ONTARIO COURT OF JUSTICE

CITATION: R. v. Nicholls, 2022 ONCJ 433

DATE: 2022 06 16

COURT FILE No.: 1911 998 20 1189, 1911 998 21 0629

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CHAYSE NICHOLLS

Before Justice A. Wheeler

Heard on March 18th, 2022, and May 19th, 2022

Reasons for Judgment released on June 16th, 2022

W. Webber ................................................................................................ counsel for the Crown

F. O’Hara ............................................................................................ counsel for the defendant

WHEELER J.:

1. Chayse Nicholls pleaded guilty before me on March 18, 2022 to a charge of carrying a weapon (a knife) for a purpose dangerous to the public peace on August 15, 2020, and to a charge of aggravated assault in endangering the life of Garrett Thomson on May 10, 2021. As was anticipated from an earlier judicial pre-trial, I ordered a pre-sentence report. The case returned before me on May 19, 2022 for sentencing submissions. At that time the parties presented a joint submission for a nine-month custodial sentence. However, based on the content of the pre-sentence report, I asked counsel to return on a future date to make further submissions to address whether the purpose and principles of sentencing could be met by the imposition of a conditional sentence. Those submissions were made today. Both sides now seek a conditional sentence, with the Crown asking that I impose an 18-month conditional sentence less credit for pre-trial custody, and the defence seeking a conditional sentence in the range of 12 to 15 months going forward.

Facts of the offences

2. On August 15, 2020 police encountered Mr. Nicholls’ brother Josh, who had been beaten up outside a billiards hall. Josh Nicholls had a large goose egg on his head and his shirt was ripped. He did not want to give a statement. The police drove him home. Mr. Nicholls was there when they arrived and he was visibly concerned about what had happened to his brother. Later that night the police saw Mr. Nicholls putting a large knife into his backpack as he walked along the street. Police confronted him and Mr. Nicholls admitted that he was going to the billiards hall. When the police told him to sit down and turn over his backpack he screamed at them. He was clearly intoxicated. The charge of possession of a weapon for a purpose dangerous to the public peace arising from this incident was still before the court at the time of the second, more serious incident.

3. The incident that gave rise to the charge of aggravated assault occurred on May 10, 2021. Mr. Nicholls got into an argument with Garrett Thomson who was in a relationship with Mr. Nicholls’ ex-girlfriend. When the facts were read in by the Crown it was alleged that Mr. Nicholls pulled out a knife and stabbed Mr. Thomson twice in the abdomen, then fled. However, the defence position, not contested by the Crown, was that the confrontation between Mr. Thomson and Mr. Nicholls was initially mutual, that Mr. Nicholls turned to leave and that it was when Mr. Thomson followed him that Mr. Nicholls turned back towards him and stabbed him. Consistent with this, Mr. Nicholls told the pre-sentence report author that Mr. Thomson also had a knife. Mr. Nicholls was at the time coming down off cocaine and was intoxicated by alcohol. Counsel advised that the guilty plea was entered on the basis that there were elements of self-defence, but that Mr. Nicholls’ reaction was disproportionate.

4. Mr. Thomson was initially taken to Brockville General Hospital but was transferred to Kingston General Hospital for surgery to repair a lung and his spleen. The Crown indicated that Mr. Thomson did not wish to provide a victim impact statement. Mr. Thomson told the pre-sentence report author that the incident related to “a chick”, but that he did not wish to comment further. He expressed no fear of Mr. Nicholls. He observed that he thinks he coughs more now when he smokes.

Mr. Nicholls’ background and character

5. Mr. Nicholls was born on April 2, 2001. He is now 21 years old, but was 19 years old at the time of the weapons dangerous offence in August 2020, and had just turned 20 years old at the time of the aggravated assault offence.

6. Mr. Nicholls has no prior record.

7. The pre-sentence report is detailed and comprehensive. It describes Mr. Nicholls’ difficult upbringing that “lacked stability and nurturing qualities.” In addition, Mr. Nicholls’ older sister provided a detailed letter.

8. Mr. Nicholls’ sister Brooke Nicholls is ten years older than him. Mr. Nicholls is currently living with his sister pursuant to the terms of his release. She has been his surety since his release from custody on the aggravated assault charge. Ms. Nicholls has stable employment as a realtor and does not have a criminal record. She has been present in court to support him throughout the proceedings.

9. Mr. Nicholls’ brother Josh is only a year older than him. He was present to support Mr. Nicholls at the court hearing on May 19, 2022.

10. The family moved around frequently when Mr. Nicholls and his brother were young because of their mother’s instability and struggles with mental health and drug and alcohol addiction. Mr. Nicholls described to the pre-sentence report author how he would come home from school and his mother would be hung over or still in bed. Although the Children’s Aid Society had been involved with the family since Mr. Nicholls was eight or nine years old, their mother trained them to pretend that everything was normal at home. On the night that Mr. Nicholls was removed from the home at age 12, he had to call 911 for help and even then their mother grabbed the phone and tried to take over the call. This led to Mr. Nicholls and his brother being removed from their mother’s care by the CAS, but Mr. Nicholls and his sister had to testify about the emotional and physical abuse by their mother. Mr. Nicholls did not see his mother for over a year because she would not agree to having her visits with her sons supervised.

11. In addition to abuse from his mother, Mr. Nicholls was also assaulted by an uncle, and his maternal family tried to get the children to lie to CAS about this.

12. Instability in their mother’s relationships with male partners also contributed to the overall instability in the family. Mr. Nicholls’ biological father was not present in his life. Mr. Nicholls had a step-father who lived with the family until Mr. Nicholls was seven years old. Mr. Nicholls then lived with his step-father from ages 12 to 15 after the CAS intervened, but Mr. Nicholls’ relationship with the step-father deteriorated after the step-father entered a new relationship. At age 15, Mr. Nicholls had no other option but to move back in with his mother. At that point she was the worst he had ever seen with her addictions. This was detrimental to Mr. Nicholls’ own mental health.

13. The pre-sentence report states:

The Subject was provided a roof over his head and food to eat however there was no guidance or discipline, or it was extreme discipline at times. Brooke advised that the Subject “never received the conditions required to create a healthy, whole member of society.”

14. Mr. Nicholls lost interest in school in Grade 10 and stopped attending. He hung around with people who were not a good influence. He was suspended multiple times for skipping school or having marijuana on him. However, he described having good relationships with both peers and teachers. Although he participated in sports in elementary school he did not participate in high school after he was pulled out of hockey for smoking marijuana and then lost interest.

15. Mr. Nicholls started drinking alcohol before he was ten years old, but it was at age 15 that he started consuming alcohol more regularly and was drinking daily. However, he told the pre-sentence report author that he now realizes that he needs to get his life together and has significantly reduced his alcohol intake.

16. Mr. Nicholls’ marijuana use began at age eight or nine, and as a young teenager he was using marijuana and more serious drugs regularly. Mr. Nicholls went to a month-long rehabilitation program for cocaine use when he was 16 years old. At the time the pre-sentence report was prepared in April, he had been clean from hard drugs for five months, and he indicated that this is still the case now.

17. Since moving to Brockville three years ago, Mr. Nicholls has found work through a temporary agency, working contracts at a variety of locations for three to four months at a time. His current employer described him as an excellent worker who is kind and courteous to co-workers. A former employer provided similarly positive information.

18. Mr. Nicholls is not involved in a relationship, but there is a possibility that he is the father of a child due to be born in July.

19. Mr. Nicholls was forthcoming with the pre-sentence report author. He expressed his remorse for the stabbing and also acknowledged that he has learned the dangers of his tendency not to back down from a disagreement. The report states:

During a collateral with Brooke, the Subject’s sister, and through a support letter she wrote for court she described the Subject as a “good human being who has made a mistake that will never be repeated.” She described him as a loyal, caring, charismatic, funny and hardworking person. She confirmed that her brother is neither violent, nor dangerous. She brought to light his maturity and conflict resolution skills during any disagreements she and the Subject have had during their time living together. She also noted “the very unfortunate events that led to his charges are the result of once being a helpless child who developed in an environment of violence and neglect, resulting in an adult who fears he may need to take the defense of his very life into his own hands at any time.” During his time living with her he has been involved in household chores and looking after the animals.

20. Mr. Nicholls informed the pre-sentence report author that since the offences he has changed his friend group and no longer associates with former friends who were involved in drugs, drinking and fighting. He indicated that his current small friend group consists of pro-social people. His sister confirmed that she has met Mr. Nicholls’ closest friend and she describes that person as someone who is very polite, respectful and who has close family relationships.

21. Based Mr. Nicholls’ own report, the information from Mr. Nicholls’ sister, and collateral inquiries with the two employers and a former landlord who also knew Mr. Nicholls socially, the pre-sentence report author states that Mr. Nicholls’ conduct in these offences does not appear to be consistent with how others describe him in his day-to-day life. The report concludes:

Given the information provided for this report it appears that Mr. Nicholls is a suitable candidate for community supervision. He appears to be self-motivated and focused on bettering himself, from abstaining from hard drugs to changing his social circle. Should the unborn child be his, he wants to step up and be the best father he can be. He recognizes that he does not want to follow the same path his mother did. He appeared very insightful to what changes he needed to make in his life to redirect himself down a different path. In addition to counselling for substance use, he would be encouraged to also attend for counselling to address childhood trauma.

22. Mr. Nicholls’ sister has acted as a surety for him. In her letter she describes how she has seen him mature, and how easy he has been to live with and how open, thoughtful and helpful he has been since he moved into her small two-bedroom home as required by the terms of his release.

Sentencing principles

23. Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society, through the imposition of a sentence that has one or more of the objectives set out in that section. They are: denunciation, specific and general deterrence, separation of offenders from society where that is necessary, rehabilitation, reparation for harm done to victims or to the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to the victim and to the community.

24. Various principles inform how these objectives are to be achieved and reconciled. The fundamental principle, set out in s. 718.1 of the Criminal Code is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other relevant principles, set out in s. 718.2 of the Criminal Code are that the sentence must take account of mitigating or aggravating circumstances relating to the offence or the offender, the sentence should be similar to sentences imposed on similar offenders for similar offences, the offender should not be deprived of liberty if less restrictive sanctions are appropriate, and all available sanctions other than imprisonment that are reasonable in the circumstances must be considered.

The range of sentence for aggravated assault

25. In R. v. Tourville, 2020 ONSC 1677 Code J. held that aggravated assault can be grouped into three broad categories:

(1) Exceptional cases where a non-custodial sentence would be imposed. Justice Code did not elaborate on what would make a case exceptional, but stated (at para. 27):

At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The “Gladue report” disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems. Some of these features are not dissimilar to the case at bar.

I note that when Tourville was decided a conditional sentence was not available for aggravated assault, and as such a suspended sentence would be the only option available for a non-custodial sentence. See also R. v. Nicholls, 2013 BCSC 1145.

(2) Mid-range cases where high reformatory sentences between 18 months and two years have been imposed. Code J. stated (at para. 28): “These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force.

(3) Cases at the high end of the range typically attract sentences of four to six years. Code J. stated (at para. 30): “These cases typically 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.”

26. In determining an appropriate sentence I have also been guided by Leach J.’s comprehensive analysis of sentencing decisions for aggravated assault as set out in R. v. Kavinsky, 2017 ONSC 3792. Like Code J., Leach J. found that a suspended sentence could only be imposed in an exceptional case.

27. The Court of Appeal’s decision in R. v. Randhawa, 2020 ONCA 668 also provides important guidance. In that case the accused intervened and stabbed two people who were assaulting her boyfriend, acting in the belief that she needed to protect him. Everyone involved was a university student. The accused was a few months shy of her 24th birthday at the time. She was convicted following a contested trial. The trial judge rejected the defence submission for a suspended sentence, and imposed 12 months custody and two years probation.

28. The Court of Appeal dismissed the accused’s conviction appeal, but allowed the sentence appeal. The court held: “The fundamental sentencing principle that applied in this case is that sentences other than a custodial one must be considered in sentencing a youthful first-time offender.” The Court of Appeal held that the trial judge had failed to give proper effect to this principle. See para. 30. Furthermore, in that case the trial judge had erred in characterizing the case as a consent fight and using the range set out in Tourville for those types of circumstances, when the more appropriate benchmarks were cases involving defence of another person, which ought to have put the case at the lowest end of the ranges discussed in Tourville. See paras. 36-38.

29. The following comments are of particular significance to Mr. Nicholls’ case (at para. 39):

39 The trial judge recognized the sentence of incarceration would interrupt the appellant’s efforts at rehabilitating herself and expressed his hope the sentence would not defeat it. The appropriate sentence is one that will support the remarkable progress the appellant has made and continues to make. Society will not benefit by sending the appellant, a youthful first-time offender, to jail. The need for deterrence and denunciation are achieved by the conviction, a suspended sentence and a lengthy period of probation, the DNA order, and the ten-year weapons prohibition.

30. I note that Randhawa was argued and decided very shortly after the Court of Appeal released its decision in R. v. Sharma, 2020 ONCA 478 and the case does not discuss the implications of that decision or the availability of a conditional sentence.

31. The landscape of available sentencing options changed with the Court of Appeal’s 2020 decision in Sharma. As an offence with a maximum sentence of 14 years, a conditional sentence of imprisonment was statutorily unavailable for aggravated assault. However, the Court of Appeal struck down s. 742.1 of the Criminal Code. At least for the time being (the decision is under appeal to the Supreme Court of Canada) a conditional sentence can in Ontario be imposed for aggravated assault. There is no controversy about this although understandably courts have reached different decisions in terms of the actual sentence imposed based on the individual facts and circumstances of the particular case. See, for example, R. v. Minhas, 2021 ONCJ 143; R. v. Nguyen, 2021 ONCJ 512; R. v. Dhindsa, 2020 ONCJ 518.

32. Leaving aside Sharma, there is case law that supports the imposition of a conditional sentence for aggravated assault from when it was statutorily available. For example, see R. v. Veenhof, 2011 ONCA 195; R. v. Puckett, 2007 ABCA 227; and R. v. Foster, 2008 BCSC 136, 2008 B.C.S.C. 136.

Aggravating and mitigating factors

33. There are the following aggravating factors:

• Mr. Nicholls stabbed Mr. Thomson twice, resulting in serious injuries requiring surgery to repair his spleen and a lung. There is no evidence of significant long-term physical effects, and no evidence of long-term emotional trauma, but the consequences could have been much more serious.

• Mr. Nicholls was carrying a knife and used it at a time when he was before the court on the earlier charge of possession of a weapon for a purpose dangerous to the public peace, which also involved a knife. He was released on an appearance notice on that charge and so was not in breach of any condition at the time of the aggravated assault. Nevertheless the earlier charge should have served to send a message to Mr. Nicholls about carrying a knife.

34. There are the following mitigating factors:

• Mr. Nicholls pleaded guilty, and has expressed his remorse.

• Mr. Nicholls is very youthful.

• Mr. Nicholls has no prior criminal record.

• Mr. Nicholls was intoxicated or had been using cocaine at the time of the incidents. This is not in and of itself mitigating but it does speak to Mr. Nicholls’ prospects for rehabilitation once he addresses his use of alcohol and substances, and it supports the fact that at least the aggravated assault was spontaneous rather than pre-meditated.

• Mr. Nicholls comes from a very disadvantaged background of neglect and abuse. I accept the description that Mr. Nicholls’ sister gave about how this impacted Mr. Nicholls.

• Since his release from custody on the aggravated assault charge, Mr. Nicholls has complied with bail conditions that required him live with his surety and to observe a curfew between 8 p.m. and 6 a.m. except for going to work and when in the company of his surety. This is something that should be taken into consideration as a mitigating factor in determining the length of the sentence imposed. See R. v. C.C., 2021 ONCA 600 at paras. 2-5 discussing R. v. Downes (2006), 2006 ONCA 3957, 79 O.R. 321 (C.A.). In my view it is appropriate to reduce the sentence I would otherwise impose by 30 days in order to recognize these restrictions on Mr. Nicholls’ liberty.

• Mr. Nicholls spent 35 days in custody during the pandemic. He served one day following his arrest on the aggravated assault, and then served a 34 day period upon surrendering into custody because his surety (his sister) had to travel out of town. During that time Mr. Nicholls was subject to a mandatory 14 day period of isolation and overall the conditions were difficult. He was only able to reach his lawyer once during that time. I note that the harshness of conditions in pretrial custody during the pandemic is now well known. The 35 days credited at 1.5 to one will be deducted from the sentence I would otherwise impose. However, the conditions in pretrial custody during the pandemic is also a separate mitigating factor. I would reduce the sentence I would otherwise impose by 18 days in order to account for that. See R. v. Marshall, 2021 ONCA 344.

• Mr. Nicholls has been steadily employed and is seen as a valuable employee.

• The aggravated assault appears to have been completely out of character.

• The charge of possession of a weapon for a purpose dangerous to the public peace appears to have arisen from a misguided form or sense of solidarity with his slightly older brother.

Analysis

35. The seriousness of the injuries to Mr. Thomson, and Mr. Nicholls’ use of a knife in a way that endangered Mr. Thomson’s life and which could have killed him means that the sentence imposed must speak to the objectives of deterrence and denunciation. The sentence imposed must send a strong message that carrying knives and using them in moments of inter-personal conflict is something that will be taken very seriously. It is conduct that comes with significant risks and potentially lethal consequences.

36. However, Mr. Nicholls’ young age and his lack of criminal record and the many other mitigating factors require that I exercise restraint in the imposition of sentence, and that I give proper consideration to Mr. Nicholls’ potential for rehabilitation. The Court of Appeal’s decision in Randhawa provides a very clear direction that these circumstances require me to emphasize rehabilitation in every aspect of the analysis and to consider sentences other than custody.

37. Despite the many mitigating factors, including Mr. Nicholls being a youthful first offender, I find that a suspended sentence would not be proportionate to the gravity of the aggravated assault offence and Mr. Nicholls’ degree of responsibility on that charge, and neither party suggested that it would be.

38. I agree with the parties that it is however appropriate to impose a conditional sentence pursuant to s. 742.1 of the Criminal Code. There are no statutory impediments to this, but I must be satisfied that this would not endanger the safety of the community and that it would be consistent with the fundamental purpose and principles of sentencing. I find that both of those requirements are met here.

39. Allowing Mr. Nicholls to serve the sentence in the community would not endanger the safety of the community. Mr. Nicholls is very young, he has no record, and he comes from a difficult and disadvantaged background involving neglect, trauma and addiction. With the support of his older sister, who lives a very stable life and who accompanied Mr. Nicholls to court, Mr. Nicholls has strong rehabilitative potential.

40. In addition, a conditional sentence is consistent with the fundamental purpose and principles of sentencing. Various aspects of the case have already served to send messages of denunciation and deterrence: the 35 days in pre-trial custody (which would be properly considered as the equivalent of 53 days), the fact that these were served during the pandemic, the 13 months that Mr. Nicholls has spent on bail conditions that have restricted his liberty, as well as the conviction and public court proceedings. In addition, it is well accepted that a conditional sentence can serve the purposes of deterrence and denunciation. Furthermore, as already noted, rehabilitation and restraint must play an important part in the determination of a fit sentence for Mr. Nicholls.

41. Imposing further actual jail would enhance the deterrent and denunciatory impact of the sentence. However, it would in my view come at the cost of jeopardizing Mr. Nicholls’ potential for rehabilitation, which would in the long term also damage the public interest. At this point, if Mr. Nicholls continues on the course he is on there is every reason to believe that he will not re-offend. In my view, a conditional sentence of imprisonment best balances all the relevant interests and objectives.

42. It is not my place to comment on the constitutional issues at stake in Sharma, but I feel compelled to add that the impact of the Court of Appeal’s decision in Sharma is a welcome change to the task of sentencing, because it allows a more nuanced approach in determining a proportionate sentence. In my view a suspended sentence would be unduly lenient here, and yet this case is very much like Randhawa and others, where a sentence of actual jail would likely undo the remarkable progress that Mr. Nicholls has made. In all the circumstances, the imposition of actual jail would be counterproductive and could be seen by a fully informed person as gratuitous – offering possibly very little marginal gain in denunciation or deterrence but at the expense of further damaging a vulnerable young person.

43. The availability of a conditional sentence promotes proportionality because it fills in the middle ground between a suspended sentence and actual jail so that the court is not placed in the position of choosing between what could well be seen as a lenient or even especially lenient suspended sentence (see for example the Court of Appeal’s comments in R. v. Hudson, 2020 ONCA 557 at para. 24) and a jail sentence that would sacrifice rehabilitation in favour of deterrence and denunciation. In R. v. Priest (1996), 1996 ONCA 1381, 110 C.C.C. (3d) 289 (Ont. C.A.) Rosenberg J.A. stated (at para. 26): “Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.” A conditional sentence gives a sentencing judge an important tool to achieve that.

The sentence imposed

44. In my view a conditional sentence of 18 months, or 540 days would have been an appropriate sentence on the charge of aggravated assault. However, I reduce that by 48 days in recognition of the harshness of conditions in pretrial custody (18 days “credit”) and in recognition of restrictive bail conditions (30 days “credit”), leaving the overall sentence that I would impose at 492 days. From that I deduct the 53 days credit for time already served (35 days credited at 1.5 to 1), which leaves a remaining sentence of 440 days, which is slightly more than 14 ½ months.

45. Mr. Nicholls will be subject to house arrest for the first 6 months of the sentence with the usual exceptions. In addition the order will include conditions that he not contact or communicate with Garrett Thomson and observe a 100m radius of any place where Mr. Thomson lives, works, goes to school or happens to be; not possess any weapons; not possess or consume alcohol or illicit drugs; attend for assessment, treatment and rehabilitative programs relating to childhood trauma, substance abuse, alcohol abuse and anger management; and seek work or attend school. Given the length of this sentence coupled with the length of time that Mr. Nicholls has been on conditions of release as well as his young age, I am not imposing a separate probation order. By the time that Mr. Nicholls completes the conditional sentence he will have been subject to court-ordered supervision for fully 28 months.

46. The Crown acknowledged that but for the aggravated assault, it would only have sought a suspended sentence on the charge of weapons dangerous and in my view there might have been some prospect that Mr. Nicholls would receive a discharge. In the circumstances, I impose a concurrent conditional sentence of 10 days on that charge.

47. In addition, I impose a weapons prohibition under s. 109 of the Criminal Code for a period of 10 years, a DNA order and a forfeiture order under s. 491 of the Criminal Code in relation to the knives seized by the police.

48. I am grateful to both counsel for their helpful submissions and case law, and also wish to commend Crown counsel for his willingness to reconsider his position which was in keeping with the Crown’s role as a minister of justice.

Released: June 16th, 2022

Signed: Justice A. Wheeler