CITATION: R. v. Bradley, 2009 ONCA 175
DATE: 20090225
DOCKET: C47565
COURT OF APPEAL FOR ONTARIO
Weiler, Moldaver and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Lacie Bradley
Appellant
Timothy E. Breen, for the appellant
Joanne Stuart, for the respondent
Heard and released orally: February 12, 2009
On appeal from the sentence imposed on April 26, 2007 by Justice Bruce J. Frazer of the Ontario Court of Justice.
By the Court:
[1] On the eve of his trial, the appellant pled guilty to one count of assault causing bodily harm and was sentenced to an effective five year sentence. The appellant appeals against the length of sentence imposed on the basis that: (i) he was not given proper credit for pre-trial custody; and (ii) the sentence offended the principle of parity.
Facts
[2] At 10:45 p.m. on July 15, 2006, Francis Pitia and a friend were walking through Victoria Park, in Kitchener, and were approaching Salah Dawoud, another friend of theirs. Pitia is a black male originally from Sudan, who came to Canada as a refugee in 2003. As a result of polio, he walks with crutches. Mr. Dawoud is also a black Sudanese male, who came to Canada as a refugee in 2006.
[3] As Mr. Pitia and his friend were approaching Mr. Dawoud, they were attacked by a group of approximately seven men and three women. One of the men was the appellant. The appellant yelled “Nigger nigger you’ve got to die.” Pitia’s crutches were taken from him and he was knocked to the ground, where he was punched and kicked by the assailants. The assailants also used Pitia’s crutches as a weapon in their attack on him. Dawoud was also attacked, though to a lesser extent.
[4] The appellant, age 22 at the time, was apprehended by police that night, and was found to have been drinking. He was arrested two days later, on July 17, 2006. He denied that the attack was racially motivated. He told the court that he was ashamed of what he had done, and that it was the result of his stupidity coupled with the effects of intoxication.
Analysis
[5] We propose to deal with the parity argument first.
[6] Five individuals were charged in relation to the attack on Mr. Pitia. Two of them were acquitted after trial. Two others, Mr. Noseworthy and Mr. Paquin, pled guilty and were sentenced to effective sentences of fifteen months and twelve months respectively.
[7] Mr. Noseworthy pled guilty to the lesser offence of assault simpliciter. He was sentenced to a further five months imprisonment after receiving credit for dead time of five months on a two for one basis, resulting in a credit of 10 months. In addition, he received 18 months probation. Mr. Paquin pled guilty to assault causing bodily harm and was sentenced, on a joint submission, to 12 months imprisonment and 12 months probation.
[8] The appellant submits that the assault on Mr. Pitia was a joint enterprise and that Mr. Noseworthy has a criminal record similar to that of the appellant, in that he has 26 convictions including five convictions for assault. Mr. Noseworthy’s involvement, for which he pled guilty to simple assault, consisted in stopping Mr. Dawoud from coming to the aid of Mr. Pitia by punching him.
[9] Later, however, Mr. Noseworthy was credited with breaking up the assault on Mr. Pitia and saving Mr. Pitia’s life. Mr. Pitia was on the ground, unconscious and bleeding, when Mr. Noseworthy stopped the attack by taking the crutch away from the person who was using it to beat him and suggesting that the group leave. The crown did not allege that he used or condoned racist language. The sentencing judge accepted that Mr. Noseworthy’s remorse was genuine and sincere.
[10] Mr. Paquin, who joined in the assault after it had begun, had a far less serious record than the appellant and was the father of three young children. Although he pled guilty to assault causing bodily harm, he was unaware that there were racial slurs and was not held responsible for the racial overtones of the offence.
[11] We would not give effect to the parity argument. The evidence against these accused was different and their actions during the course of the offence was different.
[12] The appellant was the first one to attack Mr. Pitia. The appellant was the only one shouting racial slurs. The sentencing judge did not accept his expression of remorse. Hence, in his case, specific deference took on added significance. Moreover, with some 43 convictions, many of which involved violence, the appellant had the most extensive criminal record.
[13] We turn now to the issue of pretrial custody. The appellant was in custody for 11 months prior to trial. Pre-trials were held on August 16, 2006; September 11, 2006 and November 29, 2006. At each pre-trial, the Crown discussed the possibility of a guilty plea to assault causing bodily harm with the understanding that two other charges, assaulting Mr. Pitia with his crutch and robbery of the crutch, would be withdrawn. As the investigation progressed, it became clear that the appellant was not the person who had used Mr. Pitia’s crutch as a weapon to beat him and that he had not taken it. A date for trial was set on December 18, 2006. Five months later, on the eve of trial, the appellant pled guilty.
[14] In sentencing the appellant, the trial judge gave him credit for 16 months of incarceration. For the five months prior to the setting of the trial date, the appellant received credit for time served on a two for one basis. For the six months between the setting of the trial date and the imposition of the sentence the trial judge only granted credit on a one for one basis because, in the trial judge’s view, the appellant could and should have pled guilty on the day that the trial date was set, and because the appellant did not suffer any prejudice due to the unavailability of rehabilitative programs in the institution that he was incarcerated in during this time.
[15] There was no finding by the trial judge that the appellant purposefully delayed the sentencing proceeding in order to effectively dictate the length of the sentence. Indeed as the trial judge pointed out in his reasons, the Crown did not allege malfeasance on the part of the appellant. In those circumstances we agree with the appellant that the principle of malfeasance enunciated in R. v. Thornton (2007), 2007 ONCA 366, 224 O.A.C. 219 (C.A.), did not apply. However, another consideration often taken into account in granting two for one credit for pre-trial custody is the absence of programs for rehabilitation. Having regard to the appellant’s history, the trial judge did not think it likely that he would have availed himself of such programs. The trial judge was entitled to take this into account although the Crown led no specific evidence to that effect. Mr. Bradley’s 43 convictions speak for themselves.
[16] This was a senseless, brutal and racially motivated attack involving gratuitous violence in a public place against two strangers. The physical injuries to the victim, Mr. Pitia, were very serious and the psychological damage to him is severe and continuing. In all the circumstances, even if the appellant should have received slightly more credit for pre-trial custody, the sentence, in our view, was fit.
[17] While leave to appeal sentence is granted, the appeal as to sentence is dismissed.
RELEASED: February 25, 2009
“K.M. Weiler J.A.”
“M.J. Moldaver J.A.”
“Paul Rouleau J.A.”