Court of Appeal for Ontario

Date: 2024-12-03 Docket: COA-23-CR-0351

Before: Rouleau, George and Gomery JJ.A.

Parties

BETWEEN

His Majesty the King Respondent

and

John William Fisher Appellant

Counsel: John William Fisher, acting in person Angela Ruffo, appearing as duty counsel Nicholas Hay, for the respondent

Heard and released orally: December 2, 2024

On appeal from the sentence imposed on March 15, 2023 by Justice Patrick J. Monahan of the Superior Court of Justice.

Reasons for Decision

[1] John William Fisher seeks leave to appeal his sentence for aggravated assault, possession of a weapon for a dangerous purpose, and carrying a concealed weapon without authorization. [1] He received a global sentence of three and a half years less 209 days of pre-sentence custody credit, leaving two years and 339 days to serve.

[2] The appellant raises two grounds.

[3] First, the appellant contends that the sentencing judge did not consider the impact of the sentence on his family, and that this was an error in principle.

[4] We are not persuaded that the sentencing judge overlooked collateral impacts. He was clearly aware of the issue. He noted that the appellant is an active father of two young children, whom he supports financially. He twice mentioned that any period of incarceration would have negative collateral impacts on them, as the children would “be deprived of [the appellant’s] guidance and support during that time”.

[5] Second, the appellant argues that the sentencing judge should not have found that the appellant’s attack on the victim was unprovoked because there was no evidence about the words that may have been exchanged between the appellant and the victim prior to the assault. This, the appellant argues, had a significant impact on the appropriate sentencing range.

[6] We disagree. The sentencing judge based his finding on a surveillance video showing the assault. In his reasons for judgment, he observed that the appellant began his attack by pushing the victim, then grabbed a knife he had on his person to slash the victim’s face. On this evidence, it was open to the sentencing judge to find that the “vicious and unprovoked” nature of the attack was an aggravating factor.

[7] In any event, the sentence imposed fell well within the range of appropriate custodial sentences given the offences for which the appellant was convicted, and other aggravating factors conceded by the defence, including the serious injury inflicted and the appellant’s extensive and serious criminal record.

[8] The appellant is ultimately asking this court to reweigh the aggravating and mitigating factors and substitute its analysis for that of the sentencing judge. This is not this court’s role.

[9] While we grant leave to appeal the sentence, the sentence appeal is dismissed.

“Paul Rouleau J.A.”

“J. George J.A.”

“S. Gomery J.A.”

Footnote

[1] Mr. Fisher is also appealing his conviction. This appeal is proceeding separately.