Ontario Court of Justice
Date: February 15, 2018
Court File No.: Brampton 16-10617
Between:
HER MAJESTY THE QUEEN
— AND —
ANDRE McKIE & RENARDO PUSEY
Before: Justice P.T. O'Marra
Heard on: August 20, 23, 24, 25, November 9, and December 12, 2017
Reasons for Sentence released on: February 15, 2018
Counsel
James A. Nadel — counsel for the Crown
David Butler — counsel for the defendant Andre McKie
Kelly Gates — counsel for the defendant Renardo Pusey
Judgment
P.T. O'Marra J.:
On August 25, 2017, I found both defendants guilty of the offence of assault with weapons on Delroy Thomas on July 31, 2016. The only issue at trial was whether or not both defendants armed themselves with knives and either stabbed or cut Mr. Thomas on his left arm. Both testified that they were not responsible for Mr. Thomas' injury. I found that both men possessed knives and therefore equally culpable of inflicting the wound that required several staples to close. However, I could not be satisfied beyond a reasonable doubt which defendant actually inflicted the wound. Therefore, for the purposes of sentencing I will treat both defendants as equally culpable.
Facts
[1] On the evening of July 31, 2016, all parties attended the Jamaica House Restaurant in Brampton for a customer appreciation barbeque. The defendants arrived separately and Mr. Thomas attended with other friends.
[2] Mr. Thomas grew up with Mr. Pusey in Jamaica and met Mr. McKie after he came to Canada. Approximately two years ago the friendship ended over a dispute regarding Ms. Badri.
[3] Alcohol and or drugs did not play a role in these events.
[4] At approximately 11:45 pm, Mr. Thomas left the party and walked with Ms. Badri and Ms. Thompson towards Ms. Thompson's motor vehicle. Mr. Thomas was confronted by both defendants in the parking lot. Both had knives in their hands with the blades out and pointed towards him. Mr. Thomas was defenceless. A struggle ensued and Mr. Thomas sustained a cut to his left arm approximately six inches long.
[5] Both defendants fled the scene in Mr. Pusey's motor vehicle.
[6] Mr. Thomas attended a police division and an ambulance was called. He was transported to Brampton Civic Hospital where he was treated. The wound required ten (10) staples to close. Mr. Thomas fully recovered from his injury however, he was left with a significant scar.
[7] The defendants were arrested the next day and released on an undertaking and a promise to appear notice.
The Circumstances of Mr. McKie
[8] Mr. McKie is thirty (33) years old. He lives with his mother and his three children, aged nine (9), six (6) and one (1).
[9] He was born in Jamaica and he has been living in Canada for twelve (12) years.
[10] Mr. McKie has one conviction for impaired operation of a motor vehicle in 2015.
[11] He is currently employed as a driver for Chislett Asphalt Roofing Ltd., and since April 2015 he has been a permanent part-time employee at Clean Rite Cleaning Services Ltd.
[12] Mr. McKie is also a volunteer who assists in picking up and dropping off (at his own expense) members to Sunday service at the Bethany True Gospel Holiness, Healing and Deliverance Church in Brampton.
[13] His girlfriend, Marisa Mayers wrote a character reference letter on Mr. McKie's behalf. She has known him for twelve years. She described him as "funny, caring, genuine friend and a great father…and works hard to provide for his family".
[14] Mr. McKie wrote a letter to the court that professed profound remorse over his conduct towards Mr. Thomas.
The Circumstances of Mr. Pusey
[15] Mr. Pusey is twenty six (26) years old. He came to Canada in 2011 and is currently a permanent resident. He has no criminal record.
[16] He has a two (2) year old son that he financially supports. He has regular access visits and custody of his son on weekends.
[17] He also financially supports his mother and four (4) siblings that live in Jamaica. He resides with his father and brother.
[18] He earned a certificate and majored in machine shop and welding at the Thompson Town High School. He upgraded his education in 2012 by attending the Emery Night School.
[19] He is currently employed full time with Stair Star Inc. Previously, he worked at Toys R' Us and GTA Office Furniture.
[20] On December 10, 2017, Mr. Pusey completed a one day anger management course at A1 Counselling Centre.
[21] At the conclusion of the sentencing submissions, Mr. Pusey made a heartfelt apology to Mr. Thomas for his actions that evening.
The Victim Impact Statement
[22] The crown filed a victim impact statement on behalf of Mr. Thomas. The stabbing has had a significant impact on his life. In a sense, Mr. Thomas considered that the attack on him by the defendants was an act of betrayal or a breach of trust, as all parties were once friends.
[23] Since July 31, 2016, Mr. Thomas has developed migraines and has many sleepless nights.
[24] He feels "shame and embarrassment" when people see his scar. He feels that people are judging him. I infer from that comment that he thinks people regard him as violent. He is so mindful and fearful of people judging him that he must wear long sleeve shirts. Due to the embarrassment and humiliation, Mr. Thomas always covers up his scar when someone takes a photograph.
[25] He quit his delivery job out of fear. Mr. Thomas fears for his safety to the extent that he chooses not to secure employment in Mississauga, Brampton or the Toronto area. He is fearful that he may have contact with the defendants.
[26] In a sad irony, Mr. Thomas' father died in 2009 from a stab wound to his hand after an artery was severed and he bled to death. The image of suffering his wound in the same manner as his father haunts Mr. Thomas.
The Legal Parameters
[27] Assault with a weapon, section 267 (a) of the Criminal Code is a hybrid offence. The crown proceeded summarily. The maximum penalty that the court can impose in this case is eighteen months imprisonment. It is a primary compulsory designated offence for DNA purposes. A firearms prohibition order is discretionary.
The Position of the Crown and Defence
[28] The crown submits that the appropriate range for both defendants is a period of incarceration of six to nine months followed by probation for a period of eighteen (18) to twenty four (24) months, a DNA order and a section 110 order for ten years.
[29] The defence submits that the defendants should receive an eighteen (18) month suspended sentence. Alternatively, if I do not suspend the passing of sentence, the defence argues that the defendants should be sentenced to a conditional sentence for a period of twelve (12) months. The defence does not contest the imposition of the corollary orders.
[30] Given Mr. Pusey's immigration status in Canada, Ms. Gates argues that a term of incarceration should not exceed a period of six (6) months as it would be tantamount to a removal order under section 36(1) of the Immigration and Refugee Protection Act. A conditional sentence that exceeds a term of six (6) months will not lead to Mr. Pusey's removal from Canada. See R v. Tran, [2017] S.C.C. 50 para. 34.
Aggravating and Mitigating Factors
[31] The aggravating factors in this case are:
(i) The defendants used knives.
(ii) The defendants concealed their knives.
(iii) The defendants brought their knives to a public place.
(iv) The defendants had switch blades approximately six to eight inches in length.
(v) The defendants were not defending themselves from Mr. Thomas.
(vi) This was an unprovoked attack.
(vii) The defendants out-numbered Mr. Thomas.
(viii) The defendants inflicted a significant cut that has left Mr. Thomas with a prominent scar on his left forearm.
(ix) The victim impact is significant both physically and psychologically.
[32] I am not satisfied that this was a premeditated attack on Mr. Thomas. That is, to say that I do not believe that the defendants brought knives to the barbeque with the specific purpose to 'settle a score' with Mr. Thomas. However, I do believe that once they saw Mr. Thomas, at the barbeque or in the parking lot, the defendants chose to confront him over a seemingly vague or inconsequential matter.
[33] The mitigating factors in this case are:
(i) Mr. Pusey did not have a criminal record prior to this offence.
(ii) Although Mr. McKie has one conviction on his record, the entry is unrelated to violence.
(iii) Both defendants are gainfully employed on a full time basis.
(iv) Mr. McKie has the support of his mother and his girlfriend.
(v) Mr. McKie is a loving and caring father of three children.
(vi) Mr. McKie has recently given to the community in a pro-social way with his volunteer work.
(vii) Mr. Pusey has the continued support of his father and brother.
(viii) Mr. Pusey is a father of a two (2) year old son and pays child support.
(ix) Mr. Pusey financially supports his mother and siblings in Jamaica.
(x) Mr. Pusey completed a one day anger management course.
(xi) The defendants demonstrated remorse and some insight into their actions.
The Principles of Sentencing and Case Law
[34] The guiding principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code. The principle of proportionality is fundamental in the sentencing process. A fit sentence must reflect the seriousness of the offence and the moral blameworthiness of the offender. This is achieved by examining the aggravating and mitigating factors and the circumstances relevant to the offence and the offender bearing in mind the established principles of sentencing. The sentencing objectives are met by selecting and identifying sentencing goals. Keeping in mind judicial restraint a sentence must be fit in achieving those objectives and must be similar to sentences imposed in similar cases. See R. v. Casselman, [2014] O.J. No. 1995 at para. 3.
[35] This was a serious crime that occurred in a public place and potentially led to deadly consequences. It was fortuitous for Mr. Thomas that only his arm was cut.
[36] The crown provided seven (7) cases to support the proposed sentencing range. The defence jointly filed a case book that contained five (5) cases to advocate for a non-custodial sentence. I have carefully reviewed the case law that has been provided. It seems from the case law that the range in sentencing for a knife attack is broad and where the sentence falls within the range is highly dependent on all the circumstances. See R. v. Gajraj, [2013] O.J. No. 1026 (SCJ) para 29.
[37] General and specific deterrence are important principles given the nature of the offence, but the prospects of rehabilitation of the defendants are at least equally important. A fit and appropriate sentence must blend all three principles. See R. v. Carty, 2010 ONCA 237, [2010] O.J. No.1305 (C.A.).
[38] Briefly in terms of the crown's cases, the Carty decision was a defence appeal on conviction and sentence for assault, assault causing bodily harm and three breaches of release orders. The sentence appeal was granted as the sentencing judge did not adequately consider the offender's prospects of rehabilitation. The sentence was varied from twelve (12) months to nine (9) months of time served and two (2) years' probation. This was a twenty one (21) year old, first time offender, involved in two barroom brawls that led to the victim being struck over the head with a metal baseball bat. The facts of this case can be distinguished from the case at bar as this was a prolonged attack that led to serious head injuries. But on the other hand, the nine month sentence was after a guilty plea to five (5) charges.
[39] Justice Trafford's decision in R. v. Moreira, [2006] O.J. No. 1248, involved a finding of guilt after trial to the charges of carry a concealed weapon, possession of a prohibited weapon for the purpose of committing an assault and aggravated assault in connection with a stabbing at the C.N.E. grounds. This was a consent fight but a knife was used leaving the victim with a slashed forearm and nerve damage. Trafford J. did not make a finding that the damage was permanent. The offender was sentenced to incarceration for a period of twenty one months. The offender had similar mitigating factors as the defendants. However, the offender did acquire a criminal record while on bail. Like the case at bar, these offences occurred in a public place, and as such the court emphasized the need for general deterrence to dissuade people from arming themselves with knives and going out in the public and committing crime. A message must be sent that all such crimes will not be tolerated and will be emphatically denounced by the courts. See Moreira, supra. Para 19.
[40] In R. v. Ball, [2016] O.J. No. 5438, Band J. sentenced an offender after a trial to imprisonment for a period of twelve (12) months and three (3) years of probation for the offence of aggravated assault and assault with a weapon. This case involved the accused plunging a steak knife into the chest of the victim, and puncturing his lung. Similarly, the victim found himself out-numbered. The offender was sentenced below the range for this kind of offence given his unique circumstances and attributes. He also had a previous criminal record and was charged while on bail. There was significant psychological and psychiatric information that demonstrated the offender was a moderately to high risk to re-offend. Another distinguishing feature was that the injury was more serious than the injury suffered by Mr. Thomas. Moreover, there is no evidence to suggest that the defendants are more likely to re-offend.
[41] In R. v. Ferendes, [2000] O.J. No. 5046 (SCJ), the offender was convicted after a jury trial and sentenced to seven (7) months imprisonment for aggravated assault, two (2) months consecutive for possession of a dangerous weapon, followed by two (2) years' probation. This was a consent fight but the offender pulled out a knife and repeatedly stabbed the victim. A conditional sentence was rejected by the court as the offender had a long history of offences, which made him a high risk in the community and found that a conditional sentence was not appropriate given the nature of the offence and the need to deter the others from engaging in consensual fights with weapons.
[42] In Gajraj, supra, the offender was found guilty after trial by a jury for the offence of aggravated assault with a weapon and sentenced to two (2) years less one (1) day followed by two (2) years' probation. This was a consensual fight but the offender pulled out a pocket knife and stabbed the victim in the abdomen and he suffered a deep hand wound that required stitches to close. The wound to the victims' diaphragm required the insertion of a drain tube and stitches. These were horrible injuries. The mitigating and aggravating factors in this case are similar to the circumstances of the defendants. However, an important distinguishing feature is that while he was on bail the offender pleaded guilty to accessory after the fact to manslaughter and sentenced to three years in the penitentiary.
[43] The Court of Appeal in R. v. Roiballove, [2010] O.J. No. 4778, upheld Durno J. in rejecting the defence's request to impose a conditional sentence. The facts of the case are set out in para 126 in Justice Durno's decision of R. v. Wan, [2012] O.J. No. 6542. The offender was one of seven (7) or eight (8) men who got into a scuffle with three (3) other men. During the course of the altercation the offender stabbed the victim with a knife. The offender armed himself with a knife to attend a plaza. The victim suffered one stab wound. The offender was a young man and no criminal record. After a guilty plea, Durno J. imposed a period of six (6) months incarceration. The endorsement from the Court of Appeal stated that "the sentence imposed by the trial judge was entirely fit". See Roiballove, supra, para 2.
[44] Turning to the defence case law in support of a suspended sentence or a conditional sentence.
[45] The case of R. v. Bani-Naiem, [2010] ONSC 1890, was a defence appeal from his conviction and sentence on the offences of assault with a weapon, and weapons dangerous to the public peace. The sentence appeal was granted on the basis that the trial judge's determination that specific deterrence was the paramount consideration in that case was an error in principle. Furthermore, the offender's denial that he committed the offence was regarded by the trial judge as a lie, which was treated as an aggravating circumstance on sentencing was an error. Finally, the trial judge erred in failing to consider the imposition of a non-custodial sentence, or alternatively a conditional sentence of imprisonment. The sentence of thirty (30) days custody was varied to time served due to the offender's positive attributes and the "lack of any serious injury to the complainant". See: Bani-Naiem, supra, para. 14. I infer from the Bani-Naiem decision that the facts in the case were not particularly serious as the crown only sought a custodial sentence in the range of fifteen to thirty days.
[46] In R. v. Foreman, 2015 BCPC 104, [2015] B.C.J. No. 866, the offender was given a suspended sentence and placed on a two (2) year period of probation with strict conditions after a guilty plea to aggravated assault by slashing her boyfriend's arm while she was intoxicated. The case is distinguishable for the following reasons: The offender had a horrible and tragic background. The injury was a laceration that healed and did not require any medical attention. This kind of injury was described by the court as an injury that was typically seen in assault causing bodily harm cases rather than an aggravated assault charge. The offender had a lengthy criminal record but had made significant improvements in her life, especially with respect to alcohol abuse and mental health counselling. She also enjoyed the support of the victim.
[47] The case of R. v. Hunter, [2015] ONSC 325, can be distinguished on the basis that the offender was heavily intoxicated at the time of the offence when he smashed a beer bottle over the head of the victim which led to a significant scar. Notwithstanding that a beer bottle can be a weapon, it is not a knife. Furthermore, the offender was raised in an unstable home environment and suffered a turbulent childhood. He had been on bail with strict conditions for more than three (3) years. He had "purged his addictions, jettisoned his antisocial lifestyle". See: Hunter, supra para. 56. The crown sought a sentence of imprisonment for a period two (2) years less a day and defence asked for a period of incarceration for a period of 90 days to be served intermittently. After trial he was found guilty of aggravated assault and given a suspended sentence and placed on probation for three years. The sentencing judge stated at para. 60 that "this was a serious offence that would ordinarily call for an upper reformatory sentence, I am of the view that when all the facts and circumstances are taken into consideration, this is an exceptional case…"
[48] In the case of R. v. Shahcheraghi, [2017] ONSC 574, after a ten day judge alone trial the offender was found guilty of aggravated assault on the basis that he punched the victim multiple times and smashed his head into a glass door. The victim suffered damage to his head and face, and had a cut to his eye which was surgically repaired the next day. He was given a three (3) year suspended sentence. The facts and the injuries are distinguishable from the case at bar.
[49] The case of R. v. Tang, [2013] ONCA 45, involved the offender holding a knife in his wife's direction and demanded money. He was found guilty of assault with a weapon and received a twelve (12) month suspended sentence. This case does not assist me at all.
[50] The cases of R. v. Nahdee, [2014] ONCJ 178, and R. v. W.(T.), [2005] ONCJ 57, are conditional sentencing cases which involved an impaired operation of a motor vehicle causing death and sexual touching, respectively. I surmise that these cases were submitted to demonstrate that victim forgiveness can be considered a factor in sentencing. Counsel did not rely on these cases in their respective submissions.
Is a Suspended Sentence Appropriate?
[51] I do not believe that a suspended sentence would be a demonstrably fit and appropriate sentence in these circumstances. I have not come across a sentencing decision that would justify suspending the passing of sentence in an unprovoked knife attack leading to a serious and permanent injury.
[52] In this case there are no extenuating or special circumstances that warrant a suspended sentence. It was only good fortune that Mr. Thomas' injury was not worse given that more than one knife was at play. A message must be conveyed for specific and general deterrence purposes and denunciation that carrying a knife to a public event, using it to settle a vague dispute, and inflicting a significant wound will not be tolerated.
[53] In my view, this is a case in which a sentence of imprisonment will properly send that message of condemnation and denunciation about this type of criminal behaviour. A suspended sentence, in these particular circumstances of this case, would not meet the established sentencing goals set out in the Criminal Code.
Is a Conditional Sentence Appropriate?
[54] The defence, in the alternative suggests that a conditional sentence for a period of twelve months would be an appropriate sentence.
[55] A conditional sentence is an available sentence in this matter. Consequently, I must consider the appropriateness of a conditional sentence pursuant to s. 742.1 of the Criminal Code.
[56] There are five prerequisites for the imposition of a conditional sentence.
(1) The offender must be convicted of an offence that is not specifically excluded (e.g. sexual assault, when prosecuted by indictment).
(2) The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.
(3) The court must impose a sentence of imprisonment that is less than two years.
(4) The safety of the community would not be endangered by the offender serving the sentence in the community.
(5) The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.
[57] The facts of this case meet the first four pre-conditions. The Crown did not proceed by indictment, there is no minimum sentence applicable, the Crown is seeking a six to nine months sentence and the safety of the community would not be endangered by the defendants serving their sentence in the community. However, I must impose a sentence that takes into consideration of the fundamental purposes and principles set out in sections 718 to 718.2 of the Criminal Code.
[58] It is clear that any sentence must focus on the protection of the public by the imposition of a penalty that denounces this type of conduct and provides for both general and specific deterrence. At the same time, the sentence must be individualized, as well as reflect and encourage as much as possible any apparent rehabilitative prospects. The appropriate sentence is determined by the circumstances surrounding the commission of the offence, including the nature of the assault and the seriousness of the injury caused and the individual circumstances of the offender, including the offender's background, mental health issues, addictions, or criminal record. See: R. v. Gibson, [2017] O.J. No. 6865.
[59] In my view, I have to reject the imposition of a conditional sentence in this case as I do not believe that it would be consistent with the fundamental purpose and principles of sentencing. A conditional sentence would not send a strong and clear message that using a knife to settle minor grievances in a public place is unacceptable.
The Appropriate Sentence
[60] The defendants are young men and have responsibilities, Mr. Pusey is a first time offender and Mr. McKie has offended only on one occasion. This attracts judicial restraint from imposing a lengthy period of custody, particularly where there is a real prospect of rehabilitation.
[61] I recognize that imposing a custodial sentence will result in collateral consequences for the defendants and their respective families. The defendants may lose their employment thus depriving their families of their financial support. Whenever possible courts should avoid imposing a sentence that will prejudice children and other family members. See: R. v. Collins, [2017] O.J. No. 978 (C.A.). It should be stressed, however, that this principle operates only where there are no other or more important aspects of requiring severe or deterrent sentences. See: Ruby on Sentencing, p. 330 9th Edition and R. v. Spencer, [2004] O.J. No. 3262 at paras. 46-47 (C.A.).
The Sentence
[62] In all of the circumstances, and in view of this serious offence and the degree of moral blameworthiness, you are both sentenced to a period of four months in custody.
[63] Once released from custody, you shall be placed on probation for a period of two (2) years on the following terms and conditions:
(i) Keep the peace and be of good behaviour;
(ii) Appear before the court when required to do so;
(iii) Notify the court or the probation officer in advance of any change of name or address;
(iv) Promptly notify the court or the probation officer of any change of employment or occupation;
(v) Abstain from communicating, directly or indirectly, electronically or otherwise, with Delroy Thomas, Druicella Thompson and Nawal Badri;
(vi) You shall not attend within 200 metres of the home address, or place of employment, or school, or any place that you know Delroy Thomas, Druicella Thompson and Nawal Badri to be;
(vii) You shall report within seven (7) days of your release from custody to a probation officer in person and report thereafter as required;
(viii) You shall attend as directed by your probation officer and actively participate in rehabilitative programs for anger management. You shall sign any releases to allow the probation officer to monitor your attendance;
(ix) You shall not possess any weapons; and
(x) You shall make reasonable efforts to find and maintain suitable full time employment.
[64] With respect to the Ancillary Orders:
(i) You shall provide a DNA sample in accordance with section 487.05(1) (a) of the Criminal Code;
(ii) Pursuant to s.110 of the Criminal Code, I find that it is in the interests of public safety to order that you be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of ten years from your release from imprisonment.
[65] Finally, there will be a victim fine surcharge in the amount of $100.00 to both of you. I will give you twelve months to pay the fine.
Released: February 15, 2018
Signed: Justice P.T. O'Marra