R. v. Sabourin, 2024 ONCJ 587

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2024 11 20 COURT FILE No.: Toronto Region 23-48101990, 23-48101991, 23-48107883 23-48103944, 23-48103940, 23-48113432

BETWEEN:

HIS MAJESTY THE KING

— AND —

Joshua Patrick SABOURIN

Before Justice C. Faria

Heard on August 20, November 18, 2024 Reasons for Judgment released on November 20, 2024

Counsel: Maya Sengupta-Murray..................................................................... counsel for the Crown Steven Lee.................................... counsel for the accused Joshua Patrick SABOURIN

Faria J.:

1On August 20, 2024, Joshua Sabourin pled guilty to 10 offences: three counts of robbery, attempt robbery, aggravated assault, assault with a weapon, break and enter, theft, failing to comply with a probation, and sexual assault.

2Sentencing was adjourned to obtain a Pre-Sentence Report (PSR) and a s. 21 Mental Health Report. On November 18, 2024, further documents were filed, and I heard submissions.

3The parties jointly recommended 5 years in the penitentiary minus pre-sentence custody, and several ancillary orders.

4Although the parties submitted a joint position, given the number of additional materials filed which required review, I reserved my decision. These are my reasons.

I. Facts

5Pursuant to an Agreed Statement of Facts [1], on February 13, 2023, Aria Castillo was waiting inside a bus shelter on Sherbourne St. in Toronto at about 2 p.m. when Mr. Sabourin approached her brandishing a knife. He demanded she give him her phone. She did. He fled. This robbery was captured on video surveillance and filed with the court. Mr. Sabourin was identified for the robbery [2].

6On March 31, 2023, again at about 2 p.m. in the afternoon, Mr. Sabourin was at the Walmart at the Dufferin Mall in Toronto. Frank Outram, security at the store saw Mr. Sabourin conceal a pair of jeans and socks in his backpack and leave the Walmart. Outram approached Mr. Sabourin and Mr. Sabourin pulled out a pocketknife, unfolded it and walked toward Outram. Outram stepped away and let Mr. Sabourin walk out. This too was captured on surveillance. Later that same day, Mr. Sabourin was identified by another security officer in the mall. Police were called and Mr. Sabourin was arrested for assault with a weapon. The stolen items were seized from him, as was a folding knife.

7That same day of March 31, 2023, Mr. Sabourin had been to the FreshCo supermarket on Sherbourne St. He selected and concealed two boxes of ice cream in his backpack and exited the store. A security prevention officer had observed him do so and approached him. He identified himself. Mr. Sabourin told him he was not giving the items back, and then brandished a black knife and fled. The officer followed Mr. Sabourin and photographed him to identify him for the robbery.

8As Mr. Sabourin was on three separate probation orders, one from July 9, 2020, one from January 26, 2022, and one from November 23, 2022 from Montreal, requiring him to keep the peace and be of good behaviour. He was in breach of his probation.

9Mr. Sabourin was released for both the February 13 and March 31, 2023 charges.

10On Saturday, April 28, 2023, at about 11:45 p.m. Daanish Mohammed was on the subway heading westbound with his friends after having dinner. Mohammed noticed Mr. Sabourin acting erratically, he was dancing and appeared to be cutting himself. At Runnymede subway station, Mohammed was at the door of the subway with his back to Mr. Sabourin when he was unexpectedly struck on the right side of his neck. Mr. Sabourin exited the train, turned around and lunged at Mohammed slashing him on his upper right arm and demanding his phone. Mohammed gave him his phone. Mr. Sabourin fled. Witnesses triggered the emergency alarm. Mohammed had been stabbed in the neck and the arm and was bleeding. Mohammed attended at the hospital. Some of Mr. Sabourin’s own blood had transferred to Mohammed’s sweater. After the robbery, using his “Find my phone” feature, Mohammed informed police that his phone was in the 360 to 366 Runnymede Rd. area.

11At about 12:30 a.m. on April 29, 2023, Alexandre Lemire was walking home from his friend’s house approaching Colbeck St. in Toronto. Mr. Sabourin approached Lemire with a knife in his right hand and demanded Lemire give him his phone. Lemire said “no”, turned and fled. Lemire contacted police when he arrived home to report the attempt robbery and described Mr. Sabourin to police.

12Seventeen minutes later, at 12:47 a.m. William Yum was walking south on Runnymede Rd. toward the subway after having watched a concert. He was wearing headphones and checking directions on his phone. He suddenly felt a sharp object pierce his back. He turned around. Mr. Sabourin then punched him in the back and neck. Yum tried to run away but Mr. Sabourin repeatedly struck him. Yum managed to flee, flag a vehicle, and call police. Yum sustained multiple injuries to his face, neck, ear, and back. He was transported to hospital and treated for 3 stab wounds to his upper and lower back, and one stab wound to the back of his neck. Mr. Sabourin had committed an aggravated assault. Photos of the injuries were filed as exhibits.

13At 3:13 a.m., Mr. Sabourin broke into Samual Tait’s home at 420 Beresford. Tait was in the basement at the time. When he came upstairs, he found Mr. Sabourin, naked and bleeding in his house. His girlfriend Dana Whitelaw called the police. Police arrived and arrested Mr. Sabourin for break and enter. Photos of the trail of blood Mr. Sabourin had left from the front door of the home, through the entrance, into the living room, through the dining room, into the kitchen, and in the bathroom at the back of the home were filed as exhibits. Photos of the blood trail stains on the railing banister, up the stairs, into a storage room, and then in the upstairs bathroom were also filed as exhibits. Mr. Sabourin had also left his bloodstained clothes and shoes throughout the home which matched the clothes he was wearing in the surveillance videos of the offences committed on the TTC.

14When arrested, Mr. Sabourin was in possession of Peter Pfingst’s wallet and identification. Pfingst lives at 371 Beresford and had left these items in his car the day before on April 28, 2023. A K9 unit investigated his car parked in his driveway. The car had been opened and blood was located inside the vehicle. Photos of these blood stains were filed as exhibits. DNA swabs were taken. Mr. Sabourin had committed the theft [3].

15Mr. Sabourin was transported to hospital upon his arrest with minor cuts to his hands, feet, and face at the time that he had self sustained. he was assessed and released into police custody.

16On August 3, 2023, while at the Toronto South Detention Centre in Toronto, Mr. Sabourin was scheduled to appear in court by video. Correctional Officer R.L. escorted Mr. Sabourin into a video booth. While he sat on a chair behind her, she activated the video camera and monitor to facilitate Mr. Sabourin’s appearance in court. Mr. Sabourin then reached out and with his hand grabbed and groped Officer R.L.’s right buttock. The sexual assault was witnessed by Officer R.L.’s partner, Officer Boyce.

II. Sabourin Background

17Mr. Sabourin is a 32-year-old single man born in Cornwall, Ontario. His first adult sentence, for theft, was entered in 2016 when he was 24, and he has been committing crimes consistently since then, amassing 25 convictions until 2022 [4]. He progressed from minor thefts to thefts of motor vehicles, with breaches of court orders and possession of break in tools, and substances along the way. In July 2020, he was sentenced to an aggravated assault for which he was sentenced to 28 months [5].

18Mr. Sabourin’s PSR is not particularly helpful [6]. Almost the entirety of the Report is self-reported information, and much of it is inconsistent, vague, or clearly inaccurate. The author at the outset noted Mr. Sabourin was not intentionally uncooperative, but he frequently responded to questions with “I don’t know” and “I can’t remember”. He struggled to provide meaningful information. He laughed suddenly and inappropriately throughout his interview.

19It appears Mr. Sabourin was raised by his single mother and her partner at the time. He does not know his father. He may have two older sisters. He reports he has a daughter but is unsure of her age while records indicate he may have been 17 years old when he fathered this child. He has an aunt and uncle who helped him. He is not in contact with any family. He left high school in grade 9 and there is conflicting information as to whether he did well in school as he said or was bullied for a stutter. He may have a learning disability. It is unclear when he left home, why he came to Toronto via Montreal, and how he became homeless in Toronto.

20He admitted he began using alcohol, marijuana, and crystal meth as a teenager and he “loves” drugs though he does not see this as a problem. He has no insight into his mental health, and very little insight into his offending. He told the PSR author that his crimes were financially motivated to access drugs, and that he doesn’t “have a girl out there”, perhaps relevant to some offences, but certainly not to the most serious ones.

21Dr. Laeticia Eid’s report pursuant to a s. 21 Mental Health Act [7] order is not much clearer either. She notes Mr. Sabourin is a poor historian and provided frequent self-contradictions. He smiled and laughed inappropriately during this interview as well. He provided contradictory information and struggled to provide clarification. He had difficulty with attention, concentration, and memory.

22Dr. Eid did have medical file information which contained the following:

• November 7, 2016, Mr. Sabourin was seen by a doctor at The Royal Ottawa Mental Health Center at the Substance Use and Concurrent Disorders Program. He admitted several years of heavy drug use. The impression was that he met the criteria for severe cocaine and amphetamine use disorders but did not meet the criteria for admission. He was discharged with no follow up.
• February 3, 2023, at St. Michael’s Hospital, Mr. Sabourin was brought to Emergency because he was running in circles nude in a parking lot, fondling himself, confused and unable to answer questions. The psychiatric assessment attributed this presentation to either substance use or psychosis. He was discharged the next day with no medication, no psychiatric follow-up, and told to go to the Urgent Care Clinic and Rapid Access Clinic for support regarding his substance use.
• February 11, 2023, at United Health Network (UHN), Toronto Western Hospital (TWH), Mr. Sabourin was seen in the emergency department for paranoia and non-command auditory hallucinations which was consistent with drug use. He was monitored and screened.
• March 4, 2023, UHN, TWH, Emergency, Mr. Sabourin was seen for suicidal ideation with no plan or intent and housing concerns. He was discharged and told to get care at the Rapid Access Addiction Medicine clinic to find shelter.
• March 6, 2023, UNH, TWH, Emergency, he presented for self-harm and suicidal ideation. His symptoms were the same as before and he was discharged with the same recommendations.
• May 8 to September 7, 2024, at the Toronto South Detention Centre (TSDC) he was diagnosed with substance use disorder and a personality disorder. He was seen by medical staff regularly for suicidal ideation, and was put on watch. Each watch was terminated rather quickly.
• None of the psychiatrists who saw Mr. Sabourin identified any symptoms of psychosis during their assessments of him.
• He is on no medications.

23Mr. Sabourin’s attendance at St. Michaels and at TWH in Toronto coincide with the dates he was offending in the community between February 13, 2023, and April 29, 2023.

24When speaking to the authors, at first Mr. Sabourin could not recall the offences, nor where he had been prior to Toronto, then, he later acknowledged the robberies, the stabbing, the stealing, and the break and enter. He referred to needing a phone, food, and clothing items. He said he stabbed one person because he did not like their orange coat and went into the home because someone told him it was ok to do so.

25Mr. Sabourin said he has no supports, no physician, no case worker, no health care provider, no family, and no friends.

26Dr. Eid concludes Mr. Sabourin:

• “ likely suffers from an intellectual disability”
• “His expressions of suicidality are representations of his poor frustration tolerance and lack of adaptive coping skills”
• “ likely suffers from cannabis and stimulant use disorders”
• may have “exhibitionistic sexual preference and possible that he also has a coercive paraphilia”

27She also concludes a formal diagnosis of antisocial personality disorder cannot be rendered because of lack of collateral information.

28In essence, Dr. Eid recommends formal testing so Mr. Sabourin may access the proper supports and treatment.

III. Legal Principles

29The Criminal Code provides the purpose of sentencing in s. 718. Sentencing objectives are outlined in subsections (a) to (f):

• denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct.
• deter the offender and other persons from committing offences.
• separate offenders from society, where necessary.
• assist in rehabilitating offenders.
• promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

30Fundamentally, every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, s. 718.1.

31Similar offenders in similar circumstances committing similar offences should receive similar sentences, s. 718.2(b) reflects the principle of parity.

32When consecutive sentences are imposed, the combined sentence should not be unduly long or harsh and s. 718.2 (c) reflects this principle of totality.

33When determining a fit sentence, relevant aggravating or mitigating circumstances relating to the offence, or the offender must be considered, s.718.2(a).

IV. Analysis

34There are numerous aggravating factors including that Mr. Sabourin has a long criminal record. He also has a relatively recent conviction for the serious similar offence of aggravated assault whereby he stabbed a vulnerable man whom he had just met, had shared drugs and had been sexually intimate with.

35The catalyst for his offending, as the dates of his interactions with Toronto hospitals coincide with his crime spree indicate, and the s. 21 report infers, is substance abuse. Mr. Sabourin’s use of substances will not subside, however, as he declared he “loves drugs”. He has neither insight nor concern for the serious harm he causes when he is influenced by drugs.

36Mr. Sabourin randomly selected all nine victims. None of them had said or done anything to Mr. Sabourin. They were all targets of his violence.

37Although there are no victim impact statements, the facts of each offence speak for themselves. Some impact, be it physical and obvious, or psychological, can be inferred. Each victim experienced a violation of their sense of wellbeing and their physical integrity and security:

• Some victims were doing their job, such as the security personnel at the Walmart and FreshCo when they were violently confronted and threatened.
• The Corrections Officer had her physical and sexual integrity violated while, not only on the job, but assisting Mr. Sabourin, and in a vulnerable position with her back to him. The sexual assault was demeaning, perpetuated with entitlement, brazenly, in the presence of a witness, undermining the officer’s authority by targeting her sexually.
• Castillo was alone waiting for the bus, and when targeted for her phone, had no way to get away.
• The transit patrons who witnessed Mohammed being stabbed, pressed the alert and assisted him, experienced a traumatic event.
• Mohammed and Yum required medical attention for injuries they sustained during the unprovoked violent attacks while they innocently walked home.
• Lamire was terrorized and fled thwarting the robbery.
• Tait and his girlfriend had a naked, bleeding stranger trailing blood all over their home, on the floor, on the counter, on the stairs, on the banister, on the toilets, in the sinks, leaving his blood-stained clothes on their floor. The sanctity of their home violated.
• Pfingst had his identification and wallet stolen from his car parked outside his home.

38The location of Mohammed’s stabbing, the TTC is particularly aggravating. Such an event has an impact on those who use and are dependent on public transit for transportation.

39The number of injuries sustained by Yum is also aggravating. The attack was sustained and caused multiple injuries.

40The number of offences, particularly those on April 28 into April 29, 2023 can be characterized as a spree. Mr. Sabourin went from target to target causing devastation on his way.

41Mr. Sabourin also has no insight. He is on no medication, has no supports, and does not seem interested in treatment. This causes significant concern for his risk to re-offend and minimizes his rehabilitation potential.

Mitigating Factors

42In mitigation, Mr. Sabourin pled guilty and is entitled to the benefit of a plea. Although the crown case in each instance was strong, nonetheless, significant resources were saved as 6 trials would have had to be set for these matters.

43In addition, none of the witnesses and victims had to testify. It would have been arduous for some to re-live their experience of victimization.

44Guilty pleas usually demonstrate remorse. In this case, Mr. Sabourin is accepting accountability, but there is little, if any, remorse. Nonetheless, accountability is meaningful.

45Reviewing the s. 21 Report timelines, it appears Mr. Sabourin was experiencing mental health deterioration because of his substance abuse. Indeed, when he was arrested the second time during the break and enter, he was in a compromised state and needed medical attention. This attenuated his moral culpability somewhat. His mental health concerns, however, are not definitively specified and they are untreated.

46Denunciation and deterrence are the clear guiding principles in this case. Totality given the number of offences is applicable. Rehabilitation is a minimal factor. Given the serious and numerous offences Mr. Sabourin has committed, a significant penitentiary sentence is warranted.

47In this case, the parties have turned their minds the principle of totality, the fact a 5-year sentence is the longest Mr. Sabourin has ever experienced, his plea has saved significant resources, his substance addiction has compromised him, and he may be challenged by yet undiagnosed intellectual deficits, to reach, what could be considered, a sentence on the more lenient side of the continuum, but within the range, and fit in the circumstances.

48After careful consideration, I accede to the joint recommendation.

V. Disposition

49My sentence is as follows:

i. Aggravated Assault on Yum: 5 years * (1821 days) minus PSC (571 days x 1.5 = 857 days) equals 969 days to serve ii. Break and Enter: 5 years concurrent. iii. Robbery of Mohammed on the TTC: 4 years concurrent. iv. Robbery of Castillo at the bus shelter: 2.5 years concurrent. v. Attempted Robbery of Lemire: 2 years concurrent. vi. Sexual assault: 18 months concurrent. vii. Assault with a weapon on Outram at Walmart: 18 months concurrent. viii. Robbery at the FreshCo: 12 months concurrent. ix. Theft: 2 months concurrent. x. Fail to comply – probation: 2 months concurrent.

50I will attach Dr. Eid’s report and the PSR to my reasons, and recommend the following during his incarceration:

• Substance abuse treatment.
• Formal psychoeducational testing to identify intellectual, and/or cognitive limitations.
• Skills based psychotherapy (DBT) or (CBT).
• Phallometric testing for a coercive sexual preference.
• Mental health.

51I will also order that Mr. Sabourin:

i. Provide his DNA pursuant to s. 487.4. ii. Be prohibited from possession a weapon pursuant to s. 109 for life. iii. Forfeit the items seized from him pursuant to s. 490(1). iv. Have no contact with the named complainants Aira Castillo, Frank Outram, Daanish Mohammed, Alexandre Lemire, William Yum, Samuel Tait, Peter Pfingst, and R.L. while in custody pursuant to s. 734.21. v. Register for SOIRA pursuant to s. 490.011(1) for 10 years.

52I will waive the victim fine surcharge as Mr. Sabourin is in custody and the fine would cause him undue hardship.

Released: November 20, 2024 Signed: Justice Cidalia C. G. Faria

[1] Exhibit 1: Agreed Statement of Facts, August 20, 2024, including 12 photos. [2] Exhibit 5: Surveillance video clip of the offence. [3] Exhibit 6: Photos of Daanish Mohammad injuries, blood trail at 420 Beresford, and exterior and interior of Peter Pfingst’s vehicle. [4] Exhibit 2: Criminal Record of Joshua Sabourin [5] Exhibit 7: Transcript of Proceedings, June 1, 2020 Guilty Plea, and July 9, 2020, Sentencing, Justice L.R. Weitzman. [6] Exhibit 3: Pre-Sentence Report, October 25, 2024, author Laura Huggins [7] Exhibit 4: CAMH Report, October 7, 2024, Dr. Laeticia Eid, for Joshua Sabourin.