ONTARIO COURT OF JUSTICE

CITATION: R. v. Silvera, 2019 ONCJ 27

DATE: January 18, 2019

Scarborough - Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

GARTH SILVERA

For the Crown: K. Pitt

For the Defendant: R. Handlarski

Heard: December 7, 2018

REASONS for SENTENCE

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] On December 7, 2018 Mr. Silvera pleaded guilty to a single count of possession of a knife for a purpose dangerous to the public peace arising out of an incident that occurred at Pauline’s Roti on December 16, 2017.

[2] Mr. Pitt, for the Crown argues that Mr. Silvera should be convicted of the offence and that the passing of sentence be suspended and a term of probation imposed.

[3] Mr. Handlarski, for Mr. Silvera, argues that the circumstances of the offence and the circumstances of Mr. Silvera support the imposition of a conditional discharge.

B. THE CIRCUMSTANCES OF THE OFFENCE

[4] On December 16, 2017 Mr. Silvera was at a bar in Scarborough. He was extremely drunk. Shortly after 10 pm Mr. Silvera can be seen on the silent CCTV of the scene, fervently kissing one of the female patrons. A man comes over and seems to say something to Mr. Silvera which upsets him, causing a mild physical confrontation that is broken up by other patrons. Mr. Silvera soon approaches the first man he had words with and seems to be trying to mollify him, although that man seems uninterested in his gestures. Although it has no sound, the video strongly suggests that Mr. Silvera’s behaviour after this confrontation is at times belligerent and generally annoying towards this man and many of the other customers and staff. Finally, at around 10:06 pm the first man again faces off against Mr. Silvera and others soon join the melee, all of them against Mr. Silvera. One of the men tries to restore order. When it is apparent that things have turned against him Mr. Silvera removes a knife from his pocket, opens it and holds it at the ready. When others see the knife many go after Mr. Silvera while others back off. Mr. Silvera takes a large step toward one of the men while holding the knife at around shoulder level. He does not, as far as I can tell, attempt to cut anyone with the knife. Soon, all the other patrons are seen attacking Mr. Silvera, throwing furniture at him. He retreats.

C. THE CIRCUMSTANCES OF THE OFFENDER

[5] Mr. Handlarski filed a brief that sets out Mr. Silvera’s personal circumstances and contains three letters of reference and proof of community service. When given the opportunity to address the Court, Mr. Silvera’s wife, Michille Morrison, read aloud a letter from him. Mr. Pitt does not challenge this material.

[6] Mr. Silvera is 44 years old. He is a first offender. He came to Canada from Jamaica in 2016. He is a permanent resident and lives with his wife and stepson. He hopes to become a Canadian citizen. He is fully employed as a forklift operator. He has recently suffered the death of his father and a close friend in circumstances that had a significant impact on his mental health.

[7] Mr. Silvera is described as a loving and supportive husband and stepfather. He is committed to his community.

[8] On the evening in question Mr. Silvera had been binge drinking. Binge drinking had become somewhat of a problem for him and he believes that this was as a result of the emotional trauma he had recently experienced. According to him and his wife, he now consumes no more than two alcoholic beverages at social occasions.

[9] He has been on bail for over a year and has completed 20 hours of community service and has participated in counselling with Pastor Shelton Beneby.

D. THE POSITIONS OF THE PARTIES

[10] Mr. Handlarski urges me to impose a conditional discharge. He submits that notwithstanding the violence associated with this offence, his client’s particular circumstances cry out for such a disposition. He further submits that specific deterrence has already been achieved and that the need for general deterrence can be met with an appropriate probation order.

[11] Mr. Pitt, for the Crown, seeks a suspended sentence and probation. In his view, in light of the use of a weapon, this offence is too serious to merit a conditional discharge. The need for denunciation and general deterrence would not be satisfied by such a disposition.

E. THE PRINCIPLES OF SENTENCING

[12] The principles of sentencing are set out in Part XXIII of the Criminal Code.

[13] According to 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 "just sanctions" that have one or more of the following objectives, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others 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 the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[14] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[15] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,

• 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.

[16] A conditional discharge is a legally available sentence in this case. The test to be satisfied is whether a discharge is in Mr. Silvera’s best interest and is not contrary to the public interest. The Crown concedes the first aspect of this test is met. In relation to the second part of the test, the accused does not have to satisfy the Court that the discharge is in the public interest, but rather, only that it is not contrary to the public interest. R. v. Bothman, [1983] O.J. 70 (Ont. C.A.). The standard of not being contrary to the public interest is far lower than being in the public interest. Gilles Renaud, Sentencing in Ontario (Landon Legal Library Press, 2012) vol. 1 at 91.

F. THE AGGRAVATING AND MITIGATING CIRCUMSTANCES

(a) Aggravating Factors

[17] There is one particularly aggravating circumstance in this case. The accused resorted to the use of a knife in circumstances that created a risk of serious injury.

(b) Mitigating Factors

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

[19] Most important among these is the fact that this offence is so markedly out of character. Mr. Silvera has an enviable history of charitable conduct and peaceable disposition. Mr. Silvera is industrious and goal-oriented.

[20] I am also impressed by the degree of remorse expressed by Mr. Silvera as demonstrated by his guilty plea and the things he has said to me and others.

[21] The offence was not premeditated. Mr. Silvera routinely carried a knife in his pocket for work purposes.

[22] His intoxication is mitigating to a degree. His failure to address his binge drinking detracts from that mitigation, and I will further address Mr. Silvera’s relationship with alcohol below.

G. THE CASELAW

[23] As set out earlier, it is a well settled principle of criminal law that like offenders who commit similar offences should receive similar punishment.

[24] Counsel have provided the following cases for my consideration: R. v. Sweeney, [2001] O.J. No. 1899 (O.C.J.); R. v. De Sousa, 1992 80 (SCC), [1992] S.C.J. No. 77; R. v. Huezo-Contreras, [2018] O.J. No. 531 (O.C.J.); R. v. Poryadin, [2016] A.J. No. 588; R. v. Mansour, [2013] O.J. No. 1077 (O.C.J.); R. v. Hayes, [1999] O.J. No. 938 (Gen. Div.); R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252(C.A.); R. v. Jackson, 2018 ONSC 2527, [2018] O.J. No. 2136 (Sup. C.J.); R. v. Pham, [20013] 1 S.C.R. 739 and R. v. Mohammed, [2001] O.J. No. 5759 (O.C.J.).

[25] One can observe from the cases that conditional discharges for offences of violence, even where injuries have been caused by the accused, are not unprecedented. On the other hand, as in R. v. Mohammed, supra, the use of a knife causing injury, has been generally seen as disqualifying.

H. DISCUSSION

[26] The principles emerging from the case law that govern the imposition of a conditional discharge are well summarized by Hill J. in R. v. Hayes, supra at para. 32.

Discharges are not restricted to trivial matters: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.). Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: Regina v. Taylor (1975), 1975 1447 (ON CA), 24 C.C.C. (2d) 551 (Ont. C.A.) at 552 per Arnup J.A. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 1977 1959 (ON CA), 37 C.C.C. (2d) 182 (Ont. C.A.) at 184-5 per Martin J.A.; Regina v. Culley (1977), 1977 1965 (ON CA), 36 C.C.C. (2d) 433 (Ont. C.A.) at 435 per Martin J.A. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.). While a discharge is only rarely appropriate in offences involving violence causing injuries, such a sentence is not universally unavailable in such circumstances: Regina v. Wood (1975), 1975 1410 (ON CA), 24 C.C.C. (2d) 79 (Ont. C.A.) at 80 per Jessup J.A.

Although Hayes is almost 20 years old, I have seen nothing to suggest that these principles are no longer applicable.

[27] As concerns specific deterrence, a criminal conviction is not necessary to achieve this end. I am convinced that Mr. Silvera has learned his lesson from the tribulations associated with having been charged and found guilty.

[28] As concerns Mr. Silvera’s prospects for rehabilitation, I find that a criminal conviction will hamper his rehabilitation, in so far as a conviction will make it more difficult for him to contribute to society in a meaningful way and may have an impact on his path to Canadian citizenship.

[29] A conditional discharge is certainly in the best interest of Mr. Silvera given his career objectives.

[30] As concerns the public interest, the use of a knife by Mr. Silvera weighs against a conditional discharge, in that offences of this nature require denunciation and general deterrence that are best achieved through a more serious consequence to Mr. Silvera. But I must balance this against the fact that the public interest also includes the extent to which Mr. Silvera’s future as a contributing member of our society may be jeopardized by the imposition of a criminal conviction. In my view, on balance, it is indeed in the public interest that a conditional discharge be imposed. I note again that no one was injured as a result of Mr. Silvera’s use of the knife.

[31] The need for rehabilitation, denunciation and general deterrence can be addressed through appropriate probation conditions.

[32] As far as Mr. Silvera’s use of alcohol is concerned, while I appreciate that he has taken his own steps towards controlling his drinking, the circumstances of the offence strongly suggest that he has a tendency to drink to excess, and that when he does so he can become belligerent and show poor judgment. I thus intend to impose a condition of probation that addresses this problem.

I. CONCLUSION

[33] In the result, I sentence Mr. Silvera to a conditional discharge with probation for 24 months, on the following terms:

1. Report once and thereafter as required.

2. Take alcohol counselling as ordered by the probation officer and sign all releases necessary for the probation officer to monitor your progress.

3. Perform 200 hours of community service over the course of the 24 month probation term.

[34] I shall hear further submission from counsel regarding further terms of probation or other ancillary orders.

Released on January 18, 2019

Justice Russell Silverstein