Court Information

Court File No.: Toronto 4811 998 16-15007231 Date: 2018-09-20 Ontario Court of Justice

Between: Her Majesty the Queen — and — Spencer Grayer

Before: Justice H. Borenstein

Plea of Guilty: June 5, 2017 Submissions on Sentence: June 29 and August 21, 2018 Reasons for Sentence Released: September 20, 2018

Counsel:

• Ms. Marine Goldenberg, for the Crown
• Mr. Spiro Nicolakakos, for the accused Spencer Grayer

BORENSTEIN, J.:

Introduction

[1] This is the sentencing decision of Spencer Grayer. He pled guilty to aggravated assault. He is now 21 years old. He was 19 at the time of the offence.

[2] He has no prior criminal record. He is Indigenous. He has a very bright future ahead of him. And this offence was violent and apparently out of character.

[3] Almost two years ago to the day, Spencer, his brother Martin and a third male were near the Dufferin mall in Toronto.

[4] The victim, who was only 14 years old, was with a group of friends who were being ejected from the mall by security.

[5] The two groups encountered each other near the bus stop.

[6] A comment was made by someone. The accused heard something like "pull it out". The victim then reached into his pocket and pulled out a knife. Spencer immediately tackled the victim, and punched and kicked him in the head several times and fled. Martin stopped the victim's friends from intervening. The encounter lasted 10-15 seconds. The victim likely lost consciousness. He suffered cuts and bruises, and had a sub-dural hematoma below the skull. He likely suffered a concussion, and was off of school and sports for six weeks. He lost one tooth and had root canal on another. His remaining teeth are apparently no longer straight.

[7] I can say that those were not the facts read in on the guilty plea. On the guilty plea, I was told that the victim was not involved in anything. He was at the bus stop alone when the accused and his two companions approached. Spencer tackled the victim to the ground and repeatedly punched and kicked the victim in the body and face while the victim lay motionless on road. I was told the victim had his jaw wired and required multiple reconstructive surgeries to his teeth, and that it would take him a lifetime to recover from his wounds.

[8] However, on the sentencing hearing, the accused claimed the facts were quite different. The case was adjourned from time to time to enable the officer to speak to the victim. But the victim has become uncooperative. As a result, the Crown is not disputing the accused's version of what happened. Moreover, the victim's jaw was not wired shut. He was released from hospital that same night with Tylenol and Ibuprofen.

[9] A victim impact statement was provided by the victim's mother which shows the serious impact upon the victim.

Accused's Background

[10] Spencer is now 21 years old. He was 19 at the time of this offence. He has no criminal record. He completed grade 11. He spent one night in jail following his arrest. He has been living with his parents since his release. He was on house arrest with some exceptions until January 2018. Those conditions have been relaxed.

[11] A 34-page thorough and thoughtful Gladue report was prepared by Brittany Wylie from Aboriginal Legal Services. She interviewed Spencer, his father and his paternal grandmother. She also spoke to Native Child and Family Services about the counselling Spencer has done. The report contains very personal information about Spencer's life, as well as the life of his parents and grandparents. Given the highly personal information contained in the report, Spencer has asked the writer and the Court to exercise caution in referring to some of the details. I have considered the report in its entirety.

[12] Suffice it to say, there is a considerable history of abuse in Spencer's parents' history, which has continued and has impacted Spencer and his siblings. Spencer's father Christopher is Metis and Black on his father's side. His mother is White and her father used to refer to Christopher and his siblings in racist terms. After Christopher's father died, Christopher began exploring his Aboriginal heritage. Christopher dabbled with drugs but stopped when his children were born. He has always worked.

[13] Spencer's parents created a hardworking, loving and supportive home for Spencer and his siblings, although one of Spencer's sibling faces significant challenges due to drug use. Money was always tight in the family and Spencer began working at 15 to earn money for himself. He has always been very active in sports in school and extracurricularly. He continues to volunteer and coach.

[14] Spencer's teacher and football coach provided a glowing letter of reference. I quote from it now:

I taught Spencer earlier this school year and have found him to be one of the most hard working and dependable students that I have come across in my profession. I have not only taught Spencer in the classroom. But have been his football coach for the last 6 years. Spencer's hard work on the field has led to him being a captain on the football team since grade 9 and an OFSAA wrestling medalist. Spencer is very coachable and exemplifies all of the traits that make a young man successful in sport. When Spencer's playing days were over, Spencer volunteered every day after school for 3 hours to help coach the Junior Football team and wrestling team to give back to the people who supported him during his playing days. Spencer has also committed to helping with these sports for the upcoming school year. Spencer was always willing to help other students with their work in class. Spencer has never been a source of concern or worry for me while under my care. Spencer was the one student you could always depend on to be a good role model for the other students. Spencer is always in a good mood. His demeanor can only be described as joyful. No matter the task, no matter the problem Spencer will work hard and find a solution.

[15] Spencer has been working 40 hours a week at the Bottom Line restaurant in downtown Toronto. His employer wrote a glowing letter that speaks to how well Spencer is doing. He began as a busboy and now is lead food service co-ordinator with responsibility for many aspects of the business. His employer writes that "He has shown great leadership qualities through his time here, and l am very excited to see how he continues to grow into his skills and how that translates to success in the restaurant' Spencer has consistently shown he deeply cares about the restaurant by showing up early and prepared for every shift, and by approaching every obstacle in his way with a calm and level head" and then further, he continues: "ln my personal opinion, Spencer is a young professional who puts 100% effort into all that he does".

[16] Spencer completed an eight-week anger management program at Native Child and Family Services. The program runs for two hours a week where they teach conflict resolution and anger management. Not surprisingly, Spencer has been an active participant in the program.

[17] There are a series of recommendations the author makes in her report aimed at connecting Spencer to various counselling and other services through Aboriginal Legal Services.

[18] The Crown seeks a 9- to 12-month custodial sentence. The Crown submits a non-custodial sentence would shock the community given the nature of the attack and the age of the victim.

[19] The defence submits that there are three ranges of sentences for aggravated assault; the most serious offences for which significant custody is given. The middle range which also attracts custody but less custody; and third, what he called exceptional cases where non-custodial sentences are given. The defence submits that the accused should be given a suspended sentence given the events that precipitated this offence; a proper balance of the aggravating and mitigating circumstances, as well as the accused's personal circumstances, including his Indigenous status.

Case Law

[20] In R. v. Pomanti, 2017 OCA 48 (Ont. C.A.), the accused was convicted of aggravated assault after a jury trial and was sentenced to 22 months in jail. The victim had broken into the accused's home in what was described as a home invasion. The accused was home with two others and they apprehended the home invader. The three then angrily exacted revenge. The accused hit the victim with a shovel causing what were described as serious injuries. The jury rejected the accused's claim of self-defence. On appeal, the Court dismissed the conviction and sentence appeals. With respect to sentence, the Court affirmed the trial judge's finding that this was not a case where the accused had simply gone further than what the law allowed. Rather, it was an angry attack by three on one to exact revenge. Further, the Court affirmed the trial judge's refusal to grant credit for the 25 months of house arrest noting that the accused suffered no prejudice from the house arrest and his trial counsel never made submissions on the point.

[21] In R. v. Mikasinovic, 2017 ONSC 3192, Justice Goldstein sentenced a 33-year-old man convicted by a jury of assault causing bodily harm but not guilty of aggravated assault to 14 months in jail. The accused had a criminal record that included an assault and an assault causing bodily harm conviction, but had basically put his criminal past behind him and became successful in business. He had been a passenger in a car that was involved in a minor traffic dispute late at night after drinking. Mikasinovic got out and was aggressive. He pushed the victim and then punched him at least twice, possibly three times. The final punch caused the victim to collapse. The victim sustained a permanent brain injury. The victim's mother told the Court on sentencing that her son now has depression, anxiety, nervousness, and loss of self-confidence, and that the trial (two trials actually) had been extremely difficult for her family.

[22] The accused was found to have had no real remorse for what he had done.

[23] Justice Goldstein reviewed cases dealing with serious assaults and wrote:

The range of sentence is wide in cases of personal violence. The range of behaviours encompassed by these assaultive offenses is so wide that virtually any case can be found to justify virtually any sentence. There are cases where people convicted of aggravated assault receive intermittent or non-custodial sentences. There are cases where people convicted of assault causing bodily harm receive significant jail sentences. These cases illustrate the principle that sentencing is an individual process.

He noted that in most of the cases which resulted in a non-custodial sentences involved some sort of provocation from the victim.

[24] In R. v. Tourville, 2011 ONSC 1677 (Ont. SC), Justice Code was sentencing a 28-year-old Indigenous offender who had been convicted by a jury of aggravated assault and assault with a weapon. He was acquitted of attempted murder and possessing the knife for a purpose dangerous. The accused and the victim engaged in a consensual fight outside a bar. The accused had not been drinking, and was younger and bigger than the victim, and was armed with an exacto knife. During this fight, the accused pulled out the knife and stabbed the victim outside a bar nine times in the face and arms. Some of the wounds were deep and indicative of defensive wounds.

[25] A Gladue report showed the extremely difficult and unfortunate life Tourville and his parents had.

[26] The Crown sought a sentence of 5 years in the penitentiary. The defence sought a sentence in the 18-months to two-years less a day range.

[27] I adopt paragraphs 23 to 32 of Justice Code's judgment and will refer to a few passages. In para 27, Justice Code writes about the wide range of sentences for aggravated assault, including suspended sentences in exceptional cases such as:

R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The "Gladue report" disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems.

Ultimately, Justice Code imposed a sentence of 21 months in custody.

[28] In R. v. Sisco, 2008 ONCJ 12, at para 12, which were also adopted in Tourville, Justice Melvyn Green writes:

[As] a judge charged with the sentencing of an Aboriginal offender I am duty-bound to take into consideration, as prescribed by s. 718.2(e), "all available sanctions other than imprisonment that are reasonable in the circumstances…, with particular attention to the circumstances of Aboriginal offenders" (emphasis added).

This provision is often described as codifying the principle of restraint in sentencing.

Aggravating and Mitigating Circumstances

[29] The main aggravating features in this case are the age of the victim and the injuries sustained.

[30] With respect to the facts, the undisputed version of the facts is that the victim was pulling out a knife when Spencer acted. I note a knife was found by the police on the ground.

[31] As for the injuries, fortunately, the injuries are less significant than thought at the time of the guilty plea.

[32] Nonetheless, the impact of this assault on the 14-year-old can be seen in the mother's victim impact statement, and could also be readily inferred.

[33] There are many mitigating features in this case.

[34] The accused has pled guilty. I have been told he always intended to plead guilty. He did so even though the complainant is uncooperative. He was remorseful from the outset. He has no criminal record. He has bright prospects for the future. He has not re-offended while on bail. He was on house arrest for 15 months, which is a factor I consider. He is Indigenous and was raised in a family that, while hardworking and loving, nonetheless bears the scars and burdens of the dislocation that contributed to many of the factors referred to in the Gladue report, including substance and other abuse, lower levels of education and income.

Principles of Sentencing

[35] Denunciation and deterrence are substantial considerations on sentence given the aggravating factors.

[36] However, given the many mitigating factors in this case, rehabilitation is a very significant factor in this sentencing, as are the principles in s. 718(2)(e) given the accused's Aboriginal status.

[37] Restraint must always be exercised in sentencing. A sentence should also be as minimally restrictive as possible, consistent with the purposes and principles of sentencing.

[38] Ultimately, sentencing is an assessment of the person before the Court and the circumstances of the offence. It is a weighing and balancing. Ultimately, if an appropriate and reasonable balance is struck, the sentence should contribute to the protection of the public.

[39] Balancing all of these considerations, including the fact that the attack was precipitated by the victim taking out a knife, the accused's youth, guilty plea, and prospects for the future, demonstrated adherence to bail and house arrest, as well as his Aboriginal background, in my view, incarcerating Grayer now would inappropriately overemphasize deterrence and denunciation over restraint, rehabilitation and restorative justice. It would not enhance the goal of protecting society but would diminish it. It would divert the accused from a very positive, promising pro social path, and would certainly not fulfil the statutory objective contained in s. 718(2)(e) where it appears otherwise possible. He will not be sentenced to imprisonment. My sentence will incorporate provisions that will contribute restorative justice goals.

[40] I will credit the accused with the equivalent of three months of pre-sentence custody for his two years on bail, including 15 months of house arrest.

[41] In addition to that, I suspend his sentence and place him on three years probation.

[42] He will be subject to the mandatory terms of probation.

[43] In addition to the mandatory terms, he will not possess any weapons as defined by the Criminal Code; have no contact with the victim or his family other than through his probation officer; he will perform 200 hours of community service to the satisfaction of his probation officer. He will take counselling as directed by probation and sign all releases to enable probation to monitor the counselling. I incorporate the recommendations contained in the Gladue report as well.

[44] He will also provide a sample of his DNA and will be subject to a s. 109 Order for 10 years.

[45] I heard how remorseful the accused was when he learned the age of the victim. While not a term of probation, I would encourage him to write a genuine letter of apology to the victim if he feels it right within him. That can be passed along through probation. That would help matters.

Released: September 20, 2018

Signed: "Justice Borenstein"