Ontario Court of Justice

Date: 2018-05-31

Court File No.: Toronto 4817 998 17-75000339

Between:

Her Majesty the Queen

— AND —

Tyrone Elliot Hines

Before: Justice Richard Blouin

Submissions on Sentence Heard on: April 6, 2018

Reasons for Sentence Released on: May 31, 2018

Counsel:

• Mr. Craig Brannagan, counsel for the Crown
• Mr. Ronald Chu, counsel for the defendant Tyrone Elliot Hines

BLOUIN, J.:

Introduction

[1] Tyrone Hines was found guilty after a trial on one count of assault with a weapon and one count of threatening death, regarding his use of a knife to strike the face of another man inside a Popeye's restaurant in downtown Toronto. Outside the restaurant, Mr. Hines assaulted a police officer (by pushing him to resist arrest), dropped a small knife on the ground and attempted to discard a bag of crack cocaine, and was also found guilty of these offences.

[2] On March 27, 2018, I released a judgment (see R. v. Hines, 2018 ONCJ 197), that stayed all charges, except the assault with a weapon count, as the only remedy capable of expressing judicial condemnation of the police brutality employed against Hines during his arrest. Hines had been struck in the face by a police baton and then pepper-sprayed while in the back of the cruiser. Two police officers then gave less than forthright evidence that seemed designed to justify or explain the excessive force employed. I concluded that society's interest would be best served in having a final decision on the merits regarding the stabbing, and that mitigation in sentence would be the remedy.

Positions on Sentence

[3] Mr. Brannagan submits that a 90-day jail sentence followed by probation reflects the relevant sentencing principles and provides a remedy for excessive use of force by police, and is a position well below the bottom range for similar offences committed by an offender with a substantial criminal record.

[4] Mr. Chu submits that an absolute discharge is the appropriate sentence when one factors the Charter breach with the pre-trial detention and bail restrictions endured by the defendant. An 11 p.m. curfew was in place for 438 days, which should entitle Hines (applying R. v. Downes) to a credit of 88 days (one day for each five days on curfew). When the two days of pre-trial detention are added, Mr. Chu submits the defendant has sufficient pre-trial credit to meet even the Crown's position of 90 days.

Aggravating Factors

• This was a knife attack by way of a punch to the victim's face with a small knife between the fingers. Although I found the victim to be the initial aggressor in that he pushed the defendant three times, a knife wound near the eye is a significant, violent offence.

• Mr. Hines has a long and violent criminal record, which includes uttering threats, court order breaches, drugs, five assaults and two assaults with weapon. He has been sentenced to many jail terms.

• The Pre-Sentence Report (PSR) provided that, generally, Mr. Hines had not performed well on probation. The report indicates past reporting habits were unsatisfactory, commitment to counselling was lacking, and that Mr. Hines was reticent to provide necessary background information to his probation officer.

• Mr. Hines had been placed on probation for, among other things, assault, two months before these offences.

• The PSR concluded that Mr. Hines' expression of remorse seemed to be more directed toward his predicament than toward the victim of his offence.

Mitigating Factors

• The defendant has connected with a support worker at Albion Neighbourhood Services, who has assisted him in securing permanent housing and providing "mental health stability" regarding PTSD and anxiety (Pamela Farley letter dated April 3, 2018 – Exhibit 15).

• The defendant's performance on probation has improved recently, in that he acts respectfully towards his probation officer, returns calls promptly, and has been more forthcoming with information.

• The defendant started full-time work landscaping in April, 2018.

• The defendant has incurred no new charges in the 20 months since this incident.

• Two days of pre-trial detention and 438 days with an 11 p.m. curfew. The existence of the curfew impacted the defendant's position in gaining custody of his three-year-old child given that the restriction on his freedom could possibly impact the ability to respond to an emergency. I was told this issue was front and centre in a custody trial in Family Court.

• Although I concluded excessive force by the defendant, the complainant was, in fact, the initial aggressor.

• The Charter violation.

Sentencing Principles

[5] Section 718 sets out the following sentencing principles:

718 The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community.

Section 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[6] Each sentencing must be approached as an individualized process looking at the circumstances of the offence, and the circumstances of the offender. In R. v. Nasogaluak, 2010 SCC 6, the Supreme Court of Canada concluded that a sentencing judge is entitled to consider police misconduct when assessing a fit and proportionate sentence. This allows the Court to not only take into account the offender's behaviour, but also that of law enforcement so that respect for the rule of law is maintained.

Findings

[7] The Crown submitted, and I agree that their position of three months in jail takes the police misconduct into account. I am of the view that, absent the Charter breach, the appropriate sentence for the assault with a weapon count is nine months in jail when I weigh all aggravating and mitigating factors.

[8] As to the mitigation of sentence, although I would not go as far as Baltman, J. did in R. v. Dinh, 2012 ONCJ 1016, in characterizing the two police officer's evidence as lies, it came very close. I found them both unreliable given their partisan perspective. However, the major factor that supports mitigation of sentence is the extent of the violence used by police against Mr. Hines, and its effect upon him.

[9] Recognizing that mitigation of sentence for a Charter breach is individualized and fact dependent, the Dinh decision does provide some guidance regarding the balancing of police misconduct and the appropriate sentence. In Dinh, the sentencing judge concluded that the normal range of sentence for those convicted of trafficking a pound of cocaine is five to eight years. Like the case before me, the Crown in Dinh took a position (two years) that was below the normal range. Justice Baltman settled on a sentence of two years less a day to be served in the community.

[10] As indicated above, when I examine the mitigating and aggravating factors present in this case, excluding the Charter violation for a moment, I have concluded that a sentence of nine months would be appropriate for this offence. When I factor in the significant violation of the defendant's Charter protections, and the long-term effect visited upon Mr. Hines, which possibly includes PTSD (verified in some respects by Ms. Farley of Albion Neighbourhood Services), I am satisfied that a conditional sentence would meet the principles of sentencing. In other words, I would impose a sentence of nine months, but I conclude that this nine months could be served in the community.

[11] Section 742.1 sets out four criteria a court must consider before deciding whether to impose a conditional sentence:

1. the offence must be one that is not punishable by a minimum term of imprisonment;

2. the court must impose a term of imprisonment of less than two years;

3. the safety of the community would not be endangered by the offender serving the sentence in the community; and

4. a conditional sentence would be consistent with the fundamental principles of sentencing.

[12] I find that the safety of the community would not be compromised by a conditional sentence, and denunciation and deterrence can be met by the imposition of such a sentence (R. v. Canepa, 2011 ONSC 1406).

Pre-trial Bail Conditions

[13] According to R. v. Downes, I must take into account stringent bail conditions, especially house arrest, when assessing mitigating factors. It must be noted that the 13.5 months of 11 pm – 6 am curfew is not house arrest, but it is a deprivation of liberty. In this case, the curfew impacted not only the defendant's liberty but also his ability to succeed in Family Court. It is common practice in this jurisdiction, and others, that conditional sentences are composed of 1/3 house arrest (with exceptions); 1/3 curfew; and 1/3 no residential restrictions.

[14] As a result, if Mr. Hines received a nine-month conditional sentence he would likely receive three months of house arrest (with exceptions for attending employment, counselling, and acquiring necessities). The middle three-month period would likely have a curfew similar to the one he followed for 13.5 months. The final three months would likely have had no residential restrictions.

[15] In the final analysis, I find that the time on a curfew bail which not only restricted his liberty for 13.5 months, but also negatively impacted his Family Court case, is roughly equivalent to a nine-month conditional sentence.

Conclusion

[16] Accordingly, I will suspend the passing of sentence and place the defendant on probation for 12 months. He is now relatively stable and both probation and Albion Neighbourhood Services can assist him in maintaining that stability.

Released: May 31, 2018

Signed: "Justice Blouin"