Court Information

Ontario Court of Justice

Date: March 16, 2020

Court File No.: Kitchener 4411-998-19-1828-00

Parties

Between:

Her Majesty the Queen

— And —

Drean Creighton

Before: Justice W. G. Rabley

Heard on: December 2, 2019 and January 30, 2020

Reasons for Judgment released on: March 16, 2020

Counsel

Ms. K. Krafchick — counsel for the Crown

Mr. D. Heath — counsel for the accused Drean Creighton

Judgment

RABLEY J.:

Background

[1] Drean Creighton pleaded guilty to 2 charges of aggravated assault and 1 count of assault with a weapon. The guilty pleas occurred after I had conducted a preliminary inquiry and then an exit judicial pre-trial. Counsel agreed that the facts that I heard at the preliminary would form the basis of the guilty pleas. Submissions were made regarding disposition and Mr. Creighton is before me to be sentenced.

[2] At the outset, may I say that it is always a sad day when I must sentence a young man who had only turned 18 at the time of the offences, to a serious period of incarceration. These are still formative years for Mr. Creighton, and one would like to think that at this time, he would be influenced by positive members of the community and his family rather than having to deal with the day to day education that he receives in a penal institution.

[3] On the evening of October 31st to November 1st, 2018 Mr. Creighton attended a social event at one of the buildings in Waterloo that house students from the two universities. It was a festive occasion, and everyone was captured on a video camera socializing with one another and having a good time. Mr. Creighton was spending time with two female friends who started to speak to a couple of young men. One of those individuals was Myles Stanley who also was simply having a good time.

[4] Mr. Creighton took exception to the conversation and confronted Mr. Stanley. He produced a knife and asked Mr. Stanley if "he wanted to die" and then propelled himself forward and stabbed the young man. Mr. Stanley ran out the door and Mr. Creighton followed after him, for a short period of time before abandoning the chase. Fortunately, Mr. Stanley did not suffer a serious injury.

[5] Mr. Creighton then left the building and walked towards King Street and University Avenue. He started to yell at the guys in front of him and there was another confrontation. Once again, he produced a knife and stabbed someone four times. That person was Dante Allen, who suffered serious injuries. One of the wounds was close to his lung and another just missed his spleen. Mr. Allen was taken to the hospital and then transferred to Hamilton because of the seriousness of the injuries. Fortunately, he recovered with no further physical complications.

[6] Mr. Creighton continued along his path to the 7-11 store at King and University. While speaking loudly to his friend about his life circumstances he uttered that no one cared about him. Alby Smith was walking along the same path and thought he would be funny. As a result, he called out that he cared. Without any warning, he then felt something and turned to see Mr. Creighton, who had just poked him with a knife.

[7] Mr. Creighton demanded money. Mr. Smith refused and tried to grab Mr. Creighton's wrist causing him to lose balance. As Mr. Creighton fell backwards the knife cut across Mr. Smith's throat and slightly cut it. The evidence was not conclusive as to whether this was done on purpose or because Mr. Creighton had lost his balance and swung out, in an attempt to regain his footing. The robbery was not pursued by the Crown and Mr. Creighton pleaded guilty to assault with a weapon.

[8] All of the incidents happened within a very short time span and within a block of one another. The Crown theory was that Mr. Creighton was trying to kill someone that evening and that we are fortunate that no one died. Perhaps that is true, but I am proceeding on the basis that Mr. Creighton was simply a young man who was out of control on the evening in question and that these were all spontaneous acts done by a young person who was exercising very poor decision making and acting on emotion fueled by adrenaline.

Position of the Parties

[9] The Crown advocates a sentence of 4 years minus pre-trial custody. The Crown submits that these were serious attacks with a weapon and that they were unprovoked. The Crown further submits that the community was significantly put at risk and that at least one of the young men involved suffered serious injuries. For this, a serious sentence should be imposed and giving credit for a guilty plea and the youthfulness of the accused, the Crown advocates that a 4 year sentence is appropriate.

[10] The Defence seeks a sentence of 2 years less a day, minus pre-trial custody. Both counsel agree, that the cases involving Mr. Allen and Mr. Smith had triable issues. Identity of the perpetrator would have been difficult to prove. Therefore, substantial credit should be given for a guilty plea in these circumstances. The Defence also submits that Mr. Creighton's youthful age and the fact that this is his first substantial sentence are significant mitigating factors which should cause me to impose a sentence in the range of 2 years.

Background of the Offender

[11] Drean Creighton is 19 years of age and is a Canadian citizen. He was born in Mississauga. His parents separated when he was 4 years of age. He lived primarily with his mother, but when he began getting into trouble at the age of 12, he moved to live with his father and step-mother. Mr. Creighton still stays in contact with his mother, and his father continues to see him on a regular basis.

[12] At school, Mr. Creighton struggled and was easily distracted. He often chose to not follow the direction of his teachers. In Grade 5, it was determined that he had a significant communication learning disability. In 2012, he began having conflict at school and started receiving suspensions for threatening behavior towards peers. In 2013, he was expelled as a result of this continued behavior.

[13] In 2015, Mr. Creighton transitioned to a local high school and soon began associating with a negative peer group. He was removed from school because of his threatening attitude. He continued in an alternative school program and has 2 credits remaining before graduating.

[14] He has had some limited work experience. While at a co-op placement in 2018 he was removed because he threatened a peer's mother in her home. He was referred to counselling, but only attended sporadically. He was also prescribed medication to help him with his ADHD, but stopped taking it.

[15] Mr. Creighton has gravitated to an older negative peer group. He has been offered many resources through probation and has participated in counselling when directed. However, he has continued to show a pattern of non-compliance and "continues to struggle with managing his cognitive limitations."

[16] The author of the Pre-Sentence Report that was prepared summarized Mr. Creighton's challenges as follows:

"The subject has had a variety of responses to community supervision in the past however during his most recent period of supervision, he exhibited non-compliance almost immediately both in terms of his court order and his disregard for the expectations imposed by his father while living in his home."

Aggravating Factors

[17] In my view, there are a number of aggravating factors to be considered. They are as follows:

(a) the seriousness of the offences including the fact that one victim suffered life threatening injuries;

(b) the fact that a weapon was used;

(c) the fact that at the time of the offences, Mr. Creighton was on a probation order from 2018 for assault with a weapon, where he had served the equivalent of almost 5 months of custody;

(d) he was also on a Weapon's Prohibition at the time of the attacks;

(e) after his release from custody in August, Mr. Creighton did not avail himself of the benefits of individual and anger management counselling. His behavior deteriorated while on probation. He broke his curfew and left his home, and was "on the run" in non-compliance of his terms;

(f) Mr. Creighton's probation officer stated in the PSR that when Mr. Creighton was closely monitored he did well, but when given "freedom to make his own choices, he would find trouble" and "wanted to fit in and to be seen as a gangster and a thug and he tried very hard to live that persona;" and

(g) Mr. Creighton had other findings of guilt, including a criminal harassment in 2014, and an assault in 2017 where he had received a disposition of 6 months of deferred custody.

Mitigating Factors

[18] In my view, the following are the mitigating factors:

(a) at the time of the offence, Mr. Creighton had just turned 18 years of age and was therefore a youthful offender;

(b) the plea of guilty is significant given the difficulties the Crown would have had with respect to two of the three charges (the first one was captured on camera);

(c) the genuine remorse of the accused. Mr. Creighton offered an apology in Court to the victims involved. I accept that he is sincere in his remorse and genuinely feels bad for what he has done;

(d) he has family support with pro-social values;

(e) a psychological assessment done in 2018 shows that Mr. Creighton's overall cognitive functioning is well below age-expected levels and has led to a diagnosis of Specific Learning Disorder with impairments in reading, written expression and mathematics; and

(f) Mr. Creighton has been willing to participate in counselling for impulse behavior and anger management in the past and when he is taking his medication it helps "him think before he does stuff".

Analysis

[19] The Crown provided me with a number of authorities, which suggest that the range for these type of offences is between 4 to 8 years. The Defence filed a casebook which outlined the principles I must take into account, when determining a fit and just sentence in a difficult case such as this. I agree that "sentencing is an individualized process within the exercise of judicial discretion": R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120 (C.A.); R. v. Hudson, 2019 ONCJ 608, [2019] O.J. No. 4731.

[20] My starting point is the case of R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245. In that decision, Justice Code reviewed a number of cases, which dealt with the range of sentencing for aggravated assault and concluded that generally there were three ranges of sentences depending on the particular circumstances of the case.

[21] After reviewing the authorities on point, Justice Code concluded at paragraph 30:

[30] At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve "unprovoked" or "premeditated" assaults with no suggestion of any elements of consent or self-defence. See: R. v. Scott, [2002] O.J. No.1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson, 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A.).

[22] In the case before me, the attacks were unprovoked. In my view, there was no element of self-defence or consent. There were multiple attacks with serious injuries to one of the victims. In my view, the facts of this case fit into the third category.

[23] Although a young man, Mr. Creighton already has a criminal record with serious convictions. The prognosis for rehabilitation is guarded at best. Mr. Creighton did not do well on probation. He recommitted serious criminal offences; he stopped taking his medication; he continued to associate with negative peers, and he removed himself from the support of his family.

[24] The Psychological Assessment prepared in 2018 also calls into question whether Mr. Creighton can make the changes necessary to live a pro-social life. In the Summary and Clinical Formulations section of the report, the Psychologist suggests that:

"Drean has benefitted from interventions to some extent and been able to demonstrate positive functioning when in a highly structured and supervised environment that limits his ability to be negatively influenced by peers and make impulsive poor decisions. However, these improvements have tended not to generalize to longer term functioning when Drean is once again operating independently in less structured settings."

[25] Dr. MacLeod then concludes:

"On the surface, Drean's poor decisions appear to be solely the result of an impulse control problem or needing to fit in with the crowd. However, given Drean's cognitive profile, it is important to recognize that his cognitive and learning difficulties continue to have implications for him and can explain how he so often misunderstands the words or intents his peers (a problem noted in report card comments in his younger years), does not fully understand the implications or consequences of his actions, and appears baffled by the reaction of adults and the legal system."

[26] There is good reason to believe that Mr. Creighton's cognitive difficulties and misunderstanding of the "words and intents of others" has led to a lifetime of conflict, and now violence as outlined in the PSR. When I review all of the factors in this case, I am of the view that, subject to other considerations, the starting point for Mr. Creighton's sentence should be in the 5 year range, which is the midpoint suggested by Justice Code in Tourville for these types of cases.

[27] However, there are significant mitigating factors which must be considered in reducing the sentence. Mr. Creighton pleaded guilty. His plea was significant because of the frailties in two of the cases where the Crown was fair in conceding that it would have had difficulties proving the charges against the accused.

[28] Mr. Creighton is also a very young man. He had barely turned 18 years old by the time of the offences. His youthful age is a consideration, that I must consider. So too, must I give meaning to the doctrine of restraint. This will be a very substantial sentence for such a young man. In my view, a Court must always impose the least restrictive sentence in such circumstances.

[29] Therefore, I propose to give significant weight to the plea of guilty and the personal circumstances of Mr. Creighton, and I would discount the sentence by approximately a third. As such the 5 year sentence will be reduced to one of 3 1/2 years or 42 months concurrent on each of the charges before me.

[30] Mr. Creighton has spent 501 days in pre-trial custody. On an enhanced basis that equals 750 days or 25 months. Therefore, his sentence will be further reduced and result in an ultimate disposition of 17 months. The pre-trial custody will be noted on his record.

Sentencing Order

[31] Following the completion of the sentence, Mr. Creighton will be subject to a Probation Order for a period of 3 years, upon the following terms:

(a) keep the peace and be of good behavior;

(b) appear before the court when required to do so by the court; and

(c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;

(d) report to a probation officer within 2 working days of your release from custody and thereafter as required;

(e) reside at an address to be approved of by your probation officer and not change that address without receiving the prior written authority of your probation officer;

(f) find and maintain suitable employment or attend at school and provide confirmation of same to your probation officer when requested to do so;

(g) do not associate in any way with Myles Stanley, Dante Allen or Alby Smith and do not attend at any place known to you to be their place of education, residence or employment; and

(h) attend for counselling as directed, specifically with respect to anger management issues, mental health concerns, psychological issues and those identified by your probation officer. You must sign any authorizations requested by your probation officer for the release of this information.

[32] There will be a Weapons Prohibition for a period of 20 years, and I will make an Order that Mr. Creighton provide a sample of his DNA for analysis. While in custody, there will be an Order pursuant to section 743.21 prohibiting Mr. Creighton from communicating in any way with Myles Stanley, Dante Allen and Alby Smith.

Released: March 16th, 2020

_________________ Justice W. G. Rabley