ONTARIO COURT OF JUSTICE DATE: 2024 01 22 Toronto

COURT FILE: #22-70007361; #22-070005223; #23-481005992

BETWEEN:

HIS MAJESTY THE KING

— AND —

CORY BEALE

SENTENCING JUDGMENT

Before: Justice Brock Jones

Heard on: January 18 and 19, 2024

Written Reasons for Judgment Released on: January 22, 2024

Counsel: E. Minchopoulos................................................................................. counsel for the Crown K. Duncan............................................................................................... counsel for Mr. Beale

Jones J.:

Introduction

[1] On November 10th, 2022, Ali Ghods was working as a driver in downtown Toronto. He had a chance encounter with Cory Beale, who was standing in an intersection impeding traffic. As a result of Mr. Beale’s behaviour, Mr. Ghods made the terrible mistake of exiting his vehicle to confront him face to face. Unbeknownst to him, Mr. Beale was armed with a machete. Without warning, Mr. Beale struck Mr. Ghods with the weapon, causing injuries that had a lasting effect upon him, both physically and emotionally.

[2] Cory Beale entered guilty pleas to a variety of offences on three informations relating to the incident with Mr. Ghods and other, unrelated matters. The Crown proceeded summarily on all offences except the one count of aggravated assault, which is a straight indictable offence.

[3] The Crown seeks a global sentence of five and a half years in prison. The defence submits that a two year sentence is appropriate.

[4] These are my written reasons.

The Offences

Information #22-70007361

• Aggravated Assault
• Assault
• Fail To Comply With A Release Order (“No Weapons”)
• Possession of a Weapon for a Dangerous Purpose

[5] On Thursday November 10th, 2022, at approximately 23:36 hours, Mr. Beale was walking on Gerrard Street East at the intersection of Carlaw Avenue in the city of Toronto. He had a bicycle with him and his pet dog.

[6] Mr. Ghods was working as a driver in the area. When he stopped at the same intersection, he accidentally struck Mr. Beale’s dog. Mr. Beale had been in the intersection, and was impeding the movement of Mr. Ghods’ vehicle. Mr. Beales threw his bicycle at the back of Mr. Ghods’ vehicle.

[7] Mr. Ghods exited his vehicle to speak to Mr. Beale. At this point, Mr. Beale produced a machete and brandished it towards Mr. Ghods, who raised his right arm in self-defence. Mr. Beale struck Mr. Ghods with the machete, causing a deep laceration to his right hand. He then punched Mr. Ghods in the chest.

[8] At the time of these offences, he was bound by a recognizance of bail issued by the Ontario Court of Justice. A term of that recognizance prohibited him from possessing any weapons.

Information #22-070005223

• Fail To Comply With SOIRA

[9] On April 27, 2009, Mr. Beale was convicted of sexual assault in the Ontario Court of Justice. He was sentenced to two years in prison. He was ordered to comply with the national sex offender registry as established by the Sex Offender Information Registration Act, s.c. 2004, c. 10 (“SOIRA”) for a period of 20 years.

[10] On July 30, 2022, he did not comply with the requirement that he register his address annually. A warrant was issued for his arrest.

Information #23-481005992

• Assault Peace Officer (PC Rogacz)
• Fail To Comply With A Release Order (curfew)

[11] On May 25, 2023, Mr. Beale attended at an alleyway between Brighton Avenue and Brooklin Avenue in Toronto at 1:40 a.m. He had previously dated a woman who resided in this area.

[12] He was heard screaming, swearing and threatening an unknown person by a witness. That witness called the police.

[13] PC Rogacz arrived at the scene and approached Mr. Beale, who identified himself with a false name and date of birth. After the officer was unable to verify the details of his identity, he arrested Mr. Beale for obstructing a peace officer. He handcuffed Mr. Beale who became enraged. Mr. Beale kicked PC Rogacz.

[14] After his true identity came to light, Mr. Beale admitted he knew there was a warrant for his arrest. He was bound by a release order issued the Ontario Court of Justice. One of the terms of that release order required him to remain in his place of residence between the hours of 10 p.m. and 6 a.m.

Victim Injuries and Input

[15] Mr. Ghods’ medical records were filed on consent and he provided a victim input statement. He suffered a 10 cm laceration to his hand that required immediate medical attention. It took eight stitches to close the wound. Pictures of his injured hand were also made an exhibit.

[16] In his victim impact statement, Mr. Ghods described being constantly worried and fearful that someone may attack him. He has not been able to use his right hand normally since the incident. He was unable to work for three months as well.

Background of the Offender

[17] Mr. Beale is 42 years old. He has struggled with an addiction to illegal substances including crack cocaine and crystal meth.

[18] He has a prior criminal record which includes the following:

• Two convictions for assault in 2001, as well as a conviction for assaulting a peace officer, which resulted in sentences of 30 days, 15 days (consecutive) and 30 days (concurrent) respectively;
• A robbery conviction and assault causing bodily harm conviction in 2002 which resulted in 2 years jail (in addition to 3 months of pre-sentence custody) for the robbery and six months jail consecutive for the assault causing bodily harm count;
• A sexual assault conviction in 2009 which resulted in a 2 year jail sentence;
• Convictions for assault causing bodily harm, overcome resistance by choking, and assault with a weapon against a former intimate partner in 2016, as well as two counts of failing to comply with a recognizance, which resulted in a global three and a half year sentence; [1]
• A conviction in 2023 for failing to comply with SOIRA for which he was sentenced to 70 days pre-sentence custody; and
• Eight prior convictions for failing to comply with court orders (bail orders or probation orders), with the most recent sentence being a six month consecutive sentence for failing to comply with a recognizance in 2016.

[19] Mr. Beale has undertaken rehabilitative programming while awaiting the disposition of his charges at the Toronto South Detention Centre (“TSDC”). He completed a bible studies course and a spiritual recovery program, as well at 17 life skills educational sessions. The John Howard Society is helping him with an individualized release plan and reintegration supports. He has also consented to the voluntary release plan case management services of Cota, which is a mental health agency that provides intensive case management services to offenders after they are released into the community.

[20] He is on a waitlist for supportive housing with the Access Point. He is also on a waitlist for residential treatment at St. Michael’s Homes. This program is a highly structed 30-day residential treatment program designed to assist men such as Mr. Beale with the tools they need to address problematic substance use and/or dependence. He has made a further application to the DARE Program (Drug and Alcohol Rehabilitation Enrichment) at the Good Shepherd Centre in Toronto.

[21] Ms. Duncan provided me with a letter written by Deacon Peter from the St. Benedict Parish dated August 7, 2023. Deacon Peter has been meeting with Mr. Beale regularly while he has been in custody. Mr. Beale has been respectful and appears genuinely committed to putting his past life behind him.

[22] Mr. Beale’s intimate partner wrote a letter in support of him which Ms. Duncan read into the record. She describes Mr. Beale as a loving and caring person. They were homeless when these incidents occurred, and both were struggling with addiction or mental health issues. They are committed to a brighter future together.

[23] Mr. Beale told me directly he was intoxicated when he struck Mr. Ghods and deeply regrets his actions. He does not excuse his conduct. He wants to improve himself. When he saw the images of the victim’s injuries in court, he realized the horrible nature of what he did. He was “endlessly sorry” and wished he could do anything to make it up to the victim. I found his expression of remorse and insight into his actions sincere.

Positions of the Parties

[24] Ms. Minchopoulos submits that a sentence of five years prison is appropriate for the aggravated assault count given the various aggravating factors. She further seeks a consecutive sentence of 90 days jail for the fail to comply (“no weapons”) count, and concurrent sentences for the assault and weapons dangerous counts. This was a vulnerable elderly man who was attacked for no reason with a deadly weapon.

[25] On the count of failing to comply with SOIRA she submits a sentence of 90 days is appropriate due to his history of non-compliance. For assaulting PC Rogacz she only requests a suspended sentence due to the guilty plea. The officer was not injured.

[26] Ms. Duncan submits a further sentence of two years custody is sufficient in addition to Mr. Beale’s pre-sentence custody. Her client would prefer to serve his sentence in a penitentiary. Based on his prior experience, the Correctional Service of Canada has more extensive rehabilitative programming than what is available in a provincial jail. However, she submits the Crown’s position is excessive. While the assault on Mr. Ghods was unjustified, it was not entirely unprovoked. Mr. Beale felt that his dog was harmed and “overreacted.”

[27] Mr. Beale has demonstrated his commitment to his rehabilitation. Unfortunately, he has experienced homelessness and struggles with an addiction to crack cocaine and crystal meth. He relapsed shortly before the assault on Mr. Ghods. While he should not have been carrying a weapon, Ms. Duncan asks me to consider that Mr. Beale thought he needed the weapon to protect himself but was not actively looking to harm anyone when he set out that night.

[28] She does not strongly contest the Crown’s position on the charges relating to the other informations. She does ask me to consider that Mr. Beale complied with the reporting requirements of the national sex offender registry for many years prior to his recent breach.

[29] Mr. Beale’s time in pre-sentence custody has been very difficult. He has experienced regular lockdowns. Ms. Duncan asks me to consider this as a significant mitigating factor.

Sentencing Law – First Principles

[30] Section 718 of the Criminal Code states that the “fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions”.

[31] A sentence must be proportionate to “the gravity of the offence committed and the moral blameworthiness of the offender”: see Criminal Code section 718.1. As explained by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, the “more serious the crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence will be”: see para. 12.

[32] Crimes of violence that involve significant physical or psychological injuries require that the sentencing principles of general deterrence and denunciation be given great weight. For a repeat offender such as Mr. Beale, specific deterrence must also be given prominence. Rehabilitation, while still important, cannot be given equal standing with these other principles.

[33] Nevertheless, a court must not focus solely on the offence and its impact on the victim: see R. v. Rabbit, 2023 ABCA 170, at paras. 51-53. Properly assessing the degree of responsibility of the offender requires the court to consider his background and life experiences. That may provide important contextual information for why the offences occurred.

[34] For these offences, the following sections of the Criminal Code must also be considered. Section 718.04 states that “[w]hen a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.” Mr. Ghods was a vulnerable elderly man.

[35] Section 718.2(a)(iii.1) of the Criminal Code states that a sentence shall be increased where there is evidence “that the offence had a significant impact on the victim, considering their age and other personal circumstances”.

[36] Section 718.02 of the Criminal Code requires a court to give primary consideration to the objectives of denunciation and deterrence when sentencing an offender for assaulting a peace officer.

Aggravating Factors

[37] I find the following aggravating factors:

• Mr. Ghods was a vulnerable, elderly man of 70 years;
• He was attacked without warning and without any justification;
• Mr. Beale wielded a machete, and struck the victim when he was unarmed, and had his right arm up to simply defend himself;
• The attack was savage and totally unnecessary, and committed with callous disregard for the victim’s physical and emotional integrity;
• The attack took place in public where other people may have been traumatized by seeing it;
• Mr. Ghods suffered a serious wound to his hand and has permanent physical and psychological injuries;
• Mr. Beale’s breaches of his court orders were flagrant; and
• His prior criminal record includes convictions for crimes of violence and failing to comply with court orders.

Mitigating Factors

[38] There are also several important mitigating factors:

• Mr. Beale pleaded guilty and spared the victim from having to testify at both a preliminary hearing and a trial;
• He has not had a prior conviction for a crime of violence in over seven years;
• He has the love and support of his Aunt, and his intimate partner; and
• He started rehabilitative programming at the TSDC.

Aggravated Assault

[39] In R. v. Tourville, 2011 ONSC 1677, at paras. 27-30 and R. v. Seerattan, 2019 ONSC 4340, at para. 36, Justice Code of the Superior Court of Justice suggested a broad range of sentencing for aggravated assault, typically split into three different categories.

[40] In the first, lower end of the range, intermittent sentences have been imposed. Where exceptional circumstances exist, completely non-custodial sentences have been imposed. Ms. Duncan does not suggest Mr. Beale’s crime falls into this category.

[41] In the second category, encompassing the mid-range of gravity, high reformatory sentences have been imposed. As explained by Code J. in Tourville, “[t]hese cases generally involve first offenders and typically contain some element suggestive of consent fights but where the accused resorted to excessive force”: see para. 28.

[42] In the third part of the range, involving the most aggravating cases, sentences of four to eight years have been imposed. These cases typically involve offenders with prior criminal records for similar crimes of violence, and/or unprovoked or premeditated assaults: see Tourville at para. 30. These cases also stand out for the lack of any suggestion of a consent fight or self-defence.

[43] Ms. Minchopoulos provided me with the following additional authorities in support of her position.

[44] In R. v. Fischer, 2023 ONSC 1705, the 31 year old accused attended at a bar with a knife concealed in his pocket. He was in the basement of a Sports Bar at 2 a.m. He became involved in an altercation with the victim, another young man who was looking for his girlfriend. The accused slashed the victim on the right side of his face with the knife.

[45] The accused had an “extensive prior criminal record” including for crimes of violence. The Court noted his “troubled childhood and the fact that he is experiencing ongoing issues with depression, borderline personality disorder, and alcohol and substance abuse are relevant mitigating considerations”: see para. 32. The accused has also completed anger management programming prior to sentencing: see para. 13.

[46] Nevertheless, a sentence of 3 years and 6 months was imposed.

[47] In R. v. Navarathinam, 2021 ONSC 4241, the 39 year old accused and the victim shared a basement apartment. One day, the accused chased the victim with a meat cleaver. He followed him throughout the building across multiple floors. Once he caught up to the victim he punched him the ground and while the victim put his arms up to defend himself, the accused slashed him twice with the meat cleaver. He struck the victim’s head and face. The wounds to his head had to be closed with staples, and the wounds to his face with stitches.

[48] The accused had a minor prior criminal record, with the longest sentence being 90 days. He struggled with alcoholism and there was some evidence he had made efforts to turn his life around.

[49] The Court described the offence as a “vicious unexplained attack on a completely defenceless victim”: see para. 36. Balancing the aggravating and mitigating factors, the sentence was four years’ incarceration.

[50] In R. v. Silva, 2016 ONSC 2254, the 30-year-old accused was found guilty of aggravated assault following a trial. The victim was his kinsman by marriage. He used a machete. The victim suffered “significant injuries” that resulted in permanent scarring to his head and hand. He was also psychologically impacted.

[51] The accused had a prior criminal record including one entry as an adult for assault, and a prior youth court record including a prior assault as well. The entries were dated.

[52] Due to the “viciousness and cowardliness of the attack”, and the multiple wounds caused to the victim, Low J. imposed a four-year sentence: see para. 22.

[53] R. v. Helpert, 2013 ONSC 7469, involved a 63 year old accused who entered a bar in Toronto and acted erratically. He re-attended two hours later. He was heavily intoxicated.

[54] He confronted a woman outside the bar. She was standing, having a conversation with another patron. The accused drove his car near the bar and mounted the sidewalk. The victim made a remark about how he parked his car. The accused retrieved a large machete from his car and yelled at her. He then swung the machete at her, striking her in the back of the head. She suffered a six-inch wound and bled profusely. The accused continued to swing the machete at other persons who witnessed what had just occurred.

[55] The victim required multiple stitches to close the laceration to her head. The wound took a long time to heal, and she could not work for six to eight months. She continued to feel numbness from the injury and suffered from dizzy spells and bouts of depression: see paras. 7-9. The Court found that the victim was “deeply scarred psychologically as a result of Mr. Helpert's conduct”: see para. 24.

[56] Mr. Helpert received psychiatric care for his depression: see para. 12. He had no prior related record and pleaded guilty. The Court imposed a 3 year sentence: see para. 27.

The National Sex Offender Registry

[57] SOIRA came into force in 2004. Section 4.1(1)(c) of the Sex Offender Information Registration Act requires that a sex offender report “at any time between 11 months and one year after they last reported to a registration centre under this Act.” Offenders must report in person to a registration centre and must update their information yearly (ss. 4(3) and 4.1(1)).

[58] In R. v. Long, 2018 ONCA 282, the Ontario Court of Appeal upheld the constitutionality of the SOIRA provisions. The Court found that the purpose of the registration was protection of the public: see paras. 88-89. Ms. Minchopoulos is right to emphasize the importance of compliance with the registry accordingly.

[59] In R. v. Ndholvu, 2022 SCC 38, the Supreme Court of Canada described the significance of the reporting requirements associated with SOIRA at para. 42:

Failing to comply with SOIRA brings serious consequences for offenders. The Criminal Code makes it an offence for an offender to fail to comply with SOIRA’s reporting obligations without “reasonable excuse” (s. 490.031(1)). Non-compliance with any of these conditions may result in prosecution, with penalties of up to 2 years’ imprisonment, up to $10,000 in fines, or both (s. 490.031(1)). The risks are clearly high for offenders if they fail to adhere to SOIRA’s numerous requirements.

[60] The Supreme Court further noted, however, that the reporting requirements associated with SOIRA are serious and onerous, and that courts should be alive to the fact that “the cost of compliance varies from offender to offender based on their life circumstances”: see para. 46. For offenders “who experience homelessness, substance use issues, and cognitive or mental health challenges”, compliance may be “extremely difficult”.

Credit for Pre-Sentence Custody (“PSC”)

[61] Mr. Beale has 154 Days of pre-sentence custody he can apply to these charges. He is entitled to 1.5:1 credit for that time, which is days, or 231 days: see Criminal Code section 719(3.1); R. v. Summers, 2014 SCC 26.

[62] Ms. Duncan provided me with lockdown records for Mr. Beale during his time at the TSDC. She submits these records and the generally well-known harshness of the conditions at the TSDC warrant some further reduction in his sentence: see R. v. Green, 2021 ONCA 932, at para. 16.

Conclusion

[63] The aggravated assault committed against Mr. Ghods was reprehensible. Savage, unprovoked crimes of violence demand severe sentences. Even prior to the assault occurring, Mr. Beale had armed himself with the machete. He had no lawful purpose to be in possession of such a weapon on the streets of Toronto whatsoever. It has a long blade with a serrated edge. It would understandably terrify anyone who saw it.

[64] When Mr. Beale wielded this weapon against Mr. Ghods he knew he would likely cause a very serious injury to him. His decision to strike an elderly man when he was utterly defenceless demonstrates a shocking lack of empathy for his victim. Mr. Beale’s moral culpability for this offence is extremely high. It is not an excuse and nor was his conduct somehow rendered less serious because Mr. Beale was angered that Mr. Ghods accidentally struck his dog with the car.

[65] He is not a first-time offender. He has been sentenced to lengthy jail sentences in the past for crimes of violence. He has repeatedly flouted court orders.

[66] Furthermore, Mr. Beale’s blatant violation of the curfew condition on his release order and the assault on PC Rogacz demand a consecutive jail sentence. I cannot accept the Crown position of a suspended sentence for these offences. They require something greater to reflect the principles of deterrence and denunciation. Bail orders must be respected. Needlessly assaulting an officer in the line of duty is inexcusable. Courts must rightly condemn these offences for the jeopardy they place our front-line officers in every day.

[67] Since Mr. Beale’s arrest, he has made tremendous efforts towards his own rehabilitation. He has taken advantage of the very limited rehabilitative programming opportunities available to him in custody at the TSDC and has taken meaningful steps to plan for his release and reintegration into the community. I take as sincere his apology for his conduct and find his commitment to his own rehabilitation to be genuine. He desires a long enough sentence to be able to take advantage of the programming available to him in the federal penitentiary system, in furtherance of that goal.

[68] His struggles with drug addiction will not be easy to address and will require years of commitment from him. His remains at a high risk to reoffend but that risk can be reduced if he can abstain from alcohol and drugs and learn to control his anger.

[69] A sentence of three and a half years for the aggravated assault count is appropriate even considering Mr. Beale’s recent progress towards his rehabilitation. A 90-day consecutive sentence is appropriate for the breach charge relating to the “no weapons” condition. A further 60-day sentence is appropriate for the curfew violation and assaulting PC Rogacz with respect to the second set of charges. Finally, due to Mr. Ghods’ personal circumstances, including that he was homeless for a long period of time during which he was expected to report, a 30-day sentence is sufficient for his failure to comply with the obligations placed on him respecting the national sex offender registry: see, for example, R. v. Lochert, at paras. 15-16. [2]

[70] This would result in a total sentence of four years’ incarceration. Considering the totality principle, I do not find that the cumulative sentence exceeds his moral culpability.

[71] I reduce the four-year sentence by eight months to reflect his pre-sentence custody with Summers enhancement. The sentence from today’s date would have been three years and four months accordingly. I agree with Ms. Duncan that a further mitigating factor flows from the conditions he has faced at the TSDC. I therefore impose a global three-year sentence from today’s date.

[72] The informations will be endorsed accordingly:

• Aggravated assault – 154 Days PSC noted, credited at 1.5:1 for 231 days (or approximately 8 months) with an additional 30 months’ custody;
• FTC Recognizance (“no weapons”) – 90 days custody, consecutive;
• Assault – 30 days, concurrent;
• Possession of a Weapon for a Dangerous Purpose – 90 days, concurrent;
• FTC Release Order (“curfew”) – 60 days, consecutive;
• Assault Peace Officer – 60 days, concurrent; and
• FTC SOIRA – 30 days, consecutive.

[73] A section 109 order prohibiting him from possessing any specified weapons will be in place for life.

[74] A DNA order shall be issued on all offences, whether they are primary or secondary designated offences.

[75] A forfeiture and destruction order is granted for the machete.

[76] The victim fine surcharge is waived on all offences.

Released: January 22, 2024 Signed: Justice Brock Jones

[1] The transcript of the proceedings before Horkins J. was filed to provide clarity about this sentence. [2] While Mr. Beale was convicted in 2023 for another occurrence of failing to comply with SOIRA, he was not convicted of that offence and sentenced for it prior to the commission of the offence for which I must sentence him. As a result, the Coke principle applies, and I cannot consider this other conviction as an aggravating factor: see R. v. R.M., 2020 ONCA 321.