Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Dimo Angelov
Before: Justice P. H. Reinhardt
Heard on: 29 November 2012
Reasons for Sentence released on: 8 March 2013
Counsel:
- Elizabeth Kozak, for the Crown
- Matthew Friedberg, for the accused
REINHARDT J.:
1: Introduction
1On 29 November 2012, Dimo Angelov pleaded guilty before me to one count of Assault with a weapon, and one count of dangerous driving, contrary to section 267 and 249 of the Criminal Code. The Crown submitted on that day that the appropriate global disposition would be a period in custody of four to six months. In addition, the Crown asked for a probation order, and a number of ancillary orders, including a one-year driving prohibition, a section 109 order for ten years, a forfeiture order of the BB gun and a DNA order. The defence sought an absolute discharge. I have concluded that the appropriate disposition in this case is an absolute discharge, on both counts to which Mr. Angelov pleaded, coupled with the ancillary orders requested by the Crown. These are my reasons.
2This is a matter which first came before me on 13 July 2012 in chambers as a judicial pre-trial conference. I conducted two judicial pre-trials with the lawyers in this case, on the 13th of July and a further judicial pre-trial in chambers on 9 August 2012. From the outset, Mr. Angelov expressed the intention to accept full responsibility for the allegations.
3Mr. Angelov, now 20 years-old and one other individual, both college students at the University of Western Ontario, faced multiple criminal code charges arising out of a driving incident at approximately 3:15 PM in the eastbound lanes of the Gardiner Expressway in downtown Toronto, approaching the Spadina Avenue off-ramp. The facts that were admitted by Mr. Angelov were that he was driving a small gold Saturn car that was being followed by a large dark pick-up truck, and that he waived or pointed an imitation firearm, a BB gun, at the pick-up truck, when the truck pulled up along the driver's side of his vehicle as both vehicles were driving eastbound.
4He agreed that the driver of the pick-up then swerved from lane one into lane two which resulted in the pick-up nearly colliding with a number of other vehicles on the Gardiner, and placing the safety of those drivers in peril.
5In the pre-trial discussions, the Crown and the defence counsel agreed to resolve by way of a plea by Mr. Angelov with the Crown withdrawing the charges against the other accused youth.
6On the consent of the parties it was agreed that although I had conducted the two pre-trials and took part in the resolution discussions, the unresolved issue of disposition would come before me on a later date to be heard as a plea. As a result, I heard the plea and the submissions of the parties on 29 November 2012.
7In this sentencing hearing, the defence filed a factum on consent and an extensive sentencing record, Exhibit 1, that included twenty-one items, including a psychological consultation report by Dr. Giorgio E. Ilacqua (Report, Tab 1, Curriculum Vitae, Tab 2), a legal opinion letter from Christian Vernon of the firm, Pinto Wray James, LLP, Tab 3, and a multitude of documents and character reference letters.
8The Crown does not allege that Mr. Angelov has a criminal record.
2: Legal Framework
9The imposition of non-custodial sentences, the appropriateness of probation orders and the principle of restraint are dealt with in the Supreme Court Canada's recent decision of R. v. Knott [2012] SCJ No. 42 at paragraphs 1, 43 & 47, and following, where Justice Morris Fish states:
1 Trial judges must retain as much flexibility as the Criminal Code permits in crafting individualized sentences that respect the principles and purposes of sentencing set out by Parliament in the Code.
43 The sentencing objectives set out by Parliament in ss. 718 to 718.2 of the Criminal Code are best achieved by preserving - not curtailing - a sentencing court's arsenal of non-custodial sentencing options. Probation orders, where available and appropriate, serve that purpose well: They afford sentencing judges the flexibility to opt for shorter prison terms followed by community supervision, rather than the longer prison terms that they would have otherwise unnecessarily imposed to achieve the same ends.
47 I take care not to be understood to have expressed here a decided view on sentencing issues that are not now but may one day confront the Court. Subject to that reservation, I think it fair to say that the purpose and principles of sentencing set out in the Criminal Code are meant to take into account the correctional imperative of sentence individualization. Consistent with this approach and subject to the conditions set out in s. 731(1) (b) of the Code, questions related to the fitness of probation orders in particular cases - as opposed to their availability in principle - are best left to be dealt with by the courts on a case-by-case basis as a matter of fitness.
Absolute and Conditional Discharges
730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
(2) Subject to Part XVI, where an accused who has not been taken into custody or who has been released from custody under or by virtue of any provision of Part XVI pleads guilty of or is found guilty of an offence but is not convicted, the appearance notice, promise to appear, summons, undertaking or recognizance issued to or given or entered into by the accused continues in force, subject to its terms, until a disposition in respect of the accused is made under subsection (1) unless, at the time the accused pleads guilty or is found guilty, the court, judge or justice orders that the accused be taken into custody pending such a disposition.
(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that
(a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence;
(b) the Attorney General and, in the case of summary conviction proceedings, the informant or the informant's agent may appeal from the decision of the court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender; and
(c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.
(4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.
Probation Orders
731. (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,
(a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order; or
(b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.
(2) A court may also make a probation order where it discharges an accused under subsection 730(1).
10These sections of the Criminal Code has been judicially considered in the case of R. v. Sanchez-Pino, [1973] O.J. No. 1903, at paragraph 17, where Justice John Arnup, speaking for the Ontario Court of Appeal, states:
17 The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing.
11The section was further interpreted in R. v. Fallofield, [1973] B.C.J. No. 559, by the British Columbia Court of Appeal, where a panel, chaired by Chief Justice Farris summarized the provisions, at paragraph 21:
21 From this review of the authorities and my own view of the meaning of s. 662.1, I draw the following conclusions, subject, of course, to what I have said above as to the exercise of discretion.
(1) The section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life or by death.
(2) The section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivial violation.
(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the next consideration into operation.
(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.
(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions.
(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions.
(7) The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence.
(8) Section 662.1 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of cases.
Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the next consideration into operation. The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.
Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions.
12The case law in Canada over the years makes clear that once the pre-requisites of the section have been meet, discharges may be considered by the court where the factors of the offence itself and the personal history of the person pleading guilty justify that consideration, despite the seriousness of the fact situation (See R. v. R.E.W., [2006] O.J. No. 265, Ontario Court of Appeal, per Rosenberg, J.)
13It is also clear that discharges are both available and have been granted to accused who have been found guilty of offences under Section 267 (Assault with a weapon – See R. v. Abour-Akrouche [2008] O.J. No. 5934), firearm-related offences under Section 86 (See R. v. Snobelen, [2008] O.J. No. 6021), and under Section 271(Dangerous Driving – See R. v. Poitras, [2005] A.J. No. 159267).
14Finally, it is clear that the imposition of a probation order is part of the discretion of the trial or sentencing judge in the context of the specific facts of the offence and the offender. (See R. v. Knott [2012] S.C.J. No. 42, per Fish, J., supra)
3: Review of the Facts
The Facts of the Offence
15While conceding that the circumstances did not provide a legal defence, defence counsel pointed to the fact that the pick-up truck referred to above had been tailgating the vehicle driven by his client for some time, on the Gardiner, and then pulled up beside him on the driver's side in an intimidating manner. It was at this point that Mr. Angelov retrieved his BB gun and displayed it to the occupants of the truck.
The Circumstances of the Offender
16Following is a summary of the evidence in the psychological report by Dr. Ilacqua, based upon a detailed psychological consultation that took place on 19 October and 3 November 2012, which was placed in evidence on consent and not challenged in the hearing and provides, in my view, a reliable narrative background to the circumstances of the offender, as documented in the sentencing record and elaborated on by the submissions of counsel. (See Exhibit 1, Tab 1, and following, filed)
Who is Dimo Angelov?
17Dimo Angelov, now twenty-years-old, was born 4 December 1992 in Sofia, Bulgaria. He is an only child. His parents are each forty-six years old, the father a Computer Programmer and the mother a Business Analyst. The family immigrated to Canada when Dimo was eight years old. Since Grade 8, while living in the west-end of Toronto, Mr. Angelov has been an Honours student and a member of many school sports teams, including volleyball, basketball and soccer. He describes his relationship to his parents as being "very close".
18Dimo Angelov is now a full-time student the University of Western Ontario ("UWO"), in London, Ontario, where he rents a house with three other students while attending second-year courses in Computer Science.
19Mr. Angelov has also had an avid interest in flying planes, having learned to fly at the age of 14 and he has a current international pilot's licence and continues to fly planes in his spare time. He is a member of the UWO Aviation Club.
20Mr. Angelov has achieved much as a student in Ontario. Mr. Angelov graduated from High School in June of 2010 as an Ontario Scholar, having achieved at least 80 percent or more in at least six Grade 12 academic courses. He attended Seneca College in 2010 & 2011 and obtained a Bachelor of Applied Technology with a 4.0 GPA and a specialization in flying. Mr. Angelov currently has a 3.0 GPA at The University of Western Ontario. (See Exhibit 1, Tabs 8 – 13)
Response to the Criminal Charges
21Mr. Angelov was held overnight at 14 Division on the first day, 15 April 2012 and then again, overnight at the Don Jail when his Bail Hearing did not commence on the second day. He found the entire experience of incarceration very challenging and the guards "intimidating" although he stated to Dr. Ilacqua that he did not in fact feel threatened by anyone while in custody for the two days before his release.
22Mr. Angelov expressed deep remorse and regret to this court in the sentencing hearing and to Dr. Ilacqua, as noted in Exhibit 1, Tab 1 for what happened on 15 April 2012. He acknowledged that there could have been tragic results because of his actions that day, and was very thankful that no-one was injured.
23In June of 2012, Mr. Angelov registered himself in Anger Management Counselling and had attended five sessions at the date of the sentencing hearing. His counsellor, Thomas Scarlett states that he:
showed a keen interest on learning different coping strategies in order to effectively manage emotions when faced in stressful situations. (See Exhibit 1, Tabs 4 & 5)
24As of 9 July 2012, Mr. Angelov had completed 21 hours of volunteer work at the Daily Bread Food Bank. (See Exhibit 1, Tab 7)
Impact of a Criminal Conviction
25Mr. Christian Vernon is an attorney at law, practicing employment law and civil litigation at Pinto, Wray, James LLP in Toronto. After reviewing Mr. Angelov's current career goals, which include potentially becoming a pilot and/or computer scientist, with the possibility of an additional professional degree in law, opines in his letter, dated 21 November 2012, which was filed on consent and not challenged by the Crown, filed with the Court, as Exhibit 1, Tab 3, at paragraph four of page three:
Regarding employers who only require a CPIC search, Mr. Angelov would be severely prejudiced in his employment opportunities for a period of 1 year in the case of an absolute discharge, or four years in the case of a conditional discharge (assuming 12 months of probation). A conditional discharge would prejudice him in this fashion right at the crucial juncture when he is completing his education and entering the workforce as a university graduate for the first time.
26Mr. Vernon goes on to state in his letter that entry into the profession of law, where seeking employment in the vulnerable sector (whose work involves interaction with vulnerable people) or for jobs involving technology work, government –funded work or work in government or government agencies all require police records checks which are more expansive that a CPIC search and are not limited to convictions or un-purged discharges.
Risk of Recidivism
27Dr. Giorgio Ilacqua states in his psychological report, Exhibit 1, Tab 1, page 12, last paragraph, and following:
Based on the file review, clinical interview, observations and psychometric testing, including risk assessment measures, it appears that Mr. Angelov presents with a low risk for involvement in future criminal activity. Specifically, he does not present with any personality disorder or psychopathy. He has articulated feasible plans for his further, is currently in a relationship, is attending full time school and perceives to have a strong and stable social network. (Please note that in the LSI-R and the IORNS Mr. Angelov scored in the lowest possible range.)
Mr. Angelov has expressed his remorse for a regrettable lapse in his judgment, a remorse which extends beyond himself and his immediate family and friends, but that includes the other individuals who were involved and potentially involved. He expressed gratitude that no physical harm came to anyone, and was clear in taking full responsibility for his actions and necessarily anticipated punishment.
Mr. Angelov's clinical interview, the results of the psychometric measures, his exemplary school records, the letter of recommendation from a previous employer, and his parents' perception of him are consistently presenting an image of a young man who is involved in pro-social activities and is strongly academically inclined.
Mr. Angelov is manageable in the community and it sis my opinion that more restrictive measures will not serve any purpose for him or society, other than retribution. The main concern for this young adult is that a separation from his academic endeavours and from his pro-social support group could be counterproductive and likely bear negative consequences for our society and for Mr. Angelov.
4: Findings
28Before the court today is a 20-year-old young man with no criminal antecedents or record. He presents as a talented student and conscientious young man who has his family and community behind him, and has, since the date of this offence, made significant efforts to give back to society and to rehabilitate himself. He has expressed to this court and to the professionals who have assessed him a deep remorse for the event that brings him before the court. He has already served two days in jail prior to his release on bail.
29This young man has pleaded before me and admitted his guilt to two serious Criminal Code offences: (1) Assault with a weapon, and (2) Dangerous Driving.
30Driving on the highways of this province is a regulated activity, and respect for the rules of the road and the safety of other citizens who are driving are important principles to be upheld in a civilized community.
31It is extremely fortunate to all concerned that no one was injured in the events that have been admitted before this court.
32The Crown submits that I must put Mr. Angelov in jail for these offences both to deter his own behaviour in the future and to deter other members of the public in their conduct as a result of my sentencing of Mr. Angelov.
33The defence submits that these two offences arise from a momentary panic, a split second lapse on the part of his client that is completely out of character for a young man who has otherwise led an exemplary life.
34The defence further submits that the imposition of a conviction, and a jail sentence would impose a devastating hardship on the future employment and career prospects of his client.
35The defence further submits that even the entering of a conditional discharge and probation would work a related hardship on his client, coming as it does at a very strategic stage in his education and career plans.
36My options in sentencing for the two offences to which he has pleaded are broad, and the difference in positions taken by counsel are also very different and perhaps irreconcilable.
37To attempt to find a proper result I must now turn to a consideration of the legislation and case law as they apply to this individual offender.
38Mr. Angelov is eligible for a discharge under section 730 of the Criminal Code because the two counts to which he has pleaded require no minimum punishment and they do not attract potential sentences of fourteen years.
39It is unquestionably in Mr. Angelov's best interest to receive a discharge.
40The issues I must decide is firstly, whether it would be contrary to the public interest to grant a discharge, and secondly, whether the public interest and the public can be protected by an absolute discharge.
41In my view, the submissions of the defence in this case are sounder both on the law and the facts than those advanced by the Crown, in terms of the fundamental principles articulated in the sentencing provisions of the Criminal Code.
42In my view, the circumstances regarding the offences themselves strongly suggest, as submitted by the defence, that Mr. Angelov panicked and displayed a momentary lapse, a momentary loss of judgment that was completely out of character to everything I have learned about this young man's life and character before or since the date of the offence.
43In my view, any reasonable member of the public, knowing the full details of Dimo Angelov's life to date, would agree with this assessment.
44It is also my view that the sentence proposed by the Crown would have a significant and perhaps life-altering impact for this specific offender, which I do not believe are appropriate given all that I have learned in this hearing.
45In my view, Mr. Angelov has learned a great deal from his arrest, pre-trial incarceration, and his self-imposed rehabilitative regime prior to sentencing.
46In my view it is not necessary for this court to either place Mr. Angelov in jail, or register a conviction to bring home to him the seriousness of his lapse in judgment that day.
47I further find that as submitted by the defence, even the lesser result of a conditional discharge and probation would work a severe hardship on Mr. Angelov, not required for purposes of rehabilitation or specific deterrence in this case.
48In reviewing his conduct since the offence, it is my view that he does not need the guidance of a probation officer, or the use of the sentencing tool of a probation order to assist in his rehabilitation or to prevent him from re-offending.
49I further find that the result sought by the defence of an absolute discharge along with the ancillary orders sought by the Crown meet the over-riding requirement that the sentence "not be contrary to the public interest".
50In my view the ancillary orders requested by the Crown and not opposed by the defence are sufficient protections for the public and the public interest in the particular and rather unique facts of this case.
51In my view, the Criminal Code provisions and ancillary orders will both protect the public and have the general deterrent effect that is in the public interest, as required by Parliament in Section 730 of the Code.
5: Order
52In the result, Mr. Angelov will receive an absolute discharge on both courts before this court and to which he pleaded guilty.
53In addition, I will make the ancillary orders requested by the Crown:
(1) Mr. Angelov, who has not driven since the incident, will also not be permitted to drive for one year from today, pursuant to Section 259 of the Code.
(2) Mr. Angelov will be subject to a ten-year firearms prohibition from today under Section 109 of the Code.
(3) Mr. Angelov will be ordered to provide a DNA sample of his blood, pursuant to the Code.
(4) Mr. Angelov will be required to forfeit the BB gun that was seized at the time of the offence.
Released: 8 March 2013
Signed: "Justice Paul H. Reinhardt"