Court Information
Court: Ontario Court of Justice
Date: September 21, 2017
Court File No.: Central East Region
Between:
Her Majesty the Queen
— AND —
Joseph Porco
Before: Justice F. Javed
Heard on: July 18, September 18, 2017
Reasons for Sentence released on: September 21, 2017
Counsel
G. Hendry — counsel for the Crown
P. Affleck — counsel for the defendant
Decision
A. Introduction
[1] Joseph Porco committed mischief by defacing transit shelters in Durham. In particular, he scrawled "No More Muslims" on a bench in a way that was visible to the entire community. He pled guilty to one count of mischief under $5000 contrary to the Criminal Code. He is to be sentenced for this offence.
[2] The lawyers agree that Mr. Porco's mischief attracts a jail sentence but disagree as to whether it should be served behind bars in a jail setting or behind closed doors, in his home.
[3] At the outset, it's important to note that this sentencing decision is not an easy one as there are undertones of racism, mental illness and community values that permeate the discussion. The court's task is to craft an individualized sentence that will do justice in this case – not all cases where these issues may have an audience.
B. The Factual Background
[4] In 2016, Durham police began to investigate instances of bus shelters being vandalized with anti-Muslim graffiti being scrawled on them. This happened in shelters in Pickering, Ajax, Whitby and Oshawa. The police estimated that up to 15 shelters had been vandalized.
[5] The police began to conduct surveillance on bus shelters with the hope to catch the culprit. Mr. Porco was caught "red handed" as he entered and exited a bus shelter after scrawling "No More Muslims". After the police searched him, they found a black permanent marker.
[6] While Mr. Porco pled guilty to one count of mischief, the other instances were read in by the Crown as part of the narrative of the events. The defence did not challenge the assertion that Mr. Porco was responsible for all the instances of mischief.
C. The Position of the Parties
[7] Mr. Hendry on behalf of the prosecution, submits that Mr. Porco's actions merit a jail sentence in the range of 4-6 months followed by a two year probationary period which should require him to take counselling for psychiatric, psychological and cultural sensitivity training. He argues that general deterrence is of paramount importance as this offence was a very public declaration of hate.
[8] Mr. Affleck's task is to zealously defend the interests of his client. He has done so ably in this case. He carefully submits that Mr. Porco wasn't charged with a hate crime and while deterrence is important, it can be met with a long and punitive sentence in the community, also known as a conditional sentence, with a combination of community service hours and counselling. He agrees that probation is necessary.
D. The Sentencing Principles
[9] It is useful to set out the guiding principles that animate my discretion to give context to the discussion that will follow. The Criminal Code makes it clear that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. Courts have made it clear that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[10] The Supreme Court of Canada explained this concept in the decision of R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para. 130:
Whereas the gravity of the offence concerns the harm caused by the offender to the victim as well as to society and its values, the other aspect of the principle of proportionality involves factors that relate to the offender's moral culpability:
The "degree of responsibility of the offender" as used in s. 718.1 certainly includes the mens rea level of intent, recklessness or wilful blindness associated with the actus reus of the crime committed. For this assessment, courts are able to draw extensively on criminal justice principles. The greater the harm intended or the greater the degree of recklessness or wilful blindness, the greater the moral culpability. However, the reference in s. 718.1 is not simply to the "mens rea degree of responsibility of the offender" at the time of commission of the crime. Parliament evidently intended "degree of responsibility of the offender" to include other factors affecting culpability. These might relate, for example, to the offender's personal circumstances, mental capacity or motive for committing the crime. Where else does the Code provide for an offender's degree of responsibility generally to be taken into account? Here, too, the answer takes us to s. 718.2.
Section 718.2 directs the sentencing judge to take into consideration a number of principles. All are either components of the proportionality principle or properly influence its interpretation and application. Either way, all are relevant in determining a just sanction that satisfies the proportionality principle.
(R. v. J.L.M.A., 2010 ABCA 363, 499 A.R. 1, at paras. 58-59; see also Nasogaluak, at para. 42; M. (C.A.), at para. 40.)
[11] I must take into account the objectives of deterrence, denunciation and rehabilitation. In doing so, I must consider any aggravating and mitigating circumstances relating to the offence or Mr. Porco and the principle that a sentence should be similar to sentences imposed on similar offenders in similar circumstances: ss. 718 and 718.2(a) and (b) of the Criminal Code.
[12] In 2015, Parliament amended the Criminal Code to include the Canadian Victims Bill of Rights. S.C. 2015, c. 13, Bill C-32. The fundamental purpose of sentencing was amended to include the protection of society. Section 718 of the Criminal Code now has a community component and requires courts to consider as an objective of sentencing, just sanctions that (a) denounce unlawful conduct and the harm done to victims or the community that is caused by unlawful conduct and (e) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.
E. The Sentencing Parameters
[13] The prosecution proceeded by summary conviction, thus the maximum available sentence is 6 months imprisonment. There is no minimum sentence.
[14] The parties do not dispute that a conditional sentence under s. 742.1 of the Criminal Code is legally available to Mr. Porco, as serving a sentence in the community would not endanger the public. Nor is there a minimum term of imprisonment and mischief is not excluded from the list of offences that are not available for a conditional sentence. Mr. Porco also qualifies for the Electronic Supervision Program (Exhibit 3). The real area of controversy is whether a jail sentence in the community would be consistent with the fundamental purpose and principles of sentencing that I have outlined above.
F. The Victim(s)
[15] There is no direct victim in this case, except perhaps the property that was vandalized. No information was lead about the financial cost of removing the graffiti and the prosecution is not seeking a restitution order.
[16] However, there is another victim in this case – the community at large. The prosecution did not file a community impact statement, which would have been available under s. 722.21 of the Criminal Code. Instead, Mr. Hendry argued that Mr. Porco's offence left a "black mark on the entire community". He added that Mr. Porco's actions "made the community less comfortable to live in, knowing that there are citizens among us who are racists and filled with hate".
[17] Mr. Affleck argues that the prosecution's characterization of the community impact is too broad. If anything, he says that Mr. Porco and his family have been negatively impacted by his actions as he's been publically admonished by the media and caused significant embarrassment to his family. This should temper the appropriate sentence.
[18] While I do not have a formal community impact statement, I disagree with the defence position that I cannot conclude that Mr. Porco's actions had a broader impact on the community. As a Justice presiding over criminal matters in the Durham region, I can take judicial notice of the local pulse of the community and the prevalence of incidents involving bigotry and hate. Justice Wagner in Lacasse wrote:
Even though the Criminal Code applies everywhere in the country, local characteristics in a given region may explain certain differences in the sentences imposed on offenders by the courts. The frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge. In M. (C.A.), Lamer C.J. stated the following:
The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. [Emphasis added; para. 91.]
He then added the following in the next paragraph:
As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. [para. 92]
[19] Sadly, there has been a proliferation of incidents motivated by bigotry and hate in the Durham region over the last year or so. This was not always the case. These incidents are unacceptable and inconsistent with the values of the Durham community and indeed, the Canadian public. Mr. Porco's message was clear: "No More Muslims". There can be no other rational inference to be drawn except that he targeted a segment of the community based on religious grounds. He was not celebrating Muslims but rather alienating them. The court does not need a community impact statement to tell it that this offends a community's sense of decency and would negatively impact them. While I am mindful of the current climate, I have been very careful to not use Mr. Porco's actions to impose a sentence that would be demonstrably unfit.
G. The Offender
[20] Mr. Affleck requested a pre-sentence report (PSR), which was filed as Exhibit 2. The author interviewed Mr. Porco, his sister and examined Ministry records in preparation of the report. In her conclusion, the author wrote: "given the subject's inability to adhere to security protocols in the office and consequently the lack of rehabilitative involvement, Probation Services can provide, he is not a suitable candidate for community supervision".
[21] Clearly, this conclusion does not advance the defence position, but nor does it legally bar the consideration of a conditional sentence. I have gone further to dig deeper to see if the PSR or other material before me, offer any insight into whether a conditional sentence is nevertheless appropriate.
[22] Mr. Porco is 56 years old and by all accounts has always been a hard-working man. At an early age, he suffered personal tragedy by losing his father. He is currently employed part-time for a cleaning company.
[23] Mr. Porco is not married and does not have any children. The author notes that he had been involved in three long-term relationships in the past, but they did not last. In one relationship, he became involved with the law by being convicted of criminally harassing the victim and subsequently failing to stay away from her. He served long periods of jail for these offences.
[24] Mr. Porco does not admit to having any mental health issues despite Ministry records which show that he was diagnosed with delusional disorder with persecutory features. I was advised by Mr. Affleck that this diagnosis was made in 1998 by a defence expert retained by Mr. Porco during the course of a criminal proceeding. This was upheld in 1999 but remains unacknowledged.
[25] Mr. Porco's sister agreed that her brother did not have mental health issues but noted that he has become paranoid as a result of his current offending behavior. She added that he is a good person who means well and felt as though he's been "given a raw deal". This sentiment was not expanded upon in the report. She indicates that he may benefit from volunteer work so he can have a purpose and be involved in group activity.
[26] The author also notes that Mr. Porco has not responded well to community supervision in the past. He minimized his offending, blamed the victim and the justice system and refused to attend for counselling. He also refused to comply with safety policies of the probation office requiring him to store his belongings in a locker. He perceives this as being treated unfairly. The report adds that he is required to be interviewed in a secure office location where glass barriers prohibit engaging or motivational interviews.
[27] By all accounts, the PSR is not flattering. It describes a person who denies having any problems and is not motivated to get any help. However, in my view, it does speak volumes about an individual who likely does have mental health issues but is not motivated to acknowledge this fact. What is more illuminating about the PSR is Mr. Porco's comments about the circumstances of the offence.
[28] He acknowledged that he made a mistake but followed with a sentiment that he "got pissed off" and "was tired of being pushed around". He discussed ongoing conflicts with Durham transit but then suggested the parties were "taking advantage of living in this country". I can reasonably assume he was referring to Muslims, the target of his scrawls. Oddly, the report is silent on the specific nature of his perceived conflicts or why he felt Muslims were taking advantage of living in Canada. These nonsensical beliefs are likely motivated by his delusional disorder but I simply can't be sure of this as he refused to admit he suffers from delusions. He added that the amount suggested to clean up the shelters was inflated by the police. He did admit that he was embarrassed by his actions, acknowledging the stress it caused to his family and was prepared to do some community service.
[29] Mr. Porco supplemented the PSR with a two-page letter of apology. He should be commended for his efforts. However, and with great respect to him, the apology falls flat and simply affirms what the author of the PSR asserted, namely, that he has no insight into his offending conduct. Mr. Porco apologized to the community for the damage he caused to bus shelters and also apologized for embarrassing his family. He wrote: "moving forward, I realize that vandalizing, defacing, public property is not acceptable. It is not something that I plan to do again". While this is admirable, what is plainly missing from the apology is any insight about his actions in choosing hateful words and any semblance of what effect his words would have on the community. I agree with Mr. Hendry when he says the issue of insight is completely lost on him. To be clear, I am not treating this as an aggravating factor on sentence, but rather tempering the sincerity of the apology. All of this does not bode well for his immediate rehabilitation prospects and whether a sentence in the community would be consistent with the fundamental purpose and principles of sentencing.
[30] Mr. Hendry may be right that Mr. Porco is filled with racist ideology but I am careful to not label him a racist. Quite frankly, what I know about Mr. Porco is through his actions, his lawyer and an unflattering PSR. I do not know why he harbours hate towards Muslims and what if anything can be done to alleviate his xenophobic sentiments. At its highest, the PSR describes a member of the community who may suffer from mental health issues and not have the means to come to terms with this diagnosis. That is unfortunate.
H. The Aggravating Circumstances
[31] Section 718.2 of the Criminal Code sets out the aggravating factors that a court must consider in passing a sentence. Section 718.2(a)(i) specifically requires courts to consider if there is "evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor".
[32] Mr. Affleck submits that Mr. Porco was not charged with a hate crime in the Criminal Code and did not deface a religious institution. Mr. Hendry submits that no other rational inference is available from the choice of words: "No More Muslims". I agree with this position.
[33] In committing the mischief, Mr. Porco chose specific language, which is unambiguous. There cannot be any other meaning except a message that connotes hate, bias or prejudice based on religion. He targeted a specific segment of the Durham community: Muslims. He did so in a way to make his intention clear: he wanted everybody who used a bus shelter or drove or walked past the bus shelter to read his message. With respect to the defence position, it does not matter that he wasn't charged with a specific hate crime because this was a hate crime disguised as a mischief. It's unclear why the police didn't charge him with a hate crime. Regardless, I find this to be a statutorily aggravating factor on sentence.
[34] In addition, the fact that Mr. Porco's actions were done in public and not on or inside a religious institution is also aggravating. By picking a public place, Mr. Porco had a wider audience. He wanted to share his hateful message, not keep it for himself or his echo chamber. It does not diminish the aggravating nature of his offence. Indeed, it becomes more aggravating when I consider that he did this not just once, but repeatedly. This was not a moment of weakness or frustration. Mr. Porco is not a graffiti artist or as Mr. Hendry says, a wayward youth who was tagging. Rather, he was persistent in his efforts and I can safely assume that had he not been apprehended, would have continued with his hateful scrawls.
[35] Mr. Porco's criminal record (Exhibit 1) is also aggravating. It is long and unrelenting commencing in 1977 and ending in 1993. In total, there are 21 convictions with two for Mischief. In fairness, I do not know the details of these offences. More notably, there are repeated convictions for criminal harassment and breaching court orders. In 2006, he was sentenced to two years in jail for criminal harassment and breaching a court order and then 7 years later, sentenced again to 16 months in jail for criminal harassment. The record opens a window into Mr. Porco as somebody who has a difficult time being controlled in the community. He cannot stop himself, which might explain the repeated scrawls in the shelters. It likely also validates the delusional disorder diagnosis in 1998 but again, Mr. Porco continues to deny this. In short, long periods in jail have not deterred him from committing criminal offences.
I. The Mitigating Circumstances
[36] There is very little that can be said in mitigation except that Mr. Porco pled guilty. For this, he is entitled to some credit. The law is clear that the amount of credit afforded to a guilty plea varies with the circumstances: R. v. Faulds, [1994] O.J. No. 2145 (C.A.). This was a strong case for the Crown. There was no possible defence save and except a verdict of not criminally responsible (NCR). Neither party raised this nor is there an air of reality to that position. Mr. Porco knew and understood what he was doing when he did it.
[37] As stated above, it is quite likely that there are likely unacknowledged mental health issues but I can't be confident that they explain his conduct or could be used to reduce what would otherwise be a fit sentence on compassionate grounds. In R. v. Prioriello, 2012 ONCA 63, [2012] O.J. No. 650 at paras. 11-12 the Court of Appeal said:
In order for mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct. Further, there must be evidence that a lengthy sentence would have a severe negative effect on the offender such that it should be reduced on compassionate grounds.
[38] On the record before me, I do not have cogent evidence of either of the above. I cannot treat mental health issues as a mitigating factor. Nor can I use his mental health to explain his conduct, which might temper the sentence. If Mr. Porco was suffering from delusions at the time, the public would not know this. All they knew is what they saw: "No More Muslims".
J. The Sentence
[39] Sentencing is an individualized process. Counsel did not present me with any case law in which similar sentences have been imposed for similar offenders in similar circumstances. There may be good reason for this as one would hope these offences would be rare.
[40] The specific mischief in this case was very serious. Mr. Porco's message left black marks on a public bench but even after the words are scrubbed away with a guilty plea, it leaves stains that may be more permanent. Mr. Porco's message was both hateful and hurtful to the community and needs to be deterred.
[41] I agree with both counsel that this case calls for a period of imprisonment. There isn't much dispute about the length of the sentence. Both lawyers agree that the range of 4-6 months is appropriate, mindful that the maximum sentence is 6 months imprisonment. The debate is where it should be served and how.
[42] I am left to consider whether permitting Mr. Porco to spend 6 months in his home under a combination of home confinement and curfew along with counselling and community service work will meet the principles of sentencing.
[43] After a careful review of all the circumstances, I have concluded that it will not.
[44] I have done so after considering all the options short of a jail term behind bars and in my view, there is simply no scenario that achieves justice by not separating Mr. Porco from the community. A just sanction that promotes respect for the law is a jail term behind bars. Again, I arrive at this conclusion with some trepidation because incarcerating the mentally ill should be discouraged, not encouraged – but I simply can't be sure that Mr. Porco is indeed mentally ill.
[45] Mr. Porco has not proven that he can abide by community supervision in the past and there is nothing before me that displaces this conclusion. His hateful and hurtful actions must be met with general deterrence to send a strong message to others that this type of conduct will not be tolerated in the Durham community. It will be met with swift and strong sanctions. Allowing Mr. Porco to remain in his home, even for 6 months does not meet the principles of sentencing. It sends the wrong message. Given his background, including his many breaches of court orders, I have little confidence that he would be able to abide by such a sentence.
[46] Accordingly, Mr. Porco will be sentenced to a term of imprisonment of 5 months. This could have easily been the maximum of 6 months, except for two reasons, which work in tandem: his guilty plea and letter of apology. These factors reduce the overall sentence by one month.
[47] This will be followed by a probationary period of 15 months. This is lower than that suggested by the prosecution as I recognize that probation services has deemed him unfit to be supervised. The purpose of probation is not to punish him but to assist with his rehabilitation, which must include counselling for cultural sensitivity. This will hopefully address specific deterrence as well to prevent the recurrence of the offence.
[48] The court accepts Mr. Porco's invitation to do community service work as set out in his letter of apology. This would also further his rehabilitation and give back to the community he has harmed. I'm going to set a modest but meaningful amount – 15 hours. I will leave the specifics of these community hours to probation services but in the court's view, it may be fruitful to target a place of worship, including the many mosques and churches in the Durham region. Hopefully, this will enlighten Mr. Porco about the virtues of living in a diverse and vibrant community.
[49] In addition, Mr. Porco will have to report to probation services but this will expire once Mr. Porco has satisfied them that he has completed his counselling and community service work. I am mindful that Mr. Porco may very well refuse to do the counselling/hours or even report to probation but hopefully his criminal record (Exhibit 1) will deter him. I note that courts have imposed lengthy jail sentences (5, 6 and 12 months) in 1998, 1999 and 2006 when he breached a court order. Without pre-judging the issue, it may very well be that should he fail to comply again, he would be met with an even longer jail sentence. All of this is to say that it will be for Mr. Porco to decide how motivated he is to rid himself of his xenophobic fears and embrace his community – the whole community.
[50] I am not imposing a term mandating psychological and/or psychiatric counselling because Mr. Porco refuses to accept his delusional disorder diagnosis. I do not want to set him up for failure. I repeat, while I have my suspicions, on this record, I simply can't be sure that he does suffer from the disorder.
[51] In the final analysis, there is hope for Mr. Porco as ignorance, bigotry and hate can be rooted out with the will to change. I would expect that the Durham community is prepared to assist him with this endeavour. The court hopes that he follows the positive path of his brother in law who authored a letter stating: "My family and I don't see Joe as a threat, and believe entering dialogue, even when it becomes uncomfortable, helps us all become better people" (Exhibit 5). Given Mr. Porco's letter of apology, I am not confident that this constructive dialogue has commenced, but this familial wisdom bodes well for Mr. Porco's long-term rehabilitation should he decide to avail himself of the support that he clearly has from his family.
[52] I would like to thank both counsel for their professionalism in this challenging case.
Released: September 21, 2017
Signed: Justice F. Javed