Her Majesty The Queen v. Nathaniel Davis-Ball, 2022 ONCJ 375

DATE: 2022.08.19 St. Catharines

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

NATHANIEL DAVIS-BALL

Before: Justice Fergus ODonnell

Reasons for Sentence

Counsel: Mr. Mark Eshuis..................................................................................................... for the Crown Mr. Scott Buchanan.................................................... for the defendant, Nathaniel Davis-Ball

Fergus ODonnell J.:

Overview

1. These are my reasons for sentence in relation to Nathaniel Davis-Ball, whom I found guilty after trial of robbery, aggravated assault and extortion. Mr. Eshuis for the Crown seeks a sentence of real jail in the eighteen-month range. Mr. Buchanan, for Mr. Davis-Ball, seeks a conditional sentence.

2. It is part of the sad reality of any criminal court that very many of our cases arise from the sad realities of both the victim's and offender's lives. This case is one such. Brian Upham, the victim of Mr. Davis-Ball's offences, was addicted to drugs, which tragically cost him his life after he testified at trial. Mr. Davis-Ball, who inflicted significant suffering on Mr. Upham--and on those who loved Mr. Upham--has not himself had an easy life.

Mr. Davis-Ball’s Offences

3. I shall not go into the facts in detail. The details are set out more fully in my reasons for judgment at trial. Mr. Upham and Mr. Davis-Ball met each other and a few other people by happenstance in downtown St. Catharines in the wee hours one morning and decided to hang out together. Mr. Upham happened to owe Mr. Davis-Ball forty dollars from some time earlier. En route to their destination, they stopped by Mr. Davis-Ball's home. Mr. Upham asked for more money and was rebuffed. Mr. Davis-Ball then demanded repayment of the original forty dollars, ultimately insisting on being paid seventy dollars. Mr. Upham told Mr. Davis-Ball that he would get the money from his mother, who lived nearby, and would pay Mr. Davis-Ball later that morning. Mr. Davis-Ball did not accept that offer and persistently pursued and beat Mr. Upham as Mr. Upham made his way toward his mother's and step-father's home in Western Hill. When they arrived there, Mr. Davis-Ball demanded payment from Mr. Upham's mother and continued to assault Mr. Upham on the driveway of the house. The confrontation ended when Mr. Davis-Ball pushed Mr. Upham through a window in a breezeway at the house, suffering injuries himself and causing very serious lacerations to Mr. Upham.

4. There is, to this day, no rational explanation for Mr. Davis-Ball's dogged and violent pursuit of Mr. Upham over a forty-dollar debt, other than pure anger.

The Issues

5. Several issues arose during submissions on the appropriate sentence for Mr. Davis Ball. The first question was whether the sentence sought by Mr. Buchanan, a conditional sentence, was even available to Mr. Davis-Ball. The second issue was this: out of the available sentencing options, what sentence best achieves the sentencing objectives defined by the Criminal Code and previous decisions of the courts. In other words, what did I consider to be the most fit sentence for Mr. Davis-Ball in light of his serious crimes? Between the first and second issues, I had to make a detour through the law of stare decisis, or, in plain English, the question of when one court's decision binds another court considering the same question.

Is a Conditional Sentence Even Available For Mr. Davis-Ball's Offences?

6. Conditional sentences, or custodial sentences served in the community under 'house arrest' or similar conditions, were introduced by Parliament more than a quarter of a century ago, in 1996. The rationales underlying the conditional sentence option and initial principal guidance of the Supreme Court about such sentences' purpose and their applicability were set out in that court's judgment in R. v. Proulx, 2000 SCC 5. Subsequent Parliaments introduced changes that narrowed the availability of conditional sentences, for example by making them unavailable for offences that were subject to particular maximum sentences or particular categories of offences, such as drug trafficking and the like.

7. The conditional sentence provisions have served society extremely well because they add another meaningful tool in sentencing in a society that has traditionally used real jail more often than many other countries, while not necessarily making society any safer as a result. While they will not be suitable for all offences or offenders, conditional sentences are recognized as having the potential to fulfill the various objectives of sentencing, often with greater balance and greater prospects for long-term success for the offender and for society than the more limited range of sentencing options that existed before conditional sentences were created. The incremental restrictions on the availability of conditional sentences have overall impaired judges' ability to provide the optimal sentencing outcomes for offenders and for society at large. Two steps forward, one step back. While there has been discussion about undoing the limitations introduced on conditional sentence eligibility, the political walk has not matched the political talk.

8. That being said, the principal responsibility for the determination of criminal law policy in Canada is Parliament’s, as the elected voice of the Canadian people. While Parliament may act unwisely or with a tenuous foundation in facts or science or out of unsound motives or even with harmful results, it is entitled to act as it sees fit, subject only to the requirement that legislation does not violate the provisions of the Charter of Rights. It is, however, another sad reality that politicians who may very strongly desire a particular policy outcome (such as greater access to conditional sentences) are not necessarily prepared to bring about that policy outcome through the democratic tools available to them, but instead prefer to hope that the courts will bring about their desired outcome through the Charter of Rights. Such timidity fails to recognize that the Charter in effect proscribes only egregiously bad legislation and is not intended to give judges the power to impose an optimal legal order. As noted earlier, such policy choices are primarily Parliament’s to make, not judges’.

9. It is in this context that the decision of the Court of Appeal for Ontario in R. v. Sharma, 2020 ONCA 478 comes to the forefront. In Sharma, the majority of the Court of Appeal panel (Feldman and Gillese JJ.A.) found that two legislated exclusions from the conditional sentence regime were unconstitutional. Those exceptions were s. 742.1(c) and s. 742.1(e)(ii). The former section excludes from the conditional sentence option offences eligible for a sentence of fourteen years or longer or a life sentence and the latter excludes offences involving the importation, exportation, trafficking or production of drugs, if that offence could lead to a ten year sentence, in other words the vast majority of drug offences other than simple possession. The dissenting judge in the Court of Appeal (Miller J.A.) concluded that Parliament having created the conditional sentence regime was free to amend it, reflective in part of the long-standing principle that one Parliament does not have the power to bind a successor Parliament and that the Charter should not be interpreted to demolish that bedrock reality of Canadian democracy.

10. Unsurprisingly, the Court of Appeal majority decision has been appealed to the Supreme Court of Canada, where oral argument has been heard and judgment is on reserve. While it may be a folly to presume to predict the outcomes of an appeal, a wager that the Court of Appeal majority judgment is not long for this earth would likely be a sound financial decision. Counsel whose clients' interests depend on the Court of Appeal majority decision remaining the law of the land would be wise to finalize those cases sooner rather than later.

11. That being said, Mr. Davis-Ball's case is of long standing and there is a public and individual interest in bringing it to a conclusion. Neither of the parties has asked the court to defer sentencing until the Supreme Court rules on Sharma.

12. Sharma is relevant to this case in the following way. First, the aggravated assault is punishable by up to fourteen years' imprisonment and the extortion and robbery are punishable by life imprisonment. Under s. 742.1(c) as it currently exists, none of those offences would be eligible for a conditional sentence, were it not for the fact that the Sharma Court of Appeal majority has found s. 742.1 (c) to be unconstitutional. Second, Sharma's ruling on drug offences is not directly relevant here, but the drug provision dealt with in Sharma, i.e. s. 742.1(e)(ii) finds itself cheek by jowl with s. 742.1(e)(i), which prohibits conditional sentences for ten year offences resulting in bodily harm.

13. Mr. Eshuis, however, says that the offences are not eligible for a conditional sentence precisely because of the existence of that s. 742.1(e)(i). This exclusion appears in the same subsection as the drugs offence dealt with in Sharma, but the Sharma majority did not deal with it as the facts in Sharma were a drug case. No authority appears to exist having found s. 742.1(e)(i) to be unconstitutional and no constitutional challenge was brought to it in this case.

14. Rather than a constitutional challenge, the matter becomes one of statutory interpretation. The Crown argument, as I understand it, is that a possible sentence of life or fourteen years necessarily includes a sentence of ten years and that since these offences are punishable by more than ten years, they must logically be captured under s. 742.1(e) and since they resulted in bodily harm they are excluded from conditional sentence eligibility by s. 742.1(e)(i).

15. Mr. Buchanan, however, points out that s. 742.1(e)(i) does not say, "10 years or more". I note that the exclusion in s. 742.1(d), which excludes certain terrorism or criminal organization offences from conditional sentence eligibility does use the wording, "10 years or more." Perfect linguistic synchronicity (or the lack thereof) is not necessarily determinative of legislative intent, but when the consistency or discrepancy exists within the same Code section, that consistency or discrepancy is more likely to be significant. Of course, the wordings in s. 742.1 necessarily reflect the sentencing structure of the Criminal Code, which assigns offences to sentencing clusters, such as maximum sentences of ten years, fourteen years, life and so on. The likely thinking of the draftsperson in s. 742.1(e) might have been that the words, "or more," were not necessary in light of the existence of s. 742.1(c) since there is no intermediate sentencing category between ten and fourteen years and since all fourteen-year sentences were necessarily ineligible for conditional sentences under s. 742.1(c), whether they involved bodily harm, drugs, weapons or not (those being the trigger considerations for ineligibility under s. 742.1(e)).

16. Mr. Buchanan points, however, to the decision of my colleague, Prutschi J. in R. v. Forrestall, 2021 ONCJ 113. That was a case of failing to remain at the scene of an accident where death resulted, an offence with a maximum sentence of life imprisonment, which would have been ineligible for a conditional sentence under s. 742.1(c), except for Sharma having effectively written that exception out of the Criminal Code. The Crown in that case argued that Ms. Forrestall was still ineligible for a conditional sentence because of s. 742.1(e)(i), effectively the same argument advanced before me by Mr. Eshuis.

17. Prutschi J. made the following observations in response to that argument:

    58 The Crown urges an expansive reading of section 742.1(e)(i) to make it consistent with section 752 and the language of Steele. However, in my view, where the liberty of an offender is at stake, the language of the exclusionary rules in section 742.1 should be read narrowly to ensure that conditional sentences remain an available option except where Parliament expressed a clear intention to preclude them.

    59 Moreover, applying Sharma in the manner the Crown proposes risks creating some bizarre and untenable scenarios. Strictly limiting Sharma's application to the narrow confines of 742.1(e)(ii) would create a scenario where the offence of aggravated assault -- punishable by a maximum penalty of 14 years -- would be eligible for a conditional sentence but assault causing bodily harm -- punishable by only a 10 year maximum -- would be ineligible. A fair and principled reading of Sharma demands that all of section 742.(1)(e) be encompassed by its reasoning. (Emphasis added).

The Issue of Horizontal Stare Decisis

18. The question then arises what if anything I should do with the judgment of Prutschi J. in relation to the argument before me, or put alternatively, what impact should Justice Prutschi’s decision, as a fellow trial judge, have on my determination of the dispute between Mr. Buchanan and Mr. Eshuis?

19. Everything old is new again. As the Supreme Court has recently reminded us, that very question was addressed almost seventy years ago by Wilson J. of the British Columbia Supreme Court in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, a case where Wilson J. considered the proper approach to be taken by judges of the Court of Appeal in relation to their own previous decisions and how that compared to the proper approach that trial judges should take in relation to decisions of their peers in the trial courts:

    3 But, as I said in the Cairney case, I think the power, or rather the proper discretionary duty of a trial Judge, is more limited. The Court of Appeal, by overriding itself in Bell v. Klein, has settled the law. But I have no power to overrule a brother Judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of opinion, the unhappy litigant is confronted with conflicting opinions emanating from the same Court and therefore of the same legal weight. This is a state of affairs which cannot develop in the Court of Appeal.

    4 Therefore, to epitomize what I have already written in the Cairney case, I say this: I will only go against a judgment of another Judge of this Court if:

    (a) Subsequent decisions have affected the validity of the impugned judgment;

    (b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered;

    (c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.

    5 If none of these situations exist I think a trial Judge should follow the decisions of his brother Judges.

20. The concept of "vertical stare decisis", or the doctrine that a lower court is bound by the rulings of an appellate court is well recognized. In the vernacular, if, as a trial judge, my “bosses” in the Court of Appeal or the Supreme Court define the law in a certain way, I am required to follow that definition and apply the law in that way, regardless of whether I consider that definition of the law to be sound or silly. For all the various aspects of my independence as a judge, I am not independent to the point that I can ignore decisions higher up the chain. Chaos and confusion would be the inescapable consequences of such a world.

21. The concept described by Wilson J., "horizontal stare decisis", appears to be less well recognized, but, as I mentioned earlier, has recently drawn the attention and commentary of the Supreme Court of Canada in R. v. Sullivan, 2022 SCC 19, [2022] S.C.J. No. 19, a decision that will undoubtedly breathe new life into an old concept and will likely force Attorneys General to adopt a more muscular appellate response to early trial-level decisions they disapprove of in order to settle important issues of law if they are of the view that the first judge out of the gate got the issue wrong.

22. The following excerpts from the Supreme Court's decision in Sullivan are relevant:

    65 Horizontal stare decisis applies to courts of coordinate jurisdiction within a province, and applies to a ruling on the constitutionality of legislation as it does to any other legal issue decided by a court, if the ruling is binding. While not strictly binding in the same way as vertical stare decisis, decisions of the same court should be followed as a matter of judicial comity, as well as for the reasons supporting stare decisis generally (Parkes, at p. 158). A constitutional ruling by any court will, of course, bind lower courts through vertical stare decisis.

    66 Stare decisis brings important benefits to constitutional adjudication that balance predictability and consistency with changing social circumstances and the need for correctness. As Robert J. Sharpe has observed, an incorrect constitutional decision by a court is more difficult to repair and may require legislative intervention (Good Judgment: Making Judicial Decisions (2018)). It would be unwise for a single trial judge in a province to bind all other trial judges. It is better to revisit precedent than to allow it to perpetuate an injustice (Sharpe, at pp. 165-68). Were s. 52(1) declarations strictly binding for all future cases, none of these benefits would be realized and our constitutional law would ossify. It is for these reasons that McLachlin C.J. asserted that "stare decisis is not a straitjacket that condemns the law to stasis" (Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 44). Horizontal stare decisis attempts to balance stability and predictability against correctness and the orderly development of the law.

    73 Horizontal stare decisis applies to decisions of the same level of court. The framework that guides the application of horizontal stare decisis for superior courts at first instance is found in Spruce Mills, described by Wilson J. as follows (at p. 592):

    74 The Spruce Mills criteria have been followed in numerous cases across Canada. However, the analytical framework has, at times, been blurred and the criteria have occasionally been of difficult application. Varying standards have been invoked to define when departure from prior precedent is appropriate. For example, some have held that a prior decision can be ignored if it is "plainly wrong" (R. v. Green, 2021 ONSC 2826, at paras. 9 and 24), when there is "good reason" for doing so (R. v. Kehler, 2009 MBPC 29, 242 Man. R. (2d) 4, at para. 42), or in "extraordinary circumstances" (R. v. Wolverine and Bernard (1987), 59 Sask. R. 22 (Q.B.), at para. 6). The standards of "plainly wrong", "good reason", and "extraordinary circumstances" are qualitative tags susceptible of extending to almost any circumstance and do not provide the same precise guidance that Spruce Mills does (see S. Kerwin, "Stare Decisis in the B.C. Supreme Court: Revisiting Hansard Spruce Mills" (2004), 62 Advocate 541, at p. 543, fn. 33). These terms should no longer be used. In particular, the phrase "plainly wrong" is a subjective term and suggests that a judge may depart from binding precedent if they disagree with it -- mere personal disagreement between two judges is not a sufficient basis to depart from binding precedent. The institutional consistency and predictability rationales of stare decisis are undermined by standards that enable difference in a single judge's opinion to determine whether precedent should be followed. It is also not the case that a court can decide a question of law afresh where there are conflicting decisions.

    75 The principle of judicial comity -- that judges treat fellow judges' decisions with courtesy and consideration -- as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:

    The rationale of an earlier decision has been undermined by subsequent appellate decisions;

    The earlier decision was reached per incuriam ("through carelessness" or "by inadvertence"); or

    The earlier decision was not fully considered, e.g. taken in exigent circumstances.

    76 First, a judge need not follow a prior decision where the authority of the prior decision has been undermined by subsequent decisions. This may arise in a situation where a decision has been overruled by, or is necessarily inconsistent with, a decision by a higher court (see Rowe and Katz, at p. 18, citing Kerwin, at p. 542).

    77 Second, a judge can depart from a decision where it was reached without considering a relevant statute or binding authority. In other words, the decision was made per incuriam, or by inadvertence, a circumstance generally understood to be "rare" (see, e.g., The Owners, Strata Plan BCS 4006 v. Jameson House Ventures Ltd., 2017 BCSC 1988, 4 B.C.L.R. (6th) 370, at para. 132). The standard to find a decision per incuriam is well-known: the court failed to consider some authority such that, had it done so, it would have come to a different decision because the inadvertence is shown to have struck at the essence of the decision. It cannot merely be an instance in which an authority was not mentioned in the reasons; it must be shown that the missing authority affected the judgment (Rowe and Katz, at p. 19).

    78 Third and finally, a judge may depart where the exigencies of the trial required an immediate decision without the opportunity to consult authority fully and thus the decision was not fully considered. An unconsidered judgment is not binding on other judges (Rowe and Katz, at p. 18, citing Spruce Mills, at p. 592).

    79 These criteria define when a superior court at first instance may depart from binding judgment issued by a court of coordinate jurisdiction and apply equally to a prior ruling on the constitutionality of legislation. Where, as here, a judge is faced with conflicting authority on the constitutionality of legislation, the judge must follow the most recent authority unless the criteria above are met. In such a situation, the judge must, in determining whether the prior decision was taken per incuriam, consider whether the analysis failed to consider a binding authority or statute relevant to the legal question

    86 To summarize, a court is required by the principles of judicial comity and horizontal stare decisis to follow a binding prior decision of the same court in the province. A decision may not be binding if it is distinguishable on its facts or the court has no practical way of knowing it existed. If it is binding, a trial court may only depart if one or more of the Spruce Mills exceptions apply. (emphasis added).

Conclusion on the Availability of a Conditional Sentence

23. In Forrestall Justice Prutschi found a conditional sentence to be available under Sharma for an offence punishable by a life sentence in light of the Court of Appeal striking down s. 742.1(c) of the Code. He also found that the Crown could not rely on s. 742.1(e)(i) to preclude a conditional sentence based on a ten year maximum combined with bodily harm where the actual maximum sentence for the specific offence was more than ten years.

24. There is, therefore, existing precedent in this province on the dispute between Mr. Eshuis and Mr. Buchanan about whether or not s. 742.(1)(e)(i) entirely disqualifies Mr. Davis-Ball from a conditional sentence (quite apart from the issue of whether or not a conditional sentence would be appropriate, which is a different issue). When I look at the criteria set out in Hansard Spruce Mills, as reinvigorated by the Supreme Court in Sullivan, I cannot say that Justice Prutschi's decision falls afoul of any of the three exceptions that would allow me to go down my own path. I would not say that the "right" decision between Mr. Eshuis's and Mr. Buchanan's interpretations is crystal clear, but that is not the point; rather, the point is that the issue has already been determined within this province and, even if I were to disagree with Justice Prutschi’s interpretation, it would not be open to me to go down my own path in light of Hansard Spruce Mills and Sullivan. If Justice Prutschi carved out the wrong path and if I have mistakenly followed him down it, then that is a matter for the Court of Appeal or for Parliament to sort out.

25. Accordingly, I conclude that a conditional sentence is an available sentence option for Mr. Davis-Ball notwithstanding s. 742.(1)(e)(i) of the Criminal Code.

What is the Appropriate Sentence for Mr. Davis-Ball?

26. The determination of a fit sentence is complicated. It starts, however, with the observation that in assessing the fitness of a sentence, "proportionality" is "the cardinal principle", according to the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at paragraph 12 (see s. 718.1 of the Criminal Code). “The” is a definite article and carries much more force than the indefinite article “a”. “The” is exclusive; it does not tolerate competitors, whereas “a” would recognize the existence of other considerations of equal force. “Cardinal” is a powerful word; it describes something of great importance. Thus, proportionality stands at the apex of the relevant considerations on sentence and all other principles are subordinate to it. The other considerations on sentence set out in the Criminal Code and in decisions of the courts do not thereby become irrelevant, but they cannot be allowed to result in a sentence that violates the principle of proportionality.

27. Proportionality relates to the seriousness of the offence (which includes both how the offence is categorized in the Criminal Code and the particular details of the offence: see: R. v. Hamilton, at para. 90)[^1] and the moral blameworthiness of the offender (which considers the defendant's specific role in the offence as well as any circumstances of the offender's background that aggravate or mitigate his involvement).

28. The purpose of sentencing in Canada is to protect the community and encourage respect for the law through the use of just sanctions (s. 718 of the Criminal Code). Those sanctions should aim to denounce and deter crime, to rehabilitate offenders, to provide reparations and to promote an offender's sense of responsibility. The separation of offenders from society is to be relied upon only where necessary, a principle that is reinforced in s. 718.2(d) and (e) of the Code.

29. A conditional sentence is a form of imprisonment, albeit in a much less harsh environment, but it is imprisonment and it has been recognized by the Supreme Court that a conditional sentence can achieve some of the "sharper" objectives of sentencing such as denunciation and deterrence. It is a precondition for a conditional sentence that the court be satisfied that such a sentence would not endanger community safety (as further developed by the Supreme Court in Proulx) and would satisfy the principles and purposes of sentencing generally as set out in the Code.

30. Mr. Eshuis is not prone to hyperbole; he is absolutely correct when he says that Mr. Davis-Ball’s behaviour was very troubling and led to serious injuries to Mr. Upham, injuries that could have been much more grave: even a difference of an inch or two on a face or neck injury can make an enormous difference to the outcome. The gap between an aggravated assault and a homicide is often very narrow. I have said already that I am perplexed by Mr. Davis-Ball's persistence in following Mr. Upham from Mr. Davis-Ball's home to Mr. Upham's mother's and step-father's home over a relatively small debt and in behaving as aggressively as he did. The total distance from Mr. Davis-Ball's home to the crime scene was about a kilometre.

31. Mr. Davis-Ball's crimes and their consequences would have been terrifying for Mr. Upham and his family. If any person could be blind to the impact of the offences, that impact resonates in the victim impact statement from Mr. Upham's mother. She said:

    My memory has been permanently scarred. There is an imprint in my head of Brian’s chin hanging off of his face. I have had sleeping issues since the incident. I keep my cell phone next to me when I sleep, as I fear that someone will show up at my house again…Brian had permanent scarring on his chin as a result of this incident.

    There is nothing at all surprising or overblown or irrational in her reaction to what happened; her son was scarred physically and emotionally; she was and will continue to be emotionally scarred. Mr. Davis-Ball should be deeply ashamed of what he did and he should build on that shame to ensure that he never behaves like this again. Quite simply, there can be no doubt that his crimes were serious and their consequences were significant and enduring for both Mr. Upham and his family.

32. Still dealing with the seriousness of the charges assessment, Mr. Davis-Ball’s offences, while multiple, all arise from the same event and the same conduct and the same underlying issue. While these multiple convictions are not, in my view, in violation of the rule against multiple convictions (indeed that was not even argued), it is all one event creating a variety of offences, not a series of distinct violent events by Mr. Davis-Ball. It happened over a relatively short period of time. Mr. Davis-Ball thus falls into the sentencing group of youthful first offenders whose first offence is a noteworthy one.

33. In determining sentence, I should also be clear about what I am satisfied of beyond a reasonable doubt and what I am not satisfied of beyond a reasonable doubt. The offence of aggravated assault, for example requires that the Crown prove the requisite mens rea or guilty state of mind on Mr. Davis-Ball's part, which I am obviously satisfied the Crown has done—no other conclusion was reasonably available. That state of mind, however is relatively undemanding, i.e. that he wilfully used force against Mr. Upham in circumstances where bodily harm was objectively foreseeable: see, for example, R. v. Palumbo, 2007 ONCA 486 at paragraph 38. That is a relatively low standard of proof for the mental element. It does not require, for example, that Mr. Davis-Ball intended to cause the extent of injury he in fact caused or even that he subjectively foresaw that such a risk existed.

34. I do not believe that it was Mr. Davis-Ball’s intention to cause injuries as severe as Mr. Upham’s injuries, even though those injuries were reasonably foreseeable. That conclusion does not free Mr. Davis-Ball from criminal liability. It is not even a mitigating factor on sentence. But it is the absence of an aggravating factor. If Mr. Davis-Ball had possessed and used a knife, for example, in his pursuit and assault of Mr. Upham, for example, the situation would be worse. This was a crime of opportunity, not a crime of deliberation.

35. I have commented earlier that this offence was not a prolonged one, in the sense that it did not take place over hours, for example. At the same time, it was not an instantaneous or instinctive type of conduct. Whatever caused Mr. Davis-Ball to obsess as he did over a forty-dollar debt, there was more than ample time in that kilometre-long pursuit for him to regain his senses.

36. When considering the second part of the proportionality assessment, I must look at Mr. Davis-Ball’s moral responsibility for the offence. On the first element of that analysis, it is clear that Mr. Davis-Ball was the principal offender, indeed he was the only offender. This is not the sort of offence where there are multiple offenders, with each playing roles of greater or lesser importance. Mr. Davis-Ball was the offender. He chose to enforce a relatively small debt with persistence and violence and was not deterred by the presence of others once he got to Mr. Upham’s parents’ home. He bears the sole responsibility for everything that happened to Mr. Upham that day. He was out of control and Mr. Upham paid the price.

37. Moral responsibility, however, also looks at the offender more broadly, beyond the specific details of the offence. In assessing Mr. Davis-Ball’s moral responsibility I have the benefit of the pre-sentence report and the report from St. Joseph’s Hospital, as well as letters from Mr. Davis-Ball’s mother and a friend from foster care.

38. I shall note up front that there were comments made by the probation officer, the doctor and the Crown about Mr. Davis-Ball’s failure to take the process seriously. I think that these are valid concerns, up to a point. I do not propose to get into all of the details, but the hospital expressed concerns about Mr. Davis-Ball’s failure to attend appointments (one was cancelled by the hospital) and the probation officer was not impressed with Mr. Davis-Ball’s response to supervision and to his community service obligation on an unrelated drug possession charge for which he received a discharge after he committed these offences. I can understand these concerns as I formed a similar impression of a certain non-engagement on Mr. Davis-Ball’s part during the progression of the trial. I did, however, also have the impression that while some of that reflected a failing on his part to take matters seriously or to take responsibility for his own duties, some (such as failing to pick up a reporting letter that was not delivered and that he would have had to pick up at a courier facility in Niagara on the Lake), perhaps reflected a combination of that indolence along with economic limitations. If Mr. Davis-Ball is to remain out of trouble in future, he does need to take more responsibility for his own life. Things will not end well for him if he persists, as his mother notes below, in the belief that the world owes him something for the absence of his father in his life.

39. The pre-sentence report, the St. Joseph’s Hospital report and letters from Mr. Davis-Ball’s mother and his friend from foster care tell me the following:

    a. Mr. Davis-Ball is now twenty-seven years old. At the time of the offences he was twenty-three. b. His father was deported from Canada due to criminality when Mr. Davis-Ball was about three years old and has had minimal contact with Mr. Davis-Ball. Mr. Davis-Ball’s mother reported that her son felt the world owed him because he had been deprived of his father. She worked two jobs to support her two sons. c. His mother then became involved in a physically and emotionally abusive relationship with another man and Mr. Davis-Ball witnessed most of that abuse. His mother said he also repeatedly witnessed his aunt being physically abused by her partner. She had another child from that union and became a single mother of two children when that relationship broke up after three years. d. Mr. Davis-Ball’s history of volatile and aggressive behaviour dates back to childhood; “he always seemed like he was in a dark place”. As a child he had, “rapid mood swings and frequent temper tantrums.” He was aggressive towards [his mother] and damaged things around the house. His behaviour would escalate when he was held accountable. He was medication-compliant until the age of eighteen, when he decided to rely on marihuana instead. e. Mr. Davis-Ball himself admitted to having issues with anger, which could come on at any time. He took an anger management programme with John Howard. f. He told the hospital that he had been paranoid for the past five years, frequently looking “over his shoulder or out the window” to make sure things were secure. g. His mother reported an untreated brain injury from being kicked in the head in grade 9 that resulted in occasional blackouts and headaches. Mr. Davis-Ball said he had had no brain injuries ever. I have absolutely no hesitation in accepting his mother as the more reliable historian; her commitment to her son’s care and well-being, as emotionally, physically and financially exhausting as it clearly was for her, was both enduring and commendable and I accept her comments without reservation. h. His mother reported that Mr. Davis-Ball, “had lost many friends to drug overdoses throughout his lifetime”. i. Mr. Davis-Ball’s half-brother alleged to a neighbour that Mr. Davis-Ball had been molesting him and that neighbour responded by punching Mr. Davis-Ball in the face. Mr. Davis-Ball had reported himself being molested by a cousin, when he was four years old. In light of the alleged incident with his brother, Mr. Davis-Ball’s suicidal ideation and incidents of Mr. Davis-Ball running away from home frequently and being involved with the police, his mother agreed to place him in the care of Family and Children’s Services when he was fourteen and he was sent to several psychiatrists and placed on medication. He became a Crown Ward at age sixteen, being given a placement that he described in positive terms, but which he left as soon as he turned eighteen. j. Mr. Davis-Ball had significant truancy and behavioural issues in school (including violence). k. Although Mr. Davis-Ball began drinking alcohol at age seventeen as part of a workplace culture and drank heavily for some time, he has not drunk since his arrest. He also used various controlled substances, but likewise says he has been abstinent in relation to any illegal drugs since his arrest. l. A fellow resident of Mr. Davis-Ball’s in foster-care said that Mr. Davis-Ball was goal-oriented and trying to better himself. His John Howard Society bail worker spoke favourably of Mr. Davis-Ball’s compliance with bail conditions and reduced his reporting requirement to monthly in light of his compliance. m. His foster-care friend wrote that Mr. Davis-Ball faced a lot of adversity in foster care and was given little support in the form of counselling or alternate schooling models. In contrast to the author of the letter who lived in the same home as Mr. Davis-Ball, Mr. Davis-Ball was on the receiving end of negative attention. However, despite, “the impact of the system and…homelessness and extreme poverty with little to no support [he continued to] push forward and work very hard to reach his goals….In my opinion, he is very outgoing, warm-hearted, thoughtful, hard-working, determined and kind and continues to strive to be a better version of himself each day.” n. Mr. Davis-Ball has had long-term employment as a cook and in various other positions and is now self-employed as a resin artist. o. His mother continues to have contact with Mr. Davis-Ball and says he has matured but needs help to deal with anger, which has been an issue since he was very young. (Deep-seated anger issues may explain somewhat Mr. Davis-Ball’s vigorous pursuit of a forty-dollar debt). He was diagnosed early with ADHD. p. The hospital concluded that Mr. Davis-Ball met the criteria for Antisocial Personality Disorder and Substance Use Disorder and raised concerns about the likelihood of future violence if he continues to abuse substances. The report called for future treatment. q. Over the past three years he has bonded with his father’s side of the family who are positive role models and who are supportive of him.

40. In R. v. Morris, 2021 ONCA 680, the Court of Appeal made the following observation:

    102…. Evidence about an offender’s background and circumstances allows the sentencing judge to more accurately assess how sometimes competing objectives of sentencing, such as rehabilitation and denunciation, can best be blended to produce a sentence that accords with the proportionality principle and serves the fundamental purpose of sentencing articulated in s. 718.

    I am guided by that language in assessing an appropriate sentence for Mr. Davis-Ball.

41. I have concluded that a period of state supervision of Mr. Davis-Ball amounting to a total of four years is most likely to minimize the likelihood of him reoffending and to maximize the likelihood of him addressing the significant underlying issues that could bring him back in conflict with the criminal justice system if he were not to address the issues that have beset him since childhood and that are not necessarily fully conquered at this point. A sentence of two years less a day to be served conditionally and entirely subject to electronic monitoring, followed by two years on probation, appropriately balances the seriousness of his offences and their impact with his moral responsibility and background contributors. The restrictive nature of the conditional sentence, eighteen months of which will be spent under house arrest with exceptions, serves to denounce his behaviour, while recognizing his age and the fact that he is a first offender, as well as the progress he has made and the stability he has maintained in the long period it took this case to make its way through the court system. The conditional sentence will require him to address his need for counselling and treatment, as will the probation order. Altogether, these elements provide for denunciation and deterrence balanced with a realistic path to rehabilitation. A requirement that he perform two hundred hours of community service under the conditional sentence and an additional fifty hours while on probation will serve both as a means of reparations to society for the harm he has done and as a way for him to recognize his responsibility to society generally.

Fergus ODonnell J.

[^1]: See also: R. v. Morris, 2021 ONCA 680, at paragraph 67-69