Court File and Parties

Court File No.: Halton 1211.998.16 3548 00 Date: 2018-07-12 Ontario Court of Justice

Between: Her Majesty the Queen — and — Rachad Quintyne

Before: Justice P.T. O'Marra

Heard on: May 10, 2018

Reasons for Sentence released on: July 12, 2018

Counsel

For the Crown:

• John Dibski
• James Coppolino

For the Defendant:

• Harold Fink

Reasons for Sentence

Introduction

[1] On a night where the victim and his friends gathered to watch a Blue Jays baseball game at a Kelsey's restaurant in Georgetown, what unfortunately turned into a punitive and violent attack on the victim. The assault was precipitated by the victim's alcohol-fuelled, highly provocative and repugnant racial slurs uttered towards the accused.

[2] On March 21, 2018, the accused was found guilty after trial that on October 4, 2016, he committed assault causing bodily harm on the victim. On April 18, 2018, my reasons were released which set out the circumstances of the offence in detail.

[3] I heard sentencing submissions on May 10, 2018. This is a case where the court is required to carefully balance competing sentencing objectives. On one side of the 'scale' is the vulnerability of a victim who was intoxicated and outnumbered; the sentence that is to be imposed must address the principles of general deterrence and public denunciation. On the other side of the 'scale,' the accused is a young first-time offender, and any sentence that must be imposed must meet the objectives of the principle of his rehabilitation.

Circumstances Surrounding the Offence

[4] On October 4, 2016, the victim met his friends for drinks at the Kelsey's Restaurant and Bar in order to watch the Toronto Blue Jays game. During the evening, one of the victim's companions snap-chatted and texted her Black male friend, the accused. On this occasion, the accused was at his home in Mississauga.

[5] The victim and his friend, who were intoxicated, took the companion's iPhone and messaged, texted, and uttered to the accused several racial slurs, taunts and threats.

[6] The victim and his friend challenged the accused to a fight. Unwisely, the accused accepted the victim's offer, attended the Kelsey's and brought two other unknown Black males. One male possessed a baton.

[7] Initially perceived as a consensual fight, the altercation evolved quickly into a two-on-one vicious beating of the victim. Due to his intoxication and being outnumbered, the victim was easily overwhelmed by the accused and another male party and brought to the ground, whereby he was subjected to punches and kicks to his head and body.

[8] As a result of the attack, the victim suffered the following injuries: a fractured finger on his left hand, cracked ribs, a damaged cheek ligament, split plate in his skull, and a baseball-size contusion to his forehead. During the attack, the victim lost consciousness.

[9] No victim impact statement was provided.

Circumstances of the Offender

[10] At the time of the offence, the accused was 21 years old. Today, he is 22 years old and has no prior criminal record. According to the presentence report ("PSR"), he was born in Barbados. He immigrated to Canada in 1996 with his three siblings. Up until he was six years old, he was sponsored and raised by his grandmother. His mother came to Canada. The PSR confirmed that the accused grew up in a stable environment which was free of any sexual or emotional abuse. Alcohol and drugs have never been a part of his life. He has been raised by his mother and grandmother. His father remained in Barbados. His parents separated shortly after his birth. However, the accused has remained in contact with his father from a distance.

[11] Despite attending three different elementary schools and two different high schools, the accused achieved a high school education. In 2015, he attained his certificate in achievement in culinary arts at Humber College. After that, he worked for approximately a year before deciding to pursue an alternative career path and registered in a three-year gaming design programme at Humber College. Despite injuries that he has suffered in a car accident and regular attendances to physiotherapy, the accused continues to attend classes in this program. His tuition is covered through the Ontario Student Assistance Program (OSAP).

[12] Since he was sixteen years of age, the accused has worked on a part-time basis with his mother at a chocolate factory. In the past, he has worked in a hotel and in a variety of restaurants as a line cook. Currently, he is unable to work due to his injuries from the car accident in 2017.

[13] According to the accused's mother, her son is her right hand and is indispensable in driving and picking up her four-year-old daughter from his grandmother's home while she is at work. In addition, the accused has the power of attorney for her grandmother. The accused's mother testified at the sentencing hearing. She also wrote a letter on behalf of her son. She testified that if her son was sentenced to jail, it would be devastating to him and her family.

[14] The accused's grandmother reported in the PSR that her grandson is a "very nice boy who looks after me." She reported being in shock over the allegations "as this is totally out of character for him." His grandmother also wrote a letter of support.

[15] The accused's girlfriend prepared a letter dated November 28, 2017 on behalf of the accused. In her letter, she wrote that she and the accused were expecting a baby on or about January 26, 2018. Unfortunately, she lost the baby several months ago. In the PSR, she described the accused as "really down to earth, caring kind of a guy…since the day that I met him, he has always been focused on school."

[16] An e-mail was submitted to the court from one of his teachers from Humber College that confirmed that the accused is a student that is "eager to learn and looking to succeed."

[17] A reference letter from the General Manager of Browns Socialhouse, dated August 3, 2017, indicated that the accused, while employed as a line cook, was "an excellent addition to our team…very professional employee…always on time…willing to take on extra tasks or projects that are not in his everyday job description….strong work ethic."

[18] I convicted the accused following his trial in which he testified and he denied committing the offence. In his allocution to the court, he still maintained that had the victim not struck his friend, he would not have assaulted the victim. He further stated that he would not have continued the assault had he known the victim was unconscious on the ground. In convicting the accused, I rejected his explanations; however, his denial is not to be treated as an aggravating factor on sentence. The Crown, on the other hand, properly cites that an offender's attitude towards his or her crime and its consequences can be treated as an aggravating factor in fashioning an appropriate sentence. The offender's attitude can also be taken into consideration in reflecting on the "substantial likelihood of future dangerousness." (See R. v. Ellacott, 2017 ONCA 681, paras. 22-31). The Crown cited in the PSR an example of the accused's poor attitude towards his crime, its consequences and poor character. At page 7, the writer of the PSR stated the accused felt that:

"…he should not have been the only one charged. He believes that the victim in the matter also had fault in the offence because he began provoking him and using racial slurs toward his person even after the subject requested him to stop several times."

[19] The Crown argues that as a consequence of the accused's testimony, the charges against his co-accused (apparently charged separately) were withdrawn. And now that those charges have been withdrawn, the accused has suggested that he was treated unfairly and deserved that same parity as his co-accused.

[20] I say in passing that I am not entirely clear on the reasoning behind advising the court that as a result of the accused's testimony and his reluctance or refusal to identify his co-accused, their charges were withdrawn.

[21] I disagree that the only interpretation from the accused's comment was that he sought to know how he should have been treated. In fact, I believe that a common sense interpretation from the facts of the case supports the accused's assertion that the victim's and his friend's joint conduct that evening could have and should have attracted the criminal charge of uttering a threat to cause bodily harm or death. Furthermore, the accused was provoked by the racial slurs.

[22] In the PSR, the accused stated that he acknowledged that he made the "biggest mistake in his life" by attending Kelsey's that evening and that he should never have gone there. He also stated to the court that he felt bad that he caused the victim's injuries. In my view, the accused's attitude does not demonstrate a lack of remorse or insight into his crime or its consequences, nor does it completely undermine his previous good character.

The Legal Parameters

[23] The offence of assault causing bodily harm contrary to section 267(b) of the Criminal Code of Canada is a hybrid offence. The Crown elected to prosecute this case by summary conviction. The maximum penalty that can be imposed is eighteen months imprisonment.

Positions of the Parties

[24] The parties are far apart and disparate on what is the appropriate sentence in this case.

[25] On behalf of the Crown, counsel submits that a sentence of imprisonment for a period of twelve months is appropriate, followed by three years of probation. The Crown seeks the following corollary orders: a discretionary weapons prohibition order pursuant to section 110 of the Code for a period of ten years and a mandatory (super primary designated offence) DNA order pursuant to section 478.04(a) of the Code.

[26] On behalf of the accused, counsel seeks a suspended sentence, or in the alternative, if the court feels that custody is warranted, that I should impose a conditional jail sentence.

The Aggravating and Mitigating Factors

(i) Aggravating Factors

[27] The following are aggravating factors in this case:

(a) The accused planned to confront the victim and his friend with two other male parties. He did so not for a defensive purpose but in order to avenge remarks made by both men.

(b) The accused angrily left his home, he recruited other male parties and one armed himself with a baton.

(c) The accused and another male party quickly overpowered the victim with punches and forced him to the ground. This was a two-on-one fight.

(d) Once the victim was defenceless and laid prone on the ground, he was repeatedly kicked and punched in the head and body. This clearly indicated an intent to cause bodily harm.

(e) The victim was heavily intoxicated.

(f) The kicking and punching continued after the victim was momentarily unconscious.

(g) The serious injuries suffered include a fractured finger, cracked ribs, a fractured cheek ligament, split plates in his skull, black eyes and bruises. Although the victim did not provide a victim impact statement, he testified that he still suffers from some residual effects from the attack such as an occasional sharp pain in his rib cage and dark shadow under one of his eyes.

(ii) Mitigating Factors

[28] The most significant factor is that the accused is a youthful first offender. As I have previously noted, I believe that the accused has expressed some remorse for his actions in his allocution and in the PSR. It is clear that expressions of remorse made after trial are deserving of far less weight than remorse expressed through an early guilty plea. (See: R. v. Fernandez, [2018] O.J. No. 2213, para. 16.) Nevertheless, I accept that the accused feels bad about what has occurred.

[29] The accused has a positive PSR. He did have the benefit of a stable upbringing and supportive family unit where he was taught traditional family values. The accused should be given credit for what he has achieved in attaining higher education and consistent part-time employment. He continues to have a supportive family and girlfriend. According to the PSR, he spends his time with 'pro-social' friends.

[30] The accused's offence was committed in response to provocative and pernicious anti-Black racist slurs. I view the provocation as a significant factor of the several mitigating factors present. The victim's and his friend's comments were the most serious anti-Black racial slurs. They were objectionable and repugnant. The fact that it provoked a violent response is not acceptable as there were other reasonable options, but it is far from shocking.

The Relevant Principles of Sentencing and Analysis

[31] The guiding principles of sentencing are set out in sections 718, 718.1 and 718.2 of the 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, para. 3.)

[32] I agree with the Crown that the principles of general deterrence and public denunciation are particularly important in this case. The court must send a message that clearly denounces the accused's retributive conduct and deter him and like-minded individuals from engaging in similar unlawful conduct.

[33] The Crown has provided seven cases that support its position that incarceration is the appropriate sentence. Several of the cases were guilty pleas to the offence of aggravated assault. Many of these cases can be distinguished on their facts, including the seriousness of the injuries, circumstances of the case, the offender's background and antecedents. I do not intend to review the various decisions in any detail. They all stand for the proposition that incarceration is warranted in a largely "unprovoked" attack whereby a victim is attacked by multiple assailants and/or struck in the head area while on the ground. I agree that the victim's injuries were serious to the extent that may have constituted the offence of aggravated assault. However, I have found the accused guilty of assault causing bodily harm as he was charged. There is considerable variation in the range from an intermittent sentence at the bottom end of the range to three years in a federal penitentiary at the higher end. The case of R. v. Grewal, [2010] ABQB 346 was the single case that involved a provoked attack in which the nineteen-year-old accused was called a number of harsh racial and religious slurs by a considerably older victim after a soccer match. The accused was sentenced to twelve months incarceration after he was found guilty after trial of the offence of aggravated assault. The victim was chased down by the accused and other team members and attacked. The victim was the father of a player on an opposing team. The accused was a member of a group that were of East Indian descent. During a verbal altercation, the victim stated to the accused that he was going to pull his "fucking doo rag off his head and stuff it up his ass if he didn't shut up." The accused was a youthful first-time offender with a positive PSR. In my view, this case is distinguishable from the case at bar as the victim's injuries were more serious. The victim's injuries consisted of a broken nasal passage and five fractures on the right side of the face. He had plastic surgery. Metal plates were inserted. His mouth was wired shut for two months. He had a second surgery fourteen months after his initial surgery to remove the metal plates. He testified that he still endured numbness and swelling on the right side of his face. His victim impact statement reflected that he suffered serious emotional, psychological and economic consequences that were caused by the incident and the injuries.

[34] Not to in any way diminish the victim's injuries or his pain and suffering, but he did not require any surgical intervention and was released from the Georgetown hospital a few hours later. He testified that he fully recovered from his head injury and suffered no lasting effects. He missed a job opportunity due to his injuries, but he left Ontario shortly after the assault and secured full-time employment in B.C.

[35] The jail sentence sought by the Crown would undoubtedly meet the sentencing objectives of general deterrence and denunciation. However, it would also remove the accused from the supportive environment of his family and would prevent him from continuing his education and being a contributing member of society. It would impede rather than promote his rehabilitation. The defence seeks a suspended sentence, which would promote the accused's rehabilitation but, in my view, would fail to denounce his conduct and deter others. (See: Fernandez, para. 21). I do not believe that a suspended sentence would be a demonstrably fit and appropriate sentence in these circumstances and would fall well short in meeting the sentencing objectives set out in the Code. There are no special or extenuating circumstances that would justify such a sentence.

[36] I agree that a custodial disposition is warranted in these circumstances in order to address the sentencing objectives contained in the Code. However, the accused is a youthful first-time offender, which requires mandatory judicial restraint.

[37] In R. v. Stein, 15 C.C.C. (2d) 376 (Ont. C.A.) at page 377, Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence:

It is the view of the Court that the sentence imposed upon the appellant does reflect an error in principle. In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate. In our view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to be imposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence. [Emphasis in original]

[38] In R. v. Priest, 110 C.C.C. (3d) 289 (Ont. C.A.), Rosenberg, J.A. made the following comments concerning Stein (at paras. 18 and 19) as well as addressing the issues raised in sentencing a first offender:

As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now been codified in the recently proclaimed sections 718 and 718.2 of the Criminal Code. Section 718(c) instructs that separation of offenders from society is an appropriate objective of sentencing "where necessary". Section 718.2(d) directs that an offender should not be deprived of liberty "if less restrictive sanctions may be appropriate in the circumstances."

The principle embodied in now s. 718.2(e) was of particular significance in this case. It provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders."

[39] In R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34, the Ontario Court of Appeal reaffirmed the judgment in Priest and further held:

... the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest, 30 O.R. (3d) 538 (C.A.), at p. 545.

...the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas, 207 O.A.C. 226, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender. (See: R. v. Gibson, [2017] O.J. No. 6865, paras. 32-34).

[40] The central issue in this case is whether or not a conditional sentence is sufficient enough to denounce the accused's crime and deter others. This is a common dilemma for most sentencing judges: balancing the competing sentencing objectives. There is no correct method of achieving this balance. That is why courts are given a wide latitude in determining the appropriate balance in any given case. (See: R. v. Lacasse, [2015] SCC 64, para. 11 and Fernandez, para. 22).

[41] 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 Code.

[42] The facts of this case meet the first four pre-conditions. The Crown did not proceed by indictment, there is no minimum sentence applicable, and the Crown is seeking a twelve-month custodial sentence. The accused has no criminal record. He is a youthful offender and is living a pro-social lifestyle. He has a supportive family and has important familial responsibilities to his younger sister, his mother and grandmother. He has been on a form of release for approximately twenty-one months with no allegation of criminal behaviour or a breach of any term of his undertaking. I am satisfied that if I imposed such a sentence, the safety of the community would not be endangered. However, I must impose a sentence that takes into consideration the fundamental purposes and principles set out in sections 718 to 718.2 of the Code.

[43] In R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6, at para. 127, #7, the Supreme Court directed that where the first four pre-conditions of s. 742.1 are met, sentencing judges must give serious consideration to community-based sentences. The only pre-condition remaining therefore is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[44] Section 718.2 indicates that sentences should be increased or decreased based on the mitigating and the aggravating factors which I have already set out. Sentences should be imposed on similar offenders in similar circumstances and an offender should not be deprived of his liberty if less restrictive sanctions are appropriate and if all available sanctions, other than incarceration, that are reasonable in the circumstances and consistent with the harm done to the victim should be considered for "all offenders."

[45] In Proulx, the Supreme Court made it clear that a conditional sentence with such onerous conditions can achieve the principles of general deterrence and denunciation. However, the Court also emphasized that there may be circumstances that are so serious and aggravating that the only suitable way of addressing the objectives of deterrence and denunciation is to impose incarceration. (See Proulx, paras. 106-107.)

[46] In my view, this is not a case where the "punitive objectives such as denunciation and deterrence are particularly pressing…in which there are aggravating circumstances, incarceration will generally be the preferable sanction". (See: Proulx, para. 114 and see: R. v. Champion, [2016] O.J. No. 1257, para. 52). There are aggravating features to this case, including the kicks to a vulnerable part of the body and the resulting injuries; however, this was a provoked attack due to the racist slurs and threats that were directed to the accused by the victim and his self-admitted racist friend. It was a premeditated attack in the sense that the accused recruited 'muscle' and drove from Mississauga to Georgetown; however, the assault was not carried out without warning to the victim. The evidence at trial disclosed that the victim invited or called out the accused to fight. Initially, the victim was a willing and enthusiastic participant. He exited the bar with the knowledge that the accused was outside. As the victim exited the bar, he prepared himself for a confrontation as he removed his sweater and jewelry. This was a senseless act of violence and should not be condoned, but in my view, the imposition of a conditional sentence would not be disproportionate to the gravity of the crime and the accused's level of blameworthiness in its commission rather than the imposition of a jail sentence.

Conclusion

[47] I believe that restraint is applicable to "all offenders," including the accused. The accused arrived in this country at a very young age with no paternal support, but was taught strong core family values by his mother and grandmother. He has continued his education in the face of physical adversity. He is a contributing member of society.

[48] I adopt Justice West's comments in Gibson, at para. 53, when he stated:

I am of the view that on a careful balancing of all of the relevant factors, neither a community-based jail sentence with onerous conditions nor a custodial sentence as proposed by the Crown can be said to be unfit. In those circumstances, what tips the balance between the two alternatives is the important principle of restraint that underlies s. 742.1 and 718.2(d) and (e), (see R. v. Wismayer, [1997] O.J. No. 1380 (C.A.), at paragraphs 67-68 and R. v. Proulx, at para. 100).

[49] In my view, a conditional sentence for a period of six months with onerous conditions, including house arrest and community service, can meet the fundamental purpose and principles of sentencing, including meeting the goals of general deterrence and public denunciation.

[50] Stand up. For the foregoing reasons, you are sentenced to a term of imprisonment for a period of six months to be served in the community pursuant to section 742.1 of the Code. You are subject to five compulsory conditions set out in section 742.3(1). As well, you are to abide by the following additional conditions:

(1) For the first four months of the sentence, you are to remain in your place of residence at all times, subject to the following exceptions:

• While at or travelling to your pre-arranged medical, including physiotherapy, and dental appointments.
• While at or travelling to your scheduled classes at Humber College.
• While at or travelling to your place of employment.
• While travelling to drop off or pick up your younger sister at your grandmother's residence.
• While at or travelling to your placement for community service.
• Each Sunday from 1:00 p.m. to 3:00 p.m. to obtain the necessities of life.
• For any medical emergency involving you or your immediate family, including your grandmother.

(2) For the remaining two months of the conditional sentence, you are to observe a curfew between 9:00 p.m. and 6:00 a.m., subject to exceptions of education, employment and medical emergencies.

(3) Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means with the victim and his friend.

(4) Complete thirty hours of community service.

[51] I decline to exercise my discretion pursuant to section 110 of the Code and impose a weapons prohibition order in this case. Although a weapon may have been present, I did not make a finding of fact that the victim was struck by a weapon. However, the accused is required to provide a sample of his DNA for inclusion in the national database.

[52] There will also be a victim fine surcharge in the amount of $100.00. The accused will be given two years to pay that fine.

Released: July 12, 2018

Justice P.T. O'Marra