Court File and Parties

Court File No.: 12003386 Date: 2011-08-25 Ontario Court of Justice

Between: Her Majesty the Queen — and — Trevor Ronald Charlton

Before: Justice Sheila Ray

Heard: February 10, 2012

Reasons for Judgment Released: March 27, 2012

Counsel:

• Karen Erlick, Crown Counsel
• Monica Bharadwaj, Counsel for the Defendant

Reasons for Judgment

RAY, J.:

Introduction

[1] Trevor Charlton has pled guilty before this court to the offences of committing an assault on J.L.D., committing an assault on H.D., and failing to comply with a condition of his recognizance not to communicate directly or indirectly with J.D. or any family members. The context of these offences is that until the time they occurred, Mr. Charlton was in a dating relationship with J.D., and ten year old H. is one of her three children from a previous marriage. The facts are that while he was at her home, he took exception to H. climbing into his mother's bed. He grabbed him by the arms and removed him. An argument with Ms. D. led to a struggle during which he took her cell phone from her and pushed her in front of the children. He was released on a recognizance a condition of which was not to have contact with the complainant. What appears to have happened is that hundreds of calls and text messages were exchanged back and forth between them.

[2] The offender is a crack addict with a record for a variety of offences including offences of violence, the most serious of which is an armed robbery for which he was sentenced to five years in 2005. He was released in 2009, but violated his statutory release and was recommitted in 2010. He received a conditional sentence for being unlawfully at large, breached his conditional sentence, and served the balance in custody. His family has noticed some improvement in his attitude and behaviour after he found employment and pursued drug treatment. He has a grade 12 education and appears to have family and community support.

[3] Given the aggravating factors in this matter, and taking into account the mitigating factors, the Crown is seeking a global sentence of three to six months minus pre-sentence custody plus two years probation with the statutory conditions, conditions to have no contact with J.D. and her children, geographical restrictions that would prevent contact, psychotherapy, substance abuse, and anger management counselling, plus a conditions not to possess or carry weapons. The Crown is seeking a s. 110 order for ten years and a DNA sample. The two assaults are secondary designated offences. Mr. Charlton's DNA has already been taken previously, but the court still has discretion to make the order. The defence says that given the mitigating factors and Mr. Charlton's demonstrated interest and positive prospects for rehabilitation, the Crown is seeking a sentence that is excessive, and that a sentence of 45 days and 18 months probation would better achieve the objectives of sentencing. The actual terms and conditions of probation sought by the Crown are uncontested.

Aggravating Factors

[4] The aggravating factors in this matter are:

(a) Mr. Charlton has pled guilty to multiple offences. Not only did he assault Ms. D., he assaulted her son. He breached a conditional sentence that he was serving, when he committed the assaults, following which he was ordered to serve the balance in custody. Then he also breached his recognizance not to have contact with her.

(b) Mr. Charlton did not stay out of trouble after the two assaults. He re-offended and contacted one of the victims repeatedly.

(c) The age of one of the victims, 10 years old, is an aggravating factor, as is the boy's presence during the assault of his mother.

(d) There is a serious criminal record containing a variety of criminal offences and a total of 40 entries including armed robbery and a history of failing to comply with court orders. I am reminded by the defence that the record must be placed in context. It is fuelled by a long standing addiction to crack cocaine.

(e) The crimes have had a significant emotional impact on the victims, particularly the children, who still fear Mr. Charlton. They still do not feel safe and secure. The youngest child, who is a victim in the sense that the crime has had an impact on him, but who is not a recipient of an assault, cannot sleep without the light on.

(f) Ms. Erlick, in submissions on behalf of the Crown, characterized the relationship between Mr. Charlton and Ms. D. as a long term domestic relationship. Ms. Bharadwaj seemed to accept this characterization of the relationship in her submissions on his behalf.

Mitigating Factors

[5] The mitigating factors in this matter are:

(a) Mr. Charlton has pled guilty early in the criminal process and should get full credit for taking responsibility for the offences. He has saved the state the time and expense of prosecuting these offences, and he has spared the victims from having to relive the events by testifying.

(b) Charlton is employed and trying to address his drug and psychological problems. There has been positive post-offence conduct including the early guilty plea, a new serious personal relationship with a woman to whom he is engaged, and serious rehabilitation efforts to pursue counselling and treatment for drug addiction. The Crown has submitted in relation to these mitigating factors that Mr. Charlton committed the assaults while employed, and repeatedly breached his court order by communicating with the victim, while he was taking drug treatment. Ms. Bharwaj clarified for the court that this occurred during a portion of the time and not for the whole time. If he were really intent on rehabilitation, reasons the Crown, he would not be committing further criminal offences. Given this context, the Crown's optimism about his rehabilitation prospects is guarded.

(c) The volatile and acrimonious relationship seems to have been attributable to both parties. The defendant claims that J.D. tried to implicate him in a theft charge, and it is agreed by the parties that the hundreds of messages that are the subject of the breach charge were exchanged between them, i.e. that Ms. D. was the sender of a significant number.

(d) The assaults did not result in physical injuries and no weapons were used during the assaults. The Crown asks me to consider in relation to this mitigating factor that although there were not physical injuries, there has been a serious psychological impact on the victims, and the child has been seriously affected.

(e) The pre-sentence report is positive. Mr. Charlton appears to have insight into the psychological and addiction problems that have influenced his criminal life style and he has taken positive steps to deal with the underlying problems. There appear to be some favourable prospects for rehabilitation.

(f) Mr. Charlton has strong family and community support. Both his mother and his fiancé have attended his court appearances, and this is also reflected in the pre-sentence report and other documents filed with the court.

(g) Time spent in pre-trial custody at the Don Jail, a total of 46 days.

Victim Impact Statement

[6] The victim impact statement of J.D. discloses that the children have witnessed "angry and aggressive behaviour by someone they loved and trusted, and thought he'd loved them." The youngest son, aged 7, who was not assaulted, but who witnessed the assaults, keeps asking at bedtime, "Are the windows locked? Are the doors locked?" He cannot sleep without the lights on. All of Ms. D.'s three children, including the one who was also assaulted, are terrified of a man they once looked upon as a father figure, one whom they all loved and trusted. They are now fearful and worried he will come to their home and hurt them. Ms. D. felt helpless and unable to protect her children when the assaults were committed and still blames herself for what happened. She has had to seek counselling.

[7] Victim impact statements are admissible pursuant to s. 722 of the Criminal Code, which states that their content should describe "the harm done to, or loss suffered by, the victim arising from the commission of the offence." It is well settled law that they may not contain comments and criticisms of the offender or recommendations as to the severity of punishment. See R. v. Gabriel, [1999] O.J. No. 2579 (S.C.J.) and R. v. McDonough [2006] O.J. No. 2199 (S.C.J.). Some comments on the victim impact statements were excised from the document during the sentencing hearing, because they fell outside the scope of harm done to or loss suffered by the victim. Where there were sentences that would be difficult to understand without context that marginally fell within what can be described as comments and criticisms of the offender or recommendations about counselling or treatment, I left them in, so I would be able to understand these sentences. I have disabused myself of any knowledge I acquired about the victim's opinion of the offender and what sentence he should get, and I have only considered information originating from the victim that informs me on the scope of harm done and loss suffered by both victims named on the information, and the other two young boys present, who are also victims in the sense that what occurred has impacted on their emotions, and induced fear about their safety and security. Furthermore, I have also disabused myself of any knowledge I have gleaned from the pre-sentence report regarding what sentence the probation officer, who prepared it, believes that Mr. Charlton should get, as this also does not properly fall within the scope of what should be contained in a pre-sentence report.

Time Spent in Pre-Trial Custody

[8] As of the date of the plea, which was February 10, 2012, the parties are agreed that the offender has spent 29 days in pre-sentence custody. The offender will remain in pre-sentence custody until February 27, the date this decision was scheduled for release. This adds an additional 17 days to the time spent in pre-sentence custody. It is agreed that the 46 days in total of pre-sentence custody has and will be spent at the Don Jail. No evidence has been called as to the specific conditions of the Don Jail that would be applicable to a consideration of how this factor this would affect Mr. Charlton's sentence, and as such, I am not being asked to consider enhanced time for pre-sentence custody. But I am reminded by Ms. Bharadwaj for the defence that the general conditions at the Don Jail are notorious, and I am being asked to consider these as a mitigating factor in sentencing. As my colleague Justice Melvyn Green has noted in R. v. Johnson 2011 ONCJ 77, [2011] O.J. No. 822, at para. 68:

The Toronto Jail, where the Applicant has been housed throughout his detention, maintains a certain infamy in the annals of Canadian remand centres. In R. v. Rowan, [1976] O.J. No. 560, at para. 6, the Court of Appeal noted, "imprisonment in that jail for any but a brief period is a severe punishment". Although later retrofitted to accommodate twice it original compliment of prisoners, circumstances at the Don Jail remain notorious: see, for example, R. v. Sanchez, [1996] O.J. No. 7 (C.A.); R. v. Jabbour [2001] O.J. No. 3820 (S.C.J.), R. v. Permesar [2003] O.J. No. 5420 (C.J.); R. v. R.L., [2004] O.J. No. 384 (S.C.J.), at para. 58 and n. 15; and R. v. McDonald, supra, at para. 32. The conditions at the Toronto Jail have been described as "significantly sub-standard and not reasonable" and as falling well short of the "standard minimum rules" prescribed in the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 1977, an international agreement to which Canada is a signatory: R. v. Permesar, supra, at paras. 9-19.

Sentence

[9] The offender's insight into his addiction problems and the positive steps he has taken to rehabilitate himself through counselling and treatment are commendable. But I share the Crown's guarded optimism. Overcoming addiction is a good thing in itself. But rehabilitation within the context of criminal sanctions is supposed to reduce recidivism. In Mr. Charlton's case it has not. In spite of securing employment, beginning a positive relationship with a new domestic partner, and completing one phase of a drug treatment program, he has continued to re-offend. At the time he committed the assault offences for which I am sentencing him, he was serving a conditional sentence. Then he breached his release on the assault offences. He is not getting the message. His offences have had a significant emotional impact on the victims, who fear for their safety. There's a young boy who cannot sleep without the light on. There are three young boys, who are fearful that Mr. Charlton will come back and hurt them. There is a mother who felt helpless to protect her children, and now blames herself. She had to take counselling. The victim impact is even more significant in the individualized circumstances of this case, where it appears that in spite of having insight into his addiction problems and achieving very commendable success with rehabilitating himself, Mr. Charlton continues to offend. His young victims wait in fear that he will re-offend. This is a case, where in spite of his good prospects for overcoming his addiction, the offender may continue to terrify the same victims, and may continue to commit further offences. Specific deterrence is a very important objective of sentencing that must be achieved in these circumstances. The sentence chosen by this court needs to send a strong message of society's denunciation for Mr. Charlton's criminal behaviour and an equally strong message to others, who may be like minded.

[10] The sentence that I choose must, on the one hand, discourage recidivism, and on the other hand, encourage and facilitate Mr. Charlton's drug rehabilitation. I must choose a sentence that takes into account all of the aggravating and mitigating factors listed above, and which achieves all of the objectives of sentencing codified in Part XXIII of the Criminal Code. The sentence must be proportionate to the offence, and given that I am sentencing Mr. Charlton for more than one offence, the totality of the sentence must not be excessive. I am mindful that the offender should not be deprived of his liberty, if less restrictive sanctions may be appropriate in the circumstances, and that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[11] I am satisfied that nothing other than imprisonment will deter Mr. Charlton from committing further offences. Less restrictive sanctions would not be reasonable in the circumstances. The period of incarceration has to be long enough to leave a lasting impression on him and others who may be like minded, but not excessive. It must not impede his good drug rehabilitation prospects, and he should get full credit for taking responsibility not only by pleading guilty, but by initiating his own rehabilitation and following through. He has insight into his problem, which is not common. It would be counterproductive if it were so excessive that it would cause others, who make be like minded, to disrespect the law. It must be restrictive enough for reasonable members of society to have confidence that justice is being administered in a way that discourages the commission of crimes and expresses appropriate disapproval.

[12] For all of these reasons, it is my view that a global sentence of 90 days is appropriate followed by a period of two years of probation. I am persuaded that the full two years of supervision is necessary given Mr. Charlton's continuing recidivism even during his attempts to rehabilitate himself. He will get one for one credit for the 46 days he has spent in pre-sentence custody at the Don Jail. The fact that he has served this time at the Don Jail has been taken into account already as a mitigating factor in his sentence. This leaves a period of 44 days. I am sentencing Mr. Charlton to a period of 44 days of custody. The pre-sentence custody of 46 days will be reflected on his record.

[13] The terms of probation will include the statutory conditions. There will be no contact or communication directly or indirectly with J., H., M., and R.D.. Mr. Charlton will not be found within a radius of 500 meters of any place known to him to be a place where they live, work, study, or he knows them to be. He will seek and attend as directed for psychotherapy, substance abuse, and domestic abuse counselling and provide written proof of compliance. He will not carry weapons as defined in the Criminal Code. There will be a s. 110 order, and I am ordering a DNA sample to be attached to the two assaults, which are secondary designated offences.

[14] I commend both Ms. Erlick and Ms. Bharadwaj on the thoughtfulness and thoroughness of their presentations.

Justice Sheila Ray