Court Information

Ontario Court of Justice Scarborough – Toronto Date: November 6, 2017

Between: Her Majesty the Queen And: Basil Brown

For the Crown: J. Battersby For the Defendant: B. Sherwood

Heard: October 31, 2017

Reasons for Sentence

Justice Russell Silverstein

A. Introduction

[1] Basil Brown was convicted after trial of assault with a weapon, assault causing bodily harm and possession of a weapon for a purpose dangerous to the public peace (weapons dangerous).

[2] Ms. Battersby for the Crown seeks a sentence in the range of 15 – 18 months less credit for presentence custody. Ms. Sherwood submits that an appropriate sentence is that of a suspended sentence and probation in light of 70 days of presentence custody.

B. The Circumstances of the Offence

[3] The circumstances of the offence are set out in my reasons for judgment. I will not repeat them here. Suffice it to say that Mr. Brown stabbed the victim several times (once in the chest), during an altercation at a local bar. Mr. Brown, who was, and still is confined to a wheelchair, came to that bar armed with a knife since he feared being attacked, having been attacked there before.

[4] As I explained in my reasons for judgment, I do not reject Mr. Brown's testimony that he unsheathed his knife because he thought the victim had a knife in his hand. I found, however, that Mr. Brown's resort to his own knife to stab Mr. Jean-Pierre was unreasonable in the context of the dynamics of the ongoing dispute with the victim, even though Mr. Brown felt at risk of bodily harm himself.

C. The Circumstances of the Offender

[5] Mr. Brown has a significant record for violence, including convictions for assault with a weapon and assault causing bodily harm, and three convictions for sexual assault. His last conviction was in 2005 when he was sentenced to 12 months incarceration with probation for assault causing bodily harm. In 1998 he was sentenced to 8 years for his last sexual assault.

[6] According to the presentence report and the submissions of counsel, Mr. Brown is 42 years old and came to Canada from Jamaica at age 14. He was raised in a fractured and violent environment. He now has four children of his own.

[7] In 2009 Mr. Brown was stabbed in the back by an unidentified assailant and was rendered paraplegic and completely incontinent. He was generally employed before the stabbing but has been receiving ODSP since 2009 and lives in subsidized housing where he is said to have a close support network. He has completed most of his grade 12 credits.

[8] Mr. Brown has a serious alcohol problem, even though he claims to have had several long periods of abstinence. Almost all his criminal offences are alcohol related, as was this one. As he said in his testimony, at the time of the offence drinking was pretty much all he did.

D. Application of the Principles of Sentencing

[9] The principles of sentencing are set out in Part XXIII of the Criminal Code. The sentence I impose must address denunciation, specific and general deterrence, protection of the public and rehabilitation.

[10] As concerns specific deterrence, Mr. Brown's criminal record causes me concern. He has been sentenced and incarcerated for many crimes of violence in the past yet has continued to offend in this way. This pattern of behaviour supports the notion that the sentence for this offence should be more severe than his earlier sentences for similar offences. On the other hand, this is counterbalanced by the fact that he has not been convicted of any offence since 2005.

[11] As concerns Mr. Brown's prospects for rehabilitation both in and out of custody, Ms. Sherwood submits that I should not further incarcerate Mr. Brown since to do so puts him at risk of losing his subsidized housing in a community that offers him good social support. While it would certainly be to Mr. Brown's advantage to return to this community and live there for the foreseeable future, I cannot, to achieve that end, impose what would be an unfit sentence given the circumstances of the offence. I must also not impose a sentence that is so long that his period of incarceration becomes counter-productive to his prospects for rehabilitation.

[12] It is a well settled principle of criminal law that like offenders who commit similar offences should receive similar punishment. Ms. Battersby has filed several cases that set out a notional range of sentence for stabbings in similar circumstances. That range can fairly be said to be between 18 and 24 months. However, the applicability of that range is significantly undermined by the fact that in all the cases she relies on, the offender has been convicted of aggravated assault, a more serious crime than assault causing bodily harm or assault with a weapon.

E. The Aggravating and Mitigating Circumstances

[13] There is one particularly aggravating circumstance in this case. Mr. Brown stabbed Mr. Jean-Pierre in the chest. Both men are fortunate that the injury was not a serious one.

[14] There are, however, several circumstances that I find mitigate the length of sentence to be imposed.

[15] First, Mr. Brown is in a wheelchair. His incarceration will have a greater impact on him than it would if he were not so disabled.

[16] Second, Mr. Brown was intoxicated when he stabbed the victim. Our law recognizes that someone who is intoxicated is somewhat less morally blameworthy than someone who is sober. However, the mitigating impact of Mr. Brown's intoxication is somewhat blunted by the fact that Mr. Brown knew when he drank that day that alcohol tended to make him more aggressive.

[17] Third, the attack was not premeditated. Rather, it arose during a conflict where Mr. Brown's concern for his own safety were to some degree justified, notwithstanding his unreasonable response.

[18] Fourth, and perhaps most significantly, Mr. Brown did not try to take dishonest advantage of the fact that Mr. Jean-Pierre did not testify at trial. Without Jean-Pierre's testimony the Crown's case lacked any evidence as to what was said by Mr. Jean-Pierre during the altercation. The best evidence of the altercation was a silent CCTV video recording of the altercation. Mr. Brown could have testified that Mr. Jean-Pierre uttered threats to Mr. Brown which could have justified the stabbing, but he did not. I consider this a sign of good character that portends an increased likelihood of success on the road of rehabilitation.

F. R. v. Kienapple

[19] Ms. Sherwood asks that I stay the conviction for one of the assault charges based on the Supreme Court's guidance in R. v. Kienapple (1974), 15 C.C.C. (2d) 524 (S.C.C.) and R. v. Prince (1986), 30 C.C.C. (3d) 35 (S.C.C.). In my view, the principles set out in these cases do not support Ms. Sherwood's request.

[20] The Supreme Court says that there must be a sufficient "legal nexus" between the two assault charges to warrant a stay of either one of them. Thankfully, a simpler test can be substituted for the elusive legal nexus test. The offences of assault causing bodily harm and assault with a weapon protect two different societal interests: the prevention and punishment of the use of weapons in assaultive behavior, and the infliction of bodily harm. Moreover, to stay either of the charges would leave a conviction record that does not capture the fact that the accused used a weapon, and that bodily harm was occasioned. Parliament has not created the offence of "assault with a weapon causing bodily harm", and until it does, in my view convictions for the two offences of assault causing harm and assault with a weapon will not attract a stay of either offence.

[21] The same cannot be said, however, as concerns the conviction for weapons dangerous. Because Mr. Brown's lawful possession of the knife only became unlawful moments before his use of the weapon I will stay the weapons dangerous conviction. The criminality associated with this offence is sufficiently captured in the assault with a weapon.

G. Conclusion

[22] In the result, I sentence Mr. Brown on the assault with a weapon to a notional custodial sentence of 195 days. Because Mr. Brown has spent 70 days in pre-sentence custody I shall credit him with 1.5:1 for this time and deduct 105 days from this notional sentence. The resultant sentence will be one of 90 days, to be served intermittently.

[23] On the assault causing bodily harm I sentence Mr. Brown to a 15 month conditional sentence to be served consecutively to the sentence imposed on the assault with a weapon. The conditional sentence will contain the statutory terms as well as a house arrest for 8 months and a 10 p.m. to 7 a.m. curfew for the balance.

[24] I shall also impose a 1 year term of probation with the following conditions:

1. The statutory conditions;
2. Report once and thereafter as required;
3. No weapons as defined by the Criminal Code;
4. No contact directly or indirectly with Mr. Jean-Pierre;
5. No attendance at the bar where these offences took place;
6. Take whatever counseling is recommended by the probation officer.

[25] I shall also impose a 10-year weapons prohibition under s. 110 and a DNA order pursuant to s. 487.051.

Released on November 6, 2017

Justice Russell Silverstein