Court of Appeal for Ontario

Date: 2022-12-16 Docket: C70720

Before: Trotter, Sossin and George JJ.A.

Between: His Majesty the King, Respondent and Gilbert Ryan Wilson, Appellant

Counsel: Gilbert Ryan Wilson, acting in person Brian Snell, appearing as duty counsel Jeffrey Wyngaarden, for the respondent

Heard: December 7, 2022

On appeal from the sentence imposed on May 25, 2022, by Justice Edward E. Gareau of the Superior Court of Justice, with reasons reported at 2022 ONSC 2581.

Reasons for Decision

Overview

[1] The appellant was convicted of aggravated assault and being unlawfully in a dwelling house with intent to commit an indictable offence, along with two accomplices, in a brutal attack against an individual described by witnesses as a “drug debt enforcer.” The appellant seeks leave to appeal against the sentence imposed by the trial judge of seven years. All three accused involved in the attack were viewed by the sentencing judge as equally responsible and all three received the same sentence. The appellant’s ground of appeal is that, unlike the other two offenders, his criminal record did not include prior acts of violence. As a result, he argues he should have received a lesser sentence.

[2] For the reasons that follow, we grant leave to appeal the sentence but dismiss the appeal.

Facts

[3] According to witnesses, the complainant, a drug debt enforcer described by several witnesses as a “bully”, had been insulting the appellant over the course of several hours in an apartment in Sault Ste. Marie on May 16, 2019.

[4] The appellant offered to buy drugs for the complainant and left the apartment.

[5] A witness who was sent to check on the appellant saw him, and three others, approaching the apartment armed with makeshift clubs (including a baseball bat and a crowbar). The witness promptly fled. The appellant and his accomplices then severely beat the complainant, who suffered, among various injuries, fractures to his skull, both lower legs, and one rib.

[6] The complainant’s injuries were described by the sentencing judge as “serious, extensive and long-lasting”.

[7] The appellant pleaded guilty to aggravated assault and being unlawfully in a dwelling house with intent to commit an indictable offence.

The Sentencing Decision

[8] The sentencing judge noted that the jurisprudence calls for a sentencing range of 5 to 10 years. The Crown sought a global sentence of eight years. The appellant and his accomplices argued for a sentence of time served, which by the time of sentencing was 4.3 years (with enhancement).

[9] The sentencing judge did not consider this a “home invasion” case, which would merit a sentence at the high end of the range, but also did not consider the low end to be applicable.

[10] The sentencing judge reviewed the appellant’s criminal record. The appellant was 32 years old at the time of sentencing and had previously been convicted for break-and-enter, possession of a prohibited weapon, and numerous offences for failing to comply with court orders.

[11] The sentencing judge identified several mitigating factors when considering a fit and appropriate sentence for the appellant.

[12] While the sentencing judge recognized the impact of Gladue factors for the appellant’s two accomplices, these were not applicable in the appellant’s case. The sentencing judge referred to the appellant’s pre-sentence report, which described a history of domestic violence in the home where he was raised and struggles with addiction issues from a young age.

[13] The sentencing judge also noted that the appellant apologized to the victim and his family and expressed remorse and guilt over the offence. He concluded, “I accept Mr. Wilson's expression of remorse as sincere and genuine and accept his plea of guilty as an indication that he accepts responsibility for his actions.”

[14] With respect to aggravating factors for the appellant, as well as his accomplices, the sentencing judge highlighted that the attack amounted to “premeditated violence fuelled by vigilantism and a desire for revenge.”

[15] The sentencing judge ultimately concluded, at para. 39:

In determining the appropriate sentence to be imposed on [the accomplices and the appellant], I have taken into account all the pertinent facts and factors which I have commented upon in my reasons, including the background of each individual, the pre-sentence reports and Gladue reports, where applicable, the aggravating and mitigating factors, the guidance provided by the jurisprudence, and the principles as set out in section 718 of the Criminal Code of Canada in arriving at a sentence that I believe is fit and just. This court imposes a sentence for each offender of 7 years imprisonment on the count of aggravated assault, contrary to section 268 of the Criminal Code of Canada, and a sentence of 1 year concurrent on the offence of being unlawfully in a dwelling house with intent to commit an indictable offence, contrary to section 349(1) of the Criminal Code of Canada.

[16] We find no error in the sentencing judge’s analysis. He instructed himself on the proper principles in determining a fit and proportionate sentence. While he accepted that the appellant’s criminal record did not reveal a history of violence (unlike the other two accomplices), the sentencing judge also considered Gladue factors in relation to the appellant’s accomplices.

[17] The sentencing judge did not expressly state why the same global sentence of seven years was imposed on all three offenders, although he did state that he found all three offenders equally responsible for the assault. There is no basis to conclude that the sentencing judge did not properly consider the appellant’s criminal record. It is reasonable to infer that the seven-year sentence for all three offenders reflected both the Gladue factors in the sentence of the accomplices and the appellant’s less serious criminal record.

Disposition

[18] For these reasons, we grant leave to appeal the sentence but dismiss the appeal.

[19] We are grateful to the appellant, duty counsel, and the respondent’s counsel for their helpful submissions.

“Gary Trotter J.A.”

“L. Sossin J.A.”

“J. George J.A.”