Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021 06 28 Information No.: 20-38101669

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

AUGUST GREINER

Before: Justice Angela L. McLeod

Heard on: February 9, 2021 (plea) and May 26, 2021 (sentencing hearing) Reasons for Judgment released on: June 28, 2021

Counsel: Mary Anne Alexander, counsel for the Crown Bernard Cugelman, counsel for the accused

McLeod J.:

Introduction

[1] Mr. Greiner pled guilty to two counts of assault with a weapon and one count of dangerous operation of a conveyance. The events occurred on March 6, 2020, and the victims are police officers.

[2] Pleas were entered on February 9, 2021, and a PSR was ordered. Sentencing submissions completed on May 26, 2021.

Summary of the Facts

[3] An agreed statement of facts was filed as Exhibit #1 (there is an error in the date of the offences, which should be as noted above, March 6, 2020).

[4] Mr. Greiner was involved in two minor fail to remain collisions and ran a red light. He then failed to pay for gas at an Esso station. Police located his vehicle. One officer pulled in front of him and one behind in order to box him in and prevent him from driving further.

[5] Officers demanded that he exit the vehicle. He opened the door slightly and Officer Peters grabbed onto the door. Mr. Greiner immediately shut the door trapping three of the officer’s fingers. He then put the vehicle into reverse and slammed into one of the police vehicles. An officer was sitting the driver’s seat at the time.

[6] Mr. Greiner then moved forward and around the front police vehicle. Officer Peters had to run along side the vehicle to keep up and prevent himself from being dragged. Ultimately, Officer Peters was able to pry open the door and free himself.

[7] Mr. Greiner drove off. Police located him. Officer Stepanenko exited her vehicle and approached. Mr. Greiner accelerated his vehicle in her direction. A tazer was employed through the open driver’s window with negative effect. Mr. Greiner again accelerated his vehicle toward several officers on scene. He rammed four OPP cruisers. He came to rest in a snowbank, exited the vehicle and was armed with a saw and a tire iron. He swung at Officer Walli and made contact in the upper body, neck and head. Officers took him to the ground. He continued to be combative and to swing the saw. He grabbed Officer Roy’s hand, squeezing and twisting.

[8] Ultimately, Mr. Greiner was restrained and disarmed. He spoke about people chasing him. He was taken to the hospital and held under a Form 1.

[9] Officer Peters suffered swelling and small cuts. Officer Roy suffered a sprained right hand. Officer Walli had cuts to the left side of his neck and top of his head.

[10] Mr. Greiner’s vehicle had significant damage. Four police cruisers had significant damage.

Additional Facts to be Relied Upon

[11] The defence called Alison Greiner, Mr. Greiner’s sister and surety, to testify at the sentencing hearing.

[12] The salient points of her evidence can be summarized as follows:

(1) Mr. Greiner’s father and high school sweetheart both passed away in close proximity to one another in the recent years;

(2) Mr. Greiner was struggling with his father’s estate and was deeply mourning his loss;

(3) After his arrest and hospitalization, the family became closely involved in his mental health treatment. He became involved with a counsellor and in a program. He was prescribed medication;

(4) Approximately 1-2 months before the sentencing hearing, the family noticed that Mr. Greiner was again struggling with his mental health. He became delusional and paranoid that someone was following him. His medication was adjusted and is now prescribed a monthly injection which is provided by a health care practitioner;

(5) Mr. Greiner can live in the home he inherited from his father. There are tenants on the property, and he has a wood working shop from which he can earn income. One of the tenants is a long-time family friend, who is also employed as a bookkeeper for the wood business;

(6) Ms. Greiner lives 10 minutes away from Mr. Greiner;

(7) The estate issues have been resolved and the stressors that Mr. Greiner was experiencing at the time of the events have been negated;

(8) Since the time of the arrest, Mr. Greiner has not been out of the immediate company of either of his sureties, and unable to work at his shop.

[13] The defence filled hospital records and paperwork relating to a Community Treatment Order (Exhibit #2, Exhibit #3) which is currently in place for Mr. Greiner. Dr. Guller is the treating psychiatrist. Mr. Greiner must meet with Dr. Guller monthly. Dr. Rapson, Mr. Greiner’s physician, will administer the monthly injection as prescribed. Mr. Greiner is required to take all medications prescribed to him, to attend appointments with both doctors, and to attend lab appointments when necessary to monitor the therapeutic level of the medication.

[14] Should Mr. Greiner not comply with the treatment order, he will be required to meet with Dr. Guller. If he refuses to meet with the doctor, a Form 47 – Order for Examination will be issued, and the police will apprehend Mr. Greiner.

Background of Mr. Greiner

[15] A presentence report was garnered. In addition to the information provided by Alison Greiner, the report outlines that:

(1) Mr. Greiner did not have much of a relationship with his father until the last 15 years before his death. The men lived and worked together and were best friends. Mr. Greiner cared for his father until his death after a long battle with cancer;

(2) The father’s estate matters created tension in the family. Mr. Greiner was the sole beneficiary of the estate, despite being one of 6 children;

(3) Mr. Greiner has never been married and has no children. He is 38 years of age;

(4) Mr. Greiner experienced a mental health breakdown in 2008;

(5) Mr. Greiner acknowledged the danger and public safety risk he caused by his actions and expressed gratitude for the actions of the police officers involved, as he understands that the outcome could have been much worse;

(6) At the time of the events, Mr. Greiner was dealing with significant paranoia, was agitated and angry;

(7) He has been involved in monthly therapy sessions with Dr. Guller;

(8) There were no instances of noncompliance with his bail;

(9) Mr. Greiner has no prior convictions.

Position of the Parties

[16] The Crown seeks a custodial sentence. No victim input was filed. No request for restitution has been made. No caselaw was relied upon.

[17] The Crown submits that a non ‘real jail’ sentence would be unfit and contrary to the public interest and urges this court to focus on the sentencing principles of denunciation and general deterrence.

[18] The Crown submits that this court cannot take judicial notice of the amount of treatment available to persons who are incarcerated, or any variant of that treatment as a result of the current pandemic.

[19] The Crown acknowledges that conditional sentence is available, however argues that it is inappropriate given the need for public protection.

[20] The defence submits that a conditional sentence is appropriate in all of the circumstances and relies upon several cases in support thereof. Specifically, the defence submits that R. v. Proulx, 2000 SCC 5, holds that a CSO can met the sentencing principles of denunciation and deterrence; that R. v. Wallace, [1973] O.J. No. 201 (OCA), stands for the principle that incarceration “offers immediate protection to society but clearly it does little to protect it for the future. The best future protection for society lies in imposing a sentence which will make the [accused’s] rehabilitation probable through the provision of medical treatment that can be made available to him” (para. 16).

[21] Additionally, Mr. Cugelman relies upon R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643 (OCA), which holds that a sentencing jurist should impose a sentence consistent with the principle of restraint, beginning with a consideration of the minimum sentence that is appropriate in all of the circumstances, and further that where the offender’s mental health problems played a central role in the commission of the offence, deterrence and punishment assume less importance, and the primary concern in sentencing shifts to treatment, as that is the best means of ensuring the protection of the public.

[22] Lastly, Mr. Cugelman underscores the findings of Justice Pomerance in R. v. Hearns, 2020 ONSC 2365, wherein at para. 11 she held that, “[t]he risk of infection is, by necessity, higher in custodial institutions, where conditions – cramped quarters, shared sleeping and dining facilities, lack of hygiene products – make it difficult, if not impossible, to implement social distancing and other protective measures… the risk of contracting the virus is higher in an environment where people are forced to habitually congregate with one another”.

Analysis

[23] The incident was serious. It was extended. Several officers were put at grave risk. There was extensive damage to public property (police vehicles) and private property (hit and run damage). The manner of driving posed a significant risk to other users of the road and members of the public.

[24] Mr. Greiner is a relatively young man, has no prior criminal history and has entered guilty pleas.

[25] He has a long history of mental health issues, mostly untreated prior to these events. Since the time of his arrest, he has actively sought help and undertaken a course of treatment. A community treatment plan is in place.

[26] Mr. Greiner’s mental health played a central role in the incident. In R. v. Ayorech, 2012 ABCA 82, [2012] A.J. No. 236 (ABCA) (another case submitted by the defence), the court wrote at paragraphs 11, 12 and 13:

The relative importance of deterrence and denunciation is attenuated when sentencing mentally ill offenders. This principle applies even if there is little prospective of complete cure and rehabilitation: R. v. Hiltermann, [1993] AJ No 609 (CA) at paras 4-8, 141 AR 223.

The gravity of the offence is not, of course, lessened by the personal circumstances of the offender. However, the mental disorder diminishes the degree of responsibility of the offender. Impaired reasoning, delusional disorders, and the like mental conditions distinguish those afflicted from the ordinary offender who is fully accountable for his or her conduct: Resler at para 9-10, 16; Belcourt at paras 7-8; and R. v. Muldoon, 2006 ABCA 321 at para 9-10, 401 AR 42.

Finally, the effect of the imprisonment should be taken into account when it would be disproportionately severe because of the offender’s mental illness. Ayorech’s mental disorders have left him vulnerable, such that Dr. Santana opined that he ‘was ill equipped to survive in the prison system.”

Conclusion

[27] The principles of denunciation and deterrence are paramount. Both can be achieved through a conditional sentence order.

[28] The offences are serious and significant, however, the principle of restraint is, as it should always be, at play.

[29] The protection of the public is achieved through the on-going treatment of Mr. Greiner’s mental health issues. A community treatment order is in place and is, and has been, adequately meeting his needs. There have been no instances of breach of his release order since the time of the incident.

[30] I find that a conditional sentence order is appropriate.

[31] To address the seriousness of the actions of Mr. Greiner and the risk that he posed to officers and the public, the order will be for 270 days. A term of probation of 24 months will follow. A DNA order and a s.110 order will issue.

Released: June 28, 2021 Signed: Justice Angela L. McLeod