minicounsel

ONTARIO COURT OF JUSTICE

DATE: 2021 06 28 INFORMATION No.: 20-38100307

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CHRISTOPHER SCAGLIONE

Before: Justice Angela L. McLeod

Heard on: February 19, 2021 (plea); June 14, 2021 (sentencing hearing) Reasons for Judgment released on: June 28, 2021

Counsel: Mary Anne Alexander, counsel for the Crown Jaime Stephenson, counsel for the accused

McLeod J.:

Overview

1Mr. Scaglione was charged with aggravated assault arising from an incident that occurred on January 10, 2020.

2This matter was judicially pretried before me over several months, in part, due to a change in counsel. There was some delay in the matter due to the COVID pandemic.

3On February 19, 2021, he entered a guilty plea, to the lesser and included offence of assault cause bodily harm and to breaching his release order. A presentence report was ordered. Following the plea, Mr. Scaglione was released on consent of the Crown pending sentencing. Sentencing submissions were made on June 14, 2021, at which time Mr. Scaglione was voluntarily back in custody awaiting the imposition of sentence.

Summary of the Facts

4An agreed statement of facts was filed as Exhibit #1. The assault was captured on video and filed as Exhibit #2.

5Briefly, the assault was a result of a rather benign ‘road rage’ incident. It was short and each party changed lanes in front of the other to express frustration.

6The parties separated and the victim went to an industrial location to load garbage into a dumpster. It is at this point that the events are captured on video (a business security camera system) without audio.

7Mr. Scaglione approached the victim. Words were exchanged. Mr. Scaglione “struck the victim in the face with his right first causing the victim to fall to the ground. The accused then punched him four more times on the ground rendering him unconscious. Once unconscious the accused kicked the victim in the face three times before entering his vehicle and exiting the parking lot leaving the victim unconscious in the parking lot. Shortly thereafter strangers nearby came to Mr. Watson’s (the victim) aid and called for help” (Exhibit #1).

8The “victim suffered 5 broken teeth, a broken arm which required surgery, a large laceration to his upper lip/upper lip area and a welt on his forehead” (Exhibit #1).

9Mr. Watson swore an affidavit a month (filed as Exhibit #3) after the incident in which he advised that he was ready and willing to fight Mr. Scaglione when he was approached in the parking lot. The affidavit was provided to Mr. Scaglione’s original counsel (not counsel for the plea and sentencing, see Exhibit #1).

10He further advised, “I grossly underestimated his fighting ability. I tried to kick him, but he got the better of me… I obviously picked a fight with the wrong guy. I should not have instigated the fight by driving aggressively to retaliate against Mr. Scaglione’s driving … I also should not have engaged Mr. Scaglione in a fight, as he clearly got the better of me. Nonetheless the fight was consensual … I do not believe that Mr. Scaglione should have been charged criminally and I do not want to pursue him either criminally or civilly … I believe all parties should be allowed to walk away from the situation with an understanding that we should not resort to fighting to resolve our differences” (Exhibit #3).

11The Crown tendered the affidavit to establish the fact that the main witness may have been problematic at the trial. The defence argues that this court should wholly accept the affidavit and find that Mr. Scaglione was provoked and that the fight was consensual. The Crown argues that the court should not find that Mr. Scaglione was provoked nor that the fight was consensual and relies upon the video recording in support thereof.

12The defence asserts the provocation as a mitigating factor on sentence only.

13Mr. Scaglione was arrested and placed on a release order with several conditions, including that he remain in his residence except while with either of his sureties or his father. On December 17, 2020, at 9:12pm, police initiated a traffic stop for speeding. Officers spoke with the lone occupant and driver, who was identified with his driver’s license. Mr. Scaglione was the driver.

Factual Findings

14The Criminal Code defines provocation as a wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self control and is acted upon on the sudden and before there was time for passion to cool. The act must constitute an indictable offence and be punishable by five or more years of imprisonment (s.232(2)). Provocation is a partial defence that serves to reduce murder to manslaughter.

15The defence utilizes the term not in the above noted legal sense. In common usage, the term provocation can be defined as a deliberate action or speech that makes someone annoyed or angry.

16I find as follows:

(1) Aggressive driving may annoy or perhaps even anger other drivers, it is not sufficient to invoke the loss of self control exhibited by of Mr. Scaglione. (2) There was time for ‘cooler heads to prevail’. Mr. Scaglione had to follow or find Mr. Watson thereafter. (3) The words exchanged between the parties behind the dumpster are unknown and thus cannot be assessed to determine if they are enough to deprive an ordinary person of the power of self control. (4) Mr. Scaglione was not provoked. (5) Mr. Watson did not ‘pick a fight’ with the wrong guy; Mr. Scaglione was the clear instigator. (6) Mr. Scaglione did not simply ‘win the fight’, he initiated and continued long after Mr. Watson had been knocked unconscious and lay on the ground. (7) I reject these portions of the affidavit of Mr. Watson. (8) The fight was not consensual.

Position of the Parties

17The Crown seeks a global sentence of 36 months, less presentence custody (including 2:1 credit for the time that he was in quarantine), a DNA order and a s. 109 order for life.

18The Crown highlights the sentencing principles of denunciation, deterrence and the need to protect the public. A significant factor in the Crown’s position is the prior criminal record, to the point that rehabilitation plays a limited or no role in the sentencing analysis.

19The Crown acknowledges the mitigation of a guilty plea, especially in light of the potentially unwilling victim/witness, noting that while the assault was captured on video, the issue of identification would have been a live issue at trial; however, the agreed statement of fact notes that “Mr. Scaglione was identified by a combination of his motor vehicle being captured from various surveillance cameras travelling from the scene back to his business in downtown Barrie and from his distinct features.”

20The defence seeks a custodial sentence of 18 months, less presentence custody. Both parties agree that the presentence custody should be enhanced as follows:

(1) 32 days in quarantine due to COVID protocols at a rate of 2:1, for a total of 64 days; (2) 96 days at a rate of 1.5:1, for a total of 144 days; (3) Total presentence custody is 208 days as of the sentencing hearing; (4) Additional 14 days post sentencing hearing until sentence imposition at a rate of 1.5:1, for a total of an additional 21 days; (5) Grand total of presentence custody is 229 days.

21The defence agrees with the Crown that should this court impose a reformatory sentence the maximum period of probation should follow. The DNA order and the s. 109 order are also agreed upon.

22The defence argues that there is significant mitigation in the guilty plea, given the live issue of identification, and given the reluctant victim.

23The defence points to successful periods of compliance with house arrest conditions on bail, up to the point of the breach and then once again upon release pending sentencing.

24The defence underscores that Mr. Scaglione has no mental or physical health issues, takes no medication nor suffers from any addictions.

Mr. Scaglione’s Background

25Mr. Scaglione has a criminal record beginning in 2009 and ending in 2015. There is a total of 10 convictions, including an assault, an assault with a weapon and two aggravated assaults. He also has prior convictions for failing to appear and breach of recognizance among others.

26The first aggravated assault conviction resulted in a 53-month penitentiary sentence. The second (entered on the same date) resulted in a 65-month sentence. Defence counsel clarified the CPIC printout, noting that Mr. Scaglione was sentenced to 8.5 years less 17 months presentence custody credit [1].

27The presentence report outlines, in part, that:

(1) He is 33 years old; (2) He is single; (3) Both of his parents were in the military, and his father is retired police officer; (4) He went to military school at the age of sixteen. He was stationed in Edmonton and left the military after 1.5 years; (5) He was involved in ‘gang life’ for a period of time; (6) Changed his lifestyle and is currently part owner of a tattoo shop; (7) He admitted to the author that the offence ‘should not have happened’. Adding that he was ‘seeing red’, regrets his decision and shared empathy for the victim; (8) He has no drug or alcohol issues; (9) He had a very difficult time while serving his penitentiary sentence and is currently involved in a class action suit regarding his time spent in solitary confinement and may be dealing with an undiagnosed PTSD; (10) Has had a poor response to community supervision including two fail to appear convictions, a fail to comply with recognizance and the current offence of breach of release order.

Mitigating and Aggravating Factors

28I find the following to be mitigating factors:

(1) The guilty plea which is further enhanced due to: (a) The current COVID pandemic, saving judicial resources and saving members of the community from having to potentially attend the courthouse to testify (R. v. Gabourie, 2021 ONCJ 162, para. 64); and, (b) Considering the reluctant victim. (2) The gap in the criminal record from the end of parole in 2017 to the offence date of January 2020; (3) The successful operation of a small business since 2017.

29I find the following to be aggravating factors:

(1) The assault arose out of a benign driving incident; (2) The matter was over, until Mr. Scaglione decided to resurrect it; (3) Mr. Scaglione had to follow or search for the victim; (4) Mr. Scaglione had several minutes to calm himself down, to call someone for advice or support, or to report the issue to the police; (5) Upon exiting his vehicle, Mr. Scaglione almost immediately struck Mr. Watson, knocking him to the ground and rendering him unconscious; (6) Mr. Scaglione repeatedly punched and kicked Mr. Watson while he lay unconscious on the ground; (7) Mr. Scaglione left Mr. Watson in a parking lot, at the back of a building, unconscious, without any idea if he was seriously injured or required medical attention; (8) The criminal record: (a) Multiple related offences of violence; (b) Multiple related offences against the administration of justice; (c) Conviction for assault and weapons while serving a penitentiary sentence for aggravated assault and weapons. (9) The injuries inflicted by Mr. Scaglione were multi-faceted and required surgery; (10) The assault was unprovoked, violent and disproportionate to the anger that might arise from a benign driving incident.

Neutral Factors

30I find the presentence report to be neither positive nor negative.

31The support of Mr. Scaglione’s friends and family, all of whom expressed surprise at the incident, despite the criminal history for related offences.

32Mr. Scaglione may be suffering from PTSD. First, the defence submitted, to the contrary, that he did not suffer from any mental health issues. Second, the possibility of PTSD is based upon his father’s opinion; to date, no assessment or therapy has been undertaken in the more than three years since he was paroled.

Sentencing Principles

33The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:

(a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) deterring the offender and others from committing crimes; (c) separating offenders from society where necessary; (d) assisting in the rehabilitation of the offender; (e) providing reparations for harm done to the victim or to the community; (f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.

34The fundamental principle in sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In R. v. Ratt, 2021 SKCA 7 (Sask. C.A.) at para. 72, the court referenced the earlier decision of R. v. Yuzicapi, 2011 SKCA 134 (Sask. C.A.), wherein the court identified three important considerations in determining the gravity of the offence:

(1) The nature and comparative seriousness of the offence; (2) The circumstances of its commission; and, (3) The harm caused by it.

35I am also mindful of the sentencing principles of totality (R. v. M.(C.A.), [1996] 1 S.C.R. 500), restraint (s.718.2(e)) as well as those contained in sections 718.2(a) and (b).

36Where a criminal record shows repeated related criminal conduct, the principles of sentencing require this court to impose a sentence that is greater than what the accused received for past conduct. While this court cannot punish Mr. Scaglione again for his past convictions, his prior criminal record assists in determining his normative character, and where repeated related behaviour is revealed, it is an aggravating factor to be considered (R. v. Wright (2010), 261 C.C.C. (3d) 333 (M.B.C.A.), 2010 MBCA 80).

37Finally, as the caselaw submitted bears out, sentencing is an individualized process.

Analysis

38The Crown submitted several cases which provide guidance and authority for general considerations in cases such as this one.

39In R. v. Letlow, 2006 ONCA 859, the court unanimously wrote a short and succinct ruling dismissing the sentence appeal:

This was a very serious offence. The appellant inflicted a severe beating on the victim. The offence itself required a lengthy penitentiary sentence. Given the appellant’s serious criminal record including prior convictions for similar offences of violence, protection of the public requires a lengthy sentence. The trial judge made no error in principle and the sentence was not unfit. Untreated, the appellant remains a serious danger to the public and to date there is little to suggest that the appellant is capable of rehabilitation.

40In R. v. Mikasinovic, 2017 ONSC 2699, the court endorsed the trial judgment. The trial justice, ([2017] O.J. No. 2699), wrote at para. 17:

…The whole sequence of events shows that Mr. Mikasinovic was not threatened, not in danger, and not provoked. In my view, it is very dangerous to watch a video and analyze it in a second – by – second fashion without keeping the entire sequence of event in context. That risks isolating individual events and distorting what actually happened. What the whole of the evidence shows is that Mr. Mikasinovic chose to escalate by first punching Mr. Casponsa, then punching Mr. Runge twice … the violence was unprovoked, gratuitous, and disproportionate…

41Cases provided by the defence support that there is a very wide range of sentences for crimes of violence. There are often no two alike, and sentences move across the scale based upon the specific analysis of the mitigating and aggravating facts.

42However, both parties submitted for consideration the matter of R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245 (ONSC), wherein Justice Code, in considering the range for aggravated assault (more serious than the case at bar) he wrote:

28 In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements of consent fights but where the accused has resorted to excessive force.

30 At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivist, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence.

Conclusion

43I am satisfied that this case falls in the high end of the range of cases for assault causing bodily harm, for the following reasons:

(1) The attack was unprovoked; (2) The attack was, to some extent, pre-meditated, as Mr. Scaglione had to either follow or track down the victim after the benign driving incident; (3) Mr. Scaglione continued the assault after the initial punch which caused the victim to become unconscious. He beat and kicked a man who lay unconscious at his feet. He left his victim lying unconscious at the back of a dumpster, knowing that he was likely in need of medication attention; (4) Mr. Scaglione has been repeatedly convicted of serious crimes of violence; (5) The injuries inflicted upon the victim were multi-faceted and required surgical intervention.

44The appropriate sentence in all of the circumstances (with significant consideration of the guilty plea and COVID issues) is as follows:

(1) Re the assault causing bodily harm, a custodial sentence of 810 days (approx. 27 months) less 229 days of enhanced presentence custody for a remnant sentence of 581 days; plus, a DNA order and s. 109 order for life. (2) Re the breach of release order, a custodial sentence of 90 days (approx. 3 months) consecutive to the assault causing bodily harm. (3) The total sentence remaining time to be served is 671 days in custody.

Released: June 28, 2021 Signed: Justice Angela L. McLeod

1The CPIC information is unclear. There are duplicated entries for multiple convictions.