Court File and Parties
Ontario Court of Justice
Date: 2017-06-19
Court File No.: 16-25171, Central East Region: Oshawa Court
Between:
Her Majesty the Queen
— AND —
Christopher J. Clymer
Before: Justice Peter C. West
Hearing Dates and Proceedings
- Evidence heard on: January 9, 2017 at Preliminary Inquiry
- Guilty pleas entered by: Christopher Clymer on January 10, 2017
- Gardiner hearing evidence heard on: April 7, 2017
- Submissions by Counsel as to Sentence heard on: June 19, 2017
- Reasons for Sentence released on: June 19, 2017
Counsel
- Mr. B. Guertin — counsel for the Crown
- Mr. C. Hansen — counsel for the defendant Christopher Clymer
Reasons for Sentence
WEST J.:
Introduction
[1] On July 3, 2016, Christopher Clymer was charged with two counts of aggravated assault respecting the stabbing of Tyler Simpson and Ryan Simpson in front of the Bear Claws Bar and Grill located at 50 Taunton Road East in Oshawa.
[2] A preliminary hearing was conducted on January 9, 2017, before me, after which an exit pretrial was conducted with counsel. Committal was not in issue. On January 10, 2017, Christopher Clymer pleaded guilty to both counts of aggravated assault and an agreed statement of facts was filed as Exhibit 1. A pre-sentence report was ordered. A Gardiner hearing, relating to whether or not Mr. Clymer said to Philip Graham, "I just stabbed your friend, do you want some too," to be used as an aggravating circumstance on sentencing was adjourned to April 7, 2017. A further issue on the Gardiner hearing arose during the testimony of Mr. Clymer where he took the position that his actions of stabbing the Simpson brothers occurred because he felt he was surrounded and although he concedes he used more force than was necessary, his actions occurred because he was provoked and was in a "defensive mode." It was Mr. Hansen's position that if I accepted Mr. Clymer's evidence it could be used as a mitigating circumstance on sentencing.
[3] At the end of the evidence on the Gardiner hearing I ruled the Crown had proven the aggravating factor of Mr. Clymer threatening to stab Philip Graham with the knife after Mr. Clymer had stabbed Tyler Simpson. I did not accept the evidence of Mr. Clymer for the reasons I gave orally on April 7, 2017. It was agreed counsel's sentencing submissions would occur on the next date, which was June 19, 2017.
Factual Background
[4] The facts of this case are contained in the Agreed Statement of Facts, Exhibit 1, as well as the evidence called by the Crown during the preliminary hearing.
[5] The offences occurred in the parking lot in front of The Bear Claws Bar and Grill, located at 50 Taunton Road East, Oshawa, Ontario. The majority of the assaultive behaviour engaged in by Mr. Clymer can be observed on the surveillance CCTV cameras located inside the bar. Specifically, the video demonstrates clearly who started the assault.
[6] Tyler Simpson and Ryan Simpson attended The Bear Claws on July 3, 2016 with their friend Philip Graham. The Simpsons and Phillip Graham can be observed at the bar drinking bottles of beer. Tyler Simpson testified he had three (3) beers prior to the altercation. Ryan testified he had four (4) beers to drink.
[7] Christopher Clymer, Bhreagh MacLennan, Ashley Siderius and Christopher Smith can be seen sitting at a table in front of the open windows of the bar looking out to the parking lot. Christopher Clymer and his friends arrived at the bar at 12:50 a.m. The two groups did not know each other and had previously never met. The two groups did not have any interaction with each other inside the bar.
[8] At approximately 1:24 a.m., from the video surveillance camera, the Simpson brothers and Phillip Graham exited the front door for a cigarette. They can be observed standing near the front doors.
[9] Bhreagh MacLennan exited the bar at 1:28 a.m., to have a cigarette. There was a brief interaction between Bhreagh MacLennan and Ryan Simpson, which can be observed on the video. Tyler Simpson testified a young woman asked to use his brother Ryan's lighter to light her cigarette. Christopher Clymer went outside shortly after Bhreagh and he was followed shortly after by Ashley Siderius and Christopher Smith.
[10] A verbal altercation took place between Ryan Simpson and Mr. Clymer and Mr. Smith in front of the windows. Ryan Simpson attempted to get closer to these two but was held back by various patrons of the bar who were outside, including Bhreagh MacLennan and Ashley Siderius. At one point Bhreagh and Ashley were between Ryan Simpson and Clymer and Smith.
[11] Initially Clymer and Smith were standing beside each other, while Ryan Simpson was attempting to get at Smith. At 1:29:32, Mr. Clymer can be observed to take a knife from his right pocket. The knife is silver, with a blade approximately 3.5 inches long. From the evidence at the preliminary inquiry and the agreed statement of facts I find the knife in Mr. Clymer's possession is the Appalachian Trail knife later found by police. Mr. Clymer held this knife to the right side of his body and then moved it behind his back to hide it. The knife can be seen in Exhibit 5, Tabs 3-7.
[12] Ryan Simpson testified he was grabbed by two young women, one had her nails in his neck. He struck out with his left hand trying to get free and hit one of the women in the face with his fist. There was also evidence that Ryan Simpson had scratches to his neck, which appeared to be caused by someone with long fingernails.
[13] On the surveillance video (Exhibit 4), Ryan Simpson can be seen going after Christopher Smith, who jumped through the open window and went inside the bar. Ryan Simpson can be seen saying something to Smith from outside the bar.
[14] At 1:29:47, Christopher Clymer and Tyler Simpson can be seen standing close to one another and staring into each other's eyes. Tyler Simpson testified Mr. Clymer was staring at him in an aggressive manner. This can be observed on the video. Mr. Clymer had the knife concealed behind his back, holding it in his right hand. Tyler Simpson had a cigarette in his right hand, which was down by his side.
[15] Mr. Clymer said to Tyler Simpson, words to the effect, "You want some too?" Tyler Simpson responded, "What?" Mr. Clymer can be seen on the video to then swing the knife at Tyler Simpson, stabbing him in the left side of his chest. This stab fractured one of Tyler's ribs and pierced his diaphragm. Tyler Simpson raised his fists and began to back away. Mr. Clymer advanced towards him and swung the knife a second time, while Tyler swung his left hand at Mr. Clymer.
[16] Tyler Simpson continued to back away from Mr. Clymer and fell backwards, landing on the ground. Mr. Clymer advanced towards Tyler and swung the knife at him multiple times while Tyler was on his back on the ground. Tyler raised his left arm to protect himself. Mr. Clymer cut Tyler's left forearm and sliced the left side of his temple, above his ear. Mr. Clymer also stabbed Tyler in the lower right portion of his neck, in between his shoulder blades. Philip Graham attempted to stop Mr. Clymer from continuing his assault of Tyler, while he was on the ground, by pushing Clymer. Philip Graham testified Clymer said to him, "I stabbed your friend, do you want to get stabbed too." This comment by Mr. Clymer was overheard by Tyler Simpson as well. Mr. Graham testified he was frightened by what Mr. Clymer said and moved away.
[17] Tyler got back to his feet and grabbed Mr. Clymer's head with his two hands and kneed Mr. Clymer in the head two times. Mr. Clymer stabbed Tyler in the left side of his chest puncturing his heart.
[18] Mr. Clymer and Tyler Simpson continued to struggle physically as they moved away from the bar into the parking lot. At some point they separated and Mr. Clymer walked away eastbound, while Tyler returned to the front of the bar. Tyler told his brother Ryan he had been stabbed. Ryan could see blood on his brother's white sweater.
[19] Tyler and Ryan walked to the right side of the lot in front of The Bear Claws. Tyler sat down on the ground and was hunched over. Ryan took out his phone to call 911 for assistance as he stood beside Tyler.
[20] Mr. Clymer can be seen walking back across the parking lot and he approached Ryan. Mr. Clymer had his knife in his right hand when he grabbed Ryan from behind and confronted him. Ryan ran away from Mr. Clymer as he tried to call 911 but Mr. Clymer pursued him. Mr. Clymer cut Ryan three times with the knife as he confronted him – one slash to his left jaw, a stab wound to Ryan's right side under his armpit resulting in a collapsed lung and a stab wound to his right lower back.
[21] Mr. Clymer fled the scene and ran eastbound through the townhouse complex, 100 Taunton Street East in Oshawa. He was observed by officers walking northbound on Mary Street at approximately 1:53 a.m. The Air Support Unit and police dogs were utilized in locating Mr. Clymer. He was detained and subsequently arrested at 2:21 a.m.
[22] Mr. Clymer threw the knife away in the grass by the townhouse complex. The knife was discovered by P.C. Bolton, DRP. The knife can be seen in the photographs in Exhibit 5, Tabs 3-6, in the location it was discarded by Mr. Clymer. Mr. Clymer told police he had been stabbed in the hand and he was a victim. He told the police the person who stabbed him was "Chevy" (Devon Chevcheck). Mr. Clymer told police he had been attacked by 3 males. Mr. Clymer was taken to Lakeridge Health in Oshawa and received 5 stitches for the wound to his hand.
[23] Tyler and Ryan Simpson were rushed to trauma centers for treatment of their injuries. Exhibit 7 is an Agreed Statement of Facts, outlining the multiple stab wounds each received as a result of Christopher Clymer's assaultive behaviour. Tyler Simpson spent 13 days in St. Michael's hospital and Ryan Simpson spent 3 days at Sunnybrook Hospital.
[24] The only person, on the evidence, in possession of a knife was Christopher Clymer.
Position of the Parties
[25] Mr. Guertin for the Crown is seeking a sentence of 10 years in the penitentiary.
[26] Mr. Hanson originally submitted the appropriate sentence is one of 4-5 years in the penitentiary; however, he changed his position after listening to the Crown's submissions and is now submitting the appropriate sentence is one of 5-6 years in the penitentiary.
Background of the Offender
[27] Mr. Clymer is 34 years of age. He has an eight year old daughter from a common law relationship from 2006 to 2008, although he has not seen his daughter in many years, due to his former partner alleging he was abusive and obtaining full custody in family court. Mr. Clymer was involved in another common law relationship for five years from which he has a five year old son. Mr. Clymer was convicted of domestic assault against this partner, although Mr. Clymer admits this offence was alcohol related he denies ever hitting her. He has not seen his son since his arrest in July 2016 on the charges before me. His partner has currently served him with Family Court documents seeking full custody of their son.
[28] Mr. Clymer's upbringing can only be described as troubled and difficult. When he was young his mother was abusive towards him in terms of physical discipline until the CAS became involved with the family. At the age of 15 Mr. Clymer described in the PSR being kicked out of his home. He was homeless and living on the streets of Toronto. He described joining a gang, who gave him a place to stay, money and friendship. This led to his involvement in criminal activities. His lawyer indicated when he was asked at the start of the sentencing hearing if the PSR was correct that Mr. Clymer maintained he stopped his involvement as a gang member when he turned 23. The Crown did not seek to prove what was contained in the PSR.
[29] Mr. Clymer did not complete high school having left to begin working. Currently he has been involved in his own company, Fineline Painting, for the past four years.
[30] Mr. Clymer reported to the probation officer he began to drink heavily around the age of 16, drinking alcohol daily. He robbed people, stores and cars to get money to purchase alcohol. He described witnessing a lot of death in his life and resorted to alcohol and drugs to cope with his circumstances. He advised he drinks to forget. After the birth of his daughter he stopped drinking heavily but continued to drink regularly. Mr. Clymer claimed to have no problem drinking beer but when he consumed liquor he would often black out and when he woke up, he would be concerned about what he had done while under the influence. When he was drinking liquor he admitted becoming extremely aggressive and protective. He recognized he should not go out when he has been drinking and believed his current offences would not have occurred had he stayed at home.
[31] Mr. Clymer admitted to smoking marihuana daily since the age of 12. He started using cocaine at age 16-17. By the age of 19, he was purchasing cocaine weekly because he believed it helped him with his "rage." He explained he felt "superior, powerful and people feared him." He stopped using cocaine when his daughter was born but has started using it again on weekends in the last 3 years. Mr. Clymer does not believe he is addicted to cocaine and does not feel his drug use has ever been a problem for him. Mr. Clymer admitted in the last 6 months he has used methamphetamine and cocaine while he was in custody. He suggested he should speak to an addictions counsellor but had not followed through on this plan.
[32] Mr. Clymer told the probation officer he recognized all he has lost because of his alcohol and drug use in terms of relationships and his children. He has been attending a bible study course while he has been in custody, which was confirmed by the probation officer. The probation officer indicated in the PSR that Mr. Clymer seemed to have more insight into his criminal offending than when he was previously under supervision.
[33] Mr. Clymer expressed remorse and shame for his actions but at the same time he points to the victims' behaviour, which threatened he and his friends, as causing him to react as he did. He described in his evidence on the Gardiner hearing being in a "defensive mode." Mr. Clymer reported he suffered from "rage" and indicated he had been involved in fights since the age of 10. He described being addicted to "rage" and when he feels the "rage" coming, he "invites it in." Mr. Clymer described how his anger and rage controlled his actions when he felt threatened or protective. He recognized even the most trivial and minor things could set him off.
[34] Mr. Clymer is described by the two friends contacted by the probation officer in positive terms but when he has been drinking, "he turns into another person."
[35] Mr. Clymer has an extensive criminal record:
| Date | Location | Offence | Sentence |
|---|---|---|---|
| 2004-07-22 | Toronto | (1) Assault with a weapon (2) Fail to comply probation (3) Fail to comply recognizance | (1) 7 days, 22 days PTC, 1 year probation (2-3) 7 days on each conc & conc |
| 2005-06-02 | Oshawa | (1) Flight while pursued by police (2) Obstruct Peace Officer | (1) SS & P, 18mo prob, 75 days PTC, Proh driving 1 year (2) SS & P, 18mo prob, 12 days PTC |
| 2005-10-19 | Oshawa | (1) Possess Property Over $5000 (x2) (2) Theft Over $5000 (x6) (3) Fail to comply Probation (4) Theft under $5000 | (1-4) 5 days jails on each conc, 115 days PTC |
| 2006-01-27 | Toronto | Break Enter & Theft | 2 months jail, 3months & 15 days PTC, 1 year probation |
| 2006-12-13 | Oshawa | (1) Poss of Sch II Substance for Purpose of Trafficking (2) Fail to comply Undertaking (3) Poss of Property Obtained by Crime Over $5000 (4) Poss of Sch I Substance | (1) 8 days, 20 days PTC, 18 mo probation (2) 8 days conc, 10 days PTC (3) 8 days conc, 26 days PTC (4) 8 days conc, 18 mo probation conc. |
| 2007-07-09 | Oshawa | (1) Armed Robbery (2) Fail to Comply Probation | (1) 45 days intermittent, 160 days PTC, 3 years prob, s. 110 order 5 years, (2) 1 day intermittent conc, 3 years prob conc |
| 2007-07-23 | Toronto | Fail to Comply Probation | SS & P, 18 mo prob, 13 days PTC |
| 2008-01-28 | Oshawa | (1) Fail to Comply Probation (x2) (2) Possession of Property Over $5000 | (1-2) 1 day on each conc, 30 days PTC |
| 2008-10-28 | — | Unlawfully at Large | 60 days |
| 2009-04-27 | Oshawa | Fail to Comply Probation | SS & P, 12 mo prob |
| 2012-11-30 | Oshawa | Theft under $5000 | $300 Fine |
| 2014-01-22 | — | Assault | 8 days, 7 days PTC, 1 year probation, s. 110 order for 10 years |
[36] The PSR indicates Mr. Clymer completed his last community supervision without incident and was deemed a suitable candidate for further community supervision. His problems with alcohol and substance abuse, together with his difficulties with anger and rage are constant themes throughout his criminal record and certainly played a significant role in the current offences.
[37] Mr. Clymer's mother and his ex-partner, mother of his son, were contacted by the probation officer for input, however, both declined to provide interviews.
Mitigating and Aggravating Factors
[38] The defence concedes there are very few mitigating factors that can be referred to in this case. Mr. Clymer did plead guilty to both charges of aggravated assault at the conclusion of the evidence called by the Crown on the preliminary inquiry. This in my view indicates remorse and his acceptance of responsibility on his part for his criminal behaviour. This remorse and acceptance of responsibility is also reflected in the pre-sentence report. This is a mitigating factor, which I take into consideration in determining a fit and appropriate sentence.
[39] If this matter had gone to trial the prosecution would have lasted more than a week and Ryan and Tyler Simpson would have had to relive the horrific events of July 3, 2016 before a jury. Mr. Clymer's guilty pleas obviated this and I consider this to be a mitigating circumstance.
[40] The PSR indicated Mr. Clymer opened his own painting business, which he operated for four years before his incarceration on these charges. He was described by the two friends interviewed by the probation officer in somewhat positive terms: loving, thoughtful, a good person, however, this was when he had not been consuming alcohol or drugs. Mr. Beder, his surety until Mr. Clymer's bail was revoked on bail review by the Crown on August 17, 2016 described the "demonic look" Mr. Clymer gets in his eyes when he becomes angry and has been drinking. I will address Mr. Clymer's issues surrounding anger and rage and substance abuse later in my reasons for sentence.
[41] Although Mr. Clymer pled guilty to the two charges of aggravated assault, he tried to diminish or lessen his culpability by pointing to the actions of the Simpson brothers and Phillip Graham as somehow justifying his extremely violent assaultive behaviour. As I indicated after the Gardiner hearing, I do not accept Mr. Clymer's characterization of Mr. Graham's actions as surrounding Mr. Clymer or acting in a threatening way towards Mr. Clymer and Mr. Smith or Mr. Clymer's description others jumping on him outside the bar. These actions by others described by Mr. Clymer in his evidence were not shown on the video. Mr. Clymer maintained he did not throw the first punch, yet this is what is clearly seen on the video.
[42] Mr. Clymer admitted in cross-examination, on the Gardiner hearing, he was angry when he went outside the bar because his wife was talking to some guys. He testified he "went out to see what dude she was talking to." In his statement to the police Mr. Clymer said he was attacked by multiple people, which is contrary to what is seen on the video. He agreed he did not tell the police about someone being behind him and feeling threatened by this person. He agreed there was nothing in his statement about Tyler saying he was going to kick his head in. Mr. Clymer admitted he did not tell the truth to the police in his statement. In his testimony during the Gardiner hearing Mr. Clymer said "my adrenaline went up and everything went black." Mr. Clymer also testified he had consumed a substantial quantity of alcohol, beer and liquor, prior to the altercation.
[43] The video clearly showed Mr. Clymer taking his knife out of his pocket before Ryan Simpson attempted to get at Christopher Smith. No one is threatening Mr. Clymer in any way, yet he removed the knife from his pocket and secreted it behind his back. Ryan Simpson was not upset with Mr. Clymer, rather, from the video it appeared Christopher Smith said something to Ryan Simpson, which upset him. Ryan Simpson eventually chased Mr. Smith, who jumped through the open window into the bar. The removal and secreting of the knife by Mr. Clymer, in my opinion, is an aggravating circumstance in this case, which demonstrates Mr. Clymer was acting in a premeditated manner.
[44] The altercation was over, Ryan Simpson was walking away from the open window. It was Mr. Clymer who moved towards Tyler Simpson and engaged him in what I would describe as a "stare down." The look, which can be observed in the video on Mr. Clymer's face, in particular his eyes, in my view, clearly demonstrates Mr. Clymer's "rage" and anger.
[45] It was Mr. Clymer who threw the first two punches, without warning, by stabbing Tyler Simpson, the first in Tyler's chest. He swung a second time but the video does not show where he connected with Tyler. When Tyler fell to the ground as he was backing up to get away from Mr. Clymer's attack, Mr. Clymer struck him multiple times while he was on the ground. In my view, this was a completely unprovoked attack by Mr. Clymer towards Tyler Simpson using a knife. I find Tyler Simpson was unarmed throughout the altercation, which was commenced by Mr. Clymer. Further, Mr. Clymer's actions cannot be described as impulsive, rather they were premeditated. These are aggravating circumstances, which must be considered.
[46] Mr. Clymer told two different stories about where he got the knife from. He told the police in his statement he did not have a knife, he found the knife on the ground. He told the police he was searched by the bouncer and he did not have a knife when he entered The Bear Claws. He testified in the Gardiner hearing Mr. Smith gave him the knife to get it past the bouncer at The Bear Claws, because he was a regular and would not be searched. After watching the video he admitted there was no bouncer at The Bear Claws and therefore no reason for Christopher Smith to give him a knife.
[47] It is my view Mr. Clymer's attending a bar with a knife, knowing he has a significant problem with alcohol exacerbating his tendency towards violence, is an aggravating circumstance as well.
[48] Mr. Graham was not involved with Mr. Clymer at all, he was watching Ryan Simpson trying to get at Mr. Smith. Mr. Graham did not push Mr. Clymer from behind as Mr. Clymer testified. Mr. Graham's hands were at his side and he was not speaking to or looking at Mr. Clymer. He only became involved with Mr. Clymer when Tyler Simpson was on the ground and Mr. Clymer was stabbing Tyler multiple times. It was at this point Mr. Graham pushed Mr. Clymer off of Tyler. I find this was when Mr. Clymer told Mr. Graham he had just stabbed his friend, did he want some too. It is my opinion Mr. Clymer's threat to Mr. Graham is an aggravating circumstance.
[49] After viewing the portion of the video where Mr. Clymer can be seen staring down Tyler Simpson, then unexpectedly, without any provocation or assaultive behaviour towards him having occurred, he stabbed Tyler Simpson in the left side of his chest under his arm, Mr. Clymer testified he would not really describe this as him attacking Tyler. In my view, this is the most apt and fitting description which can be given to Mr. Clymer's action.
[50] It is my view from the evidence led at the preliminary inquiry, together with the evidence led at the Gardiner hearing, that any threats felt by Mr. Clymer were completely of his own making, conjured up in his mind. The PSR reflects a serious concern on the part of the probation officer of Mr. Clymer's long standing issues with "rage" and "anger," which become significantly exacerbated by alcohol or substance abuse. She described Mr. Clymer's rage as an addiction, over which Mr. Clymer had very little control and when alcohol was involved he often did not even recall what had happened. Mr. Clymer has done very little to address these significant difficulties in his life, which resulted in the serious violent offences in this case. It is my view this raises serious concerns in terms of specific deterrence and protection of the public.
[51] Mr. Clymer, on his evidence during the Gardiner hearing, testified he had a substantial quantity of alcohol to drink prior to attending The Bear Claws Bar. He described drinking 12 bottled beers at home and 5 shots of Captain Morgan's Spiced Rum. He attended another bar before going to The Bear Claws and drank a pitcher of beer with Christopher Smith. He drank another pitcher of beer with Mr. Smith and may have had several additional shots at The Bear Claws.
[52] Although Mr. Clymer now acknowledges the need to address these issues, he has done nothing since his arrest during his time on bail or since his bail was revoked and he was returned to custody. Despite being re-incarcerated since August 17, 2016, he has somehow gained access to methamphetamine and cocaine and at the time of the interview for the PSR in February 2017, he had only been drug free for a week.
[53] A further aggravating circumstance is Mr. Clymer's confrontation with Ryan Simpson after the altercation with Tyler Simpson was over. Mr. Clymer left the area where he assaulted Tyler Simpson. Tyler Simpson was with his brother Ryan, who was on his cell phone calling 911 to get medical assistance for his brother who had been stabbed multiple times. Mr. Clymer returned to where Tyler was sitting on the ground and confronted Ryan. He grabbed Ryan from behind and stabbed him three times.
[54] I did not accept Mr. Clymer's evidence that he spoke to Ashley Siderius and learned from her that she had been punched by Ryan Simpson. During the Gardiner hearing Mr. Clymer changed his evidence in cross-examination and testified other people outside the bar pointed at Ryan Simpson as the person who punched Ms. Siderius. Mr. Clymer testified he confronted Ryan Simpson and asked him if he liked to hit women. Mr. Clymer testified Ryan Simpson asked him if he would like to have his house shot up or himself shot. According to Mr. Clymer an altercation commenced between them after this exchange of words. I do not accept Mr. Clymer's evidence on this issue. It is my view Mr. Clymer was still in a rage, saw Ryan Simpson on his cell phone beside his brother Tyler, who Mr. Clymer had already stabbed six times, and he decided to attack Ryan Simpson in the same way he had attacked Tyler Simpson.
[55] Even if Mr. Clymer saw Ms. Siderius' face bloodied, this would not justify or excuse his conduct of grabbing Ryan Simpson from behind and then stabbing him three times, causing serious injuries. Further, Mr. Clymer's version of the events is not supported by the video evidence.
[56] Ms. Siderius testified on the Gardiner hearing and indicated she did not know who or how she was punched in the face. She also testified she never spoke to Mr. Clymer about who punched her. When Mr. Clymer was shown the video his evidence changed when it was clear he grabbed Ryan from behind and began to stab him. The video clearly showed that Mr. Clymer pursued Ryan Simpson while he was on his phone, grabbed him from behind and began stabbing him. It is my view this was also an unprovoked assault with a knife by Mr. Clymer towards an unarmed individual and it is an aggravating circumstance to be considered.
[57] Mr. Guertin, for the Crown, pointed to the many lies told by Mr. Clymer in his statement to the police, where Mr. Clymer tried to divert attention from himself as being a victim and not the main perpetrator. He even provided another individual's name as being the person who had stabbed him. Mr. Clymer said he did not have his own knife in his possession, rather, he told the police Mr. Smith gave him the knife because Mr. Clymer was a regular at The Bear Claws and he knew the bouncer and would not be searched as a result. In fact, there was no bouncer. Mr. Clymer also testified he found a knife on the ground but given the sequence of events as disclosed in the evidence I found the only person with a knife in their possession was Mr. Clymer. In both attacks he was the sole instigator. He took the knife out of his pocket, opened it and hid it behind his back before anyone was anywhere near to where he was standing with Mr. Smith. He took out the knife before anyone did anything that could even remotely be described as threatening towards Mr. Clymer. I agree with the Crown these lies demonstrate Mr. Clymer has not gained much insight into his behaviour from July 2016.
[58] Further, much of what Mr. Clymer testified to on the Gardiner hearing he did not tell the police in his statement shortly after his arrest. He finally agreed in cross-examination he did not tell the police exactly what he is now saying happened.
[59] For the reasons indicated in my ruling on the Gardiner hearing, I did not accept Mr. Clymer's evidence that he felt threatened and needed to defend himself or that his actions were the result of being provoked. There were no mitigating circumstances existing to lessen the seriousness or aggravating circumstances surrounding Mr. Clymer's conduct in stabbing Tyler and Ryan Simpson. As I indicated above, his actions were completely unprovoked and without any warning in both instances, which in my view are aggravating circumstances. I do not accept his evidence that his actions were motivated strictly by fear. It is my view, on the evidence, Mr. Clymer's actions were motivated by rage and anger.
Victim Impact Statements
[60] Tyler Simpson, Ryan Simpson and the Simpson brothers' mother, Ms. E. Dimitropoulos provided victim impact statements (VIS), which were filed collectively as Exhibit 6.
[61] After being stabbed Tyler Simpson wrote he knew he was dying. He awoke in St. Michael's Hospital three days after the incident after being put in an induced coma. He described being told he had open-heart surgery to repair his heart from the stab wound. He was in a lot of pain, was not able to talk and had trouble breathing when he first awoke. He had 70 staples to close his stab wounds and surgical wounds. In his VIS Tyler Simpson indicated he was finally released from hospital after two months. (I conclude from this Tyler Simpson initially spent 13 days at St. Michael's Hospital and then a further month and a half at a rehabilitation hospital.)
[62] Tyler Simpson described still having difficulties sleeping. He cannot sleep on his left side because of the injuries. His entire left side of his torso is still numb. He was unable to work for an extended period of time and had to go on Unemployment Sick Leave and his mother had to assist him financially. He was not able to return to work until November 2016. When he returned he was restricted to modified duties and modified shift times. He could not lift anything heavier than 15-30 pounds because his sternum, which was cut to do the surgeries to repair his heart and diaphragm, was not healed. It was not expected to be completely healed until March 2017.
[63] Tyler Simpson still suffers from internal pain in his chest and left side and has trouble breathing. In Exhibit 9, Dr. Michael Zahavi, Tyler Simpson's surgeon, described that Tyler Simpson could very well suffer chronic pain in his chest for the rest of his life. He continues to have difficulty sleeping. The incident has caused him to have anxiety concerning those who were involved in the stabbing and he finds it difficult to trust people. He has permanent scars to his chest, which are a constant reminder of the incident. He has been receiving counselling since the incident and at the time of writing the VIS he had two sessions remaining. He indicated the counselling had helped but he did not believe it was enough. He continues to have nightmares at night and his counsellor told him he suffers from PTSD. Ms. Liz Chamberlain, psychotherapist, who has been providing counselling to both Tyler and Ryan Simpson since their release from hospital until April 2017, indicates in her report, Exhibit 10, they both suffer from PTSD and will continue to require counselling for some time. It is her hope they will overcome the continuing effects of the violence and trauma caused to them by Mr. Clymer.
[64] Ryan Simpson was unable to work after his release from hospital and as a result, this incident has created financial difficulties for him. This created stress and he had to rely on his mother to assist him financially. He has not gone to bars with friends since the incident because of what happened and because of his concern that friends of the individual who is charged will retaliate against him.
[65] Ryan Simpson has difficulty sleeping as he still suffers from pain on his right side where he was stabbed. Seeing his brother Tyler in hospital was extremely upsetting to Ryan. He has noticed changes in his personality and moods, referring to his brother Tyler and says Tyler is no longer outgoing and now feels withdrawn.
[66] Ms. Dimitropoulos described how helpless and in shock she felt when she was advised about what had happened and how she did not know if her son Tyler would survive his injuries. She described how the incident and the serious injuries suffered by her sons has changed them from having outgoing personalities to not wanting to go out or to laugh. This incident has tremendously affected her and her family. The emotional turmoil in her VIS described is completely understandable.
Analysis
Sentencing Principles
[67] The purpose of sentencing is set out in s. 718 of the Criminal Code. I am of the view it is important to indicate what this section sets out and the sections that follow because I believe this is where the applicable principles of sentencing are defined for criminal cases. I will preface what these sections set out by indicating that in Canada revenge is not an appropriate sentencing principle. Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victims and the sanction imposed by the Court. Rather, the Court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Criminal Code, determine a fit sentence in the circumstances of the case. This is our tradition in Canada, a tradition which has a long and respected history both in Canada and other free and democratic societies throughout the world.
[68] Nothing I do in terms of Mr. Clymer's sentence will in any way undo what was done to the Simpson brothers in July 2016. Those events occurred and they cannot be undone. It is my hope the parties can move forward from today and not allow Mr. Clymer's actions to destroy their lives.
[69] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:
(a) Denounce the unlawful conduct;
(b) Deter the offender, and others, from committing such an offence;
(c) Separate the offender from society, where necessary;
(d) Assist in the rehabilitation of the offender;
(e) Provide reparation for harm done to "victims", or the community; and
(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.
[70] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
[71] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
Sentencing Jurisprudence on Aggravated Assault
[72] I was provided a number of cases by the Crown, which set out some basic considerations in determining the appropriate sentence in an aggravated assault case. In addition, I have conducted my own research respecting sentencing cases involving aggravated assaults. The principles of deterrence and denunciation are the paramount sentencing principles to be applied, unless exceptional circumstances exist. The offence of aggravated assault, contrary to s. 268 of the Criminal Code, carries a maximum sentence of 14 years imprisonment. Sentences for aggravated assault range from suspended sentences to low reformatory sentences, where there are exceptional or extenuating circumstances; to high reformatory sentences of 18 months to 2 years less a day, where the case contains some elements suggestive of a consent fight but the accused resorted to excessive force; to penitentiary sentences of four to ten years, where the aggravated assault was "unprovoked" or "premeditated" assaults with no suggestion of consent or self-defence. The injuries suffered by the victims range from relatively minor injuries involving sutures and no lasting effects to injuries requiring surgery and long lasting effects and impact on the victims (see R. v. Opsitnik; R. v. Dunn; R. v. Pakul; R. v. O'Connor; R. v. Ampong; R. v. Tourville; R. v. Moreira; R. v. Caster; R. v. Fernendes; R. v. Mann; R. v. Mann; R. v. Pulido; R. v. Basilio; R. v. Pangan; R. v. Dillion-Jack; and R. v. Vang; R. v. Bailey).
Seriousness of the Offences
[73] The two offences of aggravated assault perpetrated by Mr. Clymer can only be described as extremely serious offences, which require the imposition of a custodial sentence that proportionally reflects the gravity of the criminal conduct and appropriately denounces and deters such inherently dangerous behaviour. As I have already indicated deterrence and denunciation must be the paramount sentencing principles in this case. No two cases are identical on their facts and sentencing is therefore very much linked to the peculiar and specific facts of the case.
Aggravating Circumstances
[74] I have indicated above a number of aggravating circumstances, which, in my view, increase the seriousness of Mr. Clymer's criminal conduct:
Mr. Clymer has an extensive criminal record, which includes offences for similar offences involving assaultive behaviour;
Mr. Clymer was in possession of Appalachian Trail knife with a 3.5 inch blade, knowing he was going to a bar to consume alcohol, which he was aware exacerbate his tendency to become violent;
Mr. Clymer took the knife out of his pocket at the commencement of the verbal argument between Ryan Simpson and Christopher Smith, Mr. Clymer's friend. There was no reason for Mr. Clymer to remove the knife, open it, place it beside his leg and then conceal it behind his back. This was a premeditated decision by Mr. Clymer, which elevated this altercation beyond a verbal altercation and even beyond a simple fist fight;
The verbal altercation between Mr. Smith and Ryan Simpson had completely ended as a result of Mr. Smith jumping through the open window of the bar, yet Mr. Clymer instigated an altercation between himself and Tyler Simpson by moving towards Tyler Simpson and engaging in a "stare down" with him, while armed with his open knife hidden behind his back, which he had removed from his pocket earlier;
Tyler Simpson was not saying anything to Mr. Clymer, nor did he initiate any assaultive behaviour towards Mr. Clymer. Mr. Clymer, without any warning and completely unprovoked, used his right hand, which was hiding the knife behind his back, to stab Tyler Simpson in his left chest. The first stab wound broke one of Tyler Simpson's ribs and punctured either his heart or his diaphragm. Mr. Clymer stabbed Tyler Simpson 6 times, a number of which occurred after Mr. Simpson fell onto his back on the ground when he was attempting to get away from Mr. Clymer's assault.
Tyler Simpson suffered the following serious injuries: (a) left chest stab wound that fractured his 7th rib and punctured his left ventricle (heart), which required surgery to repair; (b) left chest stab wound his lower chest, resulting in a laceration to his lung and damage to his diaphragm, which required surgical repair; (c) right back shoulder penetrating stab wound; (d) left forearm shallow stab wound, resulting in frayed muscle fibres; (e) left forearm superficial stab wound; and (f) left temple laceration. Tyler Simpson spent 13 days in St. Michael's Hospital after his surgery and a month and a half in a rehabilitation hospital. Tyler Simpson's injuries were life threatening and he still suffers from residual chronic pain.
Mr. Clymer threatened to stab Philip Graham when he intervened to try and push Mr. Clymer off Tyler Simpson to prevent Mr. Clymer from continuing his attack;
Mr. Clymer had left the area but returned and confronted Ryan Simpson, who was assisting Tyler and was calling 911. Mr. Clymer, still armed with his knife, grabbed Ryan Simpson from behind, turned him around and began to stab him. Mr. Clymer's assault on Ryan Simpson was also completely unprovoked; and
Ryan Simpson suffered the following serious injuries: (a) right chest penetrating stab wound that punctured his lung resulting in a collapsed lung; (b) right lower flank penetrating stab wound; and (c) left cheek laceration. Ryan Simpson spent 3 days in Sunnybrook Hospital.
Offender's Lack of Genuine Remorse
[75] Mr. Clymer was under the influence of a significant quantity of alcohol during the commission of these two very serious violent assaults. What is perhaps most troubling is the fact Mr. Clymer's criminal conduct and behaviour has been escalating over the years because he has not dealt with his anger and "rage" issues or his addiction issues, which exacerbate his anger and rage. The pre-sentence report does reflect Mr. Clymer's remorse and acceptance of responsibility for his criminal behaviour; however, his attempt to lessen and deflect his responsibility for his actions by placing blame upon the Simpson brothers and Mr. Graham, in saying they initiated the altercation by surrounding him and throwing the first punch, raises in my view serious concerns as to the sincerity of his expression of remorse. As I found, Mr. Clymer's position is wholly unsupported by the evidence, both testimonial and the video tape evidence from the CCTV cameras, which completely supported the testimony of Tyler and Ryan Simpson and Philip Graham.
Rehabilitation Concerns
[76] It is my view, having regard to the serious aggravating circumstances outlined above; the principle of rehabilitation must take a back seat to deterrence and denunciation. Further, the issue of rehabilitation is diminished by Mr. Clymer's poor track record in dealing with his addiction to alcohol and other illicit substances and his failure, as I have outlined above, to sincerely accept responsibility for his actions. Further, Mr. Clymer did not seek any counselling to address his issues relating to anger and rage during the past ten months he has spent in custody, which he indicated to the probation officer he recognized control his behaviour, especially when he is under the influence of alcohol. It is clearly an important first step for Mr. Clymer to recognize how his addictions aggravate his anger and rage. The next step, which Mr. Clymer can address, if he chooses to, is to seek counselling to gain insight and awareness into the underlying reasons for his anger and rage and to stop using illicit substances, which he has indicated are readily available while he is in custody. It is my opinion Mr. Clymer should be assessed by a psychiatrist to determine why he has anger and rage issues to begin with and why they control his behaviour to the extent they do.
Proportionality and Denunciation
[77] In determining the appropriate sentence in this case, I am mindful the sentence to be imposed must reflect the gravity of the offence and the degree of responsibility of Mr. Clymer. Sentencing is an individualized process and an appropriate sentence must be tailored to meet the particular circumstances of the offence and consideration of the personal circumstances of the offender. In my view, the sentence urged upon me by the defence does not adequately address the serious aggravating circumstances present in this case, which call for both specific and general deterrence. Further, it does not reflect the denunciation necessary considering Mr. Clymer armed himself, at the ready, with a knife, when there was no reason to do so and then he used that knife against two unarmed individuals.
[78] As I have indicated, it is significant Mr. Clymer first used the knife against Tyler Simpson, who was not even involved in the verbal altercation between Ryan Simpson and Christopher Smith, which was over once Mr. Smith jumped through the window back into the bar. Secondly, Mr. Clymer, after stabbing Tyler Simpson repeatedly, even after he fell onto his back, left the area but came back and commenced stabbing Ryan Simpson, who was attempting to get medical assistance for his brother Tyler, who was clearly in distress on the ground. The nature of these two vicious assaults demonstrates a callousness towards both Tyler and Ryan Simpson and reflect Mr. Clymer was not overly concerned with the injuries he had inflicted.
[79] In my view Mr. Clymer will continue to be a serious danger to the public, unless and until he addresses the issues identified above. For that reason, there must be a sentence that adequately denounces his callous conduct. As Lamer C.J. wrote in R. v. C.A.M.:
The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.
[80] The sentence I impose must, if at all possible, deter Mr. Clymer from committing future offences. There is a need to impose a sentence that will separate Mr. Clymer from society for a lengthy period of time. I adopt the words of my colleague, Downes J., in R. v. Pangan, Mr. Clymer's "vicious, unprovoked and unexplained assault on an unsuspecting member of the public…casts him as an unacceptable risk to the public if he is not incarcerated for a significant period of time." I recognize this case involves two individuals who were stabbed during what can only be described as a relatively short period of time.
Consideration of Rehabilitation
[81] As I indicated to counsel during submissions, I am fully cognizant this will be the first occasion Mr. Clymer has ever received a penitentiary sentence and I do not want to impose a sentence that would be a crushing sentence without any regard to the principle of rehabilitation, which is clearly not a significant sentencing principle on the facts of this case.
Sentence
[82] In my view, the appropriate sentence which addresses the sentencing principles outlined above is one of nine (9) years, less pretrial custody. I was advised Mr. Clymer has served 313 days in pretrial custody. On a 1.5 to 1.0 basis, this translates to 470 days of pretrial credit pursuant to R. v. Summers in the Supreme Court of Canada. Although I discussed with counsel imposing consecutive sentences for each of the aggravated assault charges, I am of the view considering the principle of totality that a nine (9) year sentence for both aggravated assaults is the appropriate sentence. Consequently, I am sentencing Mr. Clymer to nine (9) years in the penitentiary on the aggravated assault involving Tyler Simpson and a concurrent sentence of nine (9) years on the aggravated assault involving Ryan Simpson. The pretrial credit leaves a remaining total sentence of seven (7) years and 260 days.
[83] In addition, there will be a weapon's prohibition order pursuant to s. 109 for life. I am ordering the taking of samples of bodily substances from you that are reasonably required for the purpose of forensic DNA analysis pursuant to s. 487.051(3). My understanding is that if a sample of your DNA was already taken pursuant to your previous convictions that a further sample will not be taken. There will also be a non-communication order pursuant to s. 743.21 respecting Tyler Simpson, Ryan Simpson, Effie Dimitropoulos and Philip Graham. Finally, I understand there will also be a s. 491 weapon forfeiture order.
Released: June 19, 2017
Signed: Justice Peter C. West