Court of Appeal for Ontario

Date: February 1, 2017 Docket: C61835

Judges: Watt, Tulloch and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Keith William O'Loughlin Appellant

Counsel

Keith William O'Loughlin, acting in person Matthew Gourlay, duty counsel Dayna Arron, for the Crown

Heard: May 10, 2016

On appeal from the conviction entered on December 18, 2015 and the sentence imposed on February 11, 2016 by Justice Lynne Leitch of the Superior Court of Justice, sitting with a jury.

By the Court

[1] The appellant appeals his conviction of assault causing bodily harm and seeks leave to appeal and, if leave is granted, appeals the sentence imposed upon him.

[2] As these brief reasons explain, we have decided that both appeals fail and should be dismissed.

The Background Facts

[3] A jury found the appellant guilty as a participant in the unlawful assault of a fellow inmate at Elgin Middlesex Detention Centre. It was uncontroversial at trial that the victim had been unlawfully assaulted and had suffered bodily harm (multiple rib fractures, damaged teeth, bruising and cuts). As a result of that assault, the critical issue for the jury to decide in connection with the appellant was the nature and extent of his participation, if any, in the assault.

[4] Reduced to its essentials, the case for the Crown consisted of the evidence of the victim and a surveillance video seized by police from the detention centre. A police officer familiar with the alleged participants and the place where the events occurred, narrated the video as it was played for the jury. Still photographs taken from the video were also filed as exhibits at trial.

[5] The victim identified two inmates who participated in the assault. Joseph Kennedy was the principal assailant. Kennedy punched and beat the victim. Donald Schaeffer pushed the victim into the washroom area where the assault occurred and kept him confined there as Kennedy repeatedly struck the victim. Others were standing around, but the victim could not (or would not) identify them.

[6] The victim did not identify the appellant as a participant in the assault.

[7] The principal evidence against the appellant was the surveillance video and accompanying narration. After identifying the various participants, the narrator pointed out the appellant who was initially seated at a table playing cards, but apparently paying close attention to the other goings-on in the immediate vicinity. As the altercation involving Kennedy, Schaeffer and the victim took place in the doorway to the washroom area of the detention centre, the appellant got up from his seat and walked, with an apparent purpose, towards the washroom area.

[8] At the doorway to the washroom, the appellant peeled away a hand grasping the doorframe and entered the washroom. The appellant then appeared to move his leg in a manner the narrator described as similar to a "knee strike" used by police officers to subdue those who resist arrest.

[9] The appellant did not testify at his trial. He called as a defence witness, Joseph Kennedy, the principal assailant. Kennedy told the jury that the appellant played no role in the assault of the victim. Indeed, according to Kennedy, the appellant interceded when Kennedy was about to stomp on the victim's head, saying "Joe, that's enough, that's enough".

[10] By the time of the appellant's trial, both Kennedy and Schaeffer had pleaded guilty and been convicted for their involvement in the assault on their fellow inmate. Schaeffer, but not Kennedy, had been sentenced.

The Charge to the Jury

[11] Trial counsel were in agreement that the appellant could be found guilty of the offence charged either as a joint principal or as an aider in the assault by Kennedy. The trial judge charged the jury accordingly, including in her charge an instruction, based on R. v. Thatcher, [1987] 1 S.C.R. 652, that the jurors need only be unanimous in finding guilt, not as to the nature of the appellant's participation.

[12] The trial judge instructed the jury on the position of the defence in accordance with the submission of the appellant's trial counsel. The judge explained that the appellant's position was that he went to the washroom area to see what was happening there. He did not assault the victim nor help anyone else who was participating in that assault. In other words, present but not participating.

[13] Trial counsel did not object to the charge to the jury.

The Appeal from Conviction

[14] Duty counsel acknowledges that if an evidentiary basis existed for leaving participation as a joint principal and/or aider to the jury, the jury instructions contain no legal errors.

[15] In his submissions, the appellant pointed out that the victim did not say that he (the appellant) assaulted him and was unclear whether the hand holding onto the doorframe was his (the victim's) or somebody else's. The appellant reiterated the position his counsel advanced at trial, that he was present but did not participate in the assault.

[16] We have had and taken the opportunity to review the video of the relevant events. We are satisfied that it constitutes a sufficient evidentiary basis upon which the trial judge could instruct the jury that they could find the appellant guilty of assault causing bodily harm, either as a joint principal or an aider of the principal, Kennedy. This is not a case of accidental presence, of simply being in the wrong place at the wrong time. The appellant's presence was intentional, his involvement active. The appellant's position was clearly put to the jury and roundly rejected by them after brief deliberations. There is no basis upon which this court can interfere.

[17] The appeal from conviction is dismissed.

The Appeal from Sentence

[18] At trial, counsel for the appellant suggested a custodial sentence of 12-15 months. The trial Crown sought a sentence of 3 years in the penitentiary. The parties were ad idem that pre-disposition custody should be deducted from whatever sentence the trial judge imposed and were also in agreement about the quantum of that credit (389 days).

[19] The trial judge considered that a fit sentence was one of imprisonment for 20 months. From that sentence she deducted 409 days for pre-disposition custody and imposed an actual sentence of 191 days.

[20] In imposing sentence, the trial judge considered that the appellant was the least culpable of the trio of participants – Kennedy, Schaeffer and the appellant – and that his participation was that of an aider, not that of a joint principal.

[21] In support of his claim for a reduction in the length of sentence imposed, the appellant invokes the principle of parity. He points to the sentence imposed on Schaeffer – 18 months – and says that parity requires that his sentence be less. Schaeffer was sentenced as the least involved, but his participation was actually greater than that of the appellant. On this basis, the appellant says, his sentence should be reduced to a term of imprisonment of less than Schaeffer received.

[22] Schaeffer was more than four years older than the appellant. He had what the sentencing judge in this case described as a significant record, the details of which were not provided. Schaeffer pleaded guilty before a judge of the Ontario Court of Justice within 8 months of the offence and, more importantly, before the surveillance video had been disclosed. Schaeffer apologized for his conduct and the sentencing judge found him to be genuinely remorseful.

[23] The judge who sentenced Schaeffer considered him the least involved of the three men then charged. However, the judge did not have the advantage of the surveillance video, an item of real evidence that better displays Schaeffer's actual role.

[24] The appellant was 38 years old at the time of the offence and 40 when he was sentenced. His youth and adult record, which extends for nearly a quarter-century, includes property and motor vehicle offences, as well as escaping from lawful custody and being unlawfully at large. He has five prior convictions for assault and a dozen and a half convictions for failures to comply with release terms or sentencing dispositions. He has been recommitted twice as a statutory release violator.

[25] Inherent in the term "parity" and the parity principle in sentencing is the notion of comparables. Offenders. Offences. Circumstances. The parity principle expressed in s. 718.2(b) of the Criminal Code tells us that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[26] The appellant holds up the sentence imposed on Schaeffer as a benchmark. But its invocation scarcely favours an equivalent or lesser sentence for the appellant. Schaeffer pleaded guilty within 8 months of the offence on the basis that he was the least involved. There can be no doubt that his guilty plea, genuine remorse and the level of participation acknowledged before the sentencing judge were substantial mitigating factors. To the extent that his minimal level of participation was a mitigating factor in a determination of the quantum of sentence, we know from the surveillance video that his involvement was not as advertised.

[27] We are satisfied that the sentence imposed on the appellant did not violate the parity principle, or for that matter, any other principle or objective of sentence. It was a fit sentence for him for what he did.

[28] For these reasons, we grant leave to appeal sentence, but dismiss the appeal from sentence.