Court File and Parties

COURT FILE NO.: CR-19-3/402 DATE: 20220420

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - Charmare CRAWFORD Defendant

Counsel: Eadit Rokach, for the Crown Ilan Neuman, for the defence

HEARD at Toronto: January 21, 2022

Reasons for Sentencing

Low J. (Orally on April 8, 2022)

[1] Charmare Crawford was convicted following trial without a jury on one count of aggravated assault and one count of failure to comply with a release order. The charge of assault with a weapon is stayed under the Kineapple principle.

[2] The offence date was June 4, 2018. Mr. Crawford was 29 years old at the date of offence and is 32 at the date of sentencing.

[3] The offences arise out of an incident in a bar in which Mr. Crawford, according to his own evidence, had an argument with the victim over a cocaine customer. At that time, both Mr. Crawford and the victim were engaged in the trade of illicit substances. The victim was a person known to Mr. Crawford from his high school days in the east end of Toronto. Mr. Crawford stabbed the victim some 7 times. The most serious of the injuries was a stab wound to the abdomen which required surgical intervention and repair. The victim appears to have recovered and there is no evidence of any permanent sequelae.

[4] The victim had little recollection of the event at trial and did not give a victim impact statement.

[5] The primary principles of sentencing engaged here are denunciation of the conduct, and general and specific deterrence. In light of the path undertaken by Mr. Crawford towards a responsible and productive life following the incident leading to his convictions, I consider rehabilitation to be a significant and countervailing factor in determining the final sentence.

[6] Nevertheless, the sentence must reflect the gravity of the offence and Mr. Crawford’s degree of responsibility. As the conviction arises from an unprovoked attack with a knife resulting in a serious injury to the victim, I am satisfied that a custodial sentence is required. That said, there is an extremely wide range in the sentence that the court may impose for a conviction for aggravated assault and the court’s task is to seek a parity in sentence with previously imposed sentences in similar circumstances upon an offender of similar biography.

[7] The crown seeks a sentence in the range of 5 to 7 years, less credit for presentence custody.

[8] Defence argues that a reformatory sentence in the upper range would be sufficient and appropriate.

[9] In R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245 my brother Code J. observed that the sentencing jurisprudence for aggravated assault falls into three ranges:

27… At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The "Gladue report" disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems. Some of these features are not dissimilar to the case at bar.

28 In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, [2006] O.J. No. 1248 (S.C.J.); R. v. Basilio (2003), 175 C.C.C. (3d) 440 (Ont. C.A.).

30 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. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson (2005), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A).

[10] I would observe that in addition to the ranges described in Tourville, there are also cases at the highest end involving brutal and repugnant or prolonged acts, some with premeditation, causing severe lasting harm: see, for example: R. v. Pitkeathly (8 years) (1994), 69 O.A.C. 352, R. v. Langford (9 years), 2010 CarswellOnt 4280 (C.A.) aff’d 2007 CarswellOnt 11881, R. v. Smardon, (10 years) [1999] O.J. No. 4417, aff’d [2001] O.J. No 3437 (C.A.). These attract sentences exceeding the third range described in Tourville.

[11] Finally, these ranges are, in my view, not discreet in that egregious conduct with grievous results may nevertheless be mitigated by compelling biographical facts or extraordinary contexts.

[12] At first blush, the case at bar would appear to fall within the third category or range described in Tourville. I found the incident not to be one of a consent fight and the wounds not to have been inflicted in self—defence. As well, this was not a situation where a defence of self-defence could have prevailed but for the use of excessive force.

[13] Based on the videotaped evidence, I found that Mr. Crawford attacked the victim with a knife and continued to do so as he held on to the victim by the front of his shirt and pursued him around the bar.

[14] While Mr. Crawford is a repeat offender, his criminal record is not extensive and much of it is dated. In 2009 he was convicted of unauthorized possession of a restricted or prohibited weapon and failure to comply with recognizance.

[15] In May, 2018, he pleaded guilty to possession of a scheduled substance for the purpose of trafficking and dangerous operation of a motor vehicle.

[16] Convictions post-dating the offence date relating to incidents predating the offence date are a conviction in October, 2018 for use of a credit card obtained by an offence, and in September, 2019 for assault causing bodily harm.

[17] Mr. Crawford has never been sentenced to any substantial period of incarceration.

[18] The aggravated assault for which he is to be sentenced here is his most serious offence to date.

[19] Mr. Crawford’s parents immigrated from Jamaica and separated when he was a young child. He was raised by his mother with his two older siblings. The family lived in subsidized housing and moved from place to place. At high school age, Mr. Crawford’s family moved to Scarborough where he fell in with bad influences. His father was not a stable presence in his life.

[20] According to the presentence report:

“Mr. Crawford’s offending pattern appears to have been heavily influenced by negative peer associations and a lack of a positive male role model in his adolescents[sic]. …With regard to his education history Mr. Crawford noted that he was suspended and expelled from school for disciplinary reasons and hanging out with the wrong crowd, however it appears he did complete his OSSD and attended post secondary education for a short period of time. Mr. Crawford is presently a part of the iron workers union and gainfully employed. It would appear Mr. Crawford has taken steps to distance himself from past associates and criminal activity.”

[21] Mr. Crawford has been a member of the Iron Workers Union since 2018. As of November 2021, Mr. Crawford holds a membership with the Ontario College of Trades as a reinforcing rod worker. As of Summer 2021, he has been employed as a rodman. According to Mr. Crawford he has never had any issues with his employers or coworkers and has never been fired from a job. There is no evidence to the contrary.

[22] Mr. Crawford is now engaged to a woman with whom he has had a ten year long relationship. The relationship began as friendship, and Mr. Crawford intends to marry and have a family with her. She is considered by Mr. Crawford’s family members to be a good influence on him.

[23] There is no concern regarding alcohol or substance abuse.

[24] The presentence report is, on balance, positive. Mr. Crawford’s family members are cognizant of his problematic history yet supportive of Mr. Crawford and note that he has grown markedly in maturity.

[25] Of greatest significance on the mitigation side of the ledger is the work that Mr. Crawford has done toward his own rehabilitation. He has distanced himself from the milieu that contributed to his criminal actions in the past and has become a working man and a contributing member of society. He has completed his apprenticeship as an ironworker and is qualified to sit the journeyman examination on April 27 of this year.

[26] Countless young men come before this court professing an intention to turn their lives around, to finish school, to get a job, and to do better. Mr. Crawford appears to have actually done so.

[27] When given an opportunity to speak on his own behalf on sentencing submissions, Mr. Crawford expressed regret for the harm caused to the complainant and stated that he did feel empathy for him. He maintains his position that he acted in self-defence which is a neutral factor as he is entitled to maintain a position for appeal purposes that is consistent with the defence that he advanced.

[28] As to aggravating factors, the assault was committed with a weapon and was in furtherance of an illicit trade in cocaine. As Mr. Crawford acknowledged to the author of the PSR, his possession of unlawful substances in the past was not for personal use but for sale. The context, however, is multidimensional. Mr. Crawford testified that before the knifing, there was an earlier incident in the washroom involving himself, the victim, and the cocaine purchaser. On his evidence, the victim was angry that Mr. Crawford was going to sell cocaine to the customer who the victim considered to be his own customer, and threated both him and the customer with a knife while all three were in the washroom. Because this scenario was never put to the complainant, I have only Mr. Crawford’s evidence. While the earlier altercation, if the event did take place, would not have altered the finding of guilt on the charge of aggravated assault, it may nevertheless have a mitigating impact on sentence as it differentiates the incident from those cases where the offender has attacked the victim in the total absence of any triggering or provocative act or words on the part of the victim.

[29] I have been referred to the following sentencing decisions by the parties:

• R. v. Clarke, 2014 ONSC 5346, [2014] OJ 4437 (SCJ)
• R. v. Paul, [2018] OJ 2551 (SCJ)
• R. v. Aziz, [2017] OJ 5147 (SCJ)
• R. v. McNeil, [2016] OJ 5787 (OCA)
• R. v. Bonnington, [2013] OJ 4638 (SCJ)
• R. v. Wickham, [2015] OJ 1323 (SCJ)
• R. v. Navarathinam, 2021 ONSC 4241
• R. v. Randhawa, 2020 ONCA 668
• R. v. McLaughlin-Coward, 2021 ONCA 626
• R. v. Richer-Lebreton, 2019 ONSC 1513
• R. v. Power, 2018 ONSC 598
• R. v. Silva, 2016 ONSC 2254

[30] These cases range from sentences at the lowest end of the spectrum to sentences in the high end of the three part range described in Tourville.

[31] In R. v. Randhawa, the female appellant slashed one complainant and stabbed a second in the context of a fight involving the two complainants and a third male. The appellant had tried to break up the fight before she resorted to use of a knife, but the fight was over before the appellant stabbed the two complainants. In light of the appellant’s subjective although erroneous belief that the life of the third male was under threat, the Court of Appeal allowed the appeal of sentence of 12 months custody followed by 2 years’ probation and substituted a suspended sentence, observing that the level of blameworthiness of the appellant was at the lowest level in the circumstances.

[32] In R. v. Clarke, the offender was a 28 year old black male who had immigrated from Grenada. He had no prior record. Following a verbal altercation with the victim, a 26 year old white male, in which the victim made vile racial slurs to him, the offender attacked the victim with a knife, causing serious but not life-threatening injuries. The victim was treated in hospital for the lacerations and released the same day. The racist verbal epithets made by the victim were provocative and a mitigating factor. The offender was sentenced to a term of 19.5 months and 2 years’ probation thereafter.

[33] In R. v. Paul, the court imposed a sentence of 2 years less a day on a conviction of aggravated assault where the offender slashed the victim with a machete. The incident was a barroom brawl. The offender had initially menaced the victim with a machete, but had been persuaded to desist. The victim, however, resumed violence toward the offender using a knife and a machete but the victim failed to hit the offender and the weapons fell to the ground. The victim being disarmed, the offender could have left but he did not. He picked up the machete and slashed the victim’s hand. The circumstances did not satisfy the criteria of self-defence but the court concluded that the fight was almost consensual and that there was, in any case, clear provocation.

[34] In R. v. Aziz, a sentence of six months less one day was imposed in circumstances where, after a barroom disagreement, the offender struck the victim over the head with a beer bottle and caused a wound and contusion. This was one of several blows suffered by the victim, but the offender was found on a criminal standard of proof to have struck only the first of them. There was a triggering event in that the victim had thrown beer on the offender a short time prior to the aggravated assault. The offender was a 53 year old immigrant from Guyana who was not a Canadian citizen and thus liable to deportation upon a sentence of 6 months or more. He had 3 prior assault convictions. He was the victim of an earlier automobile accident that caused him continuing pain and permanent disfigurement, was a good spouse and parent and had strong family support.

[35] The Court of Appeal in R. v. McNeil affirmed a 14 month gross sentence in circumstances where the offender stabbed the complainant with a pair of scissors in the course of a physical struggle over a cell phone. Both were intoxicated. The decision concerns fresh evidence and enhanced credit and does not assist in the parity consideration.

[36] In R. v. Bonnington, the crown sought an 18 month sentence and the court imposed a 9 month sentence with probation following where a boater, angry at having been verbally attacked by the victim and his passengers about the way he was mooring, subsequently climbed aboard the victim’s boat, took a swing at the victim’s face and left him blinded in one eye. The offender was a 49 year old man with 9 prior convictions, mainly dated, and who, although he had a record of prior assaults, had firm family support and employed some 75 individuals in his property maintenance business which, it was concluded, would likely dissolve if he were incarcerated for a substantial period of time. Significant factors in support of the lenient sentence appear to have been the brief and unpremeditated nature of the assault, the absence of use of a weapon and the offender’s genuine regret for the harm caused.

[37] In R. v. Wickham, the crown sought a 15 to 18 month sentence and the court imposed a 12-month sentence on a 62 year old offender for an aggravated assault conviction where the offender and a co-worker got into a physical struggle for a screwdriver and the offender struck the victim in the face with it. The victim’s wound was closed with 7 stitches and he had a scar as a result of the assault. The offender was a permanent resident who had a dated record of substance offences in the United States which he had concealed from Canadian authorities. The offender had no record of violent offence and an otherwise positive family, community and employment history.

[38] The foregoing sentencing decisions appear to me to exemplify situations where there was either an extraordinary context in which the offence unfolded or a compelling set of personal circumstances mitigating the sentence imposed. I am not able to conclude that Mr. Crawford’s case presents either.

[39] In R. v. Navarathinam, 2021 ONSC 4241, a five year sentence was imposed where the offender slashed the victim several times about the head and face with a cleaver. The accused had a history of violent offence with a weapon and the assault in issue was prolonged, caused severe injury to the victim, and bore the signs of premeditation to the extent that the accused had animus toward the victim, took the victim to the place of attack and drank heavily knowing that his doing so would lead to violent action. The extremely brutal nature of attack, premeditation and history of violent offence are absent in Mr. Crawford’s case.

[40] R. v. McLaughlin-Coward, 2021 ONCA 626 arose out of a custody and access dispute. The Court of Appeal upheld a 6 year sentence where the appellant attacked the spouse of his former partner causing serious intestinal injuries. He stabbed the victim twice in the abdomen, five times in the back and once in the side of the neck. The appellant had a history of assault with a weapon and while he did not intend to kill, he admitted that he intended to hurt the victim. He appeared to hold the view that his actions were justified. This offender’s unremorseful state and his specific intent to injure together with his violent criminal record are absent in Mr. Crawford’s case.

[41] In R. v. Richer-Lebreton, 2019 ONSC 1513 the court imposed a six year sentence where the offender stabbed a male whom he found in bed with his girlfriend. The accused was 44 and had some 58 prior convictions including 9 assault related convictions, 15 convictions for utter threats, criminal harassment or intimidation. The stab wound to the victim’s abdomen required emergency surgery and resulted in permanent and serious injury possibly requiring further surgery. The accused had no remorse and took no responsibility for his actions. He had a record of some 20 convictions for breaching court orders and threatened and assaulted court officers in the course of trial for the index offence. This offender’s lengthy history of violent offence and unremorseful outlook is absent in Mr. Crawford’s case.

[42] In R. v. Power, 2018 ONSC 598, the offender was tried by a jury and acquitted on attempted murder but convicted of aggravated assault. There was evidence of planning and animus arising from the offender’s interpretation of the victim’s interactions with the offender’s partner. The offender followed the victim to his apartment door and stabbed him in the back twice with a knife. The wounds were serious and resulted in the victim being hospitalized for several days. A subject of Gladue principles, the offender was on probation at the time of the aggravated assault and had an extensive criminal record. He grew up in a grievously dysfunctional environment, was continually physically and emotionally abused, exposed to hunger, violence and criminal conduct, and was taken into care at least once. The offender also suffered from Crohn’s disease and colitis. Dambrot J. commented that in light of the foregoing, a sentence of 5 years would be imposed in lieu of the 7 years that the offence and the criminal record would otherwise warrant. The elements of premeditation and concerted prolonged activity are absent in Mr. Crawford’s case.

[43] In R. v. Silva, 2016 ONSC 2254, the offender was acquitted of attempted murder and convicted of aggravated assault following an attack with a machete by the offender on a relative. The victim was attacked from behind and hit multiple times on the head. The victim recovered from the wounds but suffered lasting psychological effects. Like Mr. Crawford, Silva was not a first-time offender, and at the time of sentencing had been steadily employed. He was sentenced to a 4 year term.

[44] In my view, the totality of circumstances of this offence is less egregious than those in the cases referred to by the crown in support of a 5 to 7 year sentence. No stalking was involved, the weapon was less potentially lethal (as compared to a machete or cleaver) and the resulting injuries less grievous. Mr. Crawford does not have a significant record of violence.

[45] As to his biographical facts, I am persuaded that this man has made a genuine, and, as it transpires, a relatively successful effort to turn his life around. His prospects of rehabilitation are, in my view, sound, and it would be in the interests of the community to foster his rehabilitation and his return to a productive life with a sentence that interferes minimally with it while still being denunciatory of his violent action and a deterrence to him and to others who may engage in like conduct.

[46] The offender’s acts and circumstances in Silva serve as a reasonably close comparator, but I am of the view that Mr. Crawford’s efforts to rehabilitate weigh in favour of relative leniency.

[47] I am therefore inclined to impose a sentence of 3 years and 3 months.

[48] Mr. Crawford spent 224 days in pretrial custody. He will be credited for these days at the rate of 1.5:1 or 336 days.

Low J.

Date of Oral Reasons: April 8, 2022 Released: April 20, 2022