Court of Appeal for Ontario

Date: 20240717 Docket: C69704

Judges: Lauwers, Trotter and Coroza JJ.A.

Between:

His Majesty the King Respondent

and

Noah King Appellant

Counsel: Brian Snell, appearing as duty counsel Frank Au, for the respondent

Heard and released orally: July 10, 2024

On appeal from the conviction entered on June 20, 2021 and the sentence imposed on December 22, 2021 by Justice Diane M. Lahaie of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of 12 offences related to an incident that occurred when a number of people, including the appellant and his friends, left a bar at the end of the night. The offences were serious. They included bodily harm to a number of people, including some police officers, as well as serious property damage. The appellant received a sentence of 7 years imprisonment less pre-sentence custody.

[2] The appellant appeals his convictions. However, we are not persuaded that the trial judge made any errors in her assessment of the evidence. The verdicts were also well supported by the evidence. The appeal from conviction is dismissed.

[3] The appellant appeals the sentence of 7 years imprisonment submitting that the trial judge committed errors in principle relating to the appellant’s absence of insight, and in applying the principles in R. v. Gladue, [1999] 1 S.C.R. 688. The record does not permit us to conclude that the trial judge erred in addressing the appellant’s lack of remorse or empathy. In our view, the trial judge properly identified the Gladue principles, and she did so in eloquent terms.

[4] However, at the end of the day, we find that the sentence imposed is unfit. The key paragraph in the trial judge’s reasons reads as follows:

In applying the governing sentencing principles and objectives and taking into consideration the relevant aggravating and mitigating factors, the circumstances of the offences and the circumstances of the offender, I find that the most fit and proper sentence in the present case is a sentence of 7 years in jail less credit for presentence custody. The sentence of this court would have been in the range of 8 to 10 years, but I have considered the principles of totality and restraint in arriving at the ultimate sentence.

[5] We are unable to discern how the trial judge arrived at a range of 8 to 10 years after accounting for the relevant mitigating factors, including the Gladue factors, and what her starting point was before she considered the mitigating factors.

[6] In our view, the sentence is demonstrably unfit and we reduce the sentence to 5 years’ imprisonment. We achieve this result by reducing the sentence on the conviction for the offence committed under s. 344 of the Criminal Code to 5 years’ imprisonment less 1086 days of pre-sentence custody. This would leave a balance to be served of 2 years and 9 days. The sentences on the counts under ss. 333.1, 320.13(1), 320.16(1), and 320.14(1)(a) are all reduced to 2 years’ imprisonment, concurrent. The sentences on the other counts remain the same.

[7] The appeal from sentence is allowed as explained.

“P. Lauwers J.A.”

“Gary Trotter J.A.”

“S. Coroza J.A.”