ONTARIO COURT OF JUSTICE

DATE: 2022-10-31 COURT FILE No.: Ottawa 21- M13835

B E T W E E N :

HIS MAJESTY THE KING

— AND —

Jean ROY

Before: Justice Robert Wadden

Plea on: July 18, 2022 Submissions on: October 21, 2022 Reasons for Sentence on: October 31, 2022

Counsel: Mr. Tim Radcliffe, for the Crown Mr. Jacob Legault, for the Defendant

WADDEN, J.:

SENTENCE

[1] On the night of May 28, 2022, in a drunken stupor, Mr. Roy stabbed a neighbour multiple times in an unprovoked attack. Mr. Roy had no recollection of the facts but did not contest the evidence, and the matter proceeded before me as a guilty plea.

[2] The facts before me were that Mr. Roy was upset that one of his neighbours, Stephen Penney, was doing odd jobs around their apartment building that Mr. Roy felt was taking work from him. On the night the offence, Mr. Roy lured Mr. Penney out of his apartment by hitting his windows with a tree branch. Mr. Penney walked out to see what was causing the noise, and once he was outside Mr. Roy ran at him, swinging wildly and attacking Mr. Penney by striking and stabbing him repeatedly. Mr. Penney fell to the ground and Mr. Roy continued to strike and stab him ten more times, hitting him in the chest and back. Mr. Roy then ran away, leaving Mr. Penney to crawl to his apartment where he called 911 for help. Police arrived and after tending to Mr. Penney they found Mr. Roy in his own apartment, where he had inflicted cuts to himself and ingested 50 Seroquel pills. The accused was arrested, transported to hospital, treated, and then held in jail. He has been in custody since that date.

[3] A moving victim impact statement was provided by Mr. Penney. I have disregarded those portions which deal with his opinion on sentence, but I have considered the serious impact this attack had on Mr. Penney – permanent injury to his limbs which impact his enjoyment of life, and ongoing psychological harm and fear for his safety.

[4] Mr. Roy has a limited criminal record, but it is related and recent. He was convicted of assault in May 2021 and was on probation at the time of this attack.

[5] Mr. Roy has been in custody since the date of the offence, which amounts to 156 days. Giving Summers credit at 1.5 to 1, this would equate to credit for 234 days (about 7.8 months). Defence seeks a sentence of approximately two years less a day, plus probation, in addition to the pre-sentence credit. The Crown suggests a sentence of 5 years, less pre-sentence credit.

[6] An assessment under s. 21 of the Mental Health Act was prepared for sentencing, which provided me with substantial material about the history and mental health of Mr. Roy.

[7] Mr. Roy is 40 years old and unmarried; he lives alone in a subsidized apartment and is supported by ODSP. He has a significant alcohol addiction, a mild intellectual disability and learning disorder, a depressive disorder, post-traumatic stress disorder and anti-social personality disorder.

[8] In his account of the offences, Mr. Roy told the psychiatrist that he “drank too much and must’ve blacked out” on the day of the offence. He was binging alcohol and not taking his medication at the time. He apparently had no recollection of the events. He did, however, tell the examining psychiatrist that he felt angry towards his landlord and felt that the victim was stealing odd jobs from him.

[9] Mr. Roy’s criminal record includes one entry for assault, on May 31, 2021, for which he received a suspended sentence and 12 months probation. He was on this probation at the time of the offence.

[10] According to the psychiatric report, Mr. Roy explained that the previous assault charge “stemmed from when he had some difficulties with one of the female tenants of another building owned by his landlord. … He ended up punching one of these women three times and broke their nose, adding that they were both intoxicated at the time. He felt that this was his landlord’s fault for sending him there while knowing these two women were often there.”

[11] Other incidents of violence as described in the psychiatric report are of concern. In January 2018 Mr. Roy was admitted to the hospital after having made a suicide attempt by cutting his neck with a knife and overdosing on medication. In that incident he beat his dog to death with a hammer. According to the report, “He recalled slashing his own throat and left wrist, but then his next memory was waking up with his dead dog in his arms and a hammer with blood on it next to him. Mr. Roy could not recall why he wanted to kill his dog, and he became tearful while stating that he loved his dog and regretted what happened.” He told the examining psychiatrist that he felt anger towards Ottawa Community Housing in relation to these incidents, as they had started letting bad people live in the building who bullied and threatened him.

[12] Later that year, in July 2018, Mr. Roy was readmitted to the hospital after he assaulted his mother, while he was intoxicated, “by pulling her hair as well as punching her in the sternum, face, nose, and forehead. … Mr. Roy yelled at her ‘don’t scream or I will kill you.’ He then put his hands around her throat to strangle her.” The mother did not press charges. This was not the first time he had committed violence against his mother. As a youth, in 1998, he became angry with his mother, destroyed some of her property, put a cord around her neck and attempted to strangle her. He stopped voluntarily but continued to threaten to kill her. No charges were laid.

[13] On another occasion in 2018, after he was released from an alcohol treatment program, he consumed a large amount of alcohol and bought a hatchet with the intention of killing the owner of the rehab centre. His mother found the hatchet and locked it up.

[14] Mr. Roy’s history of making threats is extensive. As a youth, Mr. Roy openly stated at a family therapy session in 1999 that he wanted to kill people who would make him feel ashamed and inadequate, and he wished his mother would take him seriously about this potential. Later in life, when he was on ODSP, he told his mother that “he felt like going down to the ODSP office with a knife and kill as many people as he could.” He confirmed with the psychiatrist that he never took steps toward this, but it was something he felt like doing.

[15] Dr. Wood noted that in many of the incidents of violence “Mr. Roy rationalized and deferred blame, where he often said that his actions would have never happened if it were not for the behaviour of others.”

[16] Mr. Roy told the psychiatrist of extensive alcohol abuse, reporting consumption of an estimated fifteen tallboys of beer daily, often binging. He told the psychiatrist that the past three months in custody was the longest time he has ever been sober and said that he still has strong cravings for alcohol.

[17] Mr. Roy has attempted treatment in the past but has been unsuccessful. He attended Maison Fraternite on at least four occasions, including 2004, 2005, 2006 and 2018. He reported that since his early discharge from Maison Fraternite in 2018 he has always been intoxicated or recovering from intoxication, which consumed all of his income. He has also attended Rideauwood as an outpatient on multiple occasions, the most recent being about three years ago. He also attended the Sandy Hill Community Health Centre addictions counselling program in the past. Hospital records show that he attended the Royal Ottawa Hospital’s Rapid Access to Addiction Medicine clinic in September and October 2018, after which he discontinued his attendance. In the report before me, the psychiatrist noted that “Although Mr. Roy attempted to cut down and stop his alcohol use on multiple occasions, evidenced by his attendance at multiple rehabilitation facilities, he would either not finish the program or relapse shortly after leaving.” Dr. Wood found Mr. Roy’s main diagnosis to be a severe Alcohol Use Disorder. He noted that “Mr. Roy has been able to show restraint in his anger while at OCDC despite encountering some difficult situations, suggesting the ability to restrain himself when sober.”

[18] Dr. Wood stated that it is “of the utmost importance that Mr. Roy remain abstinent from alcohol use, where alcohol is viewed as a major risk factor for further involvement in the criminal justice system.” If he were not to do that, and follow other recommendations of the psychiatrist, he is at a high risk to reoffend in a violent fashion.

[19] In determining a fair sentence, I have to consider, among other things, the aggravating and mitigating factors applicable to this case.

[20] The aggravating factors include that this was a violent, unprovoked stabbing. Mr. Roy lured the victim out of his home and ran at him, stabbing him multiple times. He apparently acted out of a grudge he held towards the victim for taking odd jobs from him. Mr. Roy committed this after having gotten himself drunk. The effects on the victim were severe and appear to be permanently debilitating.

[21] Mr. Roy has a limited criminal record but a long history of violence for which he was never charged. He has a severe alcohol dependency for which he has tried but failed in treatment. He has limited community support. Given the violence of this offence, and other self reported incidents, and the inability to control his alcohol addiction, Mr. Roy presents as a high risk to commit further violent offences.

[22] The mitigating factors include Mr. Roy’s plea of guilty. Even in the face of an overwhelming Crown case, the plea is worth mitigation of sentence as it brings finality to the proceedings.

[23] Mr. Roy’s mental health issues and his severe alcohol addiction provide some explanation of his conduct and somewhat diminish his moral culpability.

[24] Furthermore, Mr. Roy is to be commended for his candour in discussing his history of violence and alcohol dependence with Dr. Wood. The thorough report prepared by Dr. Wood will be of great assistance to those involved in the treatment of Mr. Roy.

[25] The sentencing range for this type of aggravated assault has been well established since the decision of Code J. in R. v. Tourville 2011 ONSC 1677. At paragraph 30, Code J. stated: “At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve "unprovoked" or "premeditated" assaults with no suggestion of any elements of consent or self-defence.” In R. v. Seerattan, 2019 ONSC 4340, Justice Code clarified that the range is wider, with the top of the range including sentences of up to 8 years.

[26] In considering the applicability of this range to the case before me, I note that Mr. Roy is not a recidivist with a long record, but the attack squarely falls into the category of a stabbing that was unprovoked and premeditated.

[27] I keep in mind the direction of the Supreme Court in relation to sentence ranges, in R v Lacasse 2015 SCC 64, at paragraph 57:

Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case

[28] Numerous cases were cited to me, some within the higher range of 4-6 years cited in R. v. Tourville, some below it.

[29] Among the cases cited before me were:

• R v Sanchez, 2019 ONSC 5272, in which Mr. Sanchez kicked and punched his domestic partner, fracturing her orbital bone and causing a cut under her eye, and cut her arm with a kitchen knife. The sentencing judge found it fell at the low end of the range of custodial sentences and imposed the equivalent of 12 months jail. The offender was a first-time offender with good rehabilitative prospects.
• R v Byford, [2016] OJ No 3413, in which Mr. Byford stabbed his stepfather in the course of a domestic argument. Mr. Byford was 20 years old and found to be a low risk to reoffend; the judge found his actions to be a “gross over-reaction to an emotionally charged situation.” She sentenced him to 16 months jail.
• R v Seerattan 2019 ONSC 4340, in which the offender slashed his partner’s leg with a knife in the course of a domestic dispute. The victim fully recovered and asked the offender not to be sentenced to jail. Justice Code found the case was in the mid-range of sentences and imposed a sentence equivalent to about two years jail, after mitigating for immigration consequences.
• R v Mair 2019 ONCJ 700, in which the offender stabbed two men he engaged in a fight with at a coffee shop. He was a youthful first offender struggling with addiction and mental health. Although the sentencing judge found the offence contained elements of the mid to high range identified in Tourville, he sentenced Mr. Mair to 18 months jail.
• R v Nobbs 2020 ONSC 7341, in which Mr. Nobbs struck and choked his domestic partner, fracturing her jaw and breaking a tooth. The court found that this was out of character for the offender and that his prospects of rehabilitation were high. Finding that the case fell somewhere between the mid and upper ranges of Tourville, Mr. Nobbs was sentenced to 2 ½ years, or 30 months.
• R v Hearns 2020 ONSC 2365, in which Mr. Hearns struck the victim on the head with a bat, fracturing her skull and lacerating her scalp. He was sentenced to the equivalent of 33 months.
• R v Le 2018 ONCJ 483, in which Mr. Le attacked a co-worker with a metal pipe, fracturing his eye socket and causing brain injury. Justice Rose found the case was within the upper range of Tourville and imposed a sentence of 38 months on Mr. Le, a first offender.
• R v Chapman 2018 ONSC 3534, in which Mr. Chapman stabbed a store clerk 17 times with a knife. The offender had a long criminal record, schizophrenia, and addictions. He was sentenced on a joint position to three and a half years jail.
• R v Helpert 2013 ONSC 7469, in which Mr. Helpert struck a defenceless woman with a machete, causing a six-inch wound to her head. A 63-year-old first offender, he was sentenced to the equivalent of three years.
• R v Rowe 2020 ONSC 6667 in which Mr. Rowe caused a 40-stitch wound to the side of the face of his ex-wife. A 33-year-old first offender, he was sentenced, after trial, to the equivalent of four years.
• R v Silva 2016 ONSC 2254, in which Mr. Silva attacked a relative with a machete, leaving permanent scarring to his head and hand. Mr. Silva had no record, had good prospects for rehabilitation and had been gainfully employed throughout his life. The sentencing judge held that “given the viciousness and cowardliness of the attack, coming as it did from behind, the multiple wounds and the effect the attack has had on the victim’s person as well as his world view and sense of security, an appropriate sentence is four years.”
• R v Haly 2012 ONSC 2302, in which Mr. Haly stabbed a man in the back while he was working out at a fitness club. Mr. Haly had no record and was 28 years old. The sentencing judge found this was “an unprovoked, vicious and life-threatening attack on an unsuspecting member of the public” and sentenced him to 4 ½ years jail. Although there was a history of mental illness and alcohol abuse, the sentencing judge held, at paragraph 36, that “mental illness is not a significant mitigating circumstance in this case. Nor is the fact that Mr. Haly’s personality structure makes him susceptible to violent response to perceived slights. The aspects of Mr. Haly’s personality that contributed to his attack on Mr. McCleary have their roots in a number of unfortunate experiences in Mr. Haly’s childhood and identifying those experiences is an important step in the effort to change the way he deals with problems, but it is not mitigating that he acted the way he did because of his difficulties in that respect.”
• R v Power, 2018 ONSC 598, in which Mr. Power, a recidivist with a serious criminal record, stabbed a man from behind and received a five-year sentence.

[30] I note as well the recent decision of our Court of Appeal in R v Navarathinam [2022] OJ No 2230 (CA) in which the Court upheld a 4-year sentence on an offender who chased a victim through an apartment building and slashed him with a meat cleaver, causing serious wounds.

[31] Although this review of the case law makes it clear that there is a wide range of sentences imposed for the offence of aggravated assault, in my view Mr. Roy’s case falls within the category of cases that have received significant penitentiary sentences. Not only was it a brutal stabbing of a defenceless victim, but it was planned and included an element of luring the victim into a vulnerable position outside his apartment. Mr. Roy has a history of violence. He has not been successful in rehabilitation programs or in maintaining abstinence from alcohol, which would be essential in reducing his risk. He presents as a high risk to commit future violence.

[32] Principles of denunciation and deterrence are important, in that the sentence must denounce the brutality of this attack on Mr. Penney and deter Mr. Roy from any similar acts in the future. It must also send a message of deterrence to anyone who would engage in this type of behavior.

[33] However, given this is Mr. Roy’s first jail sentence I must also give weight to the principle of restraint. As stated by Rosenberg J.A. in R v Borde, 63 O.R.(3d) 417 (C.A.), at paragraph 36, “The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.” In that case the Court held that a sentence of four years was appropriate for a count of aggravated assault in which the victim was pistol whipped and needed stitches after the offender ambushed him.

[34] In my view, the shortest possible sentence that could be imposed for Mr. Roy to achieve the relevant objectives is one equivalent to four years' incarceration. This is the same sentence as recently upheld by the Court of Appeal in R. v. Navarathinam, which is factually similar to this case, and which involved an offender with a limited record who was receiving his first significant jail sentence. It is also similar to the sentences in R v Silva and R v Haly, factually similar cases involving offenders who were receiving a first jail sentence. It is the same as imposed for the count of aggravated assault in R v Borde.

[35] Giving credit for nearly 8 months of pre-sentence custody, the sentence imposed today on the count of Aggravated Assault, will be a further 40 months in jail. There will be a concurrent 6 months jail on the Breach of Probation.

[36] There will be an order that a sample of DNA be taken for the DNA databank, as Aggravated Assault is a primary designated offence.

[37] There will be a firearms prohibition under s. 109 of the Code for ten years.

Released: October 31, 2022 Justice Robert Wadden