Court File and Parties

**Court File No.:**ects admin -16-45004950 Date: January 10, 2018 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ron Earnest Cruz

Before: Justice Charles H. Vaillancourt

Heard on: June 13 and November 10, 2017

Draft Reasons for Sentence given orally on: January 5, 2018

Written Reasons released on: January 10, 2018

Counsel

For the Crown: Arian Khader / Matthew Bloch

For the Accused, Ron Earnest Cruz: Samantha Glied-Beliaks

VAILLANCOURT, J.:

INTRODUCTION

[1] Mr. Cruz entered a plea of guilty to the charge that he on or about 30th day of October in the year 2016 at the City of Toronto in the Toronto Region did, in committing an assault on Jason Mongrain, cause bodily harm, contrary to Section 267, subsection (b) of the Criminal Code of Canada. The Crown proceeded by way of summary conviction.

FACTS

[2] Counsel prepared an Agreed Statement of Facts (Exhibit #1).

[3] On October 29, 2016, the victim, Jason Mongrain, attended the Prestige Nightclub located at 4544 Dufferin Street in the City of Toronto with friends to celebrate Halloween.

[4] While dancing on the stage with a female, the victim noticed the accused, Ron Cruz, approach and walk by him. He found this a little suspicious, but did not think much about it since he had had no prior contact with Mr. Cruz.

[5] On October 30, 2016, at approximately 2:40 a.m., Mr. Mongrain left the dance floor and joined his friends at an island near the bar. At this time, Mr. Cruz approached the victim from the side and punched Mr. Mongrain once in the face.

[6] As a result of this blow, Mr. Mongrain struck his cheek on the counter top of the bar as he fell to the ground. He lost consciousness for approximately 30 seconds and he was unable to remember anything that night and continuously asked, "What happened?"

[7] Mr. Mongrain suffered very serious injuries to his face that required him to undergo major reconstructive surgery.

[8] The accused fled the bar. However, he was identified by bar staff on scene.

[9] Mr. Cruz subsequently contacted police through his lawyer and made arrangements to turn himself in on Monday, December 19, 2016 at 32 Division. He was released on an Undertaking and a Promise to Appear.

[10] Mr. Mongrain's injuries and treatment were as follows:

Fracture Clinic Report:

(i) Tender over the right cheek;

(ii) Depressed right cheek;

(iii) Hyperglobus (malpositioning of the eye globe) and exophthalmos (bulging of the eye anteriorly out of the orbit) of the right eye;

(iv) Significant bruising to periorbit (area around the orbit);

(v) Severely comminuted right orbitozygomatic complex fracture (a number of fractures in the facial skeleton);

(vi) Large orbital floor defect extending posteriorly;

(vii) Teeth and check on right side were completely numb;

(viii) Dizziness.

Pre-operative Diagnosis/Post-operative Diagnosis:

(i) Right-sided zygoma fracture;

(ii) Zygomatic arch fracture;

(iii) Orbital floor fracture/blow out;

(iv) NOE (Naso-orbitoethmoid) fracture;

(v) Bilateral nasal fractures.

Operative Procedure:

(i) Open reduction internal fixation zygoma with three mini-plates, including the zygomatic arch, infra orbital rim) as well as the lateral buttress

(ii) Open reduction internal fixation orbit/maxilla fracture including superior and inferior frontonasal maxillary buttresses

(iii) Reconstruction orbital floor with titanium mesh implant;

(iv) Open reduction nasal fracture

(v) Coronal flap exclusively for facial fracture.

[11] Mr. Mongrain tolerated the procedure well.

POSITION OF COUNSEL ON THE ISSUE OF SENTENCE

[12] Crown counsel advocated that a conditional sentence of 4 months followed by 2 years of probation would be the appropriate sentence and one that would address the issues of deterrence and protection of the public. In addition, the Crown seeks a Section 110 order for 10 years and a DNA order.

[13] The Crown stressed the unprovoked nature of the assault and the serious injuries suffered by the victim.

[14] The Crown was also directed the court to remember the fact that Mr. Cruz has received three prior conditional discharges albeit those matters had occurred some time ago.

[15] Ms. Glied-Beliaks requested the court to consider granting her client a conditional discharge.

AGGRAVATING CIRCUMSTANCES

[16] The nature of this assault can best be characterized as an unprovoked blow by Mr. Cruz on an unsuspecting victim.

[17] Ms. Glied-Beliaks, in her sentencing submissions, seemed to suggest that perhaps her client struck Mr. Mongrain as a result of some perceived insult. This fact was not part of the Agreed Statement of Facts and has an air of speculation.

[18] The injuries to Mr. Mongrain were significant. Fortunately, based on the medical documentation filed, it would appear that the reconstructive surgery performed on Mr. Mongrain at Sunnybrook Health Sciences Centre was successful.

[19] It would have been useful if there had been a victim impact statement before the court to assist me as to the up-to-date status of Mr. Mongrain's injuries. Crown counsel advised me that the Crown's office through the Toronto Police Services had reached out to Mr. Mongrain for input but none was forthcoming.

MITIGATING CIRCUMSTANCES

[20] Mr. Cruz is 32 years of age and is married with two children, a daughter who is 14 years of age and a son who is 5.

[21] Ms. Glied-Beliak advised the court that when his daughter was younger, he would volunteer to accompany her along with her classmates on trips and school-sponsored activities. Mr. Cruz hopes to participate in similar activities with his son. Counsel advised that a registration of a conviction may very well prohibit Mr. Cruz from participating in any school outings.

[22] Mr. Cruz is concerned about the impact of a criminal record as it might relate to his ability to enter the U.S.A. for family trips in the future. Counsel's presentation did not demonstrate that Mr. Cruz has in fact vacationed with his family in the U.S. in the past. Accordingly, this issue seems somewhat speculative.

[23] It should be kept in mind that the U.S. immigration authorities seem to take varying approaches to the concept of conditional discharges. However, this is a matter as between Mr. Cruz and the U.S. officials.

[24] Mr. Cruz is steadily employed with World Meats Inc. and the Vice-President of that company provided a letter dated November 15, 2017 (Exhibit 4, Tab 1) confirming said employment. Furthermore, the letter indicates that, "Ron is an invaluable employee to World Meats because we depend on him and his important relationships with his customers. Building this type of rapport with customers is crucial in this competitive industry. … [Mr. Cruz's] work ethic is so important in an employee and World Meats continues to grow because of Ron's dedication, determination, and superb customer services qualities."

[25] Mr. Cruz has no prior criminal record. However, it should be noted that the accused has received 3 prior conditional discharges, two as a young offender and one when he was a very young adult. The last conditional discharge was granted in 2003.

[26] Mr. Cruz has entered a plea of guilty to the charge before the court thereby saving court time and resources as well as sparing the complainant herein from attending to give evidence.

[27] The accused is remorseful for his conduct on the night in question and he advised the court that he is ashamed and embarrassed for his conduct and is determined that similar conduct will not happen in the future.

[28] As a result of his actions on October 30, 2016, Mr. Cruz has addressed certain underlying issues regarding anger management.

[29] Ms. Cari Naraine, M.S.W., R.S.W., provided an opinion letter dated October 31, 2017. She indicated that Mr. Cruz stated that he attended the Prestige Night Club on October 30, 2016 and consumed several beers, which could have affected his judgment. Furthermore, Mr. Cruz advised Ms. Naraine that he overheard the victim make a remark that he perceived to be offensive and he confronted this individual and impulsively punched the victim in the face.

[30] In hindsight, Mr. Cruz recognizes that he has suffered from anger issues for many years and realizes now that he should have addressed his issues earlier.

[31] Mr. Cruz advised Ms. Naraine that the incident in which he harmed the victim was sad and tragic and that he was very disappointed with himself for his actions and for the pain he caused the victim. Me. Cruz also recognized that he needed help and skills to better manage his anger.

[32] During his counselling sessions, Mr. Cruz presented as receptive and expressed genuine remorse for the incident and the impact that his action has had upon the victim.

[33] Ms. Naraine believes that this incident was brought on by alcohol that may have affected his judgment. As well, his actions may have been triggered by feelings of insecurities from his past.

[34] Ms. Naraine concluded that Mr. Cruz presents as a low risk for re-offending and that he is committed to continue further counselling.

[35] In a letter dated March 5, 2017 from Canterbury Clinic, Ms. Christine Meikle, B.S.W. confirms that Mr. Cruz has successfully completed their Anger Management/Spousal/Domestic Abuse Program.

[36] Ms. Meikle expressed her opinion that Mr. Cruz is a pleasant, hard-working individual with a bright future ahead. After spending considerable one-on-one time with him, it is her professional opinion that Mr. Cruz will not be before the courts on such matters again.

[37] Mr. Cruz has performed 118.9 hours of community service in advance of his sentencing with Habitat for Humanity Greater Toronto Area.

THE LAW

[38] When sentencing any accused, a judge must keep in mind the general principles of sentencing as set out in Sections 718 to 718.2 of the Criminal Code.

[39] In addition a review of relevant case law is very useful in determining a fit sentence.

[40] If the court is assessing the appropriateness of granting a form of discharge, it must be mindful that such a disposition must be in the best interests of the accused and not contrary to the public interest.

[41] Ms. Glied-Beliak provided three cases, namely, R. v. Bertuzzi, 2004 BCPC 472, R. v. Adamson, 2017 ONCJ 174; and R. v. Fensom, 2016 ONSC 4709, to support her position for a conditional discharge for Mr. Cruz.

[42] In Bertuzzi, the accused, a professional hockey player, entered a plea of guilty to a charge of assault causing bodily harm. The assault occurred as a result of a hockey fight. The victim suffered a career-ending injury. Judge H. F. Weitzel granted Mr. Bertuzzi a conditional discharge and placed him on probation for one year. It should be remembered that the Crown and defence counsel for Mr. Bertuzzi joined in this disposition for Mr. Bertuzzi.

[43] In both Adamson and Fensom, counsel were not in agreement as to their sentencing positions. These two cases examined the principles at play regarding the use of discharges when serious bodily harm has resulted from the actions of an accused. Both decisions made reference to the Ontario Court of Appeal decision in R. v. Wood, 24 C.C.C. 79, a case that I consider to be a starting point when one is considering the appropriateness of a discharge for cases where serious injury has occurred.

[44] At paragraph four, Jessup J.A. stated that:

[4] It is our view that in cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused.

[45] Mr. Wood, a much larger man than the complainant, without provocation, assaulted the victim with his fists causing serious injuries to his face and eyes. Mr. Wood had no prior criminal record, was twenty years of age, was a model citizen and had aspirations to be a professional hockey player that would require entry into the United States of America.

[46] The Court of Appeal vacated the conditional discharge and substituted a $500.00 fine and one year of probation.

[47] The Ontario Court of Appeal in R. v. Huh, [2015] O.J. No. 2514, overturned a two-year conditional sentence and substituted a six-month jail sentence in addition to a period of probation. The Court of Appeal followed its reasoning in R. v. Wood (supra).

[48] Mr. Huh had administered a severe beating to the victim that resulted in brain damage in the executive functions, facial fractures and post-concussion syndrome.

[49] The Wood and Huh decisions do not stand for the proposition that discharges can never be imposed in situations where violence results in injury but these decisions clearly illustrate that in almost every case general deterrence militates against the granting of a discharge.

[50] It is worth noting that both Mr. Wood and Mr. Huh were involved in sustained attacks upon their victims unlike the case at bar where only one punch was delivered.

[51] Courts have considered and granted discharges where serious bodily harm has resulted.

[52] In R. v. Adamson (supra), the accused entered a guilty plea to one count of assault bodily harm. Mr. Adamson had gotten into an argument at a bar and had thrown a beer bottle at the complainant causing a facial laceration requiring seven stitches. The victim at the time of sentencing was planning to arrange for plastic surgery to remedy his scar. The court granted a conditional discharge.

[53] In R. v. Fensom (supra), the accused was convicted of assault bodily harm. The accused, a bouncer at a night club, kicked the complainant several times causing a broken rib, bruising and pain. The sentencing judge noted that there may have been some provocation on the part of the victim.

[54] It is interesting to note that Mr. Fensom expressed no remorse for his assaultive behaviour and maintained his position that he was acting in self-defence in spite of the trial judge's finding to the contrary.

[55] Justice M.G. Quigley found that a conditional discharge was an appropriate sentence for Mr. Fensom under all of the circumstances.

[56] I find that the injuries suffered by Mr. Mongrain are more serious than the injuries caused by Mr. Adamson and Mr. Fensom.

[57] In R. v. Jimenez, [1999] O.J. No. 1847, Justice Kozak of the Ontario Court of Justice (General Division) substituted a six-month conditional sentence for the trial judge's eight-month custodial sentence.

[58] Mr. Jimenez punched the victim in the mouth causing extensive dental damage. Justice Kozak found that there had been some provocation on behalf of the victim, that there had been no premeditation, that the act was impulsive and that the accused was remorseful.

[59] Justice Kozak referred to the case of R. v. Wood and other cases and concluded that a conditional discharge would represent a fit sentence in light of the particular circumstances of the case.

[60] Crown Counsel directed my attention to the fact that Mr. Cruz has had three prior conditional discharges.

[61] McIntyre, J.A. of the British Columbia Court of Appeal in R. v. Tan, [1974] B.C.J. No. 875 at paragraph 26 wrote:

[26] In deciding whether to grant or withhold a discharge under the provisions of s. 666.1 [enacted 1972, c. 13, s.57] of the Criminal Code, the sentencing Judge must consider both the interest of the accused and that of the public. In the second consideration the question of whether the accused person has had a previous discharge and the manner of his or her reaction to it is certainly both by logic and common sense a relevant factor to be known and considered by the Judge. This information may, indeed must, be put before the Judge so he can discharge his task in considering the fundamental conditions under which a discharge may be given.

[62] On a similar issue, it is recognized that there is not a limit on the number of discharges that an accused can be granted. However, it stands to reason that subsequent discharges may very well be more difficult to come by.

[63] All of Mr. Cruz's discharges were granted either when he was a young offender or a very young adult. The adult discharge was on September 15, 2004. I find that there has been a significant gap between Mr. Cruz's last discharge and the current offence.

[64] I do find that the prior discharges for Mr. Cruz bar him from receiving a discharge if he is otherwise entitled to such a disposition.

SENTENCE

[65] In this case, the seriousness of the injuries received by the complainant certainly requires this court to closely examine the principle of deterrence and denunciation as enunciated in R. v. Wood.

[66] Mr. Cruz is fortunate that, based on the information tendered in this case, the victim has successfully been treated by the health care professionals at Sunnybrook and that there are no ongoing medical issues suffered by the complainant.

[67] I am satisfied that there was only one blow struck by the accused and it is reasonable to conclude that when Mr. Mongrain was falling to the floor he struck his face on the bar which in turn contributed to his overall injuries.

[68] Mr. Cruz did not follow up on his initial blow and immediately left the scene.

[69] Mr. Cruz presents as a sincerely remorseful individual. He has expressed his remorse, not only by his plea, but also verbally in court and through his counsel.

[70] As a result of his actions, Mr. Cruz has taken serious and meaningful steps to address his underlying issues of anger and alcohol.

[71] In an attempt to repay society in general, Mr. Cruz has already performed a significant number of community service hours.

[72] Mr. Cruz has demonstrated since 2004 that he can be a productive and contributing member of society. He has been gainfully employed and active in supporting his family.

[73] I recognize that Mr. Cruz, of his own volition, has engaged in counselling to address possible underlying conditions that led to the unprovoked outburst that brings him before the court. The reports filed demonstrate that Mr. Cruz is highly motivated and committed to addressing any issues that are outstanding.

[74] I am of the view that it would be in the best interests of Mr. Cruz and not contrary to the public interest to grant him a conditional discharge.

[75] According, there will be a finding of guilt and Mr. Cruz will be granted a conditional discharge and placed on probation for a period of three years on the following terms:

1. Be of good behavior and keep the peace.

2. Report to a probation officer today and thereafter as required by the probation officer.

3. Reside at an address approved of by the probation officer.

4. Attend for such assessment and counselling as deemed appropriate by the probation officer for alcohol related issues and anger management.

5. Sign any necessary releases to allow your probation officer to monitor your assessment and counselling.

6. To have no contact directly or indirectly with Jason Mongrain and not be within 200 metres where Jason Mongrain resides, works or you know him to be.

7. Not to attend 4544 Dufferin Street, Toronto, Ontario.

8. Not to be in possession of any weapons as defined by the Criminal Code of Canada.

9. Perform an additional 100 hours of community service hours at the direction of your probation officer or their designate. This work is to commence within sixty days of today's date at a minimum rate of ten hours per month. When you have completed your community service hours, you will provide written proof of same to your probation officer.

[76] Mr. Cruz is the subject of a Section 110 Order for a period of ten years.

[77] Mr. Cruz is ordered to provide a DNA sample.

[78] The Victim Fine Surcharge is $100.00 and Mr. Cruz has three months to pay.

Written reasons released January 10, 2018.

Dated: January 10, 2018

Justice Charles H. Vaillancourt