Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20220218 DOCKET: C69776

Fairburn A.C.J.O., Miller and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Malcolm Martin Appellant

Counsel: Marianne Salih and Jeffery Couse, for the appellant Stephanie A. Lewis, for the respondent

Heard: In writing

On appeal from the sentence imposed by Justice Kofi N. Barnes of the Superior Court of Justice on June 30, 2021, with reasons reported at 2021 ONSC 4711.

Reasons for Decision

[1] The appellant and a co-accused were alleged to have committed a serious aggravated assault. After a preliminary inquiry, the co-accused pleaded guilty and received a 13-month custodial term. The appellant continued to trial. The appellant was convicted after a three-day, judge-alone trial in the Superior Court of Justice. He was then sentenced to a 21-month custodial term, which reflected a three month reduction from an otherwise fit sentence to account for what the sentencing judge described as onerous bail conditions.

[2] This is an appeal from sentence predicated on a single issue: did the sentencing judge err in his application of the parity principle?

[3] As described by the sentencing judge, in an entirely unprovoked attack, the appellant and his co-accused beat a defenceless man outside of a bar. That attack included sucker punching the victim and stomping on him with their feet. The victim suffered serious injuries, including a fractured orbital bone and bleeding to the brain. Not only was he hospitalized for four days, but his injuries were long lasting, with serious professional and personal implications.

[4] At the sentencing proceeding, the court was informed through oral submissions that the appellant’s co-accused, who apparently has a “criminal record”, the content of which is unknown, received a 13-month sentence. The co-accused’s guilty plea was entered after the preliminary inquiry.

[5] The appellant argues that the sentencing judge erred by failing to give effect to the parity principle when imposing the sentence. While the appellant acknowledges that the sentencing judge properly adverted to and described the parity principle, he contends that, on the face of the sentences imposed and the purported gulf between them, there is a clear misapplication of that principle. Given their almost identical roles in the crime, the appellant maintains that his sentence should not have been almost twice that of his co-accused, particularly since his co-accused has a criminal record and he does not. Therefore, he asks this court to set aside his sentence and impose a sentence of 15-months in duration. We decline to do so.

[6] The sentencing judge’s reasons are lengthy. Those reasons demonstrate a good grasp of the parity principle. They also demonstrate that the sentencing judge was aware of the sentence imposed on the co-accused and alert to its relevance in the context of his sentencing decision. The sentencing judge’s reasons also demonstrate that he understood that the fact that the appellant chose to have a trial, as was his right, could not be used as an aggravating factor on sentence. The sentencing judge made clear that the absence of a guilty plea simply meant that the appellant did not have access to an otherwise mitigating factor that his co-accused could lay claim to.

[7] Accordingly, the issue on this appeal comes down to whether the sentence imposed, when compared with that of the co-accused, offends the principle of parity. It does not.

[8] The parity principle required the sentencing judge to consider both the sentence imposed upon the co-accused, as well as sentences imposed on others in like circumstances. He also had to take into account all other sentencing factors operative in this case, including the predominant sentencing principles of denunciation and deterrence.

[9] In our view, after engaging in a lengthy discussion of all the operative sentencing principles, the sentencing judge reached a conclusion that he was entitled to arrive upon:

This attack was unprovoked, violent and vicious. The victim continues to suffer from his injuries. [The appellant’s] excellent prospects for rehabilitation and crime free record while on bail is not discounted; however, the paramount sentencing principle in this case is denunciation and deterrence.

Upon considering all of the circumstances of [the appellant] and the offence, which of necessity includes the aggravating and mitigating factors in this case, including the sentence received by his co principal after a guilty plea, I conclude that the appropriate sentence is one of two years in the penitentiary. Had the sentence qualified for consideration as a conditional sentence, such an order would have been inconsistent with the principles of denunciation and deterrence.

[The appellant] shall receive credit of three months for a lengthy crime-free and emotionally onerous time spent on bail. In effect, he shall serve an additional sentence of 21 months in custody. [Emphasis added.]

[10] It was open to the sentencing judge to reach this conclusion. We see no error in principle and the sentence is not demonstrably unfit. Deference is operative.

[11] Leave to appeal sentence is granted, but the appeal is dismissed.

“Fairburn A.C.J.O.”

“B.W. Miller J.A.”

“J. George J.A.”