Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 09 22 COURT FILE No.: Hamilton #21-8454

BETWEEN:

HIS MAJESTY THE KING

— AND —

TONY GORDON

Before: Justice M.K. WENDL

Heard on: May 18, 2022, and September 16, 2022 Reasons for Judgement Released on: September 22nd, 2022

Counsel: C. Gzik.............................................................................. Counsel for the Provincial Crown W. Richard..................................................................................... Counsel for Tony Gordon

Endorsement

WENDL J.:

[1] On September 30th, 2021, the victim went for a walk on Caleb’s trail in the city of Hamilton. Caleb’s trail was a sanctuary and a place of peace for her. Tony Gordon, who had been released from jail 2 days prior and has 55 prior convictions on his criminal record, attacked her from behind. He threw her to the ground, punched her in the head and choked her. She went in and out of consciousness. He did not know her. It was a random assault. Only with the help of a good Samaritan did she free herself. When he was arrested, on October 4th, 2021, Mr. Gordon had 11.2 grams of methamphetamine on his person.

[2] On May 18th, 2022, Tony Gordon pled guilty to choking while committing an assault contrary to section 267 (c) of the Criminal Code and a breach of probation for not keeping the peace and being of good behavior contrary to section 733.1 of the Criminal Code. The Crown proceeded by summary conviction and the parties posited a joint position for 18 months jail minus pre-sentence custody. I put both parties on notice that I considered the joint position too low and asked for further submissions.

[3] After further submissions it is my considered view that the 18-month sentence proposed is not appropriate. It brings the administration of justice into disrepute and is otherwise contrary to the public interest. I am therefore imposing a total sentence of 3 years less a day: 2 years less a day on the assault followed by a 1-year sentence on the keep the peace breach consecutive to the assault.

Background of the Accused

[4] Tony Gordon is aboriginal. Section 718.2 (e) of the Criminal Code of Canada imposes an affirmative obligation on the court to inquire into the circumstances of an aboriginal offender. As a result, this Court ordered the preparation of a Gladue report. A prior Gladue report was provided as well as an updated Gladue letter.

[5] Mr. Gordon is Anishinaabe from the Lac Seuil First Nation. Mr. Gordon’s great grandparents went to residential schools. Mr. Gordon’s parents had substance abuse issues and he was primarily raised by his grandparents.

[6] Mr. Gordon indicates that he began using intoxicating substances at an early age. He started to use marijuana at 10 years old. By the age of 12 or 13 he was smoking marijuana on a regular basis. He then escalated his use to harder drugs such as cocaine and heroin. Mr. Gordon notes that cocaine use began when he was 15 years old and that he was drinking on a daily basis by the age of 14. Mr. Gordon’s grandfather states that his main problem is the use of “meth”.

[7] When the Gladue writer asked Mr. Gordon if he would consider treatment for his substance use, he stated “I don’t believe treatment would be the right option for me” and offered:

Nope. Just custody time. Yeah, I don't see… you know what, if I wanted to do treatment, it was something I would've already done…I feel like treatment is something that's not helpful for me. You know what I mean? If we were to go jump into statistic numbers of how many have actually accomplished not using from attending treatment, they get out, and jump back into their regular substance abuse. I prolly [sic] think that number to be pretty high. I’m not going to go to some treatment center, just for like, for what cause? So a person can sit there, and kinda more so like lecture me? Tell me I shouldn’t use and like - they going to provide some mother f***in’ like, uh strategy for ways not to use…really it's not all that helpful? So, like, naw, it’s not something that’s that successful.

[8] However, Mr. Gordon did note he could benefit from the use of a psychiatrist. Since he has been incarcerated at the Hamilton-Wentworth Detention Center he has been taking Biphentin for attention deficit hyperactivity disorder, Wellbutrin for depression, and Seroquel for a sleeping disorder.

[9] When the Gladue writer asked his grandfather what other effects Mr. Gordon’s meth use has had on their family, he stated “the alcohol and drugs, they change him”, and offered:

Tony never had a smooth relationship with any of his mother’s new partners; he would always end up wanting to fight with them…It was just his behaviour… he would go around there, go to their house, where they were living, and if he was intoxicated, he was always doing this intoxicated, he would try to fight them. When he is sober, he seems to get along with them, but as soon as he gets intoxicated, he turns into a different person towards his mother and her partners. I still care for him, he's like my son. I can’t have him anymore with me, the way he acts, unless he was completely drug free and alcohol free. I can't provide a home for him anymore…Like, I believe he still cares for me and I care for him, but until he’s decided to be completely drug free I can’t put up with his behaviour.

Victim Impact

[10] The victim describes the significant impact the assault had on her. She has consistent nightmares and flashbacks of the attack. The feelings of panic and fear are still very real to her. As a result of the attack, she has been prescribed sleeping pills as well as medication for depression and anxiety.

[11] She has been robbed of the joy of going for a simple walk. She notes “now, I’m scared of going even near Cootes or any slightly more wooded area at all and I have not been on a walk alone since.”

[12] The attack has affected her performance at school. She notes that without the support of her physicians, therapist and loved ones it would have derailed her career goals.

[13] On the physical end, she describes how the back of her throat was cut up and bleeding. She had two big blood clots, bruising on the top side of her head and a swollen jaw from the punches to the head. In addition, she suffered numerous abrasions and bruises from the struggle.

[14] Finally, there is the constant fear that her attacker will come back.

Law and Analysis

[15] In Friesen [1], the Supreme Court wrote, in the context of child sexual assaults, that sentencing Courts must look to the harm caused by these offences on the victims so that the sentences reflect the full extent of the impact on them.

[16] In my view, in the context of the facts at bar, a random, violent, physical assault on a young woman walking on a trail and in a position of vulnerability, the court should also look to the harm caused and not only focus on the nature of the physical assault and the background of the accused.

[17] In terms of the background of the accused, as mentioned above, he is aboriginal. Mr. Gordon is not required to show a causal connection between systemic and background factors and the offence. [2] In fact, the court must take judicial notice of the unique systemic background that affects aboriginals in this country.

[18] This court must take notice of the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. [3]

[19] This places Mr. Gordon in his necessary context for sentencing purposes.

[20] There is no set formula as to how the Gladue analysis should be applied, and the principles of denunciation and deterrence may predominate where the offence is sufficiently serious:

However, as LaForme J.A. noted in R. v. Kakekagamick (2006) , 81 O.R. (3d) 664 , leave to appeal refused [2007] S.C.C.A. No. 34, at para. 42, there is no general rule that in sentencing an Aboriginal offender the court must give the most weight to the principle of restorative justice, as compared to other legitimate principles of sentencing. The relative weight to be assigned to the goals of restorative justice as against the principles of denunciation or deterrence will be connected to the severity of the offence: Wells, at para. 39. The principles of denunciation and deterrence may predominate where the offence is sufficiently serious: Kakekagamick , at para. 42 . [4]

[21] However, it is an error in law to state that Gladue principles do not apply to serious violent offences or to not give them adequate weight. For example, in Martin [5], the court found that the Gladue principles had an impact on the length of the penitentiary sentence:

It is common ground that a penitentiary sentence is required here, but consideration of the Gladue factors can also have a bearing on the effectiveness of the proposed sentence. Here there is no reason to believe that a six-year sentence would have a greater deterrent effect for the appellant specifically or for other offenders than a four-year sentence. Section 718.2 (e) emphasizes the importance of restraint in resort to imprisonment…

[22] Ultimately, the Gladue analysis must focus on the circumstances of the offender that may bear on the offender's moral culpability for the offence. A sentencing judge cannot let the seriousness of the offence deflect the court away from that focus. [6]

[23] In assessing Mr. Gordon’s background, I note that he has 55 prior convictions, many of which are violent offences, including sexual assaults and assaulting a peace officer. It is a significantly aggravating factor on sentence. As the Court of Appeal indicated in Taylor:

Moreover, it is a misconception to say -- as the respondent submits -- that a criminal record may not be an aggravating factor in sentencing. Certainly, it would be wrong to punish a person for his or her past crimes by using a criminal history in effect to impose a "double punishment" on that person, i.e., to impose a sentence for the offence in question and then to add something more for the criminal record: see Regina v. Hastings (1985), 1985 ABCA 20 , 19 C.C.C. (3d) 86 at 88 (Alta. C.A.) ; R. v. Young, [1979] M.J. No. 150 , (1979), 22 C.L.Q. 35 (Man. C.A.). Thus, it is not proper to treat the record of the accused as an aggravating factor in the sense that the trial judge is entitled to raise the sentence beyond what would otherwise be a fit sentence: R. v. Carrier (1996), 1996 ABCA 133 , 187 A.R. 40 (Alta. C.A.) . However, a criminal record, depending on its nature, may be an "aggravating" factor in the sentencing context in the sense that it renders a stiffer sentence "fit" in the circumstances because it rebuts good character and because of what it tells the trial judge and society about the need for specific deterrence, the chances of successful rehabilitation, and the likelihood of recidivism [7] .

[24] It appears that the violence in Mr. Gordon’s record is related to the consumption of methamphetamine. It also appears in the Gladue report that he does not want to seek out assistance for his substance abuse issues. If he dealt with his substance abuse problem, he would also have the support of his grandfather who gave him a stable home growing up.

[25] The supplemental Gladue letter noted the following:

Tony was previously reluctant to consider treatment. When culturally appropriate options were discussed, he was more willing to consider options.

Tony has shown interest in cultural programming, Indigenous-based treatment and healing for addictions/substance abuse, mental health counselling to help with anger, guilt, resentment, violence, and trauma. “Sure, why not. They could give me advice and wisdom. I’m always open to others point of views. Puts a piece of the puzzle I don’t know how to work”.

[26] The supplemental letter also notes that he would be agreeable to the recommendations for counseling contained at the end of the letter.

[27] My concern with the above passages from the letter, given Mr. Gordon’s unequivocal refusal to consider treatment in the Gladue report and the comments from his grandfather relating to his substance abuse, is that nowhere in the Gladue letter does he show any awareness of the consequences of his actions or any insight into his behavior. In this context, simply stating he is more willing to consider options or is agreeable to the recommendations in the Gladue report is insufficient for the Court to accept that he will attempt, and commit to, significant rehabilitative steps when he is released. Again, within days of release from his last period of incarceration he was found in possession of 11.2 grams of methamphetamine.

[28] On the charge of assault by choking, the sentencing principles which must dominate are denunciation and deterrence, both general and specific. Therefore, in considering the background of the accused, the plea of guilt, the nature of the random physical attack on a walking trail and the harm caused to the victim, I impose the maximum sentence of 2 years less 1 day since the Crown went by summary conviction. [8]

[29] In relation to the charge of breach of probation, the sentence must be consecutive. First, I wish to make it clear that I did not consider the breach of probation as an aggravating factor on the sentence for assault. Second, although the breach and the assault stem from the same incident they are different legally protected interests [9]. As Dickson C.J.C., for the Court, commented regarding probation orders in Prince:

Plainly, breach of probation is an offence designed to protect the effective operation of the criminal justice system, a societal interest which is entirely different from that protected by an offence such as assault [10]

[30] Mr. Gordon has 20 prior breaches of Court orders, including release orders, prohibition orders and probation orders. This incident occurred 2 days after his release from custody. This demonstrates a flagrant disregard for court orders by the accused.

[31] The purpose of imposing the keep the peace and be of good behavior condition is “securing the good conduct of the accused and for preventing the repetition by him of the same offence or the commission of other offences". [11] Clearly, given his record, the probation orders that Mr. Gordon has been subject to have not had the desired effect.

[32] In imposing the sentence for the breach of probation, since I am imposing it consecutively, I must be mindful of the principle of totality and the step principle. From his record he appears to have received 120 days for a breach of probation in 2019 and he received 78 days for a breach of probation in 2020. While I am mindful of the step principle, I do not feel a modest increase from a 4-month sentence to a 6-month sentence is warranted. Given the risk to re-offend, the lack of insight into his behavior, the flagrant nature of the breach and the unrelenting record since 2008, I must impose a higher penalty. [12] A 6-month sentence would simply be unfit. It is my view that a 1-year sentence consecutive to the assault is warranted taking into account totality.

Joint Submission

[33] This does not end the matter, however. Before me I have a joint submission for 18 months. The Supreme Court clearly indicated in Anthony-Cook [13] a stringent requirement for departing from joint submissions. I do not depart from the joint submission lightly. The Ontario Court of Justice is the busiest criminal court in Canada, I am acutely aware of the importance of joint positions for the proper functioning and stability of the administration of justice. However, in my view, given that the appropriate sentence is double that of the joint position, the position taken by the Crown and defence is well outside of the appropriate range and would bring the administration of justice into disrepute and is contrary to the public interest.

Conclusion

[34] As a result, and in taking into account the totality principle, Gladue principles, nature of the offences, the harm caused to the victim and the plea of guilt, Mr. Gordon’s total sentence is 3 years less a day. From that I subtract his pre-sentence custody, which I enhance at a rate of 1:5 to 1, for a total of 17 months and 20 days. The remaining sentence is 18 months and 9-days. I impose 3 years of probation; a DNA order and impose a 110 order for 5 years.

Released: September 22, 2022 Signed: Justice M.K. Wendl

Citations

[1] R. v. Friesen, 2020 SCC 9 [2] R. v. Ipeelee, 2012 SCC 13 at 80-82 [3] Ibid at 60 [4] R. v. Macintyre-Syrette, 2018 ONCA 706 at 18, citing R. v. Kakekagamick, 2006 ONCA 706 at para. 42 [5] R. v. Martin, 2018 ONCA 1029 at 14 [6] R. v. Altiman, 2019 ONCA 511 at 85 [7] R. v. Taylor, [2004] O.J. No. 3439 (ONCA), citing Regina v. Hastings (1985), 1985 ABCA 20, 19 C.C.C. (3d) 86 at 88 (Alta. C.A.); R. v. Young, [1979] M.J. No. 150, (1979), 22 C.L.Q. 35 (Man. C.A.); R. v. Carrier (1996), 1996 ABCA 133, 187 A.R. 40 (Alta. C.A.) [8] For the impact of a summary election on sentencing see the foundational principles set out in R. v. Solowan, 2008 SCC 62, paras. 15 -16 : “A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown elected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be “scaled down” from the maximum on summary conviction simply because the defendant would likely have received less than the maximum had he or she been prosecuted by indictment. Likewise, upon indictment, the sentence should not be “scaled up” from the sentence that the accused might well have received if prosecuted by summary conviction. “In short, the sentencing principles set out in Part XXIII of the Criminal Code apply to both indictable and summary conviction offences. Parliament has made that clear in the definition of “court” at s. 716 of the Code. And when the Crown elects to prosecute a “hybrid” offence by way of summary conviction, the sentencing court is bound by the Crown’s election to determine the appropriate punishment within the limits established by Parliament for that mode of procedure. Absent an error of principle, failure to consider a relevant factor, or overemphasis of the appropriate factors, any sentence within that range — including the maximum — should not be varied on appeal unless it is demonstrably inadequate or excessive.” [9] R. v. Sadikov, 2018 ONCA 609 at para 17 [10] R. v. Prince, [1986] 2 S.C.R. 480 (S.C.C.), at page 503; see also R. v. Berezowski, 2006 ONCA 209: Although the appellant's offences arose out of the same incident, consecutive sentences were appropriate. The offences of assault and failing to comply with a probation order protect different societal interests, and constitute invasions of different legally protected interests: R. v. Mascarenhas (2002), 60 O.R. (3d) 465 (Ont. C.A.). The gravamen of the two offences is different: R. v. Dua. [11] per Martin, J.A. in R. v. Ziatas (1973), 13 C.C.C. (2d) 287 (Ont. C.A.) at p. 288. [12] R. v. Elliot, 2021 ONCA 909 at 12 [13] R. v. Anthony-Cook, 2016 SCC 43, [2016] S.C.J. No. 43