Court File and Parties

Court File No.: Brampton 13-16120 Date: 2016-09-23 Ontario Court of Justice

Between: Her Majesty the Queen — and — M.B.

Before: Justice Patrice F. Band

Reasons for Sentence released on: September 23, 2016

Counsel:

• Ms. C. Sibian, counsel for the Crown
• Ms. L. Graham, counsel for the defendant M.B.

BAND, J.:

I. INTRODUCTION

[1] These are my reasons for sentence in a case in which Mr. M.B. stabbed an unarmed male in the upper chest within two seconds of the start of a consent fight in which Mr. M.B. and his associate outnumbered the victim.

[2] On September 1, 2015, after trial, I found Mr. M.B. guilty of Aggravated Assault and Assault with a Weapon.[1] The matter has a tortuous history. For reasons that will be described below, the sentencing hearing took place over the course of a number of appearances between September 1, 2015 and September 2, 2016.

II. THE FACTS FOUND AT TRIAL

A. The Incident

[3] In November 2013, Mr. M.B. was a client in a homeless shelter in Brampton. He was friendly with another client named Francesco Caruso. One morning, another guest, Mr. Bruno Pascoa, started a verbal confrontation with Mr. M.B. and Mr. Caruso inside the shelter. Mr. M.B. and Mr. Caruso were both of smaller stature than Mr. Pascoa. Mr. Pascoa was behaving in an agitated and aggressive manner. According to Mr. Caruso, Mr. M.B., too, was "really pissed, but not as animated as" Mr. Pascoa.

[4] Mr. Pascoa urged Mr. M.B. and Mr. Caruso to join him off shelter property to fight. He walked towards the road while waving at them to follow him. Mr. M.B. and Mr. Caruso agreed, and followed. All of them were aware of shelter policy that prohibited fighting on shelter property.

[5] Once they arrived across the street, the fight began. It was caught on video and the image is very clear, albeit taken from a distance.

[6] At trial, Mr. Caruso explained that his approach in a fight is to let his combatant strike first; he then follows up with the second blow. Mr. Pascoa threw the first punch, striking Mr. Caruso. He then punched Mr. M.B.. At approximately the same moment, Mr. M.B. stabbed Mr. Pascoa once in the chest with a steak knife he had on his person.

[7] The stabbing took place within two seconds of the outset of the physical fight. For the next 16 seconds, Mr. Pascoa continued to fight with Mr. Caruso, whom he dominated until staff broke up the fight.

[8] Mr. M.B. did not seek to continue his assault on Mr. Pascoa.

[9] Alcohol or drugs were not a factor in Mr. M.B.'s behaviour that day.

B. The Victim's Injuries

[10] Mr. Pascoa suffered a wound and collapsed lung that required a few days' hospitalization.

C. Mr. M.B.'s Voluntary Statement to Police

[11] In his statement to police, Mr. M.B. explained that "he threw a punch at me, I just snapped…"

[12] While he denied going outside with the intention of stabbing Mr. Pascoa, Mr. M.B. explained: "But again, it was just one of those things. It's you know when you clench your fist up it's just there, you know, and then it happened."

[13] The officer asked Mr. M.B. whether Mr. Pascoa deserved being punched. His response was "Did I deserve my buddy getting hit and me throwing a fist at me?"

[14] The officer replies that "a stab's a big jump from getting punched" and Mr. M.B. explains: "Yeah, I know. But I'm the kind of person that just instantly grabs and just goes, like, I don't know. Just a quick reaction."

III. SUMMARY OF FINDINGS AS TO GUILT

[15] Mr. M.B. argued that he had acted in self-defence or in defence of Mr. Caruso. I rejected both arguments.

[16] In a nutshell, I found that Mr. M.B. had displayed a "hair-trigger" with respect to his use of the knife to stab an unarmed and outnumbered man within the first two seconds of a consent fight. By that time, Mr. Caruso had been punched once and Mr. M.B. was in the process of being punched for the first time.

[17] In my view, this in itself was sufficient to negative the defence.

[18] As an alternative, I concluded that the stabbing was unreasonable and disproportionate in all the circumstances. Aside from the use of a knife and the location of the stab wound, my reasons included the fact that Mr. M.B. had a multitude of other options. These included using his hands to defend himself and his associate, as well as making use of the avenues of escape in surrounding open space.

IV. THE SENTENCING HEARING

A. Procedure and Scheduling

[19] On consent, I ordered a Pre-Sentence Report and the matter was adjourned to November 2015. On the first sentencing date, Ms. Graham argued that Mr. M.B. suffered from chronic depression and that this mental health problem was relevant to sentencing. I queried whether an assessment under the Mental Health Act might assist her in shedding light on the issue. She requested one, and the matter went over to January 2016 for that purpose.

[20] On the return date, a report from Dr. A. McDonald at CAMH was filed. Ms. Graham expressed concerns with it as to content and lack of comprehensiveness. In particular, Dr. McDonald gave an unsolicited, albeit qualified, opinion as to risk in the absence of a formal risk assessment. She wished to have Mr. M.B. seen by another psychiatrist so that a more comprehensive opinion could be produced which included a risk assessment. The matter was adjourned for that purpose. This occupied a number of appearances, as funding through Legal Aid Ontario had to be sought. Ultimately, funding was obtained, Dr. J. Gojer was retained and May 2 was fixed for the completion of the sentencing hearing. Unfortunately, the matter did not proceed on that date as Mr. M.B. was late. It was adjourned to September 2, the next available date. Neither party sought to cross-examine the experts, and the sentencing submissions resumed on that date.

B. Position of the Parties

[21] The Crown submitted that a jail sentence of 18 months to two years-less-a-day is warranted in this case. She cited relevant case law, including R. v. Tourville, 2011 ONSC 1677 and emphasized the principles of general deterrence and denunciation.

[22] In light of the risk assessment in this case, she argued for something closer to the outside of her proposed range.

[23] On behalf of Mr. M.B., Ms. Graham sought a jail sentence of 90 days (intermittent) to six months. She relied on a number of cases, many of which did not involve stabbings that arose from consensual fights.

C. Material Filed

(i) The Criminal Record

[24] Mr. M.B.'s criminal record includes a prior finding of guilt and conditional discharge for the offence of possession of property obtained by crime in 2012. He incurred convictions on two separate sets of charges that post-date the incident before the court. In 2014, he was found guilty of Uttering Threats, Weapons Dangerous and Assault Peace Officer, and received a suspended sentence and probation. In 2015, he was found guilty of Assault (Domestic) and Fail to Comply Recognizance, and received a sentence of one day in jail following 66 days of pre-trial custody.

(ii) The Pre-Sentence Report

[25] Generally speaking, the Pre-Sentence Report ("PSR") is positive, but it must be read with some caution. I will discuss it further under the heading "Circumstances of the Offender," below.

(iii) Dr. McDonald's Report

[26] Dr. McDonald's impression of Mr. M.B. was unfavourable. He found him to be manipulative, impulse-driven and prone to minimizing his past wrongdoing. He indicated that in his view, "the more positive observations made about him as in the pre-sentence report [were] maybe rather unrealistic."

[27] He found him to have minimal insight into his personality problems. He also found him to be "likely of somewhat below average intellect (no formal assessment of this was carried out)." Mr. M.B. acknowledged that he abuses illicit substances of all sorts, and that he believes their effect to be more favourable than problematic.

[28] Dr. McDonald rejected the notion that Mr. M.B. was clinically depressed.

[29] He explained that Mr. M.B. showed "all of the more classic and obvious features of a severe antisocial personality disorder and perhaps of such proportion as to be fairly described as in the psychopathic spectrum."

[30] Dr. McDonald expressed significant scepticism as to Mr. M.B.'s treatment potential. He also expressed "grave concern about this man's future potential for violence and risk for recidivism." In doing so, Dr. McDonald acknowledged that his report was not a formal risk assessment, and indicated that it would be appropriate to seek one.

(iv) Dr. Gojer's Report

a. Mental State and Psychological Evaluations

[31] During his time with Dr. Gojer, Mr. M.B. underwent a number of evaluations as well as psychological testing.

[32] Mr. M.B. falls in the below-average intelligence range. His verbal reasoning abilities place him at the 5th percentile. His nonverbal reasoning abilities place him at the 2nd percentile. His working memory places him at the 4th percentile. His processing speed abilities place him at the 12th percentile. On a composite measure of general intelligence, Mr. M.B. falls at the 2nd percentile. On a test designed to assess core academic abilities, Mr. M.B. falls at the 1st percentile, which is comparable to a grade 3 student.

[33] Other testing showed that Mr. M.B. has difficulty with attention and concentration. On various memory tests, Mr. M.B. falls in the low-average to average range.

[34] The psychologist who conducted the tests indicated that Mr. M.B.'s learning difficulties "possibly make it difficult for him to learn from conventional interventions and counselling programs."

b. Diagnoses, Risk Assessment, Treatment and Prognosis

[35] Dr. Gojer's diagnoses include a history of childhood disorders such as Severe Learning Disability, ADHD and Oppositional Defiant Disorder. He found evidence of underlying brain damage as well as sexual abuse at a very young age.

[36] Dr. Gojer described Mr. M.B.'s academic function as akin to that of an 8 or 9 year old, and opined that his emotional maturity also appears to be lagging.

[37] According to Dr. Gojer, "Mr. M.B.'s childhood problems have evolved into a personality disorder with both Antisocial and Borderline features and he likely meets the full criteria for both conditions." Notably, both sets of traits are associated with aggression and violence, as well as drug and alcohol abuse.

[38] Dr. Gojer's opinion as to risk was in keeping with Dr. McDonald's. While he found that Mr. M.B. did not qualify for the label of psychopath, his score on the pertinent test "does give rise for concern about traits that tend towards psychopathy."

[39] Dr. Gojer explained that Mr. M.B. has difficulty learning from experience and "one can expect him to react violently in the future." Overall, he assessed him as being "at a moderately high risk to reoffend violently."

[40] Dr. Gojer found that Mr. M.B. did not suffer from a major mental illness, and that his substance abuse was currently in remission.

[41] Since the beginning of 2016, Mr. M.B. participated in an Impulse Control Group with Dr. Gojer. He had attended 20 hours, and had not missed a session until his arrest on unrelated charges. During therapy, he participated actively and showed "considerable insight into his behaviours and the need to change in a positive direction." He also agreed to try medication to attenuate mood instability and impulsivity.

[42] In sum, while Mr. M.B. is at a moderately high risk to reoffend violently, Dr. Gojer sees him "as having the potential to make gains in therapy." To that end, Dr. Gojer made a number of recommendations.

(v) Documents Submitted by the Defence

• Employment and Volunteerism

[43] A letter from D[…], dated October 30, 2015, indicates that Mr. M.B. had been working full time for that company since October 19, 2015.

[44] A letter from S[…] Canada, dated November 5, 2015, indicates that Mr. M.B. had been participating in that non-profit organization's initiatives for over 18 months. His responsibilities included mentoring junior participants. According to its author, who also happens to be Mr. M.B.'s Community Support Worker, Mr. M.B. showed deep commitment. He had been open with them about his troubles with the law and sought their advice. The author also indicates that Mr. M.B. has made a real commitment to his young son.

• Counselling

[45] Two letters from the John Howard Society, dated December 2013 and March 2014, indicate that Mr. M.B. expressed interest in some of the programs offered, including anger management and individual counselling. A letter from a social worker at REgeneration Brampton, dated December 2013, indicates that she had been working with Mr. M.B. for over a year and that he was a participant in programs and community supports offered by that organization.

[46] A letter from the Elizabeth Fry Society of Peel-Halton, dated March 15, 2016, indicates that Mr. M.B. was referred to their anger management program as part of his probation order in 2014. He attended 20 counselling sessions involving topics such as anger management, addictions, relationships and conflict resolution. Mr. M.B. completed the requirements regarding anger management. Further counselling was recommended.

[47] Ms. Graham advised me that these sessions were the continuation of what had begun with Dr. Gojer. Apparently, because of its proximity to Mr. M.B.'s residence in Peel, it was agreed between them that he would continue under the auspices of Elizabeth Fry. I have difficulty understanding that, given that the letter in question makes specific reference to Mr. M.B.'s previous probation order, and lists his dates of attendance, all but one of which took place in 2015.

[48] Be that as it may, the letter confirms his involvement in counselling as described.

D. Circumstances of the Offender

[49] Mr. M.B. is 31 years old. He was raised by his mother Mrs. P.B. and, according to the PSR, had a good early childhood. Dr. Gojer's report indicates that he was sexually abused by a male at the age of 3.

[50] He has had little to no contact with his biological father. As an adolescent, he began to use drugs and had trouble in school. It appears that the last grade he completed was grade 8. He then became employed on and off, and lived on the street for some time. Since 2008, he has been on ODSP. He believes this is due to depression. Shortly before the PSR, Mr. M.B. became employed.

[51] Currently, Mr. M.B. is in a common-law relationship with a young woman named A.M.. The two have a young son together. Ms. A.M. also has daughter from a previous relationship. Because of Ms. A.M.'s own developmental issues, her daughter is currently under the care of the Children's Aid Society ("CAS"). The CAS is also involved with their son, who is currently placed with Mr. M.B.'s mother. Mr. M.B. and Ms. A.M. are both taking parenting classes.

[52] Mrs. P.B. and Ms. A.M. are supportive of Mr. M.B.. They have attended at almost all of his court appearances. They both indicate that he is determined to be a good father to his son.

[53] Mr. M.B. admitted to Dr. Gojer and to Dr. McDonald that he has indulged in large amounts of alcohol and all manner of drugs, including crack cocaine and methamphetamine. He denied being addicted. He told Dr. Gojer that he has "no plans to stop any drugs."

[54] By contrast, the PSR indicates that Mr. M.B. reported no current issues with substance abuse (drugs or alcohol), but advised that he "experimented with marijuana with peers" [my emphasis].

[55] In my view, this illustrates Dr. McDonald's concern with the PSR. They are well-founded.

[56] It is unclear whether Mr. M.B. was ever ordered to attend a substance abuse program. He told the author of the PSR that he had not. His mother told the same author that he had been referred by a previous probation officer. In any event, it would appear that Mr. M.B. has never been treated in relation to substance abuse.

[57] Mr. M.B. expressed remorse for his actions to both Dr. Gojer and the author of the PSR. He told Dr. Gojer that he "used poor judgment and will have to accept the consequences."

E. Victim Impact

[58] The Crown advised that no victim impact statement was sought from Mr. Pascoa and that none would be forthcoming. This is not surprising. At trial, Mr. Pascoa made it abundantly clear that he wished his participation in the process to be as limited as possible.

F. Mr. M.B.'s Statement to the Court Before Sentencing

[59] Mr. M.B. addressed me. He told me that he knows what he did was wrong, and that he is depressed at the prospect of being apart from his young son.

V. PRINCIPLES OF SENTENCING AND CASE LAW

[60] Aggravated assault is punishable by 14 years in jail.

[61] The guiding principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code. Fundamental is the principle of proportionality. That is, to be fit, a sentence must reflect the gravity of the offence and the moral blameworthiness of the offender.

[62] Denunciation and deterrence are the primary sentencing principles in a case such as this: see R. v. Gajraj, [2013] O.J. No. 1026 (S.C.J.), R. v. Moreira, and R. v. Tourville, supra. The parties also agree that some period of custody is required in order to pay service to these principles.

[63] That said, an offender's rehabilitative prospects are also important.

[64] So, too, is the principle of restraint in the case of an offender who faces the prospect of a lengthy jail sentence in relation to his first conviction.

[65] Restraint also plays a role where an offender's "mental health problems played a central role in the commission of the offence." This is because, in cases of offenders who were out of touch with reality during the commission of the offence, specific deterrence will be meaningless. Also, others with similar problems will not usually be deterred by the punishment imposed on others. Further, "severe punishment is less appropriate in cases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender." See R. v. Batisse, 2009 ONCA 114.

[66] The parties agree that the range of 18 months to two years less-a-day described by Justice Code in Tourville, supra, is applicable to this case, which originated as a consent fight.

[67] A fit and proportionate sentence will also reflect the principle of parity. That is, like cases ought to be treated alike. This principle has given rise to sentencing ranges. These are not "straight jackets" or starting points, but guideposts for judges: see R. v. Lacasse, 2015 SCC 64.

[68] In Gajraj, supra, after a guilty plea, the offender was sentenced to two years less-a-day for stabbing another male in the abdomen with a knife in the context of a consent fight. The offender was 20 years old, with no prior record. Prior to the offence, he had been employed full-time and seeking further education.

[69] In Moreira, supra, after trial, the offender was sentenced to 21 months for stabbing a male with whom he had been involved in a dispute. The offender was 19 years old at the time of sentencing. From the age of 17, he had been employed and supporting himself. He had no prior criminal record. The significant amount of alcohol he had consumed was also a mitigating factor. His prospects for rehabilitation were positive, owing to his intelligence, goals and community support.

[70] In R. v. Pulido, 2010 ONSC 3143, after trial, the offender was sentenced to 90 days in jail, to be served intermittently for striking a male with a beer bottle in a dispute in a bar. The bottle shattered, and caused a serious wound to the victim's arm. He was under the influence of alcohol at the time. At trial, the Crown sought to prove that the offender caused an injury to the victim's neck as well as arm. The offender admitted causing the injury to the victim's arm, and that formed the basis for the conviction. The offender was 35 years old, and had a related, but dated conviction. He had been employed consistently for many years and was a good and supportive father.

[71] In R. v. Wan, [2012] O.J. No. 6542 (S.C.J.), after a guilty plea, the offender was sentenced to 6 months in jail for stabbing a man multiple times with his keys. The offender had assisted the victim in coming to live and work in Canada. Later, the victim and the offender's wife became involved. The victim decided to confront the accused, who was in his car. It appeared that they were going to finally resolve their conflict. The offender was afraid of the victim, and armed himself by putting his keys between his knuckles. The victim pushed him, and the offender stabbed the victim. The injuries were serious. The offender had no prior record, and was found to be at little risk of reoffending. The offence was out of character. He was consistently employed, and also employed others. He was a supportive father. The sentencing judge also noted that the weapon used – keys – was not one that is generally used as a weapon. It was simply available.

VI. AGGRAVATING AND MITIGATING FACTORS

[72] The aggravating factors in this case are:

1. The weapon Mr. M.B. used was a knife;
2. The knife was concealed on Mr. M.B.'s person;
3. Mr. M.B. used the knife almost immediately after the consent fight began; and
4. The injury was very serious.

[73] In her sentencing submissions of November 2015, the Crown indicated that there was no evidence that Mr. M.B.'s possession of the knife constituted predesign. However, on September 2, 2016, she stated the contrary in the recap of her prior submissions. I am not satisfied beyond a reasonable doubt that Mr. M.B. took possession of the knife that morning in order to later stab Mr. Pascoa with it.

[74] The mitigating factors in this case are:

1. Mr. M.B. had no prior criminal record at the time of this offence;
2. To some extent, the overall behaviour of the victim constituted provocation;
3. Mr. M.B. has the continued support of his mother and common-law spouse;
4. Mr. M.B. has, in the past, given to the community in a pro-social way;
5. Mr. M.B. has completed anger management counselling;
6. Mr. M.B. has made some recent strides in counselling with Dr. Gojer;
7. Mr. M.B. has agreed to take medication at Dr. Gojer's recommendation;
8. Mr. M.B. has shown remorse and insight relating to his wrongdoing; and
9. Mr. M.B. obtained employment shortly after the conclusion of the trial.

VII. PROSPECTS FOR REHABILITATION

[75] Mr. M.B.'s potential for rehabilitation is a complicated issue.

[76] On one hand, he is impulsive, easy to anger and described by Dr. Gojer as a moderately high risk to reoffend violently. He has difficulty learning from experience. He has been convicted of violent offences since the incident took place. He does not appear to be honest or realistic about his substance use, its effects or the need for treatment.

[77] On the other hand, those close to this 31 year old man believe that he is determined to change his ways in order to be a good father to his young son. He has expressed remorse and insight concerning this offence. Dr. Gojer's opinion is that he has the potential to make gains in therapy. I note that Mr. M.B. has never been sentenced to a lengthy term of imprisonment. On balance, while I would find that Mr. M.B. remains a candidate for rehabilitation, I have come to that conclusion with relatively strong reservations.

VIII. RELEVANCE OF MENTAL HEALTH PROBLEMS

[78] Mr. M.B. was not out of touch with reality or otherwise the subject of a major mental illness that played a central role in the offence. But one cannot ignore the significant degree of his intellectual deficits or the fact that his impulsiveness is related to his other mental health problems.

[79] In my view, in combination with Mr. M.B.'s rehabilitative potential, these factors must to some extent temper the emphasis one would otherwise place on the principles of general deterrence and denunciation. It is also worth noting that the passing of sentence will be taking place almost three years after the offence.

[80] On the other hand, Mr. M.B.'s ability to make gains through counselling leads me to believe that he is capable of learning to adapt his behaviour. Given his admitted and obvious impulsiveness in relation to the offence, his resort to the use of a weapon and violence since that time and the risk he poses going forward, I am of the view that the sentence of this court must involve some measure of specific deterrence.

IX. CONCLUSIONS

[81] In my view, Mr. M.B.'s unique individual circumstances and attributes justify sentencing him to a period of jail that is below the range that is normally applicable to cases of this nature. As I have indicated above, the paramountcy of the principles of general deterrence and denunciation is diminished in a case like this one.

[82] That said, I am satisfied that Mr. M.B.'s first lengthy jail sentence must be one that takes into consideration the seriousness of his offence and holds him accountable for it. It should also be of such length as to deter him from reoffending violently. It should also involve a lengthy period of community supervision in order to foster his rehabilitation and to protect the public.

[83] Having considered the relevant factors and sentencing principles, in my view, a fit sentence is the following:

[84] Mr. M.B. will be sentenced to serve 12 months in jail.

[85] Thereafter, he will be placed on probation for a period of three years. The conditions will be as follows. Mr. M.B. shall:

• Keep the peace and be of good behaviour;
• Appear before the Court when and if required to do so;
• Make reasonable efforts to seek and maintain employment;
• Report to a probation officer within 7 days of his release from custody and thereafter when directed by the probation officer and in the manner directed by the probation officer;
• Abstain absolutely from the possession of any weapon as defined by the Criminal Code;
• Abstain from communicating, directly or indirectly, with Bruno Pascoa;
• Not be within 500 m. of anywhere he knows Bruno Pascoa to live, work, go to school, frequent or happen to be;
• Abstain from the possession or consumption of unlawful drugs or substances, except as prescribed by a medical doctor;
• Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer; these may include but are not limited to:
  • anger management;
  • substance abuse counselling;
  • parenting classes; and
  • vocational counselling.
• Sign any releases necessary to enable his probation officer to monitor his attendance and completion of any assessment, counselling or rehabilitative programs as directed by the probation officer; and
• Provide proof of his attendance and completion of any assessment, counselling or rehabilitative programs as directed by the probation officer.

[86] Mr. M.B. will be required to provide a sample of his DNA for purposes of the DNA databank.

[87] Mr. M.B. will also be subject to an order prohibiting him from possessing any of the weapons listed in s. 109 of the Criminal Code.

[88] Dr. Gojer's report indicates that Mr. M.B. might be suitable for the programs offered by the Ontario Correctional Institute or the St. Lawrence Valley Correctional and Treatment Centre. I will hear the parties submissions as to whether or not I should make a recommendation that Mr. M.B. serve his sentence at one of those institutions.

Released: September 23, 2016

Justice Patrice F. Band

Footnote

[1] At the Crown's request, the Assault with a Weapon count was stayed pursuant to R. v. Kienapple.