Court File and Parties

Location: St. Catharines

Date: 2019-10-10

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jordan Chimenti

Before: Justice Fergus O'Donnell

Reasons for ruling on a s. 11(b) argument, for judgment on the merits and for sentence released on 10 October, 2019

Counsel:

• Mr. R. Monette — for the Crown, on the "aggravated assault police" prosecution
• Mr. K. Kim — for the Crown, on the "drug rip-off" prosecution
• Mr. A. Burton — for Jordan Chimenti, on the "aggravated assault police" prosecution
• Mr. S. Buchanan — for Jordan Chimenti, on the "drug rip-off" prosecution

Fergus O'Donnell J.

Overview

[1] In the wee hours of the morning on 22 July, 2017 there was a brouhaha on Clifton Hill in Niagara Falls. The police investigated Jordan Chimenti in connection with it. Mr. Chimenti was in the company of Katelynn-Ann Roach that morning, in defiance of s. 145 of the Criminal Code since Mr. Chimenti was bound by a bail order that required him to stay at least one hundred metres away from her. Mr. Chimenti resisted the efforts of the arresting officer, in defiance of s. 129 of the Criminal Code. Constable Hwan Kim fell and suffered a fracture of his distal fibula during the struggle to arrest Mr. Chimenti. As a result of that, Mr. Chimenti faces a charge of aggravated assault of a police officer, engaging s. 270.02 of the Criminal Code.

[2] These are my reasons for (a) dismissing Mr. Chimenti's application to have his Clifton Hill charges stayed for delay; (b) for finding him guilty on the charge of aggravated assault of a police officer, the only charge he disputed; and (c) sentence on these charges and on an unrelated set of charges to which Mr. Chimenti pleaded guilty.

The Section 11(b) Application

[3] Mr. Chimenti's trial was preceded by an application to have the charges stayed for an alleged breach of his right to a trial within a reasonable time as guaranteed by s. 11(b) of the Charter of Rights and Freedoms. I dismissed that application, with reasons to follow.

[4] The determination of that application is governed by the Supreme Court's surprising and controversial decision in R. v. Jordan, 2016 SCC 27, which converted the antecedent s. 11(b) framework of analysis into a limitation period model, whereby trials such as this one in the Ontario Court of Justice will be stayed for delay unless they are heard within eighteen months, subject to a series of possible exceptions. Alas, the simplicity of approach, change of culture and halcyon outcomes presaged by the majority of the Supreme Court appear to have gone missing in action. The s. 11(b) application in this case is an example of the undoubtedly well-intentioned but equally naive and unrealized optimism of Jordan; it is an application that ought never to have been brought. I dare say that it never would have been brought if not for Jordan. The court time that was used on the s. 11(b) application is lost forever. Ironically, the trial itself was just over a morning in length.

[5] The chronology of this case is as follows: Mr. Chimenti was arrested on 22 July, 2017. By the Jordan majority standard, his trial should have taken place on or before 22 January, 2019 (or perhaps on or before 21 January, 2019, depending on how persnickety one is in counting dates, but the reality of Jordan is that any single day could be the difference between a charge being stayed or not stayed for delay). As it turned out, three or four days after the presumptive limitation period for Mr. Chimenti's trial, we spent time arguing his s. 11(b) application. His trial was at that time scheduled for 21 March, 2019, which was 607 days from his arrest. That was actually Mr. Chimenti's second trial date, the trial having been adjourned from the first trial date because Constable Kim was ill. Eighteen months is 547.5 days (subject to things like leap years and to the unresolved issue of whether judicial arithmetic, from which Jordan was going to liberate us, matches mathematicians' arithmetic and calls for rounding up or instead rounds down). Accordingly, by Jordan standards the trial was presumptively 59.5 days late. The judgment on the merits was 39 days later.

The Missing Transcripts

[6] There is a number of discrete reasons why I dismissed the s. 11(b) application. I shall try to be economical in my treatment of them.

[7] The defence did not file transcripts of all of the court appearances leading up to Mr. Chimenti's trial dates. In fact, by my quick count, of forty-five appearances (other than the s. 11(b) hearing date and the second trial date), transcripts of only nine were provided to the court. Indeed, there are no transcripts for the first thirty-two appearances; the transcripts provided start only on the thirty-third appearance, i.e. 26 October, 2017, the day on which Mr. Chimenti was released on bail, some ninety-six days after his arrest.

[8] I appreciate that ordering transcripts can be expensive and that defendants are often of limited means, a point raised on the application. However, it must be kept in mind that a stay of proceedings is an extreme remedy. It is the equivalent of capital punishment in relation to a complainant's right to have his or her case determined on its merits. It denies a complainant and society an opportunity to hold a defendant to account for his or her alleged offences, including offences such as the present one which was objectively serious and which seriously injured a police officer in the lawful execution of his duty to maintain order. In any area other than s. 11(b) the jurisprudence is clear that a stay can be had only in the clearest of cases. For reasons that are either unclear or unconvincing an exception to that established standard has been carved out for s. 11(b) cases, allowing the termination of proceedings without a trial on the merits on a lesser standard. That glaring discrepancy, however, did not merit the Supreme Court's attention in Jordan.

[9] Rule 2.1(3) of the Criminal Rules of the Ontario Court of Justice provides: "If determination of the application is likely to require a transcript, the applicant shall serve and file it with the application in Form 1." Eighty percent of the transcripts covering thirty-two appearances were not provided in this case. The "Commentary" to Rule 2.1(3) makes specific reference to the importance of transcripts in s. 11(b) applications. Rule 5.3 allows the court to excuse compliance with any rule. However, while the applicant's Form 1 did specify that the factual basis for the application included, "transcripts of all proceedings from November 26, 2017 to the date on which the March 22, 2018 trial date was set", the Form 1 did not ask for relief under Rule 5.3. Indeed, the defendant's intended reliance on incomplete transcripts would only have become known to the Crown on 2 January, 2019, the day the Form 1 was served on the Crown and to the court when it was filed twenty days later, or three days before the s. 11(b) hearing.

[10] The obligation to provide transcripts clearly lies on the moving party, Mr. Chimenti. The Rules allow for no other interpretation. There was no application to waive compliance, at least no application at a time before the s. 11(b) hearing itself, when the court's decision could possibly have had any meaning. In the absence of agreement between the parties, what happened and what was said in those dozens of appearances for which no transcripts were provided matters. It could be central to the s. 11(b) inquiry. The onus is clearly on the applicant either to file all of the transcripts, to come to an agreed statement of facts with the Crown about what did or did not happen during those appearances, or to persuade the court that the absence of the transcripts could not possibly affect the outcome. None of those things has been done here. The absence of the thirty-two transcripts justifies dismissing the s. 11(b) application summarily. This conclusion is consistent with the decisions of Akhtar J in the Superior Court of Justice in R. v. Codina, 2010 ONSC 4105 and R. v. Codina, 2017 ONSC 4886, with the only distinction being that Akhtar J. was dealing with a Superior Court of Justice practice direction whereas this case is governed by the Ontario Court of Justice Rules. That, of course, is a distinction without a difference.

[11] Despite this fundamental non-compliance, I gave Mr. Chimenti the benefit of the doubt and proceeded to hear the argument advanced on his behalf on the s. 11(b) application.

The Period up to the Granting of Bail

[12] The applicant said in submissions that he wanted the Crown to concede that all of the first three months were defence requests for the purpose of securing bail. The Crown did not accede to that request unless the applicant was conceding that those ninety-six days were defence waiver. There was no such concession.

[13] When considering the time periods for which there are no transcripts, I cannot assume facts in favour of the defence. The period for which transcripts are missing up until bail was granted amount to ninety-six days. Even if that time was taken to obtain bail, that does not mean that nothing else could be done in that time. The expectation is that disclosure will be provided by the police within thirty-five days of arrest or less. In a rather simple case such as this, where the defendant is in custody and release on bail is apparently not on the horizon, it would be reasonable to expect that defence counsel could have asked for expedited disclosure. There is no evidence any of this was done; indeed there is no evidence at all of when disclosure was provided.

[14] The most generous assumption that could be made in relation to the first ninety-six days on the record provided by the applicant is that thirty-five days were taken to obtain disclosure and that perhaps another ten days should be allowed to review that disclosure and to determine what path the defendant wished to pursue.

[15] I also note that on the very limited record we have, the defence showed a remarkable amount of lassitude. On the day that Mr. Chimenti got bail, 26 October, 2017, Mr. Burton suggested returning on 10 November. When the court suggested 29 November, Mr. Burton's response was that he was "not married to the tenth, so." That does not reflect a defendant eager to have his day in court. It does not reflect the fictional defendant in Justice Moldaver's reasons in Jordan who will supposedly do his bit to eradicate the "culture of complacency" and expedite the hearing of his trial. More of the same follows, by the end of which the fictional eager defendant of Jordan appears more gossamer than real.

[16] For example, the case also went over from time to time for the purpose of resolution. Thus, on 20 December, 2017 it was put over to 12 January, 2018 for that purpose, with the court, at the conclusion of the judicial pre-trial stating, "we'll get it all wrapped up then, we expect." On 12 January, three weeks later, the defence sought a further adjournment, "just so we can clarify whether or not it's going to resolve in the manner that was discussed." The case was put over to 25 January, another two weeks. On 25 January, 2018 the defence sought another adjournment, this time on the basis that it now appeared to the defence that the plea should be to a drastically lesser offence than the one contemplated. In setting a new date, Mr. Burton observed, "it's not that old". "Not that old" was a case that had by then been in the set-date phase for just over half a year. A further judicial pre-trial was set for a month thence, 27 February, 2018. The pre-trial on 27 January resulted in a trial time estimate of two days and the matter went over to 28 February to set the actual first trial date, which was for 24 and 25 September, 2018.

The First Trial Date

[17] On the first trial date, 24 September, 2018, the Crown advised the court that Constable Kim had had a, "health scare that I'd consider quite serious," and was not expected to be available that day or the day following. Although the presiding judge specifically suggested starting the matter with other witnesses, the Crown said that would not be appropriate and defence counsel said nothing in response. It is inescapable from the trial set-date sheets that a judge was available to start the trial without Constable Kim on 24 September, 2018. I have heard from neither Crown nor defence, and can independently conceive of, no valid reason for not starting the trial on 24 September, 2018 and returning for the evidence of Constable Kim on a later date, a date that could have been set in fairly short order since it would involve the evidence of one witness (which amounted in my trial notes to only one-and-a-half single-spaced pages, with no cross-examination).

[18] On 24 September, 2018 the new trial dates (21 and 22 March, 2019) and the 11 January, 2019 date for the s. 11(b) application were chosen.

[19] As I have said above, the time to trial was 607 days and eighteen months from arrest would be 547.5 days, which I take to be 548. In argument, Mr. Burton conceded that the time from 26 July to 20 August, 2018 and from 6-18 September, 2018 is defence delay, a time period he characterized as "about a month". In more precise terms, that is thirty-seven days, thus bringing the Jordan gap down to twenty-two days.

Is There Any Valid Reason to Treat Constable Kim's Absence Other than as a "Discrete Event"?

[20] That brings us to the issue of Constable Kim's illness on the first trial dates. Mr. Burton argued that Constable Kim's illness would "normally" constitute a discrete event, thus triggering an exception to the presumptive ceiling of eighteen months. Mr. Burton then went on, however, to note that Constable Kim's evidence would at most amount to twenty or twenty-five percent of the total evidence and that the trial could have proceeded on other evidence and caught up with Constable Kim later.

[21] As should be obvious from a few paragraphs ago, that strikes me as an incredibly wise suggestion. Indeed, it is clear from the trial coordinator's scheduling form that a trial judge was in fact available for both September dates. What makes the submission shocking, however, is that the presiding judge on 24 September, 2018 explicitly suggested exactly that course of action. The Crown rejected that idea.

[22] In response to which Mr. Burton remained silent.

[23] I repeat, Mr. Burton remained silent.

[24] I do not propose to take us back to the time of the Tudors, when Henry VIII and Sir Thomas More grappled with the thorny issue of whether or not a person's silence gave consent (an issue of particular importance to Sir Thomas as the risk of Sir Thomas being beheaded lay in the balance). It is clear, however, that consent can be explicit or implicit, so long as it is clear. Mr. Burton's silence in the face of Justice Watson's suggestion to start the trial without Constable Kim and then get to his evidence later must in these circumstances be taken as consent to adjourning the trial. It would be unconscionable to treat it otherwise. Further, to treat Constable Kim's absence on 24 September, 2018 as anything other than a discrete event and thereby to grant Mr. Chimenti a stay of proceedings would be scandalous.

[25] I also note that the time estimate for the trial was two days. In truth, the actual trial measured in just a hair over half a day. How the parties conceived this very straightforward trial as requiring anywhere close to two days of trial escapes me. Anyone with passing familiarity with trial scheduling knows that a half day trial can be scheduled much sooner than a two-day trial. The responsibility for this delay-creating substantial error does not fall solely at the feet of the defence, but neither can the defence absolve itself of any responsibility for that error and the ensuing delay. In my experience as a trial judge and as local administrative judge in this region, a one-day trial would typically be heard at least two months sooner than a two-day trial and it would not be unheard of for a half-day trial to be heard substantially sooner than a one-day trial.

[26] The judicial pre-trial forms were not put in evidence before me. Therefore, I do not know if that estimate was agreed upon by the Crown and defence or if one party thought it was longer than necessary. I cannot speculate on that in the absence of evidence. However, each of the parties would know that a longer time-estimate almost always results in a longer time to trial. If one of the parties disputed the estimate, it was incumbent on that party to raise the matter on the record in court or live with the consequence of a trial date further out than what might have been had the estimate actually been anywhere close to reality.

[27] It should be noted that the bloated trial time estimate undoubtedly resulted in later trial dates for both occasions when the matter was set down for trial, namely, the trial dates in September, 2018 and in March, 2019. Also, for the first trial, late July dates were available to the court, Crown and witnesses, but not to the defence, a difference of almost exactly two months.

[28] I have spoken earlier of the notional defendant recounted in Jordan, who under the new model will be theoretically motivated to expedite the pace of his trial, and of the apparent absence of that notional defendant from the reality of the present case. The notional, motivated defendant of Jordan also manifested his diaphanous nature in other ways. For example, it was known as of 24 September, 2018 that there would be a s. 11(b) application in this case, but the defendant certainly did not lace up his Jordans to advance that application in any way. For example, the transcript of one of the few appearances that we do have, shows that it was not ordered until 11 December, 2018, about two-and-a-half months after the date was set for the s. 11(b) application and only six weeks before the s. 11(b) hearing date. There was no delay on the part of the transcriptionist: the transcript was completed within four days. The notice of application was not served on the Crown's office until 2 January, 2019, and the defence application record was not served on the Crown until 10 January, 2019, ironically three days after the Crown served Mr. Chimenti's counsel with their factum and authorities and a day after the Crown filed its materials with the court. The defence application record was not filed with the court until 22 January, 2019, twelve days after it was served on the Crown's office and only three days before the hearing. Ironically, in this chronology the court had the Crown's responding materials a day before it received the applicant's materials, which is not how I read the Criminal Rules of the Ontario Court of Justice.

[29] There are, accordingly, at least three discrete reasons for dismissing Mr. Chimenti's s. 11(b) application, any one of them sufficient, even without either of the other two:

(a) The defence's failure to file an appropriate record of all of the transcripts, in the absence of agreement on that point with the Crown and the consent of the court, is fatal to the application.

(b) Constable Kim's unavailability due to medical reasons constituted a "discrete event" and the defence acquiesced in the Crown's improvident suggestion to set an entirely new trial date rather than using the original trial dates for other officers and hearing Constable Kim's evidence at a later date, despite the presiding judge's suggestion that the case proceed in that manner.

(c) The substantial over-estimate of the time required for trial, on two occasions, in and of itself, pushed the case beyond the Jordan timelines.

[30] In reaching those conclusions I note that the time taken to get Mr. Chimenti's case to trial, even if one ignores Constable Kim's intervening illness, was very close to the Jordan limitation period. The following realities are inescapable:

(a) Had the time estimate been remotely accurate, each of the trial dates would have been substantially earlier, probably by at least two months on each occasion.

(b) Had the parties agreed with the first trial judge's suggestion to start the trial and come back for Constable Kim's evidence and submissions, the trial would almost certainly have been over well before Christmas, 2018.

The Charge of Aggravated Assault on a Police Officer

[31] The evidence at trial consisted of the evidence of three police officers, namely Constables Hwan Kim and Frank Elia of the Niagara Regional Police Service and Constable Drew Harrison of the Niagara Parks Police. I had no reservations about the evidence of any of the officers, finding it to be considered and balanced throughout, manifesting no agenda, malice or exaggeration despite the serious nature and prolonged consequences of Constable Kim's injury. I did note that Constable Elia relied rather more on his notes than some officers, although I cannot be blind to the fact that he came to court and testified around mid-day after completing an overnight shift.

[32] The evidence establishes that Constables Kim and London (who did not testify as he was on a course) were on foot, having just completed a paid-duty assignment near Clifton Hill in Niagara Falls, and were about to head back to the police station to clock off-duty when they were notified by Clifton Hill security of a confrontation between two groups of people. Constables Kim and London assisted the security officers in dealing with the two crowds, the members of which were yelling and swearing at each other over some issue that Constable Kim could not discern. Clifton Hill security told Constable Kim that a man in a camouflage outfit was the apparent source of the problem. Constable Harrison then happened by in his Niagara Parks Police cruiser and learned of Mr. Chimenti's alleged role from Constable London, as well as Mr. Chimenti's description and direction of travel.

[33] Having a cruiser at his disposal, in contrast to Constables Kim and London, Constable Harrison headed off in search of the man in the camouflage shirt. About one-hundred-and-fifty metres away Constable Harrison came upon Mr. Chimenti who matched the description and was in the company of a dark-haired woman. He described Mr. Chimenti as sweating profusely and very fidgety. He obtained Mr. Chimenti's identification and a query on the police database showed that Mr. Chimenti was on bail with a condition to have no contact or to be within one hundred metres of Katelynn Roach. Constable Harrison then asked Mr. Chimenti who his companion was, to which Mr. Chimenti replied truthfully that it was his ex-girlfriend, Katelynn. When Harrison told Mr. Chimenti that he was breaching, Mr. Chimenti said "yeah" in an apologetic way. Constable Harrison passed on this information to Constable London, who was just arriving, as it was Constable London's case, not Constable Harrison's.

[34] Constable Harrison stood by as Constable London dealt with Mr. Chimenti, noting that he was fidgety and looked as if he was about to bolt. Constable Harrison saw Constable London grab Mr. Chimenti and tell him he was under arrest, but Mr. Chimenti immediately pulled away and began to run, in response to which Constable London pulled Mr. Chimenti in towards him by the wrist. As Mr. Chimenti continued to resist, Constables Kim and Harrison yelled at Mr. Chimenti to stop resisting; civilian bystanders were yelling, "Jordan, stop, just stop." As Constable London kept a bare grip on Mr. Chimenti, Mr. Chimenti fled around Cst. Hamilton's cruiser in the direction of Constable Kim, who had been holding back the crowd as Constable London dealt with Mr. Chimenti. Constable Kim grabbed Mr. Chimenti by the waist, telling him he had to comply. Constable Kim described Mr. Chimenti as flailing his arms and pushing away in all directions. Constable Kim then tried to take Mr. Chimenti to ground, but during the struggle he lost balance:

"I lost balance along with a push and Mr. Chimenti's weight and along with other people involved I could not regain my footing, fell down. As I was falling I heard a loud crack and that was my right ankle and directly after the fall I got stepped on the inside of my right ankle and I tried to get up but my right leg wasn't really working for me to get up. At that point I made a decision to quickly disengage because, if anything, I'd be a hazard to myself and the rest of the crew still dealing with Mr. Chimenti who was resisting at the time."

[35] After Constable Kim withdrew from the fray, Constable London let go of Mr. Chimenti, but Constable Harrison managed to grab him and took him to ground, although even then he had difficulty getting Mr. Chimenti to surrender his hands; it took a knee strike to Mr. Chimenti before Constable Harrison could get Mr. Chimenti's arm out. It took almost all of Constable Harrison's body weight to get Mr. Chimenti into the cruiser.

[36] Constable Kim's injury was a "distal fibula" break. He had surgery that day involving a full incision to the right ankle and the placement of a plate and six screws to hold the bone in place. His recovery was long, including about three months before he could even begin physiotherapy. He had to regain strength before he was fit for regular duties and worked modified duties for several months. Eighteen months after the event, Constable Kim still had the plate and screws in place; he was due to return to the doctor to see about having the screws removed because it hurts if anything comes into contact with the screws.

[37] Constable Elia testified that he was not interacting with Mr. Chimenti when Constable Kim was injured. While the chronology of his notes suggests that he did get involved before the injury, I accept as genuine, persuasive and logically coherent his testimony that he did not actually get hands-on until after Constable Kim was injured. Nothing hinges on whether or not Constable Elia was part of the fray immediately before or immediately after Constable Kim got hurt.

[38] Constable Elia described Mr. Chimenti as "struggling" or "wrestling" rather than "fighting".

[39] Certain things are not in issue in Mr. Chimenti's trial. For example, Mr. Chimenti's guilt of the breach of recognizance charge and the resist police charge are not in issue since Mr. Chimenti pleaded guilty to both of those charges at the start of the trial. On the sole remaining charge, the aggravated assault of a police officer, there was no dispute about the police having grounds to engage Mr. Chimenti or about Constable Kim's status as a police officer. There was no issue that the offence of assault causing bodily harm is an included offence in the charge of aggravated assault, although in light of my conclusions with respect to the meaning of the word "maim" that agreement is neither here nor there.

[40] I also take it as agreed between the parties that we do not know definitively what was the immediate mechanism of Constable Kim's ankle injury, although I agree with Mr. Monette that since Constable Kim heard the crack in the course of falling, the fact that someone thereafter stepped on his ankle would at best be a speculative explanation for his injury.

[41] One of the key elements that comprise the offence of aggravated assault of a police officer is that Mr. Chimenti "assaulted" Constable Kim. The meaning of assault was considered by Rosenberg J.A. for the Court of Appeal for Ontario in R. v. Palombi, 2007 ONCA 486, as follows (paragraph 28):

any intentional application of force – even relatively minor force – without the consent of the victim, is an assault unless some defence applies." (emphasis added).

There is no dispute on this issue in the present case as the defence concedes that there was an "illegal application of force" by Mr. Chimenti.

[42] A second element of the offence of aggravated assault is that the assault wounded, maimed or disfigured Constable Kim or endangered his life. I do not propose to engage in any prolonged assessment of the meaning of each of those branches of the legal standard, each of which has developed a particular meaning over time. That is because the Court of Appeal for Ontario in R. v. McPhee, 2018 ONCA 1016, very recently dealt with the legal character of the word "maim" in the twenty-first century, including enlightening historical insights into the relevance of maiming to a person's eligibility to engage in trial by ordeal in the Middle Ages and the abolition of that mode of trial by the First Lateran Council in the thirteenth century. Applying the McPhee test for maiming, there can be no doubt that the injury to Constable Kim in this case satisfies the definition.

[43] The next requirement of the offence of aggravated assault is that the maiming, wounding, disfigurement or endangerment of life was reasonably foreseeable. In addressing this as the next issue, I bypass any possibility that Mr. Chimenti intentionally inflicted injury on Constable Kim. There is simply no evidence at all to suggest that Mr. Chimenti intentionally inflicted injury. The Crown makes no suggestion that he did. The Crown simply says that the consequence, e.g. wounding, maiming, disfigurement, etc., does not have to be an intended consequence once it has been proved that the assaultive behaviour was intentional. In this case we have an admission by Mr. Chimenti that he intentionally assaulted Constable Kim, albeit no admission that he was the person who either caused the cracking sound from Constable Kim's ankle or the person who stepped on Constable Kim's ankle thereafter.

[44] It is not a requirement of a charge of assault that the actual injury be intended. Picking up at paragraph 36 of the Palombi decision, Justice Rosenberg wrote:

It is no defence to a charge of assault that the intentional application of force caused more harm than was intended, or put another way, that the harm was caused accidentally … The offence is complete upon the non-consensual intentional application of force...

[45] The perennial definition of the mens rea or "guilty mind" or "intention" element required for aggravated assault in Canada is the decision of the Supreme Court in R. v. Godin, [1994] 2 S.C.R. 484, in which Cory J stated:

"The mens rea required...is objective foresight of bodily harm. It is not necessary that there be an intent to wound or maim or disfigure. The section pertains to an assault that has the consequences of wounding, maiming or disfiguring." (emphasis added).

[46] I underlined above the portion of the Supreme Court's decision in Godin referring to the offence of aggravated assault being distinguished on the basis of consequences rather than on the basis of a different intent on the offender's part. This is not a unique offence in our criminal law in that respect. As the Supreme Court noted in R. v. Williams, 2003 SCC 41:

44 Section 268(1) is only one of a number of Criminal Code provisions that "call for a more serious charge if certain consequences follow": R. v. DeSousa, [1992] 2 S.C.R. 944, at p. 966. These include criminal negligence causing bodily harm (s. 221), criminal negligence causing death (s. 220), dangerous operation causing bodily harm (s. 249(3)), dangerous operation causing death (s. 249(4)), impaired driving causing bodily harm (s. 255(2)), impaired driving causing death (s. 255(3)), assault causing bodily harm (s. 267(b)), aggravated assault (s. 268), sexual assault causing bodily harm (s. 272(1)(c)), aggravated sexual assault (s. 273(1)), mischief causing danger to life (s. 430(2)) and arson causing bodily harm (s. 433(b)).

45 The "aggravation" in aggravated assault thus comes from the consequences. In DeSousa itself, the Court held, at pp. 966-67, per Sopinka J.:

No principle of fundamental justice prevents Parliament from treating crimes with certain consequences as more serious than crimes which lack those consequences.

The same act of assault may injure one person but not another. The implicit rationale of the law in this area is that it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused. . . . [Emphasis added.]

[47] It bears noting that what must be objectively foreseeable is only "bodily harm", not wounding, maiming, disfigurement or endangerment of life. "Bodily harm" is a relatively low standard, defined in s. 2 of the Criminal Code as, "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature."

[48] Does the Crown have to prove that a particular form or type or manifestation of bodily harm was reasonably foreseeable in order to obtain a conviction? The answer to that is "no". This issue was considered by the Court of Appeal for Alberta in R. v. Dewey, 1999 ABCA 5:

[10] ....Objective foreseeability is objective foreseeability of the risk of bodily harm in general, not of a specific type of harm. .....

[13] Applying all of this to this appeal, the appellant Mr. Dewey, while arguing for the imposition of a requirement of objective foreseeability, seems to be supporting a requirement that the specific form of harm be objectively foreseeable. His counsel has acknowledged that it is his position that the relevant question to be asked is whether it was reasonably foreseeable that the complainant would fall and strike his head on the jukebox. This is not the appropriate question in light of the authorities Creighton and Godin. The appropriate question is whether it is objectively foreseeable that forcefully shoving someone in a bar would create a risk of bodily harm which is neither trivial or transitory.

[49] The central question in this trial is, when Mr. Chimenti was subjected to a lawful arrest and responded by engaging in persistent resistant behaviour and attempted flight, including what is admittedly at least some assaultive behaviour against the police, whether or not it was objectively foreseeable that Mr. Chimenti's unlawful use of force in resisting that arrest would create a risk of, "hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature."

[50] The answer to that question strikes me as inescapable. It would be patently obvious to any rational actor that resistance to a lawful arrest will result in the use of some degree of force by the arresting officers, likely by more than one officer if there is more than one officer around; an offender and the public can reasonably expect, indeed hope, that officers will rely on their strength of numbers to effect as speedy an arrest as possible, thereby reducing the risk to the public, the arrestee and the officers in the shortest possible time. The importance of police officers doing so increases as the degree of resistance increases. While Mr. Chimenti was not being wantonly assaultive in his resistance to arrest (e.g. there is no evidence of him punching or kicking), the persistence of his resistance is clear on the evidence, including the comments from the crowd for him to stop resisting. In this "melee", to use the word aptly selected by Mr. Burton, it is glaringly obvious that people could trip or fall or step on one another or that one or more limbs might bend in a manner other than that intended by nature.

[51] Mr. Burton relies on the decision of the Supreme Court of Canada in R. v. Maybin, 2012 SCC 24 to argue that, since we do not know precisely how Constable Kim's ankle fracture came about, therefore I should have a reasonable doubt about whether or not Mr. Chimenti's "resistance of arrest" (which I take to include his admission of assaultive behaviour), "was a significant contributing cause to the injury." Mr. Burton urges me not to read that standard as including a one- or two-percent contributing cause but to look at the issue with a focus on the risk of punishing the morally innocent.

[52] In Maybin, supra, the Supreme Court defines "significant contributing cause" outside the de minimis range as the proper test for legal causation (in that case, legal causation of death) and notes that when determining whether or not an intervening act by some other person broke the chain of causation (there of death, here of the injury to Constable Kim), various other inquiries may be helpful in determining legal causation but do not supplant the "significant contributing cause" test. The two tests used by the judges in the British Columbia Court of Appeal in Maybin, were (a) whether the intervening act was reasonably foreseeable; and, (b) whether the intervening event "is an independent factor that severs the impact of the accused's actions, making the intervening act, in law the sole cause of the victim's death"(at paragraph 27).

[53] On the facts before me, there is no doubt that Mr. Chimenti's assaultive resistance to arrest was a significant contributing cause of Constable Kim's injury, outside the de minimis range. In using the two interpretative aids considered by the Supreme Court in Maybin, supra, I note that the possibility of Constable Kim's ankle being fractured either by being stepped on after he heard the cracking sound or by some other officer twisting or pushing or otherwise causing Constable Kim to fall was entirely foreseeable, for the same reasons I recite above. As for the second interpretative aid, it would be entirely artificial to break the melee initiated by Mr. Chimenti into nano-second segments, thereby to treat this twist, that turn or that shove as breaking the chain of causation. That sort of analysis would hardly conform to the second interpretative aid set out by the British Columbia Court of Appeal in Maybin. Indeed, to find a severance in causation on these facts would do violence to the words of that second test.

[54] I note also that the risk of "punishing a moral innocent" arising out of this analysis is nil.

[55] Accordingly, I was satisfied beyond a reasonable doubt that the Crown had proved Mr. Chimenti guilty of the aggravated assault of Constable Kim and found him guilty of that charge in addition to the two charges he had pleaded guilty to.

Sentencing

[56] As Mr. Chimenti's sentencing date on these matters approached, he had another trial scheduled. He ended up pleading guilty to three additional charges, namely an entirely unrelated robbery, mischief and failure to comply with a recognizance. Those offences occurred on 2 May, 2018. Mr. Chimenti was with two other people; his co-accused had arranged to buy drugs, but their shared common plan was to steal the drugs. Mr. Chimenti assaulted the victim, believing she owed him money from a previous transaction. He threw her into a chair and broke her glasses and television. At the time, he was not living at the address he was required to live at under his bail terms. As part of his plea it was also admitted that about ten months after being released on a "house arrest" bail on the new charges, Mr. Chimenti was seen outside his residence in circumstances that did not conform to any of the exceptions to his house-arrest.

[57] The Crown seeks a sentence of eight months' imprisonment (less credit for pre-sentence custody) on the Clifton Hill offences plus probation and eight to ten months' imprisonment consecutive on what I shall call the drug rip-off offences. Mr. Chimenti says that as a first offender the appropriate sentence for the Clifton Hill offences would be either a suspended sentence or the attribution of some portion of his pre-sentence custody and an intermittent sentence on the drug rip-off offences.

[58] Mr. Chimenti has spent ninety-seven real days in custody on the Clifton Hill charges, the equivalent of about one-hundred and forty-six days with enhanced credit. He has twelve real days of pre-sentence custody, the equivalent of eighteen days, on the drug rip-off. The total of one-hundred-and-sixty-four enhanced days is the equivalent of five-and-a-half months.

[59] Mr. Chimenti was also on a house arrest bail for about fifteen months after the robbery. I asked Crown and defence counsel their views on credit pursuant to R. v. Downes in light of the fact that Mr. Chimenti had been caught breaching the house arrest condition and they agreed that the breach should result in a diminished credit under R. v. Downes. In total, Mr. Chimenti was on bail for about twenty-three months with varying restrictions on his liberty. I address this issue in more detail later in these reasons.

[60] Mr. Chimenti is now twenty-one years old. He is a first offender. He was nineteen at the time of the Clifton Hill offences and was twenty years old at the time of the drug rip-off.

[61] I have a pre-sentence report in relation to Mr. Chimenti. It shows that Mr. Chimenti struggled with his parents' break-up when he was twelve years old and later started experimenting with drugs. His father confirmed that a drop in family income as a result of illness and job loss caused him to move to a less advantageous neighbourhood, after which Mr. Chimenti's behaviour and associations degraded from what had hitherto been a positive childhood. He appears to have a positive relationship with his parents. He now lives with his brother, who is his surety, but was living, "a transient lifestyle residing with friends over the past two years." (Pre-sentence report, p. 5). The pre-sentence report reflects previous police involvement with Mr. Chimenti having to be removed from a domestic partner's home after refusing to leave voluntarily at her request and with anger on Mr. Chimenti's part in response to the police attendances. In the pre-sentence report, Mr. Chimenti agreed that he has anger issues and said he has enrolled in a boxing programme to help manage it.

[62] Mr. Chimenti said that he began drinking at the age of nineteen but felt that it was not a negative factor in his life. Drugs, however, had played a greater role, although Mr. Chimenti professes to have been drug free for more than a year. Both of his parents said he appears to have no current drug or alcohol issues. Starting at the age of seventeen, though, Mr. Chimenti said he began using marijuana, MDMA and cocaine and there was a period of about six months when he was addicted to cocaine. It was suggested that he was an addict at the time of the robbery, the objective of which was to steal prescription drugs. The physical description of Mr. Chimenti and his behaviour on the night of the Clifton Hill offences are also consistent with controlled substances playing a role that night.

[63] In terms of employment, Mr. Chimenti's early pattern was a series of short-term jobs. After his release on bail from the drug-rip off charges, however, he obtained a longer term job in a restaurant for about a year, until he was poached from that job by the executive chef of another restaurant who had heard of Mr. Chimenti from a fellow employee. The executive chef commented favourably on Mr. Chimenti's punctuality, diligence, reliability, work ethic and willingness to take on extra shifts when the restaurant needed coverage.

[64] Mr. Chimenti addressed me at the close of sentencing submissions on the Clifton Hill charges. He said that he has been working hard since he was released from jail the second time, that he found a job on his second day out of custody and has worked for fourteen months straight. During that stretch, he changed jobs for improved pay and was given a pay raise within two weeks of starting the new job. He expressed his willingness to change and said that he felt really sorry and really bad about what happened to Constable Kim. His parents say that Mr. Chimenti has shown an improved attitude and better use of his leisure time and that they are no longer concerned about his peer group.

[65] During sentencing submissions on the robbery charges I was told that Mr. Chimenti has now taken on another job in addition to his restaurant position. The new job is as an apprentice barber and maintenance person four days a week. His longer-term plans include moving to Ancaster to work in his sister's business.

[66] It is fundamental that proportionality is the cardinal principle of sentencing. A fit sentence must consider the seriousness of the offences and the offender's degree of moral blameworthiness. The Criminal Code sets out various objectives of sentencing, including specific and general deterrence, rehabilitation and reparations. The Code also establishes that jail should only be used where necessary and only to the extent necessary. Particular restraint must be shown in the case of first offenders and young first offenders in particular. Substance abuse issues can be a relevant factor in sentencing.

[67] There is no gainsaying that the offences here, especially the principal offences on each occasion, are serious. In the Clifton Hill incident, it seems clear that Mr. Chimenti was obnoxious, defiant and resistant even to peer pressure from the crowd to stop resisting the police. The path of resistance he set himself upon resulted in an injury that was entirely foreseeable, at least to any objective, rational observer. In this case the injury turned out to be serious, with long-lasting consequences, and the victim was a police officer whose duty did not allow him the luxury of walking away from the risk.

[68] The robbery is also serious. It would be easy to say that people create a certain zone of risk if they (as was alleged of the victim here) offer illicitly to sell prescription drugs, but even assuming that to be true, that does not make them fair game for violence. I agree with Mr. Buchanan that the pictures of the robbery victim's injuries are somewhat ambiguous and do not provide great insight into the severity of the injuries. I do not have a victim impact statement here, so I cannot assess the actual injuries as being particularly serious based on the photographs, but the offenders' force of numbers, the relative ages of Mr. Chimenti and the victim and the violence used would be terrifying, especially with the property damage.

[69] Denunciation and general deterrence are important considerations in determining a fit sentence on both the Clifton Hill offences and the drug rip-off offences. In light of what I have heard and seen of Mr. Chimenti, I am of the view that specific deterrence is of much less importance.

[70] Mr. Chimenti's rejection of court orders is of concern. It is an issue on which he needs to do a one-hundred-and-eighty-degree turn immediately if he wishes to enjoy a future outside of jail. On Clifton Hill he was in breach of his bail order not to have any contact with Ms. Roach. When arrested on the robbery charge it came to light that he was in breach of his residence condition. After his release on the robbery charge he fairly recently breached his house arrest condition. If his process of maturation that appears to be reflected in the pre-sentence report does not include absolute compliance with court orders, everything else he has accomplished will be for nothing.

[71] There are mitigating factors here. I have referred to Mr. Chimenti's youth and the fact that he is a first offender. He has also pleaded guilty to all but one of the charges. A guilty plea is a significant mitigating factor, sometimes because it saves the courts time, sometimes because it saves the victims from enduring a traumatic retelling of what happened and sometimes because it reflects genuine remorse. I am satisfied that Mr. Chimenti's remorse is genuine and he spared both time and the victim by his plea on the robbery charges. He had a trial on one of the Clifton Hill charges, on a fairly narrow legal issue. I did not find in his favour on that legal issue, but the trial was economical of time once it actually happened.

[72] Insofar as a key objective of sentencing is to make society safe, it is essential that every sentence take a long view, namely, a view towards maximizing the likelihood that the offender will learn from the experience, reject the path he was on and build a strong foundation from which to establish and maintain pro-social behaviours. An offender's rehabilitation works to everyone's benefit—his own, his victims', his family's and society's.

[73] In addition to denunciation and general deterrence, the drug rip-off and aggravated assault charges call for reparations. In the drug rip-off the victim's glasses and television were damaged, to the sum of five hundred dollars. The assault on Constable Kim was an assault not only on him, but also on society's values and institutions. As an element of an overall appropriate sentence, it is fitting that Mr. Chimenti perform a substantial number of community service hours to repay society for the damage he has done and for the poor example he set that night.

[74] With respect to both sets of offences, I am of the view that the Crown significantly overreaches, having regard to the overall principles of sentencing, including the fact that Mr. Chimenti was a first offender. That observation is not to understate the objective seriousness of what Mr. Chimenti did: the resistance, the aggravated assault, the robbery, the mischief, the breaches, but I cannot reconcile a total sentence of around eighteen months for a substance abusing first offender who has pleaded guilty to almost every offence and who has made significant strides towards rehabilitation with the cardinal principle of proportionality. If Mr. Chimenti's guilty plea is to mean anything, the Crown's request for eight to ten months on the drug rip-off charges means that he would have received perhaps twelve to fifteen months' imprisonment, as a first offender, if he had gone to trial. That simply would not happen. As for the aggravated assault on a police officer, if the evidence established that the injury to Constable Kim was inflicted with malice or with actual intention to cause an injury of that nature (as opposed to being objectively foreseeable), the Crown would be in the right zone, but the evidence does not come close to that level of culpability on Mr. Chimenti's part. He was obnoxious, he was persistent, he was supremely irresponsible, he was behaving stupidly, but he was not malicious.

[75] I mentioned earlier that Mr. Chimenti has the equivalent of five-and-a-half months of credit for the two time periods he spent in custody after Clifton Hill and the drug rip-off (about one-hundred-and-eight real days). Other than those times in custody, he has been on bail since late July, 2017, a net period on bail of about twenty-three months. Of that twenty-three months about fourteen months have been spent on a house arrest bail with exceptions for work and school and while in the company of his surety (his brother), his mother or his sister; the restrictions on Mr. Chimenti's liberty under his original Clifton Hill bail were minimal. Mr. Chimenti is generally entitled to some allowance for the restrictions of being on bail for about two years, but the amount of consideration for those restrictions is contextual and it is clear that I am not even required to quantify it precisely. The factors that I consider most relevant are that the initial release was a very light touch and that I cannot place too much weight on the house arrest condition in the later bail order because it allowed for substantial exceptions and because, in light of the breach, I cannot assume that Mr. Chimenti complied with it. He may have or he may not have, although, at a minimum that restriction hung over him as a threat of consequences whether he complied or not.

[76] I think it would be fair to allow a minimal allocation of about two months credit for the roughly two years that Mr. Chimenti spent on bail. In total, then, Mr. Chimenti has accumulated credit for about seven-and-a-half months of custody over the course of his crime spree, which I shall treat as the equivalent of two-hundred-and-twenty-eight days.

[77] I am of the view that in light of the steps Mr. Chimenti has taken, it would, with one slight but purposeful exception, actually be counterproductive to sentence him to additional time in custody on top of the pre-sentence custody credit and Downes credit that he has earned. That is not to say that a somewhat longer sentence could not be justified for the various offences, only to say that the credit he has accumulated is well within the appropriate range of sentence and that it would be a retrograde step to put him back in a learning institution for criminality where he would benefit not at all, where society would benefit not at all and which would demolish the platform he has, to his credit, built for his ongoing rehabilitation.

[78] The Criminal Code provides a wide variety of sentencing options, the suitability of which will vary from offender to offender. In selecting the following options for each offence I have tried to incorporate all of the principles of sentencing including totality and the fact that Mr. Chimenti was a first offender in order to come up with an overall sentence that is apt. Accordingly:

(a) When Mr. Chimenti was acting out on Clifton Hill, he was in the company of Katelyn-Ann Roach, in violation of a domestic assault bail order that was less than four weeks old. The breach appears to have been consensual on her part, but that does not excuse it. There will be a fine of $250 on that charge. He will have one year to pay it. I am satisfied that a fine of that amount is well within his ability to pay.

(b) On the charge of resisting a peace officer, the equivalent of three days' pre-sentence custody will be noted and Mr. Chimenti will be placed on the probation order described below.

(c) On the charge of aggravated assault of a peace officer, given the severity of the consequences, the equivalent of one-hundred-and-thirty-five days of pre-sentence custody shall be noted, consecutive to the three days noted on the resist police charge and Mr. Chimenti shall be placed on the probation order described below.

(d) On the robbery and mischief charges from the drug rip-off, the equivalent of a further ninety days of pre-sentence custody shall be noted, concurrent to each other, but consecutive to the one-hundred-and-thirty-eight days of pre-sentence custody already allocated to the resist and aggravated assault charges. Mr. Chimenti shall be placed on probation on the terms set out below on these two charges.

(e) On the breach of recognizance charge from the drug rip-off, Mr. Chimenti will be sentenced to one day in jail. Taking Mr. Chimenti into custody even for the fraction of a day that this will entail is a considered choice on my part. I have substantial reason to be confident that Mr. Chimenti is on the right path and I hope that I am right, but the recency of his admitted house-arrest bail breach, only four months ago today, gives me cause for concern. Mr. Chimenti may benefit from one last glimpse at the various unattractive features of the future and company that await him if he treats his probation order with the same disdain with which he treated his recognizances or if he commits other offences. Given that Mr. Chimenti has admitted to three breaches of court orders, this is one area in which a spoonful of specific deterrence is called for.

[79] Mr. Chimenti will be on probation for a period of two years on the resist police, aggravated assault of a police officer, robbery and mischief charges. I am of the view that a probationary period of this duration is required to reinforce the path Mr. Chimenti has set out upon. As conditions of the probation he shall:

(a) Report to probation within seven days and thereafter as required by probation;

(b) Live at an address approved of by probation;

(c) His obligation to report to probation shall end when he has finished the following conditions to the satisfaction of the probation officer:

i. All assessment and counselling;

ii. All community service required under this order;

iii. All restitution required under this order.

(d) Have no contact or communication directly or indirectly with Liza McCormack and not be within fifty metres of any place she lives, works or is known by him to be.

(e) He shall make reasonable efforts to obtain and maintain suitable employment and/or to pursue education.

(f) Attend for assessment and counselling as directed by probation, including:

i. The partner assault response programme;

ii. Anger management;

iii. Alcohol and substance abuse;

iv. Any other issue identified by probation.

(g) Sign any releases and provide proof of compliance with any term of this order.

(h) Perform 120 hours of community service at a placement and rate to be approved of by probation. All of the community service must be completed within eighteen months of the start of probation.

(i) Make restitution, by payment into court, in the amount of five hundred dollars, to the benefit of Liza McCormack. This payment must be made no later than 15 January, 2020 and he must provide proof of payment to probation no later than 30 January, 2020.

[80] On the aggravated assault of a peace officer and robbery charges there will be an order pursuant to s. 109 of the Criminal Code prohibiting Mr. Chimenti from possession for ten years under s. 109(2)(a) and for life under s. 109(2)(b).

[81] Mr. Chimenti shall provide a sample of his DNA for inclusion in the DNA data bank on the primary designated offences of aggravated assault on a police officer and robbery and on the two secondary designated offences of failure to comply with a recognizance.

Released: 10 October, 2019