Court and Parties

DATE: September 12, 2023 ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING v. MATTHEW PICANCO

SENTENCING PROCEEDINGS

BEFORE THE HONOURABLE JUSTICE P. WEST On September 12, 2023, CORNWALL Ontario

APPEARANCES J. Pilon Counsel for Crown E. Lavictoire Counsel for Accused

Endorsement

WEST, P. (Orally):

Background and Overview

I heard evidence in Mr. Picanco’s trial on December 1st and 2nd of 2022, and then I adjourned the matter until March 21st, 2023, where I gave oral reasons for judgement. I am not going to go through all of my reasons that I gave at that time, but I provided a judgement, it’s 34 pages long on that date in terms of my typed notes. But I gave my reasons orally so that Mr. Picanco could hear my reasons.

I think there are a number of aggravating circumstances in this case, but I have found Mr. Picanco guilty of a simple assault as it related to him sprinkling Yash Pathak and Jay Patel, his manager, with water. It was either with a sprinkler or with a hose of some sort with an attachment. What I do know is certain pictures were put in evidence and they were significant in not accepting Mr. Picanco’s evidence in any way, shape, or form as to the manner in which both Mr. Pathak and Mr. Patel ended up getting wet, which was observed by a police officer who came when the 911 call was made.

Mr. Pathak was part of a group of international students who were living in the basement of this bungalow house of which there were in effect three apartments, the basement apartment where the student live, and the apartment where Mr. Picanco lived at that point with his partner, his common law partner and his two children, one of which was a baby, the other at that point, I believe, would have been probably around three years, 2 1/2 years of age. There was a single individual who was living on the back apartment of that residence.

Mr. Picanco had run-ins with the students on many occasions, that was testified to by him, testified to by his partner because of noise, there were complaints made, although the evidence between Mr. Picanco and his partner were completely divergent and inconsistent. His partner's evidence was that the students were pleasant and courteous and respectful with her when she would ask them to turn music down, and they would do that. She did not give any, in any way shape or form, similar evidence to that of Mr. Picanco.

Mr. Picanco, it became clear to me in his evidence during the trial that he had certain attitudes and beliefs as it related to these foreign students and their ability to be in Canada, and the rights that they have as persons who were studying in college, in Canada. I agree with the Crown that those attitudes are confirmed in the presentence report by a number of the things reported. There was no complaint made, other than by Mr. Picanco at the very end of sentencing submissions as to what was contained in the presentence report, but no complaint made at the outset when it was marked as an exhibit. And it's quite clear in that presentence report that the same attitudes and beliefs that Mr. Picanco exhibited and displayed and talked about in his evidence are reflected in comments that he made to the probation officer. That is a concern that I have given that all of the complainants in the two charges that I found Mr. Picanco guilty are persons of colour, and there are attitudes that he expresses that in my view perhaps provide some form of explanation for the conduct that he engaged in.

The allegation and the finding that I made of guilt and the conviction registered in respect of the assault, on its own would not have been that serious an offence because basically it was Mr. Pathak getting wet, Mr. Patel who was picking up Mr. Pathak to bring him to his employment parked on the street quite some distance away from where the house would have been situated on the lot. It looks to be about a good 60 to 70 feet, quite some distance, several car lengths is the grass. And Mr. Pathak indicated Mr. Picanco was watering some flowers that were closer to where the house was situated on the property, and the car would have been a full distance away. The police officer who attended saw and made note of the fact that Mr. Pathak was soaking wet and Mr. Patel, who had been seated in the car, in his evidence, in Mr. Patel's evidence was he never got out of the car, and that the hose sprayed water in through the open door when Mr. Pathak was moving quickly to get into the car, and the window may have been down and water came in and wet Mr. Patel. The officer’s evidence was that Mr. Patel was wet and the car was wet with water. And I did not accept Mr. Picanco’s evidence as to how that might have occurred. His evidence was he did not in any way shape or form spray either of these two gentlemen with water or Mr. Patel’s car with water, I did not accept that. In my view, he was not telling the truth, and I found that in my reasons for judgement. That is an aggravating circumstance as well, it's not just a difference of points of view in terms of evidence, it's actually indicating something that is not accurate. Even his comments to his partner based on her evidence was that he had told his partner that Mr. Pathak had bumped into him as he was setting up the sprinkler. That's not what he described in his evidence in chief and not really what he described in his cross examination. It was completely inconsistent with what his partner had testified to as part of the defence. That, in my view, becomes a circumstance to consider in terms of the appropriateness of a conditional sentence as I will discuss, as I indicate my reasons.

Sentencing Principles

I am mindful of the principles of sentence that I must apply in respect of a sentence that I should impose. Section 718 of the Criminal Code indicates that the fundamental purpose of sentencing is to protect society and to contribute along with the crime prevention initiatives to respect for the law and the maintenance of the peace for safe society by imposing just sanctions that have one or more of the following objectives. There's the discussion of denunciation, discussion of deterrence, both individual and general deterrence separating offenders from society, rehabilitation of offenders, reparations for harm done to victims or to the community, and to promote a sense of responsibility in offenders, an acknowledgment of the harm done to the victims or to the community.

Section 718.2 of the Criminal Code imposes other sentencing principles to be considered by a Court when determining a proportionate sentence. And under 718.2(a), which says a sentence should be increased or reduced to account for any relevant, aggravating, or mitigating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing. I indicates evidence that the offence was motivated by bias, prejudice, or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disabilities, sexual orientation or gender identity or expression, or on any other similar factor. Mr. Pilon for the Crown has pointed to that Section as statutorily aggravating circumstance. I find, based on my findings of fact in the reasons for judgement which are confirmed in the presentence report by certain comments made by Mr. Picanco that that is an appropriate consideration in determining a proportionate sentence.

The fundamental principle of sentencing is contained in 718.1 of the Criminal Code which says that a sentence must be proportionate to the gravity of the offence and a degree of responsibility of the offender.

In my view, the gravity of the offence of assault towards Mr. Pathak is increased because of this underlying attitude that Mr. Picanco has towards, in my view, persons of colour, persons from different countries, different ethnic backgrounds and different religions. He makes comments about that in his discussion with the probation officer and he made similar comments during his evidence in chief and in cross examination.

The Assault Causing Bodily Harm

I heard evidence from Mr. Baqi in respect of the injury that he suffered from, and the Crown put before me as an exhibit the medical reports, Exhibit 2 as to what was indicated in the emergency department after Mr. Baqi was transported by ambulance to the hospital here in Cornwall. In the CT scan he had swelling on the right side of his face, the Emergency Report indicates as did Mr. Baqi’s statements to the police which were put to him in cross examination that he was punched by Mr. Picanco as he had been forced to the ground by Mr. Picanco, and Mr. Picanco was on top of him punching him at least 10 times. In his evidence in chief, he talked about how that assault went on for about 5 minutes. When he was observed at the hospital there was description of how his right eye was closed from swelling, and he was bruised, and that the CT scan order showed a fraction of the right maxillary sinus extending to the inferior orbital rim. That is indicated in the report. And then later in, this is at page three of five of the emergency physicians notes. Fracture of the interior portion of the right maxillary sinus extends into the inferior orbital rim and the floor of the right orbit, bone fragments of the floor of the right orbit is depressed a distance of three millimeters. There was air fluid level present within the right maxillary sinus. There were gas bubbles noted within the right orbit, but no fluid collections, there are no other fractures other than this one fracture. He ultimately was referred urgently to ophthalmology and also was going to be referred urgently to a plastic surgeon. Mr. Baqi in his evidence during the trial indicated that he continued to have some difficulties a year later from the injury that he suffered.

As I talked about in my Reasons for Judgement, one of the comments made by Mr. Baqi, I think it was in his cross examination, had to do with as a result of his Police Foundations course he had learned how to ground someone, and he indicated that he did that to Mr. Baqi, and that he only had him on the ground for maybe a minute. But then when he was asking to be able to get medical assistance he let Mr. Baqi up so that he could call 911, and call for an ambulance, which made no sense in my view because Mr. Picanco’s evidence was he had not punched Mr. Baqi, he had taken him to the ground gently, he said he made sure he took him to the ground on the grass. That grass later became very hard because of the weather when he was confronted with the fact that there was a fracture to Mr. Baqi’s right cheek. His explanation for how Mr. Baqi’s injury occurred made absolutely no sense. Probably more important was the fact that Mr. Picanco apparently had been videotaping with his cell phone Mr. Baqi, and he showed that to the police officer who came, when the officer went to the door of his apartment, of Mr. Picanco’s apartment. And that Officer discussed that video with Mr. Baqi. What the Officer saw in the video was consistent with Mr. Baqi’s evidence, which was that he had come to the garage to put four tires in the garage, he had put two in initially carrying one in each arm, that is observed by the Officer on this video. He unlocks the garage door, puts those two tires inside, goes back to his Mazda 3 and removes two more tires, which he then puts inside the garage and then locks the door, gets back in his car and leaves. Within a very short space of time he does a U-turn out on the street and comes back into the driveway, gets out of his car and goes back to the garage door. There is no confrontation between Mr. Baqi and Mr. Picanco, he does not have any tires in his hands. And his evidence is he's going back to ensure that the door and the lock is actually locked because that is a concern that his father has expressed to him. Again, all of that is what is observed on the video is consistent with Mr. Baqi’s evidence, observed by the Officer on the video is consistent with Mr. Baqi’s evidence. There was no video produced during the trial, and in my view that was also significant, not that Mr. Picanco was under any obligation to produce any evidence, but he did testify. And the video he showed the Officer stopped at the point where Mr. Baqi comes back into the driveway, gets out and is walking towards the garage without any tires in his hands. Mr. Baqi’s evidence is it’s at that point that Mr. Picanco pushed him and then pushed him to the ground and got on top of him and punched him 10 times. That is not apparently on the video which the Officer was shown.

This is a very serious injury, it’s a very aggravating circumstance, the nature of the injury. Mr. Picanco’s position is that Mr. Baqi who is the son of the landlord and owner of the house, had a responsibility to give him 24 hours notice to go into the garage of which Mr. Picanco had no key and had no right to utilize in any way during his tenancy. In fact, his apartment is at the front of the house, nowhere near their garage which is at the back of the house. In my view, Mr. Picanco's conduct towards Mr. Baqi as described by Mr. Baqi and as observed by the Officer on this video is Mr. Picanco waiting, lying in wait for Mr. Baqi. And on the second occasion not only confronting him, he had videotaped him previous when he put the four tires in. Mr. Picanco testified there were at least eight tires, which I found in my reasons would be impossible to put inside a Mazda 3. And he then confronted Mr. Baqi and assaulted him with intention to cause injury, put him on the ground. Realized he had caused injury and that's why in his evidence he indicated I let him up, I let Mr. Baqi up so he could call for assistance from ambulance, from paramedics. That's exactly what happened.

So, as I say the first assault of the spraying of water on its own would not have been a serious assault, but when one adds the attitude and the expression of what I would consider bias or racist views towards Mr. Pathak and the other international students that were living in the basement apartment, it aggravates and increases the seriousness of that assault. The assault on Mr. Baqi is extremely serious.

Those are the facts, and I set them out in greater detail in my Reasons for Judgement.

Pre-Sentence Report

I advised Mr. Picanco when I found him guilty on March 21, 2023, that I was going to be ordering a presentence report given the Crown was seeking a jail sentence. I believe Mr. Goldstein told me at that time that the jail sentence he was seeking is the same one Mr. Pilon told me about today of 14 to 18 months, looking back at my notes from that day. That is a serious sentence for someone who has a four-month conditional sentence for failing to stop or flight while pursued by a Peace Officer under Section 249.1 of the Criminal Code as it then was when he received a conditional sentence and then probation that followed and prohibition not to operate a motor vehicle for 12 months. That, as Mr. Pilon says is a serious sentence and is a jail sentence, although allowed to be served in the community. But for a first offence that indicates there were serious underlying and aggravating circumstances underlining the commission of that offence.

I indicated that I wanted the presentence report to Mr. Picanco and indicated the importance of coming with other individual’s names and phone numbers so that the probation officer would be able to get fulsome information about his background because that would be important to me. Mr. Lavictoire indicated at that time, and again made the same submission today for a conditional sentence in respect of the conduct of Mr. Picanco that I found him guilty of.

Mr. Picanco neglected to attend for three appointments with the probation officer that were scheduled. He has different explanations for why that occurred. The fact of the matter is on the first two he did not call to reschedule. They are set out in the presentence report, and in fact there was a letter that was sent by the probation officer in June to the court indicating that they did not think that they were going to be able to complete the probation PSR by the September 12 date here in Cornwall and were going to have to ask for an adjournment. When I inquired, I finally got that letter last week I believe on the Thursday is the first I became aware of it. Apparently, it had not been sent to me even though it was attached to the information. The very next day on the Friday of last week, which would be the 8th I believe, the PSR, the presentence report was received by the court and they provided a copy to me. I reviewed it over the weekend. Apparently, Mr. Picanco missed his third appointment, but he did call when that occurred and requested to set another, he finally came in to see the Probation Officer at the end of August 2023. He did not provide any names or phone numbers as he indicated to presentence preparer that he would. His partner, who is no longer his partner, they are separated, I don't know the circumstances behind that or how long that has gone on because it's not discussed in the presentence report whatsoever. But the partner was attempted to be contacted by the probation officer numerous times and no callbacks at all. Mr. Picanco had told the probation officer that he was going to provide collateral contact names and phone numbers, but again did not follow through with that either. So, everything in this pre-sentence report solely comes from Mr. Picanco.

Positions of the Parties

The difference between the Crown and defence counsel in terms of sentence, their positions are far apart. I believe Mr. Lavictoire’s position is a conditional sentence of 6 to 12 months with probation to follow of two to three years. He referred to that as a lengthy conditional sentence. And if that is not something I would consider his alternate submission was that an intermittent sentence, perhaps he didn't give the time, but the maximum would be 90 days on the assault bodily harm with a conditional sentence on the assault with the water spray would be an appropriate sentence. The Crown's position was that a 14-to-18-month jail sentence, in real jail, was the appropriate disposition, with two to three years of probation to follow.

Analysis

The law with respect to conditional sentences has changed over the last number of years repeatedly. When it was first introduced in 1996 basically was available for any offence if certain criteria were met; namely that the sentence to be imposed was not greater than two years less a day, that the individual rehabilitation there was no indication the person wouldn't abide by the terms and conditions of a conditional sentence. As time went on there were certain offences that were excluded from conditional sentences. There was a period of time when just about many many sentence and many many offences were excluded in the legislation and then our Court of Appeal in a case called Sharma indicated that what existed, I think that's either 2019 or 2020, but that the way that conditional sentence legislation under 742.1 of the Criminal Code was set out, it was unconstitutional particular as it related to indigenous or aboriginal offenders. And then Justice Feldman who wrote that judgement left it open that it was also unconstitutional for any offender, they did not have to be Indigenous background.

Supreme Court of Canada heard Sharma and allowed the Crown appeal and said that the Ontario Court of Appeal was in error and a week later the current Federal Government brought in new legislation that did everything that Sharma indicated and more. There are only a handful of offences, very serious offences, terrorism being one, that do not have available to them a conditional sentence.

So, a conditional sentence even in terms of the numbers that are being sought for by the Crown and by the defence certainly fall within a conditional sentence.

The concern that I have, and I have several concerns as to why a conditional sentence is not appropriate in this case, in the facts of this case. First, is this underlying attitude that it was evident in Mr. Picanco’s evidence, and his evidence in the presentence report, confirmed in the presentence report, that causes me concern for imposing a conditional sentence that the terms will be complied with because there are very strong attitudes on Mr. Picanco’s part that in my view contributed to both sets of assault that took place.

Further, Mr. Picanco did not report when he was required to report and did not follow up with phone calls to say whether he was sick or the heat was a problem or that he had to look after his children, he had all sorts of explanations as to why that didn't happen. There are a number inside the presentence report, and he gave me more of them today. That causes me concern for imposing a conditional sentence because it shows that he can't keep appointments when those appointments are extremely serious. And that causes me concerns about his complying with a conditional sentence.

Mr. Picanco had a trial, which is his right to have, he pled not guilty, that is his right, and I cannot punish him for having a trial and I do not. However, there are numerous cases in our Court of Appeal that indicate that a conditional sentence may in fact not be an appropriate proportionate sentence considering aggravating circumstances present, and one of those cases is a case called R. v. McLellan, 2012 OJ 5028, where Justice Tulloch as he then was for the Court of Appeal, had this to say, and I’m quoting one of the paragraphs from that judgement. Lack of remorse and insight are factors that the trial judge was entitled to take into account in considering the appropriateness of a conditional sentence, see Regina versus Nguyen, 2006 OJ 796, also a decision of the Ontario Court of Appeal. Regina versus T.R.J, 2004 OJ 1286, also a decision of the Ontario Court of Appeal. The presence or absence of remorse and an assessment of whether an individual displays insight into his or her offending conduct are relevant considerations for a trial judge in deciding whether a conditional sentence will be consistent with the purposes and principles of sentencing.

In my view Mr. Picanco has little or no insight or awareness of his offending conduct having regard to comments that he’s made both in his evidence and what he said to the presentence preparer. And it would be inappropriate to and not proportionate and not appropriate to impose a conditional sentence having regard to his lack of insight and lack of remorse. Rehabilitation is not the most important principle of sentencing in my view, and this is agreed to by Mr. Lavictoire. Deterrence and denunciation are the paramount concerns of sentencing. I do think though given Mr. Picanco’s young age, he's 29, he was 27 I believe when the events occurred. He has stayed out of trouble. He hasn't got, I'm told, any outstanding charges. In my view, I think the 14 to 18-months real jail sentence by the Court is high. But having regard to the injuries suffered by Mr. Baqi and the seriousness of those injuries and the unprovoked assault that occurred by Mr. Picanco where I found in effect he lay and wait when he saw Mr. Baqi pull into the driveway a second time. The first time he took video, but he did not take video the second time when Mr. Baqi got to the garage door, that's when the video that he had taken before stopped, and that's when he assaulted Mr. Baqi in the manner that I described in my Reasons for Judgement, and on the evidence of Mr. Baqi which I accepted completely. That in of itself is a very serious assault.

Sentence and Disposition

In my view, I think the appropriate sentence taking into account principles of rehabilitation and exercising restraint which the Criminal Code requires me to do, I am going to impose a sentence of seven months with respect to the assault causing bodily harm. With respect to the assault as it relates to Mr. Pathak, that will be an additional consecutive 30 day sentence. In my view, the aggravating circumstances that I have set out indicate that there needs to be a real jail sentence as it relates to that offence. I don't see an intermittent sentence as being appropriate or proportionate having regard to the seriousness and gravity of the offences. As I’ve explained I see even the spraying of water to be a serious offence having regard to Mr. Picanco’s underlying attitudes toward persons who are from other countries with different languages. And the assaults on Mr. Baqi is a very serious assault causing bodily harm, high gravity in respect of that offence.

Mr. Picanco’s moral blameworthiness in respect of both offences is high in my view having regard to the circumstances. And for that as a result of that, in my view, a global sentence of eight months in real jail is appropriate. This will be followed by two years of probation, and these will be the terms of that probation. There are statutory terms such as the most important which is keep the peace and being good behavior, it means that you're not to commit any other criminal offences. You're to appear before the Court when required to do so by the Court and notify the Court and probation officer in advance of any change of name or address, and promptly notify the Court or Probation Officer of any change in employment or occupation. This will be a reporting probation. You will report in person to a Probation Officer within three working days of your release from custody, and after that at all times and places as directed by the Probation Officer or any person authorized by the Probation Officer to assist in your supervision. You'll live at a place approved of by the Probation Officer and not change that address or obtain any consent of the Probation Officer in advance. You're not to contact or communicate in anyways, directly or indirectly of any physical, electronic, other means with Yash Pathak and Jay Patel, and Ameer Baqi, and there are no exceptions in respect of that. You are not be within 100 meters of any place where you know any of those persons named above live, work, go to school, frequent or any place you know those persons to be, again no exceptions. You're not to possess any weapons as defined by the Criminal Code for example a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person. You are to attend, actively participate in all assessment or rehabilitative programs as directed by the Probation Officer, complete them to the satisfaction of the Probation Officer. For programming aimed at addressing pro-criminal attitudes such as the Connections Program or any other counseling or rehabilitation programs recommended by the Probation Officer. And you’ll sign any release of information forms as will enable your Probation Officer to monitor your attendance, completion of any assessments counseling or rehabilitative programs as directed. There will be a DNA order Mr. Pilon, or Mr. Clerk if you could advise me in this jurisdiction, is it I need to give a date and time?

CLERK OF THE COURT: No Your Honour.

THE COURT: He's going into custody, so it won't matter, but---

CLERK OF THE COURT: It should be taken today.

THE COURT: And it will because he's going into custody.

So, there will be DNA taken, it'll be under Mr. Clerk both offences, the assault and the assault bodily harm. The assault is secondary designated offence, but I'm exercising my discretion to make that order. The assault bodily harm is primary designated.

There will be a, in addition at Section 110 order and it will be for a period of 10 years. And while Mr. Picanco is in custody there will be a Section 743.21 order prohibiting him from contacting in any way, directly or indirectly, the three named individuals that I put into the probation order, so those same 3 individuals. Probation, to make it very clear, it’s two years.

That's my sentence.

Certificate of Transcript

FORM 2 Certificate of Transcript Evidence Act, Section 5(2)

I, Michelle Lewis, certify that this document is a true and accurate transcript of the recording of Picanco in the Ontario Court of Justice held at 29 Second Street West, Cornwall, Ontario, taken from recording(s) No.4810_1206_20230501_0928_6_BREWERC which has been certified in Form 1 by N. Champagne.

September 21, 2023

(Date) (Signature of Authorized Person)

Michelle Lewis Act ID:3457107255