COURT OF APPEAL FOR ONTARIO DATE: 20240412 DOCKET: COA-23-CR-0512

Hourigan, Thorburn and Favreau JJ.A.

BETWEEN

His Majesty the King Appellant

and

Jedidiah Fortune Respondent

Counsel: Dena Bonnet, for the appellant Aidan Seymour-Butler, for the respondent

Heard: March 12, 2024

On appeal from the sentence imposed on April 14, 2023, by Justice Vincenzo Rondinelli of the Ontario Court of Justice.

Thorburn J.A.:

A. OVERVIEW

[1] The respondent and the victim were both residents at the Better Living Centre Shelter. On March 21, 2022, the respondent and the victim became involved in a verbal argument and, while the respondent was sitting on his bed, the victim entered the respondent’s room and kicked the respondent in the head. The respondent sustained no visible injuries. The respondent then stood up, chased the victim into the common area and stabbed him five times: twice in the chest, twice in the abdomen, and once in the back. The entire physical incident lasted less than a minute and was captured on video.

[2] At the time, the respondent was on probation and was prohibited from possessing weapons.

[3] The victim was hospitalized for approximately nine days and sustained life-threatening injuries. According to the victim’s medical records, he suffered a bilateral diaphragmatic laceration, a liver laceration, and had his spleen removed.

[4] The respondent pleaded guilty to one count of aggravated assault and one count of breach of probation. The sentencing judge imposed a sentence of two years for the count of aggravated assault and a concurrent six-month sentence for the breach of probation count. He also imposed a lifetime weapons ban pursuant to s. 109(3) of the Criminal Code, R.S.C. 1985, c. C-46, and a DNA order.

[5] The Crown appeals the sentence, arguing that it was manifestly unfit for a variety of reasons, including that: the trial judge overemphasized the role provocation played in this offence, this was the respondent’s third offence for similar behaviour, he was under a probation order not to possess any weapons when he committed these offences, and his attack on the victim resulted in life-threatening injuries. The Crown also submits that the sentencing judge’s failure to order the respondent’s sentences to run consecutively was an error of law in the absence of treating his possession of knives as an aggravating factor.

[6] The Crown submits that there is a need for specific deterrence and separation of the respondent from society and that these principles are not reflected in the two-year global sentence that was imposed.

[7] The Crown therefore seeks leave to appeal the sentence and, if granted, asks for a five-year sentence for the aggravated assault to be imposed, followed by a one-year consecutive sentence for breach of probation.

[8] I would grant leave to appeal and, for the reasons below, I would vary the global sentence to one of three years and six months’ imprisonment. I would stay the custodial portion of the sentence and impose a probation order on the terms set out below.

B. LEGAL PRINCIPLES

[9] The Crown may appeal a sentence with leave of the court: Criminal Code, s. 676(1)(d).

[10] Sentencing decisions are owed deference on appeal unless the sentence imposed is demonstrably unfit or the sentencing judge made an error in principle, failed to consider a relevant factor or erroneously considered a factor, and it appears from the decision that such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 44 and 51; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 26. The court will not interfere with a sentencing decision simply because the appellate court would have weighed relevant factors differently: R. v. W.V., 2023 ONCA 655, 169 O.R. (3d) 68, at para. 26.

[11] In deciding whether a sentence is demonstrably unfit, the court must consider whether the sentence is “proportionate to the gravity of the offence and the degree of responsibility of the offender”: Criminal Code, s. 718.1.

[12] As stated in Lacasse, at para. 53, proportionality is determined both on an individual basis (in relation to the accused him or herself and to the offence committed by the accused) and by comparison with sentences imposed for similar offences committed in similar circumstances.

[13] Where a sentence falls significantly outside a sentencing range without any rationale, this may be a signal that a sentence is demonstrably unfit: R. v. S.W., 2024 ONCA 173, at paras. 28-29; R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 40.

[14] If a sentence is demonstrably unfit or the sentencing judge made an error in principle that had an impact on the sentence, the appellate court must perform its own analysis to determine a fit sentence: Friesen, at para. 27. In such cases, the appellate court will defer to the sentencing judge’s findings of fact and identification of aggravating and mitigating factors, unless they are affected by an error in principle: Friesen, at para. 28.

C. ANALYSIS OF THE FITNESS OF THE SENTENCE

[15] In this case, the sentencing judge noted that the respondent “has a criminal record with some entries relating to violence against persons”, and that this offence took place in a shelter.

[16] He also noted that the respondent pleaded guilty, that his “mental health seems to have contributed to his engagement with the criminal justice system in the past”, and that “there are signs that rehabilitation is within reach” as the respondent was seeing a psychiatrist, was taking medication, had completed a number of courses, and had been “approved for acceptance to a supportive transitional residential treatment program.” He noted that this was not an unprovoked attack and that “[t]he fact that Mr. Fortune suffered a serious head injury approximately three years ago after being attacked outside a harm reduction centre may further explain why Mr. Fortune was triggered to such a degree in the incident before the court.”

[17] However, he failed to consider several aggravating factors in determining a fit sentence.

[18] First, while he noted that the respondent’s criminal record did include “some entries” of violence against persons, he failed to take into account that this was the respondent’s third offence for nearly identical conduct which became increasingly violent. In the first attack in 2016, no weapons were involved. The second incident involved a hammer, and in the incident before us, the respondent used two knives, and had the knives on his person prior to the offence, notwithstanding that he was subject to a probation order prohibiting possession of weapons.

[19] The respondent received a sentence of two years less pre-sentence credit in relation to the first unarmed aggravated assault in 2016. That sentence failed to deter him from committing two armed assaults, one in 2019, which involved the use of a hammer, and this offence in 2022. In 2020, the court accepted the joint submission of the parties of a ten-month sentence less pre-sentence credit for several offences, including the 2019 assault with a hammer. It is however noteworthy that the sentence was imposed without the sentencing judge knowing about the 2016 assault which took place in Nova Scotia. Although the offence that is now before us was the third and most serious similar violent offence, the respondent again received a two-year sentence, less pre-sentence credit.

[20] Imposing a two-year global sentence, which is identical to the sentence received in 2016, does not achieve the sentencing objectives of specific deterrence, nor does it send the appropriate message to the public about repeat offending. This crime is the third and by far the most serious of the respondent’s similar violent crimes such that the jump principle has little application. As noted by this court in R. v. Green, 2021 ONCA 932, at para. 12, quoting R. v. Borde (2003), 63 O.R. (3d) 417 (Ont. C.A.), at para. 39:

[T]he jump principle [that a subsequent sentence should have an incremental increase proportionate to the frequency of the repeated offence] “ has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness”. The same is true when dealing with multiple convictions for an offender with a lengthy criminal record, or where previous sanctions have been ineffective in deterring the offender. [Emphasis added.]

[21] Second, while the sentencing judge acknowledged that the victim was stabbed five times, suffered significant injuries, and underwent a number of medical procedures including the removal of his spleen, he failed to note that his injuries were life-threatening. Nine months after the attack, the victim told the police during an interview that he continued to suffer from night terrors and recurring physical pain and had not returned to work. He also described suffering from ongoing psychological issues because of the attack. As such, the sentencing judge failed to give these serious aggravating factors their proper weight.

[22] Moreover, this sentence is not consistent with comparable sentences imposed on similar offenders.

[23] The respondent points to this court’s decision in R. v. Morgan, 2020 ONCA 279, to suggest that a two-year sentence for this offender and this offence was within the range. In Morgan, the appellant was given a 21-month sentence for aggravated assault and a consecutive 3-month sentence for failure to comply with court orders. However, in Morgan neither party disputed the fitness of the sentence at the time it was imposed, rather this court was asked to address the effect that intervening events, namely the COVID-19 pandemic, had on the sentence. This court refused to reduce the sentence and, at para. 11, held that:

[T]he sentence imposed on the appellant was at the very low end of an acceptable range of sentence for the offence of aggravated assault. It was, indeed, a lenient sentence, given the injuries sustained by the victim and the fact that the appellant had a criminal record. To reduce the sentence any further would result in a sentence that is unfit, one that would be disproportionate to the gravity of the offence.

[24] It is not clear what criminal record Mr. Morgan had, whether there were any prior violent offences on his record, or whether the offences became increasingly violent over time as in this case.

[25] The appellant submits that the proper sentence range in this case for aggravated assault by a repeat offender is three and a half years to six years and that a global sentence of five years for the aggravated assault would be fit in the circumstances of this case: R. v. Tourville, 2011 ONSC 1677. However, the three cases cited by the appellant that in my view are most similar to this case – R. v. Crawford, 2022 ONSC 2280, R. v. Stephens, 2019 ONSC 693, and R. v. Hudson, 2019 ONCJ 608 – are cases where the sentence imposed was three to three and a half years. While in each of these three cases, the sentencing occurred after a trial, this is not as significant a factor in this case as, while time and resources were saved by the respondent’s guilty pleas, the entire incident was captured on video and therefore there was no question as to what happened.

[26] In Crawford, a similar knife offence was committed, there may have been an earlier altercation between the parties, [1] and Mr. Crawford had a prior criminal record though no substantial period of incarceration. Genuine efforts were made at rehabilitation by Mr. Crawford. A global sentence of three years and three months was imposed.

[27] In Stephens, the offender attacked the victim with a knife after being provoked and the injuries were serious, although there is no mention in the reasons for sentence of the injuries being life-threatening. Mr. Stephens received a global sentence of three years.

[28] In Hudson, an offender with a criminal record stabbed the victim with a sharp object which was likely a knife, resulting in life-threatening and life-altering injuries, and efforts were made by the offender at rehabilitation. Mr. Hudson was sentenced to three-and-a-half-years for aggravated assault.

[29] In view of the history of similar offences, the injuries to the victim, and the range of sentences imposed on similar offenders who committed similar offences, the two-year sentence is manifestly unfit.

[30] Finally, the sentencing judge provided no reason for ordering the sentence for aggravated assault and the sentence for breach of a probation order to run concurrently.

[31] The breach of a probation order in this case constituted a different invasion of a “protected societal interest” than the aggravated assault: R. v. Fournel, 2014 ONCA 305, 319 O.A.C. 42, at paras. 58-59.

[32] Moreover, the respondent’s decision to arm himself with two knives while bound by a probation order not to possess weapons was in no way mitigated by provocation. Without quick access to weapons, the incident may not have escalated, and even if it did, the injuries may have been less severe.

[33] Had the sentencing judge considered the respondent’s use of two knives while on a probation order not to possess weapons as an aggravating factor in relation to the aggravated assault charge, concurrent sentences may have been appropriate because this factor would have informed what a global fit sentence should be. Having failed to consider it an aggravating factor, the failure to order the respondent’s sentences to run consecutively was an error in principle: R. v. McCue, 2012 ONCA 773, 299 O.A.C. 14, at paras. 21-22.

[34] Having found that the sentencing judge made an error in principle that affected the sentence and that the sentence imposed was manifestly unfit, it falls to this court to impose a fit sentence.

D. THE SENTENCE TO BE IMPOSED

[35] Section 687(1)(a) of the Criminal Code outlines the powers of a court of appeal to vary an unfit sentence “within the limits prescribed by law for the offence of which the accused was convicted.” Section 687(2) provides that “A judgment of a court of appeal that varies the sentence of an accused who was convicted has the same force and effect as if it were a sentence passed by the trial court.”

[36] Given the seriousness of the offence and the fact that the respondent is a repeat violent offender who committed this offence in breach of a probation order (which is an aggravating factor), a global sentence of three years and six months is within the range of sentences for similar offences committed by similar offenders and meets the objectives of denunciation and deterrence which are overarching sentencing principles in cases of this nature.

E. WHETHER THE RESPONDENT SHOULD BE REINCARCERATED

[37] The respondent submits however, that he has already served his sentence and that, even if this court finds that the sentence imposed was unfit, he should not be reincarcerated.

[38] The respondent was sentenced on April 14, 2023, and released from custody on August 14, 2023. His release in August 2023 reflects the fact that the sentencing judge subtracted 19 and a half months for pre-sentence credit from the 2-year global sentence, noting that “[l]ike many others in pretrial detention at the TSDC Mr. Fortune has suffered frequent lockdowns, but when one considers Mr. Fortune’s mental health issues these periods of segregation would further exacerbate the harsh presentence custody conditions.”

[39] While the respondent was living in a shelter at the time of this offence, he has made progress since his release from custody where he completed some programs. The respondent introduced fresh evidence on appeal in the form of a brief affidavit. In the affidavit, Mr. Fortune swears that he has been living with his father since about August 2023 and that he has been employed since November 2023. Moreover, almost a year has passed since he was sentenced, and roughly eight months since his release, without incident.

[40] This court’s jurisprudence supports the proposition that incarceration or re-incarceration may not be appropriate where offenders have served most or all of their sentence: W.V., at para. 48; R. v. R.S., 2023 ONCA 608, 430 C.C.C. (3d) 229, at paras. 41-42; R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at paras. 48-49; R. v. Davatgar-Jafarpour, 2019 ONCA 353, 146 O.R. (3d) 206, at para. 50; R. v. Hamilton (2004), 72 O.R. (3d) 1 (Ont. C.A.), at paras. 165-66; and R. v. Sharma, 2019 ONCA 274, at para. 24.

[41] In deciding whether to stay the custodial portion of the new and higher sentence, the court can consider several factors including, but not limited to: the length of or delay in the appellate process, the length of the sentence to be served, whether denunciation and deterrence can be met without further incarceration, the potential for injustice if the sentence is served, and the rehabilitative progress that has been made by the offender: R v. Dufour, 2015 ONCA 426, 326 C.C.C. (3d) 52, at paras. 11-29; R. v. H.E., 2015 ONCA 531, 336 O.A.C. 363, at para. 57.

[42] Given the respondent’s progress since his release after serving the sentence imposed, it would not be in the public interest to reincarcerate him. However, given the residual public safety concerns, and to assist with his ongoing progress out of custody, a probation order should be imposed.

F. Probation Order

[43] While the respondent is now employed and has made some progress, given his history of offences, his behaviour should continue to be monitored to address ongoing public safety concerns and assist his progress. That could be effected by way of a probation order.

[44] Section 731(1)(b) of the Criminal Code limits the availability of probation orders that follow periods of imprisonment to sentences not exceeding two years.

[45] In R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723, the Supreme Court affirmed that when, after having taken into account pre-sentence credit, the actual term of imprisonment is a term not exceeding two years, a probation order may be imposed: at para. 19.

[46] Although I believe a fit global sentence for the respondent is 3 years and 6 months (or 42 months), once the pre-sentence credit of 19 and a half months is taken into account and noting the 4 months spent in custody serving his sentence, the respondent has a net sentence of 18 and a half months’ imprisonment left to serve.

[47] As Fish J. states in Mathieu, at para. 19, “…the words ‘imprisonment for a term not exceeding two years’ used by Parliament in s. 731(1)(b) refer to the custodial term imposed at the time of sentence — the actual term of imprisonment imposed by the court after taking into account any time spent in pre-sentence custody” (emphasis added).

[48] Counsel were contacted after the hearing of this appeal to solicit their input and, if possible, a joint position on the availability and terms of a probation order. While the parties confirmed their earlier positions regarding the appropriate sentence, they provided a joint position should this court find that a probation order is appropriate.

[49] The parties submitted that the length of sentence is considered from the date of sentence, that is, the actual term of imprisonment and not the global sentence. The parties agreed that, considering the credit for pre-sentence custody, a probation order would be legally available to the respondent as long as his global sentence did not exceed three years and seven and a half months.

[50] The respondent was sentenced on April 14, 2023. At that time, he had served 390 days in pre-sentence custody, and he was credited with 19 and a half months of pre-trial custody. Thereafter, he served his sentence for four months.

[51] Considering the global sentence being imposed is three years and six months, but he has less than two years left to serve, the respondent remains eligible for probation. A probation order may and should be imposed for a further 18 months in order to ensure some monitoring of the respondent’s ongoing rehabilitative progress and to address public safety concerns.

G. TERMS OF THE PROBATION ORDER

[52] If a probation order is granted by this court, the parties have agreed on the following terms and conditions which I would approve:

a. Keep the peace and be of good behaviour; b. Appear before the court when required to do so by the court; c. Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; d. Report to a probation officer within seven working days of his release from custody (or the date the court's decision is released if sentence is stayed) and thereafter as required by his probation officer; e. Abstain from communicating, directly or indirectly with the victim, and refrain from being within 100 metres of any place where the victim lives, works, goes to school or is known to frequent; f. Abstain from owning, possessing or carrying a weapon as defined in the Criminal Code; g. Attend for such counselling, treatment or rehabilitation programs as recommended by his probation officer, including, but not limited to: psychiatric/psychological issues; h. Sign any/all release of information forms necessary for the respondent’s probation officer to be aware of his completion of the counselling, treatment or rehabilitation programs he participates in; and i. Provide proof of his completion of any counselling, treatment or rehabilitation programs he is taking. [2]

[53] For the above reasons, I would grant leave to appeal and vary the sentence to one of three years and six months. As the net sentence left to serve is 18 and a half months’ imprisonment, and in view of the respondent’s progress, the remaining custodial portion of the sentence is stayed and an 18-month probation order is imposed in its stead on the terms set out above. I would not disturb the ancillary orders, namely the lifetime weapons prohibition and the DNA order, imposed by the sentencing judge.

Released: April 12, 2024 “C.W.H.” “ Thorburn J.A.” “I agree. C.W. Hourigan J.A.” “I agree. L. Favreau J.A.”

Footnotes

[1] The sentencing judge described the incident as “an unprovoked attack with a knife” but went on to explain, at para. 28, that: “Mr. Crawford testified that before the knifing, there was an earlier incident in the washroom involving himself, the victim, and the cocaine purchaser. On his evidence, the victim was angry that Mr. Crawford was going to sell cocaine to the customer who the victim considered to be his own customer, and threated both him and the customer with a knife while all three were in the washroom. Because this scenario was never put to the complainant, I have only Mr. Crawford’s evidence. While the earlier altercation, if the event did take place, would not have altered the finding of guilt on the charge of aggravated assault, it may nevertheless have a mitigating impact on sentence as it differentiates the incident from those cases where the offender has attacked the victim in the total absence of any triggering or provocative act or words on the part of the victim.”

[2] The victim’s name and date of birth are removed for privacy reasons.