Court File and Parties

Court File No.: Central East - Newmarket 13-01501 Date: 2014-10-22 Ontario Court of Justice

Between: Her Majesty the Queen — and — Wendel Gee

Before: Justice P.N. Bourque

Counsel: K. Hutchinson, for the Crown Jonathan Bliss, for the accused, Wendel Gee

Sentencing

Released on October 22, 2014

BOURQUE J.:

Overview

[1] On December 31, 2012, the defendant, in a drug and alcohol-induced state, got into an argument with a cab driver and pushed him. The driver slipped on some ice, fell down and fractured his leg. The defendant has pled guilty to assault cause bodily harm. The facts further disclose that the defendant was with a group of his friends and got into a nasty argument with the cab driver about the direction of travel. All of the passengers were under the effects of alcohol and perhaps drugs. The argument led the driver into asking the passengers to leave. They did so but when he went to close the doors of his cab, he had to get out and go around to the passenger side. The defendant, for no apparent reason, pushed him down into a ditch. The defendant and his friends left the scene as the cab driver tried to pull himself up out of the ditch and realized that his leg was broken. The defendant never offered any assistance to the driver.

Criminal Record

[2] On November 8, 2012, the defendant, as a young offender, received a sentence of 18 months' probation for assault, failure to appear, fail to comply with recognizance and utter threats. When he committed these offences, the defendant had been on probation for less than two months.

[3] The victim has suffered extensively as a result. He has had to have two operations as a result and has lost over a year's employment. He states that he is still in pain and has some affects upon his walking. He states that he has lost between $40-50,000.00 in wages. He states that as a result of this financial setback, he has had to live on his credit cards for a period of time to survive. He is not able to participate in family activities in the same way. It is clear that this offence has caused great suffering to this victim and to those around him.

[4] The Crown seeks a sentence of custody of 6 months in a provincial reformatory followed by probation. The defence seeks a conditional sentence of imprisonment of 6 to 8 months, to be followed by a period of probation.

[5] The pre-sentence report is on balance largely positive. He has employment. He has a new relationship. He has a significant history of alcohol and substance abuse and these offences clearly reflect that. The defendant self-reports that he has had a lot of "bad friends" in the past. Many of the people interviewed agree that the defendant has been very difficult in the past but he has improved. Perhaps the most insightful comment comes from Matthew Martins who states: "the offender never wanted to accept responsibility. While he has improved greatly, he is capable of more, needing to show more motivation, and be more accountable and responsible for his actions".[1]

[6] The defendant filed a brief of several letters from relatives and acquaintances who have noticed a great change in the defendant. There is a note from a Norman Behie from the YMCA indicating that the defendant has been "exploring anger management and making positive choices and conflict resolution".

[7] The defendant has expressed remorse and his plea of guilty is an expression of remorse. The offence for which the defendant has pled guilty has no minimum sentence. The Crown has proceeded by summary conviction and the maximum sentence is 18 months in prison. A conditional sentence is allowable in the appropriate circumstances.

[8] There have been no specific directions from appellate courts. This case must be decided upon its own facts and the facts of the offender.

[9] All of the principals of sentence are important here and are set out below:

Section 718 of the Criminal Code:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[10] The mitigating factors related to this individual offender are:

(a) he is youthful;

(b) he is employed;

(c) he has family supports;

(d) he has taken steps to address his substance abuse and anger issues; and,

(e) he is remorseful.

[11] The Aggravating Factors include:

(a) the victim, being a cab driver, was a class of vulnerable individuals and deserving of the protection of the law;

(b) the defendant did not offer any assistance to the victim at the scene;

(c) the injury done to this victim was very serious and potentially life changing, and has led to a significant loss of enjoyment of life and loss of income; and,

(d) the defendant has a record for a previous assault.

Is a Conditional Sentence of Imprisonment Appropriate?

[12] Section 742.1 of the Code sets out the circumstances where a conditional sentence can be imposed. This matter would not attract a sentence of over 18 months. There is not presumption for or against a conditional sentence. The factors to be considered are those set out in R. v. Proulx.[2] It is my belief that while rehabilitation is a very important consideration, this is a case where denunciation and deterrence play a large part. While that in of itself does not preclude a conditional sentence of imprisonment, there is in my opinion, a strong element of moral blameworthiness coupled with the gravity of the offence (and its consequences) which would lead to the imposition of a sentence of real jail time.

[13] In assessing whether the community would not be endangered, I must consider the nature of violence in this offence and the fact that the defendant has a previous finding of guilt for an assault.

[14] Ultimately in assessing all of the factors noted above, I am of the opinion that when a vulnerable member of the community has been subject to an unwarranted attack, which leads to significant personal injuries, then a conditional sentence of imprisonment is not warranted.

Conclusion

[15] I believe that a sentence of 4 months in custody followed by a period of probation is the appropriate sentence for this offence and this offender.

Restitution

[16] The victim has indicated that he has been unable to work and has suffered a loss of income for a year. He states that his loss is between $40-50,000.00. He presents no supporting documentation for this assertion. He is a taxi cab driver. I don't have any information as to the basis for his remuneration. That is, does he work for a wage, does he own his own cab, or is there some other means of computing his income. Tax returns may be of assistance but none were produced. I don't know if he was entitled to any no-fault benefits under motor vehicle insurance legislation.

[17] The defendant works for a wage and makes over $400.00 per week. I do not know what his expenses are, but this is not a wage which would produce much excess income.

[18] In these circumstances, arriving at an appropriate amount of restitution, taking into account the principles for awarding restitution is difficult. I will award what I feel is a nominal amount knowing full well that it is not a complete compensation for the real loss. I have reviewed section 738 of the Criminal Code and especially 738(1)(b) which states:

(b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable.

[19] I award the sum of $2,000.00. It will be a stand-alone restitution order. I believe that this obligation upon the defendant will assist him in understanding the harm he has caused and form part of his rehabilitation.

Signed: "Justice P.N. Bourque"

Released: October 22, 2014

[1] Pre-Sentence Report, dated September 23, 2014, at page 4.

[2] R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61