The terms will be:

i) He is to report to his Conditional Sentence supervisor immediately and thereafter as required;

ii) The first four months of the sentence will be one of house arrest;

iii) The remaining 2 months will be a curfew of 9pm to 6am;

iv) In the first four months He will be allowed out of his residence once per week for 4 hours for purposes of dealing with personal errands;

v) In the first four months he will also be permitted to leave his residence for any necessary arranged medical appointments, or for his own medical emergencies;

vi) During the entirety of his Conditional Sentence he is to remain out of Adeline Park and have no contact with Mr. Pi directly or indirectly;

vii) He is not to have any weapons, and is required to present at the door to confirm attendance.

13After the CSO ends probation he will be placed on probation 18 months with terms that:

i) He is to report to a probation officer within 2 days of the completion of his conditional sentence and thereafter as required;

ii) He is to have no contact directly with Mr. Pi and stay at least 100m away from anywhere he is known to live, work, go to school, habitually go to, or physically be present at;

iii) He is to stay out of Adeline Park;

iv) He is to take treatment for both anger management and alcohol abuse, and sign any necessary releases;

v) He is to perform 100 hours of community service at a place approved by the Probation Officer within the first year of the Probation term;

vi) No weapons.

14In addition Mr. Defoe will supply a sample of his DNA to the National Databank as a secondary designated offence. Having considered the nature of the incident and Mr. Defoe's pre-sentence report it is in the best interest of the administration of justice. He will not possess any weapons for 10 years.