Court File and Parties
Ontario Court of Justice
Date: October 5, 2018
Court File No.: Central East Region: Oshawa Courthouse 18-25068
Between:
Her Majesty the Queen
— and —
Yoneko Waite
Before: Justice Peter C. West
Heard: September 21, 2018
Reasons Released: October 5, 2018
Counsel
Ms. K. Kennedy — counsel for the Crown
Mr. A. Bryant — counsel for the defendant, Yoneko Waite
Reasons for Judgment
WEST J.:
The Guilty Plea and Facts of the Offence
[1] On July 4, 2018, Ms. Waite pled guilty to assaulting a peace officer, P.C. Tudor, contrary to s. 270.01(1)(b).
[2] Ms. Waite had attended the Oshawa Courthouse to confront her partner over his seeing another woman. He had not returned home the previous evening and she knew he had a court appearance in the morning, so she attended Oshawa Courthouse to confront him. She was extremely intoxicated and angry. She began to cause a disturbance in the hall of the courthouse. P.C. Tudor attempted to get Ms. Waite to leave the courthouse voluntarily but she would not leave. She continued to cause a disturbance and P.C. Tudor attempted to take control of her. Ms. Waite would not leave and when P.C. Tudor attempted to take control of Ms. Waite to escort her from the building, she assaulted the officer, causing a scratch to the right side of the officer's face and the back of his neck. Ms. Waite then bit the officer on the inside of his left forearm, breaking the skin and causing the wound to bleed. This wound has left a permanent scar.
[3] Exhibit 1 is a series of photographs depicting the injuries to P.C. Tudor. Exhibit 2 is P.C. Tudor's Victim Impact Statement and a further, close-up photo is attached of the semi-circular scar left by the bite. Exhibit 3 is a Pre-sentence Report prepared after Ms. Waite entered her guilty plea. Ms. Waite has no memory of the incident involving P.C. Tudor or any of her actions and behaviour that occurred at the Oshawa Courthouse because of her level of intoxication. Exhibit 4 was a sentencing brief, containing a letter from Ms. Waite's A.A. Sponsor and her medical file from CAMH, prepared by Mr. Bryant.
Crown's Position and Defence Position
[4] The Crown's position was a custodial sentence of 6 months, to be followed by an 18 month probation order with terms. The Crown argues that the sentencing principles of deterrence and denunciation are paramount in this case given the offence was a violent assault on a police officer exercising his duty and a public display of violence in the courthouse.
[5] The Crown points to the significant impact of Ms. Waite's assault on P.C. Tudor and the emotional trauma caused because of the nature of the assault, a bite, where the officer's skin was broken and he had to wait several months before being cleared by the hospital respecting communicable diseases. The Crown argued only a custodial sentence in real jail could properly address deterrence and denunciation and a conditional sentence would not be in the public interest.
[6] The defence argued an intermittent sentence of 90 days or a conditional sentence could properly address the sentencing principles of deterrence and denunciation. Further, Ms. Waite at the time of the commission of the offence suffered from a serious alcohol addiction. Mr. Bryant submitted Ms. Waite since being arrested has taken important steps to overcome and control her alcohol addiction.
Background of the Offender
[7] Yoneko Waite was 31 years of age at the time of her arrest. Her only previous involvement with the police was in October 2015, when she received a conditional discharge for 12 months on a charge of mischief under. A pre-sentence report was prepared by Rudi Coccolo, a probation officer with Danforth Probation and Parole, dated September 18, 2018, marked as Exhibit 3.
[8] She is a single mother with a 14 year old son who is in Grade 9. She was born in Kingston, Jamaica and was raised by her mother and grandmother until age eight when she moved to Toronto to live with her father. While growing up in Jamaica she was molested from the age of five by other extended family members.
[9] She described her early upbringing in Canada with her father as being wonderful until her father remarried. She did not get along with her step-mother, who told lies about her. She lived at a group home for a period of time when the CAS became involved with her at age 13, as a result of her father verbally and physically abusing her. Her grandmother had moved to Canada when she was 10 and she lived with her for a period of time after leaving the group home. Her uncle confirmed Ms. Waite's father was verbally and physically abusive towards her.
[10] At age 17, Ms. Waite became pregnant, dropped out of high school and she currently lives with her 14 year old son. There was no information as to whether the biological father is currently involved in Ms. Waite and her son's lives. At the present time Ms. Waite is supporting herself and her son on social assistance and a child allowance.
[11] Ms. Waite started consuming alcohol at the age of 15. She described how she would binge drink when she was feeling depressed or experiencing other negative emotions. She had been binge drinking the night before and on the day of her arrest and as a result has no memory of the assault of P.C. Tudor. The arresting officer, D.C. Dennis, confirmed that Ms. Waite was "rather intoxicated" at the time of her arrest.
[12] The assessment at CAMH refers to Ms. Waite's issues with alcohol use disorder and cannabis use disorder. Ms. Waite advised the probation officer she quit using alcohol and cannabis in December 2017. Prior to quitting Ms. Waite advised she would use up to 10 marihuana joints a day. She has been prescribed Naltrexone, a medication used primarily to manage alcohol consumption. Her A.A. sponsor, Courtney Joseph, wrote a letter, dated July 3, 2018, which advised Ms. Waite obtained her six month sobriety coin. Ms. Waite advised she has remained alcohol and cannabis free from December 2017 to the present time.
[13] Ms. Waite's uncle described Ms. Waite as "kind and loving" and indicated she is a good mother to her son. He also advised he believed Ms. Waite had unresolved past trauma, which caused her to "lash out" and gravitate towards abusive relationships in her adult life. Ms. Waite conceded to the probation officer that most of her past relationships were with individuals who were involved with drugs and guns. She described how all of her past boyfriends had "put hands on her" and she had limited faith in people as a result of that and her past abuse.
[14] Ms. Waite has sought out and received some individual counselling and is on a wait-list with Elizabeth Fry for counselling. She is also taking medication for depression. The probation officer assessed her as a suitable candidate for community supervision.
Victim Impact Statement
[15] P.C. Tudor had worked as a Court Constable for the past two years in the Oshawa Courthouse and was responsible for the safety and security of those who work in the building and the members of the public who attend it. Prior to this period of time he worked for three years as an Acting Sergeant in charge of court security of the Oshawa Courthouse. He has been a Durham Regional Police officer for 18 years.
[16] It is important to note that P.C. Tudor has never injured any of the individuals he has previously dealt with at the courthouse and there has never been a single complaint regarding his use of force. On the day he dealt with Ms. Waite he believed he was involved in a routine interaction with an intoxicated woman. He attempted reasoning with her to leave the building because of her condition and although during the altercation after Ms. Waite had scratched his face and neck, he could have utilized a number of his other use of force techniques, such as pepper spray, baton or conducted energy weapon, he did not and continued to use simple hand restraint techniques. Unfortunately, this left him open to the assault ultimately perpetrated by Ms. Waite, when she bit him on his left arm and broke the skin.
[17] P.C. Tudor was required to attend the emergency for a tetanus shot and blood work. His left forearm, where he was bitten, was extremely painful, swollen and bruised. It was numb for several weeks after the incident.
[18] Ms. Waite initially did not cooperate with blood collection protocol to rule out the transmission of any diseases from her biting P.C. Tudor. This resulted in the officer having to attend for further blood testing and weeks of uncertainty and emotional stress. It was not until March 2018 that Ms. Waite complied with the Consent and Capacity Order and provided samples of her blood. This caused stress for P.C. Tudor and his family. His children, aged nine and five were upset by the bandages on his left forearm.
[19] There is no doubt this incident had a significant impact on P.C. Tudor and his wife and children, particularly when he was dealing with the uncertainty of whether or not he was facing a significant communicable disease from Ms. Waite's bite that broke his skin. He is also faced with a constant reminder of the incident by the scar he has on the inside of his left forearm.
[20] Nothing I do in terms of the sentence I impose for Ms. Waite's behaviour will in any way undo what was done to P.C. Tudor on October 26, 2017. That incident occurred and it cannot be undone. What I believe is significant in this case is the fact Ms. Waite pleaded guilty to the charge of assaulting a police officer causing bodily harm. It would appear from P.C. Tudor's VIS that he has moved on from this incident, confident in the knowledge that he conducted himself appropriately in exercising his responsibilities and obligations to the public. He can be proud of the manner in which he responded to Ms. Waite's behaviour and any other members of the public observing his response towards Ms. Waite would, in my view, have the same pride in the manner that he responded. It is my view the restraint he exercised in dealing with Ms. Waite was especially commendable.
[21] The wakeup call Ms. Waite experienced after her arrest and her realization she had caused serious injury to a police officer legally engaged in carrying out his responsibilities to ensure safety in the courthouse clearly led to her beginning to take concrete steps to overcome unresolved issues in her life and her addiction with alcohol and marihuana should, I hope, demonstrate to P.C. Tudor that something positive has come out of this unfortunate incident.
Mitigating and Aggravating Circumstances
[22] Ms. Waite entered a plea of guilty to the charge of assaulting a police officer causing bodily harm knowing the Crown would be requesting a six month jail sentence. Although Ms. Waite had no memory of the incident involving P.C. Tudor, she clearly accepted responsibility for her actions by entering her plea of guilty and did not dispute the conduct she engaged in. She expressed to me her remorse for the harm she caused to P.C. Tudor. She is entitled to mitigation for her guilty plea and her expression of remorse.
[23] Although Ms. Waite is not a first offender as she has a conditional discharge for a mischief under charge from 2015, she is relatively youthful and she has never been to jail previously, this will be a first jail sentence, whether served in the community or in a custodial facility.
[24] As a result of being arrested on this charge Ms. Waite sought out assistance for her unresolved and untreated sexual and physical abuse as a child, as well as recognizing this incident occurred as a result of her addiction to alcohol, which she told the probation officer was controlling her life. She has been abstinent for approximately ten months and has been faithfully attending Alcoholics Anonymous and has obtained a sponsor, who wrote a letter attesting to her sincerity in her motivation to remain sober. She was assessed at CAMH respecting her unresolved issues and she has also started counselling at a number of community agencies to find out what steps she needs to take to overcome the previous abuse in her life. It is my view the steps she has taken are important in ensuring she does not commit criminal offences in the future. These are also mitigating circumstances in determining a proportionate sentence for Ms. Waite.
[25] On the other hand, the assaultive behaviour she exhibited towards P.C. Tudor was quite aggravating. He has been involved in court security at the Oshawa Courthouse for five years. Although he would have been entitled to escalate the techniques he employed to remove Ms. Waite from the courthouse he maintained simple hand restraint techniques. The fact Ms. Waite, using her teeth, bit P.C. Tudor's arm and broke the skin was a serious aggravating circumstance having regard to the physical and emotional trauma, which resulted from such an assault.
[26] The permanent scar left by the bite and the emotional upset, stress and worry P.C. Tudor experienced awaiting the results of blood tests have had a significant impact on him and on his wife and young children. This has been statutorily recognized as an aggravating circumstance under s. 718.2(a)(iii.1) of the Criminal Code.
[27] Further, under s. 718.02 where the court imposes a sentence involving an offence under s. 270.01 where the assaultive behaviour is on a police officer, the court is directed to give primary consideration to the objectives of denunciation and deterrence.
Determining the Appropriate Sentence
[28] As a result of the Crown electing to proceed by summary conviction, if I determine a period of incarceration is appropriate, any sentence I impose will be below 18 months or less. Both counsel agreed a jail sentence was the appropriate sentence having regard to the need to address the sentencing principles of deterrence and denunciation. The Crown is seeking a six (6) month sentence and Mr. Bryant is seeking either an intermittent sentence (maximum is 90 days) or a conditional sentence of imprisonment. It is my view that a 90 day intermittent sentence will not appropriately address the principles of deterrence and denunciation and consequently, an intermittent sentence would not be a fit or proportionate sentence. I say this because although I am of the view six months is too long, it is my view a four month jail sentence is certainly within the appropriate range of sentence for the conduct engaged in by Ms. Waite.
[29] Ms. Kennedy conceded a conditional sentence is available having regard to the Crown's position on sentence but she argued it was not an appropriate or fit sentence in the circumstances of this case. She argued it would be contrary to the public interest to impose a conditional sentence. Consequently, I must consider the appropriateness of a conditional sentence pursuant to s. 742.1 of the Criminal Code.
[30] There are five prerequisites for the imposition of a conditional sentence:
The offender must be convicted of an offence that is not specifically excluded (e.g. sexual assault, when prosecuted by indictment).
The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.
The court must impose a sentence of imprisonment that is less than two years.
The safety of the community would not be endangered by the offender serving the sentence in the community.
The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
[31] 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 (6) month sentence and the safety of the community would not be endangered by Ms. Waite serving the sentence in the community. It is my view the safety of the community would not be endangered by permitting Ms. Waite to serve a custodial sentence in the community for the following reasons: Ms. Waite has only a conditional discharge for a mischief under on her record, she has never been sentenced to a custodial sentence and has not spent any time in pre-trial custody. She is relatively youthful and is currently 32 years of age. Ms. Waite has an addiction to alcohol but since her arrest she has attended CAMH to address her addiction to alcohol and her mental health issues and she has expressed her awareness of the correlation between her drinking and her engaging in assaultive behaviour. Ms. Waite has been on bail for almost a year and has not breached any of its terms, which supports Mr. Bryant's submission that she will comply with a conditional sentence order. Ms. Waite complied with all of the conditions of her conditional discharge probation and the PSR deemed her as a suitable candidate for future community supervision.
[32] In R. v. Proulx, 2000 SCC 5, 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.
[33] The purpose and principles of sentencing are set out in s. 718 to 718.2 of the Criminal Code. In order to determine whether a conditional sentence is consistent with the principles of sentencing I must examine what these sections set out. 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.
[34] 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." In R. v. Nasogaluak, 2010 SCC 6, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:
[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.
[35] As Rosenberg J.A. held in R. v. Priest, at para. 26:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.
[36] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances, which I have set out above. 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.
[37] Further, it is important to note that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), at paragraph 92:
Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.
[38] In R. v. Proulx, supra, at para. 22, the Supreme Court held a conditional sentence is a "punitive sanction capable of achieving the objectives of deterrence and denunciation." In para. 127, #8, the Court held:
A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.
[39] Initially the SCC held in Proulx that a conditional sentence was in principle, although not always in practice, available for all offences where the prerequisites were met as no specific offence or category of offence was presumptively excluded from the conditional sentence option: R. v. Proulx, supra, at paras. 79-81 (see also R. v. Jacko, 2010 ONCA 452, at para. 69). The current legislation sets out specific offences and categories of offences that are not eligible for the imposition of a conditional sentence. Where an assault bodily harm offence is proceeded by summary conviction by the Crown a conditional sentence under s. 742.1 is available. Therefore, a conditional sentence, depending on the severity of the conditions, may nonetheless be consistent with the fundamental purpose and principles of sentencing, even where deterrence and denunciation are the predominant sentencing principles (see Jacko, supra, at para 71).
[40] Lamer C.J., in Proulx, supra, at para. 100, explained that a conditional sentence can achieve both punitive and restorative sentencing objectives:
To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstance.
[41] The principle of restraint set out in s. 718.2(d) and (e) has taken on a new prominence as a result of the introduction of conditional sentences pursuant to s. 742.1. In R. v. Gladue, at para. 40, Cory J. said:
... The availability of a conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only when no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in s. 718.2(e) must be construed and applied in this light.
[42] Ms. Waite was charged with assaulting a peace officer and causing him bodily harm. The jurisprudence indicates a range of sentence for assault causing bodily harm ranging from conditional discharges to sentences in the upper reformatory, and in rare cases, low penitentiary sentences where the injuries are very serious and the Crown has proceeded by indictment. 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 accused, including the accused's background, mental health issues, addictions, or criminal record.
[43] As I indicated Ms. Waite has been on bail for the past 11 months and she has not breached any of the conditions of her release. Further, she has not been charged with any new charges since her arrest. In my view, this demonstrates and supports the fact she is very likely to comply with a court order, such as a conditional sentence.
[44] It is important to note that a conditional sentence can be of a longer duration than a jail sentence and impose restrictions for a longer period of time. In fact, in Proulx the Supreme Court indicated where a conditional sentence is consistent with the fundamental purpose and principles of sentencing and the more serious the offence and the greater the need for denunciation, "the longer and more onerous the conditional sentence should be" (at para. 106).
[45] It is significant in my view that Ms. Waite, on her own, sought out assistance for her unresolved mental health issues caused by her being sexually abused when she was a child and resided in Jamaica and later when she was verbally and physically abused by her father. Both of these childhood experiences led her to abuse alcohol and marihuana. She has recently been diagnosed at CAMH with Post Traumatic Stress Disorder (PTSD), Anxiety and Depression and has been prescribed medication, see Exhibit 4, Tab 2. She has also been attending Alcoholics Anonymous since her arrest and in July 2018, received her six month sobriety coin for remaining sober for six months. Her sponsor wrote a letter, dated July 3, 2018, which is part of Exhibit 4, Tab 1, where he indicated Ms. Waite is on a wait list for counselling with Elizabeth Fry but had commenced counselling with Family Services Toronto and Dr. Roz's Healing Place. She has not used marihuana or consumed alcohol since shortly after her arrest. These are significant and important steps taken by Ms. Waite, which greatly increase the likelihood of her not committing criminal offences in the future. In my view this bodes well for the future protection of the public. Further, right thinking and informed members of the public apprised of all the circumstances present in this case would not be offended by the imposition of a conditional sentence. I find a conditional sentence would not be contrary to the public interest given the totality of the circumstances of this case.
[46] I am of the view that on a careful balancing of all of the relevant factors, neither a community based conditional sentence with onerous conditions nor a custodial sentence as proposed by the Crown could be said to be an unfit sentence, although as I previously indicated, I am of the view a six month jail sentence would be too long given the totality of the circumstances in this case. In those circumstances, what tips the balance between the two alternatives is the important principle of restraint that underlies s. 742.1, (see R. v. Wismayer, at paragraphs 67-68 and R. v. Proulx, at para. 100) and the fact Ms. Waite has never been to jail and is a relatively youthful offender who only has a conditional discharge on her record. Further, it is my view the principles of general deterrence and denunciation can be properly addressed by a 6 month conditional sentence with restrictive conditions involving house arrest on the Electronic Supervision Program and community service. Finally, it is my view the principle of rehabilitation, protection of the public and reparations to the community together with the promotion of a sense of responsibility on Ms. Waite's part, can also be best addressed through a conditional sentence as opposed to a jail sentence, followed by a lengthy period of probation.
[47] A further circumstance, which supports the imposition of a conditional sentence as opposed to a jail sentence, is that Ms. Waite, a single mother, is the sole provider for her 14 year old son, who is in Grade 9. This circumstance strongly favours the imposition of a conditional sentence.
[48] Consequently, it is my view a conditional sentence in the circumstances of this case can and does meet all of the five prerequisites set out in s. 742.1 of the Criminal Code. I will discuss with counsel the restrictive conditions I anticipate imposing respecting this conditional sentence.
[49] The conditional sentence will be followed by two years of probation and I will discuss the conditions with counsel.
[50] Finally there will be two ancillary orders: first a weapons prohibition pursuant to s. 110 for three years and Ms. Waite will be required to provide a sample of her DNA pursuant to s. 487.04 as the offence she pleaded guilty to is a primary designated offence.
Released: October 5, 2018
Signed: Justice Peter C. West