R. v. Borsi

Ontario Court of Justice

Date: June 19, 2019

Court Information

Between:

Her Majesty the Queen

— AND —

Ennio Borsi

Before: Justice K. Caldwell

Reasons for Judgment released on: June 19, 2019

Counsel:

• Ms. Louise Collins, counsel for the Crown
• Ms. Keely Duncan, counsel for the accused Mr. Ennio Borsi

Judgment

Introduction

[1] Mr. Borsi has pled guilty to numerous domestic charges. The plea was entered after the victim testified via CCTV over a couple of days. The victim suffers from multiple sclerosis and the impact of her illness is obvious. Her symptoms also are exacerbated by stress.

[2] Mr. Borsi pled guilty to six offences spanning a two-year period. They began with 2016 assault causing bodily harm and fail to comply with probation offences. Those were followed by four offences in 2017 and 2018: failing to comply with a recognizance, threatening bodily harm, criminal harassment and obstruction of justice.

The Facts

[3] Mr. Borsi has an extensive history of domestic violence convictions. In 2015 and 2016 he was found guilty of domestic offences relating to his prior partner. As part of both sentences, he was placed on probation.

[4] Mr. Borsi began dating Ms. Downing in the fall of 2016. One evening they went to the Waverly Hotel. Once there he saw messages to another man on her phone and he became furious. He put a needle in her arm, telling her it contained fentanyl. He then grabbed her by the neck, threw her against a wall, and choked her. Shortly after, they left the hotel room and she managed to escape. She had extensive bruising to various parts of her body. The commission of the assault bodily harm offence also constituted a breach of the keep the peace condition in his two probation orders.

[5] Mr. Borsi was arrested one month later, towards the end of December, 2016. He was initially released on a recognizance with a non-contact term. Throughout 2017 until his re-arrest in September, 2017, he communicated hundreds of times with Ms. Downing via text, phone and in person. Many of those texts were entered in evidence. He also threatened her, and on one occasion stated that he was coming over to murder her. This contact constitutes the fail to comply with a recognizance, threatening and criminal harassment charges.

[6] Mr. Borsi remained in custody after the September 2017 arrest. He continued to call her from the jail and on a number of occasions left voicemails instructing her how to act and what to say when she testified at his upcoming trial. For example, he stated, "in order for me to be found not guilty, you're going to have to be an airhead. Say 'I'm not sure if it happened like this, or it happened like that' and then your stories won't make sense and then I'll be found not guilty…if you act ditzy, then I will get off…". He told her to say that she stuck the fentanyl needle in her own arm, and that he tripped rather than stating that he deliberately attacked her.

[7] These voicemails constitute the obstruction of justice charge.

Position of the Parties

[8] The Crown is seeking a global four to five-year sentence minus the time Mr. Borsi already has served. As of today's date, the parties agree that Mr. Borsi has served 538 real days.[1]

[9] Mr. Borsi is asking for a suspended sentence, in light of time served, with three years of probation.

Mr. Borsi's Circumstances

[10] Mr. Borsi is 43 years old and has over 40 prior convictions. At least seventeen of these are domestic related on partners other than Ms. Downing. Two led to a five-year concurrent sentence.

[11] I ordered a Form 6 Mental Health Act assessment to assist me with the sentencing though I did not find the report particularly helpful as it did not provide much information beyond that known to me already. It noted that Mr. Borsi's record reflects "significant anger and aggression" and that Mr. Borsi's criminal history raises "concerns" about an anti-social personality disorder though the report did not move beyond mere speculation. It did quote Mr. Borsi, "I don't get angry, except when guys talk to my girl…I feel like I have to pee around my girl and mark them".

[12] Mr. Borsi has a close relationship with his mother. She and his new and current girlfriend have appeared in the court throughout these proceedings. Sadly, his father passed away when he was nine and he lost his brother last year.

[13] He faces medical challenges, particularly Type I diabetes requiring insulin, and diabetic neuropathy. He walks with a cane given a car accident five years ago.

[14] He graduated with a directorial diploma from the Toronto Film School but has struggled to get work given his criminal antecedents.

Aggravating and Mitigating Factors

[15] Mr. Borsi's criminal record is aggravating, particularly his significant record for serious domestic violence offences. Further, the domestic nature of these offences is aggravating, a principle codified by statute in section 718.2 of the Criminal Code.

[16] The extremely vulnerable nature of the victim is also aggravating, and the significant impact these offences have had on her. This impact is discussed by her in her victim impact statement.

[17] Further, it is aggravating that these offences were committed a mere five months after being sentenced for similar domestic offences involving a different woman.

[18] In mitigation, Mr. Borsi deserves credit for the remorse expressed through his guilty plea and in his oral comments to the Court. That remorse is somewhat tempered by the fact that the plea was entered after the victim testified; however, Mr. Borsi still deserves credit.

[19] It is mitigating that Mr. Borsi completed 15 hours of counselling sessions by taking fifteen different one-hour programs during his time in pre-trial custody.

Sentencing Principles

[20] The basic sentencing principles are contained in section 718. Denunciation, general deterrence and specific deterrence are of primary importance given the domestic nature of the offences. Rehabilitation must be factored in as well.

[21] R. v. Bates, handed down twenty years ago by the Ontario Court of Appeal, emphasized the need for denunciation and "heavy" sentences in these types of cases. The Court highlighted the extreme vulnerability of victims in domestic violence situations:

30 The courts have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society. Crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.

31 In his very comprehensive article on the history of stalking and the criminal law, Bruce MacFarlane vividly describes the profile of a stalker at p. 43:

Many stalkers are not violent but all are unpredictable. The irrational mania that drives them to pursue their victims is beyond comprehension within the normal framework of social behaviour. It is this unpredictability that generates the most fear, coupled with the knowledge that, in some cases, the stalker's behaviour may, without warning or apparent reason, rapidly turn violent. Escalation of the level of threat forms one of the most common features of stalking.

The Sentence

[22] Upon considering the relevant sentencing principles, the mitigating and aggravating factors, the specific facts, Mr. Borsi's circumstances including the specifics of his criminal record, and his remorse, I find that a four-year total sentence is appropriate prior to an application of credit for pre-trial custody:

• Eighteen months for the assault bodily harm charge (count #9);
• Six months concurrent for the fail to comply probation charge – keep the peace and be of good behaviour (count #7);
• Eighteen months consecutive to count #9 for the criminal harassment charge (count #5);
• Six months concurrent for the threatening charge (count #3);
• Nine months concurrent for the fail to comply recognizance charge – contact with Ms. Julie Downing (count #1);
• One year consecutive for the obstruction of justice charge.

[23] I find, then, that the appropriate sentence totals four years.

Enhanced Credit

[24] The "usual" credit for pre-trial custody is determined at a ratio of 1.5 days credit per 1 day in pre-trial custody. One basis for the enhanced credit is that pre-trial custody does not carry with it the possibility of early release that can occur when serving post-sentence custody in either the federal or the provincial institutions. The Crown argues that Mr. Borsi should not receive this benefit as he would not be released early given that the obstruct justice offence occurred while in custody and therefore would be viewed as institutional misconduct that would preclude early release.

[25] No evidence, however, was presented that would substantiate this conclusion. Frankly, I am unclear as to how either the federal or the provincial authorities would view this event and whether it would factor into any release decisions. As a result, I am not prepared to deprive Mr. Borsi of the 1:1.5 credit on this basis.

[26] The bigger question, in my view, is how to view the nature of Mr. Borsi's pre-trial detention and whether he should be granted any so-called "Duncan credit". This is a credit beyond the usual 1:1.5 ratio and flows from particularly harsh circumstances of pre-trial detention. The Ontario Court of Appeal in R. v. Duncan held that such harsh circumstances combined with impact upon the offender could lead to such credit.

[27] Security Manager Travis Williamson testified about Mr. Borsi's lockdown records. The records cover December 1, 2017 through to May 12, 2019, 528 days. Mr. Borsi moved through three different units during that time.

[28] It can be inferred from the records that he spent approximately eight months in the medical unit, a period of two to six weeks in a special handling unit, and the remaining time, nineteen months, in A4A which is a "regular" unit in A Tower. Given the limits of the records subpoena, he did not know the reasons behind Mr. Borsi's time in the special handling unit. As a rule, individuals are in that unit due to behavioural issues or for their own protection.

[29] He spent no time in a segregation unit.

[30] The special handling unit is classified as an "indirect unit" and A4A is a "direct unit". Direct units are far less restrictive than indirect units. In direct units, there are two TVs, soft seating, and the inmates eat in the common area. They are out of their cells from 8 am until 9 pm. There is a similar schedule in the medical units. Those units are focussed on treatment.

[31] In indirect units, there is no soft seating, one TV, and inmates eat while locked in their cells. They are out of their cells four hours per day for showers, yard time, and to allow access to phones.

[32] The "yards" are concrete block areas with fresh air coming in from the ceiling area. In Unit A, there is a basketball net. There is a gym programme though I do not know if Mr. Borsi asked or was allowed to participate in that.

[33] The lockdown records reveal the following:

• That Mr. Borsi was in full or partial lockdown for 89 of the 528 days covered by the institutional records;
• That Mr. Borsi was in lockdown for the full day[4] on 53 occasions;
• That Mr. Borsi was in lockdown for four hours or less on 28 occasions;
• That Mr. Borsi was in lockdown for 4 ½ to 8 hours on 8 occasions.

[34] Various cases were provided to me outlining how particular fact situations have been dealt with by the courts.

[35] In the original case, R. v. Duncan, the appellant had received a sentence equivalent to 5½ years for aggravated assault. The trial judge had held that Mr. Duncan could not receive a sentence beyond the 1:1.5 ratio but, as noted above, the Court of Appeal held that in "appropriate circumstances, particularly harsh presentence incarceration" can lead to a sentence beyond the 1.5 credit. Conditions of pre-sentence custody and the impact on the accused should be considered. A "considerable part" of Mr. Duncan's incarceration was in lockdown – 192 lockdowns with 169 lasting less than 6 hours.[6] The Court found the lockdowns "worrisome" but said that it couldn't find he suffered from "particularly harsh treatment" given no further evidence about the impact.

[36] In R. v. Chan, a 19-year-old freshman with no criminal history stabbed his father to death and seriously injured his father's partner while he was suffering from psychotic delusions from drug-induced psychosis. The sentencing judgment very compassionately acknowledged the tragic and horrific impact the events had on everyone involved, including Mr. Chan, described by the trial judge as "a good person who committed atrocious acts of violence while in a substance-induced psychosis of his own making". The facts in Chan were unbelievably tragic even when assessed in the context of the tragedies seen, sadly, every day in the criminal courts.

[37] Mr. Chan was kept in solitary confinement, for reasons unknown to the trial judge, for all but one week of his 122 days of pre-trial custody. The trial judge noted that he was under "significant mental stress" during that time. The trial judge accepted that such "intense and prolonged isolation" warranted a six-month reduction in sentence.

[38] In R. v. Roberts, the accused spent 426 days in segregation out of 728 days of pre-trial custody. He submitted affidavit evidence of the extreme anxiety and other negative effects that he suffered as a result. The sentencing judge gave Mr. Roberts 14 months credit for the time in segregation.

[39] In R. v. Jama, Mr. Jama, 21 years old, was in full or partial lockdown for 175 of his 511 pre-trial custody days. 95 of those days were spent in full lockdown. Mr. Jama testified regarding the circumstances of the lockdowns. He was given four months of enhanced credit as a result.

[40] Finally, Justice Forestell credited Mr. Inniss[10] with an extra year given the 319 lockdown days he experienced during his three years of pre-trial custody. The majority of the lockdowns were full (214 days). Further, Her Honour took into consideration that he received fresh air on only 59 of his 218 eligible days at the Toronto East Detention Centre.

[41] I am not granting Mr. Borsi enhanced Duncan credit in this case. In reaching this conclusion, I am not condoning the lockdowns Mr. Borsi experienced at the TSDC. There is no question that the TSDC faces challenges, many outlined by the jurists in the cases cited above. Virtually all of the lockdowns Mr. Borsi experienced were due to staffing shortages – that fact alone speaks volumes. No inmate should have to undergo a lockdown, full or partial, because of staffing challenges faced by the correctional authorities. Having said that, condemnation or negative sanctioning of the actions of the authorities is not the focus of the Duncan credit analysis. The question is whether Mr. Borsi suffered "particularly harsh" treatment, with the analysis focusing upon the particular conditions and the specific impact upon him.

[42] I note that many though not all of the cases granting such credit involve youthful offenders or segregation. Further, an assessment of the treatment must be assessed in light of the entire context of the case – i.e., Mr. Chan's 4 months in solitary for unknown reasons following strikingly tragic circumstances. Mr. Borsi is a 43-year-old serial offender with over 40 prior convictions. He provided no evidence regarding the specific impact the lockdowns had upon him. He experienced 89 lockdowns compared to the 192 experienced by Mr. Duncan, an individual who was also denied such enhanced credit by the Court of Appeal. I cannot find, on the basis of the evidence before me, that Mr. Borsi experienced "particularly harsh treatment" and thus I am not granting Mr. Borsi enhanced credit beyond the 1:1.5 ratio.

Pre-trial Custody

[43] Mr. Borsi had served 538 days as of today's date (see paragraph 8 and footnote #1 above). I have denied the enhanced credit but am crediting Mr. Borsi on the usual 1:1.5 ratio, which brings his pre-trial credit to 807 days or, roughly, 27 months.

[44] A four-year sentence is the equivalent of 48 months. Mr. Borsi has 21 months left to serve after the deduction of his pre-trial custody credit.

[45] As Mr. Borsi will be serving the remaining sentence within the reformatory system, probation can be imposed. I find that a three-year probation order is appropriate given the need to protect Ms. Downing from contact, and for rehabilitative reasons. I will discuss the precise terms, and the ancillary orders, with counsel in court.

[46] I understand, as well, that the Ontario Correctional Institute ("OCI") has programs for serial domestic offenders. I recommend Mr. Borsi for OCI if his admission is deemed suitable by the correctional authorities.

Released: June 19, 2019

Signed: Justice K. Caldwell

Footnotes

[1] On May 1st, Ms. Duncan stated that the time served was 488 days. This was the time remaining after a deduction of a period that was attributable to another sentence Mr. Borsi was serving. The 538 day calculation was reached by me upon adding the 50 days that have passed since May 1st.

[2], [2000] O.J. No. 2558

[3] 2016 ONCA 754

[4] I counted as an all-day lockdown all lockdowns that exceeded 8 hours

[5] Supra, at footnote 2.

[6] The length of the lockdowns is found in R. v. Inniss, 2017 ONSC 2779, [2017] O.J. No. 2420 at paragraph 35 in Justice Forestell's recitation of the Duncan facts.

[7] 2019 ONSC 1400

[8] 2018 ONSC 4566

[9] 2018 ONSC 152

[10] R. v. Inniss, 2017 ONSC 2779, [2017] O.J. 2420