DATE: August 7, 2024 Information No. 4810 998 23 48102183-00
ONTARIO COURT OF JUSTICE
HIS MAJESTY THE KING
v.
KADAH DEMATAS
Reasons for Sentence
BEFORE THE HONOURABLE JUSTICE B. BROWN
on August 7, 2024 at TORONTO, Ontario
APPEARANCES:
J. Casey Counsel for the Crown J. Schiller Counsel for Kadah Dematas
The defendant, Kadah Dematas, was charged in what now appears to be a relaid Information with a series of offences in relation to June 29, 2021. The Crown proceeded by indictment in a trial before this court related to four counts related to assaults on two police officers who engaged in arrest of Mr. Dematas on that day. The court would note that after the trial, the court learned that Mr. Dematas had entered a guilty plea before another judge in relation to the same incident for firearm charges in a separate Information.
In relation to the charges before this court, Mr. Dematas was, after the trial, found guilty a long time ago, on October 4th, 2023, of assault with a weapon and assault cause bodily harm, both to PC Subramanian – I can give spellings to the court reporter later – and of assault cause bodily harm to PC Miller. These are offences contrary to s. 270.01 of the Criminal Code.
Following that date, the defence has requested multiple delays in the sentencing of this case, awaiting information to put before the court. The court finally indicated that it would be proceeding to the sentencing process without further delay.
Given that the Crown proceeded by indictment, the maximum penalty for each of these offences is ten years incarceration, and the sentences imposed must be consecutive to each other, and any other offence arising out of the same incident, see s. 270.03.
The matter is now before the court for the imposition of sentence.
The Facts
A. Circumstances of the Offence
Members of the Guns and Gangs Task force obtained a Criminal Code search warrant in relation to a firearm they believed to be possessed by Mr. Dematas. Surveillance prior to the arrest gave officers reasonable and probable grounds to believe that Mr. Dematas had a firearm in the pocket of his pants. The assaults by Mr. Dematas took place during the arrest of Mr. Dematas by two police officers, Guberan Subramaniam and Christoper Miller, during which time Mr. Dematas struck Officer Subramaniam in the head with a bottle and Christopher Miller was assaulted throughout the struggle. These assaults caused bodily harm to both officers.
At the time of arrest, Mr. Dematas was in possession of a firearm in his pocket, which was later determined to be loaded. As indicated above, this court will not be sentencing Mr. Dematas in relation to the firearms charges arising from his entry of guilty pleas on those charges which are in a separate Information and are before another judge for sentencing.
At the trial, the defence argued that Mr. Dematas did not realize that the two officers were police officers. The defence also argued that the action in striking the officers were reflex actions. Thirdly, the defence argued self-defence in relation to his actions. Ultimately, notwithstanding these arguments, the court found Mr. Dematas guilty of the charges.
There is no issue that DC Subramaniam suffered bodily harm and was struck by a bottle, being the actus reus for the defence of assault cause bodily harm and assault with a weapon of him as a police officer in this case.
The court reviewed the evidence at trial in extensive detail in its reasons for judgment and reference should be made to those reasons for a more comprehensive review of evidence in this case.
The court will only summarize the facts as required for the purpose of the imposition of sentence at this stage.
The arrest and events related to the assaults on the officers were captured in surveillance video of the area just in front of the elevators in the building and just outside the superintendent’s office.
Just prior to 11:45 p.m. on the day of the incident, both officers were in the superintendent’s office in the building, where the arrest took place. At 11:45 p.m., DC Subramaniam left the superintendent office, with DC Miller following behind, wearing the police vest stating “Police” in large letters. At that time, Mr. Dematas was facing the elevators. As was later determined, he was holding a cell phone, face mask, and a beer bottle.
As DC Subramaniam entered the area, he had his hands down at his side. Mr. Dematas quickly turned to face him. DC Subramaniam yelled, “Police. Don’t move.” DC Subramaniam maintained that Mr. Dematas would have heard the first part, the word “police”, before Mr. Dematas hit the officer, if not the full phrase, “Police don’t move.” DC Subramaniam described his volume as loud enough for Mr. Dematas to hear, in a commanding tone, that he comply with the demand. The part of the demand yelling the word “Police” was stronger, as it was at the beginning, than the other two words, “Don’t move.”
In that same second, DC Miller exited the office, wearing his vest with “Police” in big letters on it, and his firearm drawn.
DC Subramaniam described the response of Mr. Dematas as taking a fighting position, which can be seen in the video and photograph evidence.
DC Subramaniam reached for Mr. Dematas’ arm. In the officer’s evidence, it appeared that when Mr. Dematas took the fighting stance, he was getting ready and prepared to fight the two officers.
Almost immediately after the command, “Police Don’t move,” Mr. Dematas struck DC Subramaniam in the head, hard, swinging in an overhead motion, striking the officer in the head with a glass bottle that he was holding. He hit DC Subramaniam so hard that the officer’s body folded a little bit. It connected with his forehead and DC Subramaniam was a little dazed and confused, seeing stars. He described that he came back into it half and half but had what he referred to as a “baby deer legs.” He slipped on the floor. He did not know if he was slipping on liquid on the floor or if it was just his legs. He felt pain in his forehead and he touched his head. He blacked out for a time but he was not unconscious. DC Subramaniam indicated that luckily he was hit in the hard part of his head.
While this was happening, the other members of the Guns and Gangs team, to assist in the arrest, were unable to gain entry to the interior of the building where the struggle was taking place. DC Miller had a gun in his hand. Mr. Dematas had a gun in his pocket, according to DC Miller’s belief.
After Mr. Dematas struck officer Subramaniam with the bottle, the fight was on between DC Miller and Mr. Dematas. The video shows right after this Mr. Dematas struck DC Miller to the side of his face. DC Miller testified that Mr. Dematas was in very good shape. He intended to do a double-leg take-down to tackle him to the ground, however he could not control Mr. Dematas with one hand and the gun in his other hand.
The gun went down on the floor. He slipped on the beer, which had come out of the bottle. He described the motions in the struggle. The video shows Mr. Dematas striking Officer Miller.
Detective Constable Miller, at one point, tried to prevent Mr. Dematas from getting access to his pant pocket, where the gun was located. He struck Mr. Dematas in the head area as a distraction blow to distract him from trying to get the gun in his pocket. He described Mr. Dematas as actively trying to fight both of the officers and blocking the take-downs by DC Miller by sprawling, by moving his weight forward onto his chest to block the officer’s tackle attempts.
For the duration of the event, Officer Miller was yelling, “Stop resisting” and probably swearing.
DC Miller testified that Mr. Dematas put both of his hands on DC Miller’s shoulders to block him from taking him down to the ground. When they went down on the floor, Mr. Dematas had his right arm around DC Miller’s left ribcage. From the video, Mr. Dematas put his other hand around the back of the head of DC Miller, pushing his head down onto the floor, then putting his left hand around DC Miller’s shoulder area. He, at one point, had both of his hands on either side of DC Miller, while Mr. Dematas was leaning over the back of Officer Miller’s head. Then Mr. Dematas’ left hand was free and DC Miller feared he was going to try to try to reach for the handgun of DC Miller, that at that point had gone down on the floor.
DC Miller and Mr. Dematas were hand-fighting. At one point Mr. Dematas’ hand was grabbing at the front of DC Miller. Mr. Dematas used his legs to twist around DC Miller’s leg. DC Miller testified he did not know how the cuts were caused to his body, nor the exact cause of bleeding in his body.
DC Subramaniam saw DC Miller struggling with Mr. Dematas in the corner front area of the lobby. DC Subramaniam tried to engage but his arms felt rubbery. DC Miller was struggling, trying to control the arms of Mr. Dematas and to get a hold of him. DC Subramaniam described himself as still not fully there. At one point DC Subramaniam saw Mr. Dematas hold DC Miller in a headlock, which can restrict breathing. He felt that Mr. Dematas was doing what he could to disable the officers. It was getting out of control. He also felt Mr. Dematas had a firearm in his pocket. He had already caused an injury to the head of DC Subramaniam. Usually that would make a person unconscious. At this point Mr. Dematas was getting the best of the two officers.
Officer Subramaniam described his situation as dazed and seeing stars, having a concussion, holding on for dear life for the opportunity to stop Mr. Dematas from hurting them.
DC Subramaniam testified that throughout, he continued to make commands, more aggressive as time went on, yelling, “Police. Don’t move. Stop resisting,” and using curse words, “Don’t fucking move. Stop fucking fighting with us,” being as aggressive as he could in his commands. He felt he had to use those words to match Mr. Dematas’ aggression. DC Miller was also yelling, but DC Subramaniam does not know what he was yelling.
At some point, DC Subramaniam saw that a gun had fallen on the floor. At one point DC Miller had a dominant position on top of Mr. Dematas, then Mr. Dematas flipped DC Miller over onto his back. In his mind, DC Subramaniam thought he was trying to kill them. He worried that Mr. Dematas would get the best of them and they could get really hurt or die. Then DC Subramaniam got to his back and put Mr. Dematas in a chokehold and put his leg around his waist with as much pressure as he could to get Mr. Dematas to stop fighting. Then DC Miller got his head out of Mr. Dematas’ arms. Mr. Dematas did not stop moving. They still did not have control over him. Officer Subramaniam could not see what DC Miller was doing but at some point Mr. Dematas finally started to calm down a bit, although he was still tensed up.
Finally, DC Subramaniam straddled Mr. Dematas’ back and put him a chokehold, then they fell. Then he ended up on top of Mr. Dematas. Mr. Dematas was still trying to fight the officers. He was grabbing at DC Subramaniam’s arms. DC Subramaniam was trying to use all the force he had but he did not have a lot of force because he’d been hit in the head.
It is very important to review the video to see the actions of Mr. Dematas related to DC Miller and the assaults by Mr. Dematas to DC Subramaniam that are evident in this video.
DC Miller pulled the firearm out of Mr. Dematas’ pocket pants and said, “Gun.” Moments later DC Miller left Mr. Dematas in the control of DC Subramaniam at approximately 11:46. DC Miller went to let the other officers in from the front lobby in order to have them assist.
The road boss for the complainants, being Detective Constable Sean McKeown, described how he was at the front of the building and unable to enter as he had no key fob and no physical means to break through the second front door to get to the area where Officers Subramaniam and Miller were located. He could see the officers in a struggle with Mr. Dematas and he was very concerned about the fact that Mr. Dematas might have a firearm. He violently tried to get through that door. He felt helpless. He was worried as the two officers did not seem to be able to get Mr. Dematas under control.
DC Miller finally let DC McKeown in and the other officers also entered the area. They were relieved to see DC Subramaniam and DC Miller and to allow them to get medical assistance.
Photographs were taken of the items on the floor at the scene of the struggle. The firearm that had been possessed by Mr. Dematas was seized and proved safe. The firearm was a 9-millimetre loaded firearm and had a magazine in it and one round in the chamber. It was ready to be fired. The officer did not think the safety was on it, although he could not be certain.
The court finds that Mr. Dematas was not acting with a reflex action in raising his right hand and arm to strike DC Subramaniam in a strong downwards motion, hitting DC Subramaniam in the head with the glass bottle. He initially took a step and thought again and recalculated his response. He chose to use the glass bottle in his hand to hit the officer in the head hard and potentially take him out of any struggle. This blow was started prior to DC Subramaniam even touching him.
The action of Mr. Dematas striking the officer in the head with the bottle was the first assaultive act, and it was not a reflex response to a lunging and grabbing by DC Subramaniam. The court finds that Mr. Dematas’ action of striking DC Subramaniam in the head with a bottle was calculated and intentional. The court finds that Mr. Dematas knew from first hearing DC Subramaniam yell “Police,” which the court finds Mr. Dematas did hear, and seeing DC Miller with “Police” on his vest, that he knew they were police officers.
The court finds that Mr. Dematas did everything he could to get away from the officers after striking DC Subramaniam. The court finds that Mr. Dematas assaulted them in the course of the struggle, as shown on the videotape. There is no need for there to be a punch to be an assault. One can see him hit DC Miller initially near the door. He was grabbing them, which is an assault. He was using his legs to apply force to the officers. He put DC Miller’s head into a hold. He was grabbing at the officers. He grabbed DC Miller in the torso area. He was rolling with the officers into different positions on the floor. He was a proficient fighter, engaging in a struggle with one officer he had somewhat disabled by hitting him in the head with a bottle and struggling at length with the second officer over whom he had the upper hand for a period of time.
The action of striking DC Subramaniam with a glass bottle in the head was not in self-defence, but rather was the first assaultive action. The court finds that Mr. Dematas knew, before striking DC Subramaniam, that they were police officers. He admits he knew at 13 seconds into the video, if not earlier. He continued to fight both police officers, assaulting them by his actions shown on the video, for some time after that.
The court finds that given that it is the Crown’s obligation to negative self-defence, that the Crown had proven beyond a reasonable doubt that Mr. Dematas assaulted DC Subramaniam as an intentional act of simply wanting to hit him in the head and to potentially disable this officer physically. It was not an act by Mr. Dematas for the purpose of defending or protecting himself. The absence of the requisite purpose of Mr. Dematas acting in self-defence disentitled him from that provision, even if an application under s. 34(3) did not disentitle from a consideration of the defence.
In the end, the court found that Mr. Dematas acted intentionally, and not by reflex action, in striking DC Subramaniam with a weapon. He had the mens rea for that offence, together with the actus reus for that offence. He was not acting in self-defence.
The court finds that the Crown has proven beyond a reasonable doubt that Mr. Dematas knew that DC Subramaniam was a police officer before he struck him in the head with a bottle; that he did so intentionally, not as a reflex action, and was not acting in self-defence. As a result, Mr. Dematas was found guilty of assault with a weapon as it related to DC Subramaniam.
There is no doubt that his assault of DC Subramaniam caused bodily harm to him, including the concussion, abrasion with stitches, and related injuries. The court had, in coming to this finding, accepted the evidence that DC Subramaniam sustained a concussion, resulting from the blow to his head by Mr. Dematas with a beer bottle, which was a glass bottle. This broke the bottle and caused liquid to fall all over the floor. DC Subramaniam had two stitches to his forehead, which later had to be removed. He was required to get rest, stay away from the television, and stay in a room with low lights for 48 hours. He had to have someone check on him when sleeping. He had headaches for a few days. It took it a while for the laceration on his forehead to heal, longer than a week.
However, DC Subramaniam also had other injuries, including bruising around his arms and inflammation to his knee. All of his right side, his rib cage area, right arm, bicep and forearm on his right side were scratched and bruised. He could not do any physical activity for seven days. As a result, Mr. Dematas was found guilty of assault cause bodily harm in relation to DC Subramaniam. The court would note that there was bodily harm occasioned independent of the blow to the head, which caused the concussion.
As it related to DC Miller, the court found that Mr. Dematas acted further to his initial assault on DC Subramaniam by continuing intentional assaultive behaviour in putting DC Miller in a hold, grabbing at him, grappling with him, and causing various injuries to Officer Miller. He assaulted DC Miller by striking him in the head more specifically, the side of the face. The court finds that the assaultive behaviour of Mr. Dematas towards this officer caused the cut to the right side of his forehead, which took a couple of weeks to heal, and headaches which he had for a few days.
Similar to his actions towards DC Subramaniam, the court found that Mr. Dematas knew that DC Miller was a police officer. There was no reasonable basis to find that DC Miller was acting unlawfully. Mr. Dematas was disentitled from the consideration of self-defence as the officer was entitled to arrest him. His actions in assaulting DC Miller during the struggle were not in self-defence. He assaulted DC Miller and was actively resisting being arrested. He was not acting by means of reflex action when he assaulted DC Miller.
DC Miller sustained the injuries as indicated. The cut to his forehead was just below the hairline and was shown in a photograph put in evidence. As indicated, it took a couple of weeks for that to heal. He also had his thumb on his right hand sprained, and he was sore all day for a week, and it took maybe a week or two for this to heal. He also had a knee injury, but the court does acknowledge that he had a previous knee injury and it seems that both injuries contributed to the need for knee surgery.
Mr. Dematas was found guilty of assault cause bodily harm in relation to DC Miller in relation to the portion of the struggle where he assaulted DC Miller causing the injuries noted.
The Circumstances of the Offender
Mr. Dematas is currently 25 years of age. He was 22 years of age at the time he committed the subject offences. He has been in custody for the past three years. Prior to that, he was sentenced on July 22nd of 2022 to a sentence of one year after consideration for pre-sentence custody. The subject offences were committed on June 29th, 2021. This means that Mr. Dematas was out of custody within the one-year period of the one-year sentence that had been imposed on him. The court is not aware of the nature or timing of this release from custody from serving that sentence, but it is quite clear that he committed the subject offences shortly after being released into the community for those charges.
Defence counsel advised that Mr. Dematas was raised by his Indigenous mother, who was in court on the last date to show her support. He only met his father a couple of times when he was 13 years of age. Defence counsel advises that his father is black.
Mr. Dematas has a very serious criminal record. On October 25th, 2017, he was sentenced for possession of a firearm, knowing this possession was unauthorized, and sentenced, in light of pre-sentence custody credit of 306 days (for 204 actual days of pre-sentence custody), to a further 59 days jail and two years probation. He was also, at that time, given a s. 109 mandatory weapons prohibition order for life. This was a sentence equivalent to one year in jail. The reasons for sentence in that case are before the court in the Crown materials. It was a joint submission on a guilty plea. That offence related to a 9 millimetre handgun, which he had on his mattress, and it had been under his head when police officers attended at his residence. There were a few rounds of ammunition in the magazine in the firearm at the time. There were additional loose rounds in the area of the firearm.
At the time of the sentence, Mr. Dematas was 19 years of age. He was born in 1998. He said he was looking forward to going back to live with his mother. He had completed grade 10 at an alternative school for young Black males called Redemption Services in Toronto. At the time, he said he wanted to be a lawyer.
Less than three years later, on July 21, 2020, he was sentenced for nine offences. The reasons for sentence are also before the court in the Crown materials. Those convictions followed a trial, and it arose out of a home invasion and shooting of an occupant of the home committed by Mr. Dematas and his co-accused, Mr. Christopher Lucas.
On the charge of discharge firearm with intent, in light of five years pre-sentence custody credit, Mr. Dematas was sentenced to a further one-year jail in a s. 109 mandatory weapons prohibition order. And then, on charges of possession of a loaded prohibited or restricted firearm, aggravated assault, assault with a weapon, use of firearm during commission of an indictable offence, unauthorized possession of a firearm, possession of a firearm knowing its possession is unauthorized; careless use of a firearm, weapon, prohibited device, or ammunition; and armed robbery using a firearm, he was sentenced to one year on each of those charges concurrent, together with another s. 109 mandatory weapons prohibition order. This was equivalent to a six-year penitentiary sentence.
The court noted that Mr. Dematas also had a previous youth record. Mr. Dematas did not have an employment history, nor had he sought to improve his education since he left school at the age of 16 years. Mr. Dematas was 18 years of age at the time of committing those offences, and 21 years of age at the time of sentence. While in custody awaiting trial and sentence, the conduct and attitude of Mr. Dematas has improved. He has completed a number of programs while in custody.
The trial judge made the following comments at para. 30 of his reasons for judgment:
Mr. Dematas apologized for any harm or consequences that came to anyone because of his actions. He explained that he has been incarcerated a total over a three-year period from 18, which includes the time he has served from April 4th, 2017, on the October 25, 2017, charges. Mr. Dematas told the court that during his detention period he has had plenty of time to think about his mistakes and the direction his life has taken from his youth. He said he feels he has had the opportunity to grow into an adult over those three years. Mr. Dematas has had the support of his mother and girlfriend. He spoke of the positive side of being in prisons, telling the court that he might not be alive today were he not in prison, given the dangerous lifestyle he was leading.
The Crown made the submission before this court that the comments of Justice Allen, being the trial judge and sentencing judge in that case, reflecting positive changes being made in his life at the time of that sentence are very much consistent and similar to the comments made by Mr. Dematas at the current time.
In the reasons for sentence in 2020, the judge noted that he had support from his mother and girlfriend, Julie. At the time, the court noted his difficult upbringing. He advised that he had been emotionally abused by his stepfather. He had no relationship with his biological father, having only seen him twice. The CAS had been involved with his family. He did not do well in school, and associated with a negative peer group which led him to leave the school at the age of 16 years. When he was 15 years of age, his mother had him hospitalized for out-of-control behaviour. He had a close relationship with his mother.
In relation to the offence, the court noted that he was not the person who shot the victim. He displayed genuine remorse prior to sentence. At that time, the defence submitted a letter from the Forgiveness Project, which is also touched upon in this case, which supported Mr. Dematas’ words about his plan for the future direction of his life. He had been a long time participant in the program while at the Toronto South Detention Centre. The sentencing judge found that he was a young man, amenable to rehabilitation, and a change in his lifestyle post-release. The court found that the appropriate sentence was one of six years, exclusive of Summers, Duncan, and pandemic credits.
The court also has before it a report a report from Aboriginal Legal Services dated May 1, 2024, addressed to this court. While this report did set out a number of circumstances, in the end, the author indicated that she was unable to prepare a Gladue report. This arose from two reasons: Firstly, she noted the lack of certainty which Mr. Dematas shared about the specific nature of his Indigenous ancestry.
More specifically, his mother’s membership in Eastern Woodland Métis area of Nova Scotia, has not been recognized by any government and it appears in the information before this court that anyone that asks for membership can be a member of that group without any proof of Indigenous background. Moreover, Mr. Dematas is not a member of that group. Also, there is no indication that he or his father have a Métis background.
Secondly, even if his ancestry could be confirmed, he indicated that they could not address how being an Indigenous person has affected his life circumstances. The Crown and defence both, nonetheless, take the position before this court that notwithstanding this report from Aboriginal Legal Services, the court should consider Mr. Dematas as an Indigenous offender applying the Gladue principles to his sentence.
The Crown further submitted that the paramount principles for assault police officers are denunciation and deterrence, and separation of offenders, that the reduction of sentence that might apply in light of Mr. Dematas’ Indigenous background should be minimal. The court, nonetheless, does consider his Aboriginal or Indigenous background as set out in the materials before this court.
As it relates to any unique system or background factors that may have played a part in bringing Mr. Dematas before the court, the record is deficient in assisting the court. The court acknowledges and considers that Mr. Dematas has made efforts to connect with his indigenous identity while in custody at Toronto South awaiting sentence, and this is a factor that the court will consider.
The court does not have before it the young offender record for Mr. Dematas. A lot of the material that could have been obtained for the pre-sentence report is not before the court. Unfortunately, due to the position of defence counsel wanting to obtain a Morris report, rather than a pre-sentence report, the court now finds itself in the unfortunate position of having to sentence Mr. Dematas without either a Morris report, nor a pre-sentence report.
Nonetheless, the court relies upon other material before this court in illuminating various facts related to Mr. Dematas, some of which are outlined in the reasons. A lot of the material is also in the materials put before the court by the Crown related to the prior conviction and sentence. Unfortunately, notwithstanding the defence’s position that the defence wanted the court to consider the unique background circumstances of Mr. Dematas, it has made almost no submissions in that regard.
Mr. Dematas made a lengthy statement at the conclusion of submissions of counsel after previously declining to give sworn testimony and being questioned. In that statement, he indicated that he has spent a long time in custody between being a youth and growing up in custody. He mentioned acquired behaviour growing up in a reformatory leading him to act in a certain way not suitable for the outside. He indicated he has had time to think about matters from the ages of 18 to 25 years while he was in jail. He has missed 11 or 10 birthdays for himself and his family.
He indicated that his mother has reached an age where she needs family support, but he is in jail, and he cannot provide that support. He also indicated this is the fifth year of his brother’s death following an occasion where he was gunned down on July 17th of 2019. He indicated upon release it’s hard to understand that his brother is gone. He could not say where or when or what to do to fix this situation of his brother having been shot. He referred to his mother’s bad health issues.
He indicated that when he gets out of custody he will reach out to Tara Muldoon to get a job to change his generic pattern, but he indicated in the past, due to the COVID pandemic, everything closed down in 2021 and he went through hard times looking for jobs.
With respect to the subject offence, he indicated it is a form of relapse. He indicated that he should not have smoked weed or drank, especially given his cannabis psychosis diagnosed at the age of 14 years. He indicated he has taken full ownership of his action. He then said he apologizes to the community and the Crown.
He said he hopes the court can understand the factors of his situation. He wants the court to understand that he went through mistakes in the past that he cannot fix. He can only work on the future, if the court allows him. Then he mentioned he had obtained a 97 percent average on the courses that he had recently taken. This is a paraphrasing of the statement that Mr. Dematas gave.
The court has considered the certificates for completion of the various programs by Mr. Dematas at the Toronto South Detention Centre, including for the following one-hour educational session programs: Anger Management, which he appears to have taken twice; Setting Up a Budget, Understanding Feelings, It’s a Gamble, Looking for Work, Changing Habits, Goal Setting, Substance Use, Recognizing Healthy Relationships, Supportive Relationships, Thoughts to Action, Being an Effective Father, Planning for Discharge, Use of Leisure Time, Maintaining Employment, Black Speaker Series, Building Up Employment, and Managing Stress.
It appears there was a total of 17 hours of programming for this life skills program, a certificate for which he also received, in summary form, on July 6th, 2024. Subsequently, he’s also taken a Problem Solving course. He has also completed John Howard Society programs, including Getting Started, Drug and Alcohol Awareness, and Anger Management. He has also attended the Regent Park program for Overdose Prevention Training.
Significantly, the court would note Mr. Dematas has completed his secondary school program, as of the transcript dated April 25, 2024. The court was advised by his counsel that he intends to attend university courses while he remains in custody. While there is clearly evidence of misconducts by Mr. Dematas at earlier stages of his detention, the record is clear that this bad behaviour has lessened dramatically over the more recent period of time he has been in detention.
The defence called Tara Muldoon as a witness. She created an organization which was referred to by Justice Allen in the earlier entry on the record. The nature of this program is that it is called The Forgiveness Project. Ms. Muldoon had worked a prior eight years in corrections developing programs for education awareness and self-development. Subsequently, she has also become a chaplain. She started to volunteer and work to obtain funding as an arts organization for arts programming, leading to a 10-week academic credit with OCAD, based on self-reflection and forgiveness doing personal workshops and providing academic credit.
She first met Mr. Dematas at Toronto South in 2017. She filled out a document, a form provided to her by Mr. Dematas, that was filed as Exhibit 1 on sentence, the first page. She mentioned that he had no misconducts or fights in over a year and that he tried to teach others about culture and spirituality. He referred to his Indigenous culture often. She also indicated that in his assignments, he went above and beyond often completing homework before it was required. The court has considered the contents of that one page form. Her badge number was 323 and it is written on the bottom of her form.
The other two pages of the exhibit were filled out by other representatives of The Forgiveness Project, as identified by Ms. Muldoon. The court considers all of these pages filed in evidence by the defence.
On March 12th, 2024, for reasons unknown to the court and Ms. Muldoon, The Forgiveness Project was told by the Toronto South Detention Centre that they were under investigation, and they had to leave. They have not returned to work in the detention centre since that time.
Impact on Victim
There is no victim impact statement in this case, but the Crown relies upon the testimony of the two officers and the evidence they gave in trial related to the nature of their injuries. The court has referred to those injuries above.
The Criminal Code directs the court to take into account the portions of any victim impact statement and the court would note the information relevant to the physical or emotional harm, property damage, or economic loss suffered by the victim as a result of the offence and the impact of the offence on the victim. See s. 722(1), (4), and (8).
Well, there is no expressed victim impact statement. As indicated, the court is considering the evidence given on trial with respect to the impact of the assaults on the two officers.
Legal Parameters
All of the subject offences were contrary to s. 270.01 of the Criminal Code. The Crown proceeded by indictment. Pursuant to s. 270.01(2) where the Crown proceeds by indictment, Mr. Dematas is liable to imprisonment of a term of not more than 10 years. As set out below, Mr. Dematas is liable to consecutive sentences for each of the offences before the court in terms of sentence.
Positions of Crown and Defence on Sentence
The Crown’s submissions is that there should be a global sentence of three years for these assault police charges, less enhanced pre-sentence custody credit. At this point, the defence is only seeking Summers credit of 1.5 days to 1 day. This would mean, for the Crown’s submissions, a total of actual days of pre-sentence custody credit of two years, giving rise to enhanced pre-sentence custody credit of three years. The sentence needs to be apportioned, among the subject offences, with consecutive time on each assault police charge, pursuant to the Criminal Code.
The defence submits, firstly, that there should be a stay in relation to one of the assault counts related to DC Subramaniam arising from Kienapple, as it relates to Counts 1 and 3, assaults with a weapon and assault cause bodily harm. The defence submitted that the cuts and scrapes did not constitute bodily harm. The defence also submitted the knee injury, which arose from slipping on the beer on the floor and from the struggle, arose from the same act as the assault with the bottle, which caused liquid to fall on the floor. The defence’s submission, as it related to DC Subramaniam, was that there was only the assault with a weapon, being the bottle, and that there should be a stay for assault cause bodily harm arising from Kienapple, as it was the same act of striking the officer in the head with the bottle.
The court has already made findings in its extensive reasons for judgment on an earlier date, in relation to the injuries to both officers, that each constituted bodily harm. The court would specifically note that as it relates to DC Subramaniam, the assault with the weapon relates solely to the blow and the overhead motion with a glass bottle, which broke when it struck the officer’s head. DC Subramaniam, however, had other injuries independent of that assault with the bottle to this head, which also constituted bodily harm, and which were referred to in the reasons for judgment. As a result, there is no Kienapple issue in relation to the charges of assault with a weapon and assault causing bodily harm regarding Officer Subramaniam.
Overall, the defence submission is that there should be pre-sentence custody credit of only 8 months real time in total, enhanced on a 1.5 credit to 12 months enhanced pre-sentence custody. The defence does not seek any additional enhanced credit as indicated for the times spent by Mr. Dematas in custody. At the time of submissions on sentence by counsel, there had been a period of 1,115 days, or 3 years and 19 days of real pre-sentence custody, credited. This is far in excess of what even the Crown is seeking for enhanced pre-sentence custody credit for these offences.
The court would note that Mr. Dematas is yet to be sentenced before another judge on the firearm charges for which he entered a guilty plea prior to this subject charge. Essentially, if the court applies pre-sentence custody credit for the subject charges, this would mean, effectively, that the time imposed for sentence on the firearm charges by Justice Ray, which would be consecutive to these charges, given the timing of the two sentences to be imposed.
Mitigating and Aggravating Circumstances
Mitigating: In this case, Mr. Dematas was invited to make a statement, as indicated earlier. He took the opportunity to provide more information relating to his background, which is set out above. Towards the end of talking about himself, his life, and his family, he said he apologized to the Crown and the community. Generally, youth is a mitigating factor. Mr. Dematas is 25 years of age, but as he explained, he has spent from the ages of 18 to 25 years in jail. The court has also set out the various serious criminal record as an adult he has had, which was the basis for a lengthy period of time in custody.
Aggravating: The prior criminal record of Mr. Dematas is not an aggravating factor, but rather a factor varying on the analysis of need for specific deterrence and rehabilitation prospects. In this case, specific deterrence is absolutely a factor requiring attention by the court in considering the appropriate sentence for Mr. Dematas and for these offences. Rehabilitation is nonetheless still in play given his recent interest in doing courses while in detention, finishing his high school, and seeking to do post-secondary courses.
The court is not aware as to whether Mr. Dematas was on release for his prior offences when he committed the subject offences. Neither counsel was able to specifically assist the court in that regard. However, the court notes that these offences were committed within the one-year period of jail that Justice Allen sentenced him to.
Statutorily Aggravating Factors
Parliament has sent a message as it relates to assaults on police officers pursuant to s. 718.1, that the objectives of denunciation and deterrence are to be given primary consideration in imposing sentence. Further, sentence for any assault to such officers are by virtue of s. 270.01 of the Criminal Code to be sentenced which are consecutive to any other sentence imposed under the same event or series of events. This reflects the vulnerable nature of people working in those roles upon whom we depend to work in these employment positions without fear.
Sentencing Principles Analysis
The court bears in mind the guiding comments of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089. In that judgment, the court stated that sentencing ranges are primarily guidelines, not hard and fast rules. Even if an appellate court has established a range, it may be that a fact pattern may arise, which is sufficiently dissimilar to past decisions that the range must be expanded. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all of the relevant principles and objectives. They should not be considered averages, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. Accordingly, a sentencing range is not a straitjacket to the exercise of discretion of a sentencing judge. Each crime is committed in unique circumstances by an offender with a unique profile. Everything depends on the gravity of the offence, the offender’s degree of responsibility, and the specific circumstances of each case. Sentencing ranges must in all cases remain only one tool among others that are intended to aid trial judges in their work. This court specifically considers para. 73 of that judgement.
In 2010, the Supreme Court of Canada noted in R. v. Nasogaluak, 2010 SCC 6, [2010] 2 SCR 206, at para. 43 that:
No one sentencing objective trumps the others and it falls to the sentencing judge to determine what objective or objectives merit the greatest weight, given the particulars of the case.
Sentencing is highly individualized. See R. v. Suter, 2018 SCC 34, [2018] 2 SCR 496, also.
In 2021, the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, in the majority judgment at para. 10 indicated that proportionality is the organizing principle for the court in imposing a fair, fit and principled sentence. Proportionality is the fundamental principle. Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender in the unique circumstances of each case. Parity and individualization are important, yet secondary principles. The demands of proportionality must be calibrated by reference to the sentences imposed in other cases. Individualization is central to the assessment of proportionality in that it demands consideration of the individual circumstances of each offender, as set out in para. 12.
Currently, the principle of proportionality is codified in the Criminal Code in s. 718.1 indicating that the sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender.
Further, the court bears in mind that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterrence, both generally and specifically for the offender; separation of the offenders from society, where necessary; rehabilitation; to provide reparation for harm done to victims or the community; and to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. See s. 718 of the Code.
The court bears in mind any applicable sentencing principles as set out in 718.2 and, as well, the principles of parity, totality, and judicial restraint in considering a sentence of deprivation of liberty or imprisonment, as set out in s. 718.2(b) through (e). The emphasis of the court in considering those various objectives depends on the nature of the offence and the circumstances of the offender.
In this case, the principle of totality is being considered by this court, but it is somewhat of a challenging situation given the procedure that counsel have engaged in, in having Mr. Dematas enter a guilty plea before another judge arising out of the same incident for the firearms offences. He has not been sentenced on that matter yet.
Kienapple Issue
Dealing first with the Kienapple issue as indicated above, PC Subramaniam suffered from the injuries to his head when he was hit with the bottle. Those injuries were outlined above. He also gave evidence that he sustained, and the court accepted, knee pain from the fall to the ground as a result of the struggle, and scrapes and bruises to his arms and ribcage sustained during the struggle when Mr. Dematas grabbed and scratched at him while in a chokehold on the floor.
The Crown argued that there should not be a stay pursuant to Kienapple. In the alternative, the Crown submitted that the injuries from the blow to the head by the bottle were part of the bodily harm, and that the use of the bottle to cause the bodily harm is an aggravating factor related to the assault cause bodily harm. In the reasons for judgment, as indicated, the court has already found this issue to be argued.
At this point, the court will restate that there was evidence related to the bodily harm independent of the blow to the head to Officer Subramaniam. This consisted of the scratches and bruises to his right side ribcage, right arm including bicep and forearm, and inflammation to the knee. He had the bruising and inflammation to his knee and swelling for three to four days. The court finds that this is bodily harm, independent of the bodily harm caused by the blow to his head with the bottle.
The separate injury to his head from being struck by the bottle was in relation to the charge of assault with a weapon. The court also has indicated that he was off work a period of time, and he was not able to resume his activities for a period of time arising from those sets of injuries. In the end, there is no Kienapple issue. There will be no stay of Count 1 or 3 in the Information. They are separate delicts in this case.
Morris Issue
The court was advised on February 14th, 2024, after the case had been adjourned many months for sentence that the Morris report would be done by the beginning of June 2024. To the court’s knowledge, the report was not completed, and submissions were made by counsel recently without a Morris report. The Morris report had been requested prior to the court releasing judgment in this case on October 4th, 2023. The defence had submitted that the court should consider the Morris factors related to Mr. Dematas as a Black Canadian man in the criminal justice system who has suffered the impact of being a racialized Canadian, of having grown up with a negative experience related to police, racial profiling, and stops and searches.
Oddly, the defence did not put before the court the Morris case among the cases it asked the court to consider. Nonetheless, the court is aware of R. v. Morris, 2021 ONCA 680, a decision of the Ontario Court of Appeal stating that evidence of anti-Black racism and its impact on the specific offender can be an important consideration when determining the appropriate sentence. The court should, and this court does, take into account the offender’s background and life experiences when considering an offender’s moral responsibility for the crime, and when choosing from available sanctions.
The court noted that in R. v. Gladue, 1999 SCC 679, [1999] 1 SCR 688, at para. 69, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, at para. 75 to 77, the court accepted that background and systemic factors should be taken into account when sentencing all offenders. In addition to the unique circumstances of Indigenous offenders, the court noted that the experience of Black people in Canada is also marked by discrimination. Black people share with Indigenous peoples many of the same disadvantages flowing from that discrimination.
The reports filed in the Morris case before the Court of Appeal referred eloquently to the historical roots of that discrimination and its pernicious ongoing effect on many aspects of the day-to-day lives of Black people in Canada.
The court noted at para. 91:
There can be no doubt that evidence on sentencing, describing the existence and effect of anti-Black racism in the offender’s community and the impact of that racism on the offender’s circumstances and life choices is part of the offender’s background and circumstances. The evidence is not only admissible, it is, in my cases, essential to the obtaining of an accurate picture of the offender as a person and a part of society.
The court also stated that it has recognized that systemic and background factors, including those attributable to anti-Black racism, may be relevant when sentencing Black offenders.
In R. v. Hamilton, 2004 ONCA 5549, 2004 72 OR (3d)1, following R. v. Borde, 2003 ONCA 4187, 2003 63 OR (3d) 417, the Court of Appeal noted that reference to factors that may have played a role in the commission of the offence encompasses a broad range of potential considerations, including any explanation for the offender’s commission of the crime. The court elaborated that if racial and gender bias suffered by the offender helps explain why the offender committed the crime, then those factors can be said to have played a role in the commission of the offence.
Following Borde at para. 32, and Hamilton at para. 141, the court in Morris held that disadvantaged circumstances, including those connected to racism, can mitigate to some degree the personal responsibility of the offender.
The court would note that since the Court of Appeal decided Morris, the Supreme Court of Canada in R. v. Hills, 2023 SCC 2, quoted it with approval.
In the context of the consideration of a stay of proceedings in R. v. Brown, 2020 ONCA 657, the Ontario Court of Appeal at para. 89 stated that:
In Morris, this court held that social context evidence, including evidence of systemic racism, could inform an offender’s moral blameworthiness and hence be relevant to the determination of a fit sentence.
In R. v Aiken, 2024 ONCA 326, the court, at para. 14, stated it did not accept the argument that the trial judge did not give sufficient weight to the anti-Black racism experienced by the appellant, who also suffered from mental health issues. In that case, the court found that these two issues impacted the appellant’s moral blameworthiness for the offence and that they contributed to the appellant making exceptionally poor decisions leading up to and during the offences.
The trial judge in that case stated that these factors slightly mitigate the defendant’s moral culpability with respect to the two offences that were before the court. However, the trial judge in that case was cognizant of what the Court of Appeal held in paras. 78 and 81 of Morris that the defendant still chose to engage in dangerous criminal conduct that compromised the security of the community, and that any sentence imposed must be proportionate to the offence and the offender. The court then upheld the sentence imposed by the trial judge.
In R. v. Husbands, 2024 ONCA 155, at para. 76, the court stated that even where Mr. Morris carried a firearm out of ‘genuine fear’ as informed by social context evidence, it only acted as a ‘limited mitigating factor’ and did not significantly diminish his moral blameworthiness.
The offender’s background is always a relevant factor on sentencing. The sentence must be proportionate to both the offence and the offender. A person with a disadvantaged background who has been subjected to systemic prejudices or racism, or was exposed to physical, sexual, or emotional abuse, may receive a lower sentence than someone from a stable and peaceful background, where the offence is in some way linked to the background or systemic factors. The relevant factors in one person’s background will be case specific. A single factor will rarely be determinative. The court would note that this court delayed the sentence in this case on various occasions at the request of the defence.
Following this, during submissions, the court would note that defence counsel invited Mr. Dematas to give testimony. In what appeared to be somewhat of a new turn of events, Mr. Dematas declined to give evidence. Then, during submissions by counsel, defence counsel sought to give evidence through submissions as to instances of prior assaults by the police on Mr. Dematas. It was not proper evidence in the case, and the court was not in a position to allow this evidence to come in through submissions of counsel. The Crown opposed defence counsel giving evidence through her submissions and challenged that evidence.
Mr. Dematas did not express any remorse for committing the offences, other than at conclusion the conclusion of the counsel’s submissions where he said he apologized to the Crown and the community. The fact that Mr. Dematas entered a plea of not guilty and a trial followed is not an aggravating factor. A guilty plea, saving the need for witnesses to testify at trial, can be a mitigating factor. The absence of a guilty plea is neutral. As the Court of Appeal for Ontario noted in R. v. Kakekagamick, 2006 ONCA 28549, [2006] O.J. No. 3346 (C.A.), the “failure to accept responsibility for his actions weighs against affording him significant consideration by way of mitigation.”
In considering the appropriate sentence for this offender and this offence, the court considers the nature of the offence. All three offences relate to assaults on police officers. As noted, this is statutorily aggravating, and there is a need for the sentences to be consecutive to any other sentence imposed in relation to the events during the incident. As noted in case law, any offence of violence must be taken seriously by the court, but Parliament has recognized the need to treat assaults on law enforcement officers as particularly heinous.
R. v. Wright, 2020 ONCJ 513, a sentencing decision, which cited R. v. Jackson, 2018 ONSC 2527, [2018]O.J. No. 2136, which was appealed to the Ontario Court of Appeal, has been considered by the court. At the appellate level, in paras. 55 and 75, the court held that evidence related to anti-Black racism on an offender does not effect the seriousness of an offence. At most, it can have an impact on the moral responsibility of an offender. The court also went on to state that courts should not equate Indigenous offenders and Black offenders for the purposes of s. 718.2(e).
This court would also note that it is consistent with Morris. In terms of moral responsibility, the court is to consider whether the anti-Black racism played a role in the commission of the offence, including to explain the commission of the crime.
The court considers R. v. Desjardins, 2023 ONCJ 61. The court in that case noted at para. 20 the principles related to assaults on police officers, including R. v. McArthur, 2004 ONCA 8759, [2004] O.J. No. 721, which is set out below.
In R. v. Dupuis and Sime, 2022 ONCJ 393, the court considered sentence in relation to assault police and assault following the entry of guilty pleas and the withdrawal of various charges. Some of the facts related to assaults on police officers during the course of arrest. Ms. Dupuis was an Indigenous offender. The criminal record of Ms. Dupuis than far less serious than that of Ms. Dawkins. The Crown in that case was seeking a term of incarceration, but of far less length than the case at bar. In that case, the court noted that at para. 42:
Police officers have one of the most difficult jobs. As first responders they never know what to expect. They must deal with intoxicated parties, angry parties, mentally ill parties. They deal with accused and with victims. They must deal with constant security concerns.
The judge also noted that the Supreme Court of Canada has noted that the role of a police officer is essential to any organized society since it ensures order and security. See Quebec (City) v. Montreal (Service de police), 2008 SCC 48 at para. 13.
The court in Dupuis also considered the offender as an Indigenous person. The court did not find that case to be helpful.
As noted in case law, any offence of violence must be taken seriously by the courts, but Parliament has recognized the need to treat assaults on law enforcement officers as particularly heinous. In R. v. Forrest, [1986] O.J. No. 330 (C.A.), the court noted:
Police officers, in the performance of their duties, are the representatives of the whole community and an attack upon them is an attack upon the structure of a civilized society. Further, police officers, in the performance of their duties, are often in a position of special vulnerability and are entitled to such protection as the law can give.
In R. v. Sturge, [2001] OJ No. 3923, a decision released September 21st, 2001, the Ontario Court of Appeal referred to the need for general deterrence and denunciation to be given paramount consideration in cases where police officers are required to put themselves at risk, as in this case, to make an arrest. The officers in certain circumstances, to quote the Court of Appeal, “Must be assured that those who physically resist arrest will be dealt with sternly by the courts.” In that case, the court imposed a consecutive sentence. That was, of course, prior to the change to the Criminal Code.
Then in 2004, Justice Doherty, speaking for the Court of Appeal for Ontario in McArthur said the following at para. 49:
As indicated above, the maintenance of a just, peaceful and safe society is the fundamental purpose of sentencing. Police officers play a unique and crucial role in promoting and preserving a just, peaceful and safe society. We rely on the police to put themselves in harm’s way to protect the community from the criminal element. At the same time, we rely on the police to act with restraint in the execution of their duties and to avoid the use of any force, much less deadly force, unless clearly necessary. Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society’s dependence on the police, and society’s determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function. R. v. Forrest (1986), 15 O.A.C. 104 at 107 (C.A.).
In 2006, in R. v. Kaye, [2006] O.J. No. 549 (S.C.J.), the court noted the key principles for sentence as it relates to assault police at paras. 11, 30, and 31. The court is not going to read those paragraphs, but the court has carefully considered those paragraphs.
Fairly recently in 2021, the Court of Appeal for Ontario cited with approval para. 49 of R. v. McArthur. See R. v. Rajkovic, 2021 ONCA 11, and at para. 15. As noted above, Parliament has sent a strong message to the courts in sentencing that sentencing in relation to assault police officers should be treated seriously. That has led to the requirement that the sentences be consecutive.
The court has considered the cases cited in these reasons in a lengthy set of reasons by this court in R. v. Dawkins, 2023 ONCJ 613.
The Crown in this case relied upon a series of additional cases. In R. v. Goulding, 2017 ONSC 4376, both accused were found guilty of assault cause bodily harm and assault. The facts in that case are not similar to the case at bar, but at para. 27 the judge stated that the range for assault cause bodily harm by an offender with a criminal record resulting in comparable harm to the victim is six months to four years.
In R. v. Tourville, 2011 ONSC 1677, the court considered the Indigenous background of the accused, as set out in a very helpful Gladue report.
The court, in this case, does not have such material to consider the issue. Nonetheless, the court will consider, as emphasized by the Supreme Court of Canada in R. v. Wells, 2000 SCC 10, 141 C.C.C. (3d) 368 at 387, a different methodology for assessing a fit sentence for an Aboriginal offender. It does not mandate necessarily a different result. It requires consideration of the unique system of background factors, which may have played a part in bringing the particular Aboriginal offender before the court and secondly, the types of sentencing procedures and sanctions, which may be appropriate in the circumstances for the offender because of his or her Aboriginal heritage or connection.
The defence relied on the cases of R. v. Melo, 2018 ONCJ 292, a short endorsement of the Court of Appeal in R. v. Vlatko from 1972, and R. v. Wieler, 2015 ONCJ 224. These cases related to potential defences and not sentence. No other cases were put before the court regarding sentence by the defence.
Mr. Dematas has a very serious and violent criminal record. He was given an effective six-year sentence on July 21, 2020, including a one-year sentence yet to be served for firearms offences, together with an aggravated assault and an assault with a weapon arising from a home invasion. Less than one year after that sentence was imposed and shortly after he was released from custody, he committed the serious offences on the two police officers in this case before the court.
Given the lengthy and serious record for violence of Mr. Dematas, the primary principles are of denunciation, deterrence, and as well as specific deterrence. The court has not lost sight of rehabilitation, given Mr. Dematas’ recent interest in taking courses and completing high school. But it is not as important a consideration as it might have been prior to the equivalent of the six-year penitentiary sentence. The court considers his Indigenous background, as set out before the court, and also his situation as a racialized Black man who has come in conflict with the law over the first 25 years of his life, impacting on his moral blameworthiness.
However, as noted in other cases, the Morris factors for Mr. Dematas play less of a role in the court’s consideration given the serious offences before this court, and what would have been his very recent conviction and sentence resulting in the release relatively shortly before these offences.
Totality is a consideration, but the court is not aware of the sentence that will be imposed on Mr. Dematas for possessing the loaded firearm he had while he was being arrested by the two police officers in this case. There is no doubt that he will be sentenced to a much greater sentence in relation to those offences, and the court takes that into account to the extent that it can.
In all of the circumstances, for these three assault convictions, the court finds that the proportionate and proper sentence for Mr. Dematas is a penitentiary sentence totalling approximately 30 months, that’s three-zero, arising from an imposition of 10 months for each of the three offences, which credit is consecutive to the other. Given the lengthy pre-sentence custody credit served to this point, the court will credit 200 days real pre-sentence custody credit for each of the 3 assaults, with the second and third being consecutive to the first. This will mean that it will be a total of 600 days real pre-sentence custody credit.
Then, based on the Summers credit, this will result in an enhanced pre-sentence custody credit of 300 days for each of the 3 charges, again consecutive to each other, for a total of 900 days of enhanced pre-sentence custody credit. This will mean that the sentence is equivalent to 2 years, being 730 days, and an additional 170 days, bringing up the sentence to a total of 900 days enhanced pre-sentence custody credit.
In addition to that, the court is required to impose a legal sentence, and will be imposing a sentence of one day jail on the first count, and the other two counts need to be consecutive. So one day consecutive on the second count, and one day consecutive on the third, for a total of three days’ jail after the consecutive treatment.
The court is not going to impose a probation order given what the court understands will be a period of time within which Mr. Dematas will remain in custody. The court is going to make ancillary orders. Firstly, the three offences before the court are primary designated offences contrary to s. 270.01 of the Criminal Code. They are primary designated offences.
While the court acknowledges that the court is not required to make the order if it is satisfied that the person has established that the impact of such an order on their privacy and security of their person would be grossly disproportionate to the public interest and the projection of society, and the proper administration of justice to be achieved through the early detection, arrest, and conviction of offenders, the court nonetheless makes the mandatory order for the DNA sample for these three designated offences, which are primary, having considered the matter.
The court also makes a s. 109 mandatory weapons prohibition order. The court notes that previously s. 109 weapons orders were made in 2017 and 2020 for Mr. Dematas. Accordingly, the court makes this s. 109 mandatory weapons order for life. In light of the fact that Mr. Dematas has been in custody for a lengthy period of time, and is likely to remain in custody for some additional period of time, the court waives the victim fine surcharge order.
...MATTERS ARE COMPLETED
FORM 3 Electronic Certificate of Transcript Evidence Act, subsection 5(2)
I, Helena Tsapoitis-Barbesin, certify that this document is a true and accurate transcript of the recording of Rex v. Kadah Dematas in the Ontario Court of Justice, held at 10 Armoury Street, Toronto, Ontario, taken from Recording No. 4810_1004_20240807_093811__6_BROWNBE.dcr, dated August 7, 2024 which has been certified in Form 1 by Julia Scorziello.
August 11, 2024
Date (Authorized Transcriptionist) Helena Tsapoitis-Barbesin ACT ID# 2372561617 416-889-6054 Helena10@hotmail.com Transcriptsontario.ca
