Court Information

Ontario Court of Justice

Date: 2020-04-08

Court File No.: 0048-20; 2136-19; 2934-19; 0104-20

Parties

Between:

Her Majesty the Queen

— and —

Joshua Benoit Wilson

Before: Justice R. Kwolek

Heard on: April 3, 2020

Reasons for Judgment released on: April 8, 2020

Counsel

S. Woods — counsel for the Crown

B. Willson — counsel for the Accused

Judgment

Summary of Facts

[1] The offender pled guilty to the following:

1. Two counts of failure to appear in court, the first non-attendance occurring on the 19th day of August 2019 and the second non-attendance occurring on the 18th day of November 2019;

2. The accused also pled guilty to three counts relating to an incident that occurred on the 25th day of November 2019 regarding his possession of brass knuckles on that date.

3. The most serious offences involve an incident that occurred on September 19, 2019. The offender pled guilty to a charge of assault causing bodily harm contrary to section 267(a) of the Criminal Code and of being unlawfully in a dwelling house contrary to section 349(1).

[2] The offender has been in custody since November 25, 2019. It is acknowledged, however, that he pled guilty to a series of provincial offences matters in March of this year and was sentenced to a period of incarceration for 90 days that would result in his release on May 2, 2020.

[3] The offender's pre-sentence custody, it was agreed prior to his March pleas, would result in an enhanced credit of five months in custody. (By my calculations 99 days pre-sentence custody with the court awarding a credit of 150 days or five months.)

Crown Position

[4] The Crown's global position was a sentence of 18 months' incarceration, less credit for pre-sentence custody, plus probation.

Defence Position

[5] The defence global position, when this matter was argued on April 3, 2020, was that a period of incarceration of time served, plus a conditional sentence, plus probation to follow with protective conditions to protect the victim of the assault would be an appropriate disposition.

Evidence at Sentencing Hearing – Circumstances of Offences

[6] During the early morning hours of August 19, 2019, the victim was at a local bar and returned to his residence with some friends. The offender wished to enter the residence and the victim did not wish him to enter. As a result, the offender entered the home and struck the victim in the left side of the head and the victim fell striking his head as he fell on the TV stand. EMS attended to the victim who was unconscious for 20 minutes, suffered a laceration on the left side of his head and also suffered a concussion.

[7] The offender was arrested and charged with this offence while he was in custody at the Algoma Treatment and Remand Centre on January 7, 2020.

[8] The non-attendances at court on the relevant days were acknowledged.

[9] On November 25, 2019, the offender was observed by the Sault Ste. Marie police driving a vehicle at 10:45 a.m. and stopping before a residence. The offender was subject to an outstanding warrant on that day for failure to attend at court. As the police approached the offender he was observed to reach into his pocket and drop an object into the vehicle through an open window. That object was a set of brass knuckles.

[10] The offender pled guilty to possession of the brass knuckles contrary to section 92(2) of the Criminal Code. He also pled guilty to additional charges under section 145(5.1) and section 117.01 as the offender, at the relevant time, was subject to a release document that he not possess any weapons and was also subject to a Criminal Code weapons prohibition order.

Criminal Record and Background of Offender

[11] The offender has a prior criminal record. His prior convictions occurred between 2016 and 2018. The offender has been sentenced previously to a significant period of custody.

[12] In July of 2016, he was convicted for failure to attend court and for assault causing bodily harm and was sentenced to a period of probation for two years.

[13] On February 7, 2017 the offender was convicted for two counts of assault and of possession of a restricted or prohibited weapon for which he received three consecutive conditional sentence orders of four months. On the same date he was convicted of assault with a weapon and was sentenced to one day time served after being given credit for 75 days of pre-sentence custody.

[14] He was convicted in August 2018 of aggravated assault for which he was apparently sentenced to an additional 85 days after being given credit for the equivalent of 185 days in pre-sentence custody and was sentenced to an additional 90 days for a series of possession of weapons offences.

[15] The accused also has outstanding CDSA offences for which the accused is seeking bail.

The Offender

[16] The offender is currently 25 years of age. He apparently was raised by his father and did not know his mother very well. He attended school at Sault College for one year in a welding program. He hopes to eventually achieve his welding ticket. Five years ago, the offender came home only to find his father had committed suicide by hanging himself. This event has had a significant impact on the offender who began involving himself in criminal behavior after that event.

[17] The offender's counsel advised that the father is housed in the West Wing of the jail which has 22 inmates who are double bunked.

[18] There is a common area that is shared by the inmates when they are allowed out of their cells. Counsel argues that although a lengthier period of incarceration may normally be warranted, we are in exceptional circumstances due to COVID-19 and any jail sentence should consider the pandemic as a factor.

Aggravating Factors

[19] The most serious offence is a crime of violence that caused the victim to be unconscious for a period of time and caused him to suffer a concussion. The assault appeared to be unprovoked in the victim's home. The nature of the attack is an aggravating factor.

[20] The offender has prior convictions for crimes of violence for which he has received periods of incarceration.

[21] The offender was later found in possession of a prohibited weapon when he was under multiple court orders preventing him from being in possession of a prohibited weapon.

Mitigating Factors

[22] The guilty pleas entered by the offender are indicative of remorse. The guilty pleas saved the court the time and expense of a lengthy trial. Guilty pleas and admissions of guilt are important mitigating factors in a post-Jordan era when court time is at a premium.

Other Factors

[23] The world is in the middle of a COVID-19 pandemic. The virus has caused thousands of deaths and, thus far, there have been well over a million confirmed cases of the virus across the world. Even heads of state have become seriously ill as a result of this virus. It is expected that this virus will cause thousands of deaths in Canada and has caused many thousands of deaths around the world. Currently, elderly residents and those persons with underlying health conditions are particularly susceptible to serious consequences from the virus although the virus has killed people of all ages. Currently, the worst outbreaks in Canada have occurred in old age care homes with many cases and a disproportionate number of fatalities.

[24] Those locked up in close quarters will be at risk if an outbreak occurs in an institution. There appears to have been a concerted effort to release from custody those individuals who do not pose a risk to the safety of the public.

[25] Although it is acknowledged that a period of incarceration is required for this offender who has committed a serious crime of violence and other offences, counsel for the defence suggests that an appropriate disposition would be ordering the pre-sentence custody, followed by a conditional sentence, and then probation.

The Law – Appropriate Sentence

[26] The relevant principles of sentencing are set out in section 718 and following of the Criminal Code of Canada set out below.

Section 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Section 718.1. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2. A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[27] Given the aggravating factors in this particular case, it is clear that a period of incarceration is necessary to denounce the actions of the accused and to deter this offender and others from similar behaviour in the future. The safety of the public requires that those committing repeated crimes of violence should be sentenced to periods of incarceration in order to protect the public.

[28] Does this court have an ability to fashion a sentence that denounces and deters this individual yet is able to focus on his rehabilitation while recognizing the challenges that we are all facing as the result of COVID-19? The court is directed by the legislation and the case law to fashion an appropriate disposition with alternatives to custody considered for all offenders.

Legal Analysis for Appropriate Sentence

Length of Appropriate Sentence

[29] In this case, the Crown suggested the appropriate sentence would be 18 months' incarceration less credit for pre-sentence custody while defence counsel suggested that an appropriate sentence would be to consider the pre-sentence custody to be followed by a conditional jail sentence.

[30] The Crown argues that although a sentence may be structured that would allow for the possibility of the imposition of conditional sentence ordered that such an order would not in fact be appropriate for this offender for these offences.

[31] There are a number of cases that have dealt with the impact of COVID-19 on the criminal process.

[32] Justice Edwards in R. v. Nelson, 2020 ONSC 1728, denied the accused's request for bail based on the COVID-19 crisis stating as follows:

At one extreme we simply keep everyone who is already locked up pending their trial locked up. At the other extreme we release everyone for fear their continued incarceration would be little different from being a passenger on a cruise ship, albeit a cruise ship behind bars. Neither extreme, in my view, is appropriate. …

This is a case where given the seriousness of the charges; Mr. Nelson's prior criminal record, the weakness of the proposed plan of release, and the absence of medical evidence demonstrating that Mr. Nelson may be more susceptible to contracting the virus and/or a heightened risk of symptomology, I am not satisfied that there would be confidence in the administration of justice if Mr. Nelson was released from jail. The application is dismissed.

[33] In R. v. Kandhai, 2020 ONSC 1611, it appeared that Justice D.E. Harris made a point of bringing forward the case involving that offender for the purpose of imposing a sentence of time served, in part due to the circumstances of COVID-19.

[34] In the recent case of R. v. T.K., 2020 ONSC 1935, another bail review case, Justice A.J. Goodman quoted the World Health Organization comments about those in custody:

Yet, as mentioned, we currently live in extraordinary and very challenging times. I take a moment to refer to the World Health Organization's March 15, 2020 (Europe) report entitled: Preparedness, prevention and control of COVID-19 in prisons and other places of detention: Interim guidance.

The preamble states:

People deprived of their liberty, such as people in prisons and other places of detention, are likely to be more vulnerable to the coronavirus disease (COVID-19) outbreak than the general population because of the confined conditions in which they live together for prolonged periods of time. Moreover, experience shows that prisons, jails and similar settings where people are gathered in close proximity may act as a source of infection, amplification and spread of infectious diseases within and beyond prisons. Prison health is therefore widely considered as public health. The response to COVID-19 in prisons and other places of detention is particularly challenging, requiring a whole-of-government and whole-of-society approach...

[35] Similarly, in R. v. T.L., 2020 ONSC 1885, Justice Molloy also released the accused on a bail review given the length of time it was anticipated that the accused would have to wait before his matter would be reached for trial given the lack of trials being held in the courts.

[36] I do not believe that time served and a conditional sentence would adequately address the denunciation the court feels for the crime of violence in this particular case which did cause the victim significant trauma and injury. The offender is in fact currently serving another period of incarceration.

[37] However, the court when it imposes its sentence must recognize and consider COVID-19 implications and the provisions of section 718.2 of the Criminal Code.

[38] A further period of incarceration is appropriate, given the accused's history of violent offences, notwithstanding the COVID-19 concerns. The court does not believe that a conditional sentence is appropriate in this case. There is insufficient evidence before the court about the circumstances regarding the conditional sentence being proposed.

[39] Considering all mitigating and aggravating factors and the current world crisis regarding COVID-19, the court finds a sentence of eight months' custody on the charge of assault causing bodily harm less pre-sentence custody of five months to be appropriate. Although the Crown is seeking a lengthier period of incarceration, the court believes that a lengthier period of probation would assist the accused and ultimately society. Given the current health concerns with respect to COVID-19, the amount of contact in the immediate future with a probation officer by the offender may be fairly minimal. Hopefully the concerns with respect to COVID-19 will subside and the legacy of this sentence order will not be the period of incarceration, but the lengthier probation order which hopefully will assist in the offender's rehabilitation.

[40] The Crown proceeded by indictment on the most recent Information involving the section 92 charge for the possession of the brass knuckles and the breaches of the weapons provisions. The court feels that a further short custodial sentence would be an appropriate disposition for the weapons charge and the breaches of the weapon prohibition orders. In normal times these charges may attract a significantly higher period of incarceration. The court feels that given the concerns about COVID-19 it will impose a sentence of a further 30-day period of incarceration consecutive on the 92(2) charge, and 30 days concurrent on the balance of the charges in Information 104.

[41] With respect to the two charges of failure to attend for court, an appropriate penalty I have considered would be one day time served on each of those counts.

[42] The total period of incarceration imposed will be for a period of nine months less credit for pre-sentence custody, plus a lengthy period of probation.

Conclusion and Sentence

[43] The offender shall be sentenced to a period of eight months' incarceration for the charge of assault causing bodily harm. The offender delivered a single punch which caused bodily harm to the victim in his own home. The offender has a record for violence. The accused has been given credit for a total of five months' pre-sentence custody, which means the accused will be sentenced to an additional period of incarceration from today's date of three months. This sentence is one that has aspects of specific and general deterrence and expresses the court's denunciation for the violent offence committed. The formal sentence on the charge of being unlawfully in a dwelling house shall be three months' concurrent.

[44] In addition, on the assault causing bodily harm count, the offender shall be placed on a period of probation for three years, being the maximum period that I can impose. Such probation shall contain protective conditions for the victim. Based on the criminal record that I have, the accused was last placed on a period of probation in 2016. I am told by defence counsel that the offender still has issues relating to his personal history. A term of probation can hopefully assist him in dealing with those issues.

[45] The terms and conditions of the probation order shall be as follows:

1. The offender shall report to a probation officer within three days of his release from custody; the reporting condition will terminate when the probation officer determines that the offender has completed any recommended counselling.

2. The accused shall have no contact of any kind whatsoever with the victim Mark Lepore; he shall remain 50 metres away from Mark Lepore and he shall not attend within 50 metres of his place of work or the residence of Mr. Lepore being […] Avenue or any other residence where he may reside.

3. The offender shall attend and actively participate in counselling as directed by the probation officer. Counsel for the offender has indicated that the offender has suffered significant issues arising out of the death of his father. He should attend counselling to deal with those issues. I expect those issues will take a long time to resolve and will require the commitment of the offender to get the help he needs. Should the offender complete the counselling required as directed by the probation officer then he will no longer have to report.

4. The offender shall sign consents to allow the probation officer to investigate any programming to deal with outstanding issues.

[46] For the charges of failure to attend court, the offender shall simply face a sentence of one day time served for each of those two counts.

[47] On the charge of possession of a weapon being the brass knuckles, I sentence the accused to a further period of incarceration of 30 days. The offender shall be sentenced to a period of 30 days concurrent on the balance of the counts in the Information for breaching the prohibition orders. Had it not been for the COVID-19 considerations, the court would have imposed a lengthier period of incarceration for those counts.

[48] Several ancillary orders will also be made by the court including lifetime section 109 weapons prohibition orders on the assault causing bodily harm count and the section 92(2) count as well as a DNA order as a primary compulsory order on the assault causing bodily harm charge.

[49] Under the current circumstances, the court finds undue hardship for the offender and will waive the imposition of any victim surcharge.

Released: April 8, 2020

Signed: "Justice R. Kwolek"