Court File and Parties

Court File No.: 19-38100751; 20-38100880 Date: 2021 09 24 Ontario Court of Justice

Between: Her Majesty the Queen And: Shamar Sealy

Publication Ban: S. 486.4(2.1)

Before: Justice Angela L. McLeod

Heard on: March 18, 2021 and September 1, 2021 Reasons for Judgment released on: September 24, 2021

Counsel: Crown, for the Crown Elliott Willschick, for the accused Shamar Sealy

Overview

[1] This matter was judicially pretried before me on October 28, 2020. Guilty pleas were entered on March 18, 2021. A presentence report was ordered and sentencing submissions were made on September 1, 2021.

[2] Mr. Sealy pled guilty to, and was convicted of, one count of assault with a weapon, one count of theft under $5000, and two counts of assault simpliciteur.

Summary of the Facts

A. Assault with a weapon

B. Theft under $5000

[3] On December 15, 2019, the victim, C.R., who was approximately 14 years old at the time of the incident, was out with friends walking on a trail. Mr. Sealy approached, brandished a pair of scissors and demanded that C.R. empty his pockets. Ultimately, $20 and a cell phone were handed over to Mr. Sealy.

[4] A video of the incident was shot and uploaded to Snapchat to an account owned by Mr. Sealy.

[5] The presentence report stated “the subject was also heavily on drugs at the time of the theft offence which happened shortly after he was released on bail. He stated that he had gone to visit his mother when all these charges happened and picked up some drugs while with friends. He was not clear what drugs he had taken other than fentanyl on the day of the theft but stated that he ‘got really messed up and blacked out’”.

C. Assault simpliciteur X 2

[6] On December 20, 2019, E.C. was at her friend’s house, W.T. E.C. received messages from Mr. Sealy asking if he could stay at the house. He arrived at midnight. The parents of E.C. were unaware that Mr. Sealy was in attendance. Mr. Sealy gave E.C. $5 in exchange for not telling the parents that he was present. E.C. put the money inside of her bra.

[7] The next morning, Mr. Sealy asked for the money back. E.C. said it was missing. Mr. Sealy became enraged and struck her across the face with an open hand. He pinned her down hit her on the left side of her face and then punched her in the back of the head. He pulled her sweater over her head.

[8] Mr. Sealy then grabbed W.T. by the hair and threw her to the ground. The entire ordeal lasted approximately 10 minutes. Mr. Sealy apologized, then brandished a pocketknife and told W.T. that he would kill her if she told anyone what had happened.

[9] The pocketknife had a spring mechanism and as such was a prohibited weapon.

[10] The presentence report notes that Mr. Sealy was “on several drugs at the time of the arrest, and self-reported to the police that he was on unknown amounts of cocaine, ecstasy and zanex. The arrest report stated that he was so intoxicated and irate he himself felt he was having a mental breakdown and asked for an ambulance. He was taken to hospital for a psychological evaluation which resulted in him having to be chemically sedated after attempts to calm him failed.”

Circumstances of the Offender

[11] A presentence report was filed as Exhibit #1. A brief summary of the salient points follows:

(1) Mr. Sealy is now 21 years of age; (2) He lived with his mother until he was 15 years of age and was then sent to live with his father due to his “problematic behaviours escalating”; (3) He lived with his father for 2 years before moving out on his own, then lived with grandparents and ultimately back with his father; (4) He did not graduate from high school; (5) He is currently enrolled in a truck engine technician program at a local college; (6) He works on a part time basis and is working toward a formal apprenticeship; (7) His family confirms that he has been clean of hard drugs for a year, but continues to use marijuana, approximately 1-1.5 ounces per week, spending at least $100 per week on marijuana; (8) Medical records confirm that Mr. Sealy is currently prescribed anti-psychotic medications for his mental health; (9) Mr. Sealy expressed remorse for the theft and assault with a weapon offences, but not for the assault simpliciteur offences.

[12] Mr. Sealy has a criminal record which includes multiple offences of violence as a youth. The last conviction was entered in 2016.

Victim Impact

[13] C.R. was the only person to provide a victim impact statement. C.R. noted that the incident has affected all of his family. He had to buy a new phone, at a cost of $500. He does not go out without a friend or parent.

Position of the Parties

[14] Regarding the assault with a weapon and theft convictions, the Crown seeks a custodial sentence in the range of 6-9 months and 18 months probation. A DNA order and a s. 110 order are also sought.

[15] Regarding the assault simpliciteur convictions, the Crown seeks a further 90 days custody and 12 months probation. A DNA order and a s. 110 order are also sought.

[16] The Crown acknowledges that a conditional sentence order is legally available but argues that it is inappropriate in all of the circumstances.

[17] The defence seeks a global sentence in the range of 9-12 months, to be served conditionally. The ancillary orders were not addressed by the defence.

[18] Neither party made any submissions regarding the sentencing principles nor provided any caselaw.

Aggravating and Mitigating Factors

A. Mitigating

[19] I find the following to be mitigating:

(1) The plea of guilt, however not an early plea; (2) The lack of adult convictions on the criminal record; (3) The gap in the record since 2016; (4) The existence of mental health issues, including substance abuse addiction, at the relevant time (see R. v. Pentitila, 2020 BCCA 63, para. 67);

B. Aggravating

[20] I find the following to be aggravating:

(1) The three victims were all minors at the time of the incidents; (2) Mr. Sealy recorded his assault against C.R. and publicly posted it for others to view; (3) A prohibited weapon was brandished in the assault simpliciteur offences; (4) Mr. Sealy threatened W.T. after the assault if she told anyone; (5) Mr. Sealy struck E.C. about the head; (6) The assaults against E.C. and W.T. were somewhat prolonged, lasting 10 minutes;

Analysis

A. General sentencing principles

[21] The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:

(a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) deterring the offender and others from committing crimes; (c) separating offenders from society where necessary; (d) assisting in the rehabilitation of the offender; (e) providing reparations for harm done to the victim or to the community; (f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.

[22] The fundamental principle in sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

B. Conditional sentences

[23] Section 742.1 of the Criminal Code sets out the considerations for a CSO. In summary, there are four criteria to be met:

(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and, (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[24] The first three criteria establish whether a CSO is available; the last whether it is appropriate.

[25] A conditional sentence can serve the sentencing principles of deterrence and denunciation. In R. v. Proulx, 2000 SCC 5, the court held:

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

[26] Furthermore, the court held that a CSO is both a punishment and can be as harsh as incarceration:

41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72,

in our view a sentence focused on restorative justice is not necessarily a "lighter" punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

42 Moreover, the conditional sentence is not subject to reduction through parole. This would seem to follow from s. 112(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which gives the provincial parole board jurisdiction in respect of the parole of offenders "serving sentences of imprisonment in provincial correctional facilities" (R. v. W. (J.) (1997), 115 C.C.C. (3d) 18 (Ont. C.A.) at p. 33).

C. Mental health issues

[27] Mr. Sealy’s mental health played a role in the incident. In R. v. Ayorech, 2012 ABCA 82, [2012] A.J. No. 236 (ABCA) (another case submitted by the defence), the court wrote at paragraphs 11, 12 and 13:

The relative importance of deterrence and denunciation is attenuated when sentencing mentally ill offenders. This principle applies even if there is little prospective of complete cure and rehabilitation: R. v. Hiltermann, [1993] AJ No 609 (CA) at paras 4-8, 141 AR 223.

The gravity of the offence is not, of course, lessened by the personal circumstances of the offender. However, the mental disorder diminishes the degree of responsibility of the offender. Impaired reasoning, delusional disorders, and the like mental conditions distinguish those afflicted from the ordinary offender who is fully accountable for his or her conduct: Resler at para 9-10, 16; Belcourt at paras 7-8; and R. v. Muldoon, 2006 ABCA 321 at para 9-10, 401 AR 42.

Finally, the effect of the imprisonment should be taken into account when it would be disproportionately severe because of the offender’s mental illness. Ayorech’s mental disorders have left him vulnerable, such that Dr. Santana opined that he ‘was ill equipped to survive in the prison system.”

D. COVID considerations

[28] In R. v. Clarke, 2020 ONSC 3878, Justice Kelly endorsed Hearns, writing at paragraph 19, “[t]he circumstances of COVID-19 adversely affect the conditions of imprisonment. There are increased risks for those incarcerated in any institution.”

[29] Justice Kelly identified further COVID factors that warrant mitigation at paragraph 24(b), “[t]here was a plea of guilt. The plea resulted in a saving of resources in a post Jordan era and in a COVID-19 era where judicial resources have been drastically reduced.”

[30] I find that there is further mitigation in a guilty plea during the present pandemic. Guilty pleas eliminate the need for witnesses to attend trials, and thus eliminate the need for difficult decisions about attending in person (and being potentially subjected to risk, or subjecting others to risk) or attending remotely. A guilty plea, during COVID, serves to help control the community spread of the virus, R. v. Gabourie, 2021 ONCJ 9.

[31] In Hearns, Justice Pomerance held that the impact of the current global pandemic “may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions.”, and, “[c]onsideration of these circumstances might justify a departure from the usual range of sentence..” (para 15 and para 16).

[32] I take judicial notice that the COVID-19 health crisis was declared a global pandemic on March 16, 2020. This knowledge is universal, and the date was ensconced in judicial findings found at paragraph 76 in R. v. Prince, 2021 ONSC 6121, as just one example of many.

[33] Hearns credit can be both a retrospective and a prospective consideration.

[34] It is prospective in that the offender will be serving a sentence in an institution wherein there is a heightened risk of contracting the virus, heightened anxiety about that risk, an utter lack of ability to ameliorate that risk, where there may be staffing shortages and resultant lock downs, where there may be reduced programing due to staffing shortages and concern about inmate contact. The conditions of a sentence served during a global pandemic are more difficult.

Conclusion

[35] The underlying criminogenic factors include instability and mental health issues, including substance abuse.

[36] Mr. Sealy has addressed those issues and is now under the care of a psychiatrist, is ‘hard’ drug free, taking prescribed medications, working and attending school. His life has stabilized and he has significant family support.

[37] In all of the circumstances, I find that a conditional sentence order is appropriate.

[38] Given the aggravating factors, the sentence will be as follows:

(1) Re the assault with a weapon and theft; (a) Assault with a weapon – 180 days custody to be served conditionally, 18 months’ probation including a term of restitution, DNA, s. 110 for 5 years. (b) Theft – suspended sentence and 18 months’ probation concurrent to the first probation order.

(2) Re the assault simpliciteur counts; (a) Against E.C. – 120 days’ consecutive custody to be served conditionally, 18 months’ probation concurrent to the first probation order, DNA, s. 110 for 5 years. (b) Against W.T. – 65 days’ consecutive custody to be served conditionally, 18 months’ probation concurrent to the first probation order, DNA, s. 110 for 5 years.

[39] The global sentence is 365 days’ custody to be served conditionally, followed by 18 months’ probation, DNA and s. 110 orders.

Released: September 24, 2021 Signed: Justice Angela L. McLeod