DATE: May 15, 2023 COURT FILE No.: 0611-998-21-1387 ONTARIO COURT OF JUSTICE Central West Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

tyrone joseph

Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on December 14, 2022, and April 14, 2023 Reasons released on May 15, 2023

Counsel: Ms. Michelle Occhiogrosso, for the Crown Mr. Barry Plant, for the Offender

SCHWARZL, J.:

REASONS FOR SENTENCING

1.0: INTRODUCTION

[1] On April 11, 2021, the offender, Tyrone Joseph, attacked the victim, Cassandra Cole, with a knife. He stabbed her multiple times, causing Ms. Cole to suffer grievous injuries.

[2] On December 14, 2022, Mr. Joseph entered a plea of guilty to a single count of aggravated assault. A sentencing hearing took place on April 14, 2023.

[3] What follows are my reasons for sentence.

2.0: CIRCUMSTANCES OF THE OFFENCE

[4] At the time of this offence, the offender had been in a relationship with Nadine Thompson for about four years. Ms. Thompson’s good friend was the victim, Cassandra Cole. Ms. Cole and the offender became good acquaintances. When he stabbed her, the offender had known Ms. Cole for about three years.

[5] On April 10, 2021, the offender, Ms. Thompson, and Ms. Cole went together to a birthday party. Everyone, including the offender drank throughout the evening. In the wee hours of April 11, the offender became angry after he answered Ms. Thompson’s phone and heard a man’s voice. Sometime later, the offender, Ms. Thompson and Ms. Cole were in the kitchen. The offender and Thompson argued about the phone call. Ms. Cole got between them and tried to deescalate the argument. Ms. Thompson disengaged while Cole and the offender talked about his relationship with Thompson.

[6] While arguing with Cole, the offender produced a knife without warning and stabbed Cole seven times. During the melee, the offender suffered a deep cut in his leg that required six stitches to close. The offender then ran away from the house. He was found by the police a short time and distance later in a state of extreme intoxication. On his arrest, a knife was found in his pocket.

[7] Cole was taken to a trauma hospital where she underwent extensive surgery for her many wounds including two stabs to her abdomen, a stab into her chest, a stab into her liver, a stab into her spleen, a stab into her right knee, and a stab into her forehead and scalp. Photographs of the injury locations were filed during the sentencing hearing.

3.0: CIRCUMSTANCES OF THE OFFENDER

3.1: General

[8] The offender was born on August 31, 1978. At the time of sentencing, he is 44 years old.

[9] The offender is a citizen of St. Lucia. He is a permanent resident in this county having emigrated here in 2010.

[10] Mr. Joseph experienced a positive upbringing and continues to have close ties with his family back home as well as with a sister who lives in Toronto.

[11] The offender has a ten-year-old son from a prior relationship. He is close with his son and sees him often as possible.

[12] The offender’s friendship group contains both positive and negative influences. Once he has served his sentence, he plans to remove the negative friends from his circle.

[13] The offender completed high school. For the past nine years he has been employed with a concrete business owned by Mr. Zane Rozdolsky, who testified that the offender is a conscientious and reliable employee. Mr. Rozdolsky further stated the offender has a job waiting for him once he is released from prison.

[14] Since the age of 25, the offender has struggled with alcohol which has been a major contributing factor to his criminality. He completed past court-mandated alcohol counselling. When sober the offender is a kind, conscientious, and caring father, friend, and employee. Mr. Joseph has abstained from alcohol since his arrest.

[15] The offender disputes those portions of the pre-sentence report that state (a) he is in denial of his problems with alcohol and (b) that he minimizes his responsibility for this offence. The prosecution did not take issue with these submissions.

[16] Although the offender has little memory of committing this crime due to his intoxicated state at the time, he is genuinely remorseful and said as much in court. The offender and Mr. Rozdolsky described this crime as out of character for Mr. Joseph.

[17] In anticipation of his plea and sentence, the offender has completed substance abuse and anger management courses. He submits that he is motivated to engage in meaningful and productive rehabilitation.

[18] Mr. Joseph has the following criminal record:

2016-02-26 Toronto (1) Assault, s. 266 CC (2) Utter Threat, s. 264.1 CC (1-2) Suspended Sentence & Probation 2 Yrs

2016-03-31 Toronto Breach of Recognizance, s. 145(3) CC (PTC 1 day) Suspended Sentence and Probation 2 Yrs

2017-05-03 Toronto Drive with Excess Blood Alcohol, s. 253(1)(b) CC $1,300 & Driving Prohibition 1 Yr & Probation 12 Mos

2020-02-26 Toronto Assault, s. 266 CC Conditional Discharge & Probation 12 months

3.2: Bail

[19] After being arrested for this offence on April 11, 2021, the offender was held for bail. He was released 47 days later on May 27. He was subject to several restrictive conditions including to reside with his surety, remain at home (subject to certain exceptions), not to drive, attend counselling, being electronically monitored at all times, not using a cell phone except while being supervised by a surety, and being sober while outside his residence.

[20] The electronic monitoring device was attached to his ankle which caused both shame and pain while working in the concrete trade. The offender submitted that the device was also expensive and intrusive. The offender submitted that the condition prohibiting him from driving negatively impacted his employment by restricting his duties while at work.

[21] The offender submitted that the bail conditions prevented him from going to his father’s funeral in St. Lucia. He further submitted that the bail conditions impeded his ability to visit his son who lives three hours away and the cell phone condition restricted his communication with his child.

[22] He was on bail until he surrendered himself into custody on December 6, 2022 in anticipation of resolving this matter.

[23] Mr. Joseph was subject to bail for 559 days, or just over 18½ months. He complied with all terms of bail without any breaches.

3.3: Pre-Trial Custody

[24] The offender turned himself in on December 6, 2022 in anticipation of his guilty plea. Between then and the sentencing on May 15, 2023 he was in custody at the Maplehurst Correctional Complex (MCC) for 161 days or 5⅓ months. When adding this to the 47 days he spent in detention awaiting release on bail, the offender has spent at total of 208 days in jail prior to being sentenced.

[25] While in custody, the offender was subjected to 69 lockdown occurrences up to April 14, 2023. Of those lockdowns, 18 were partial while the remaining 51 were full. The offender experienced lockdowns for one-third his time in pre-trial detention up to April 14, 2023.

[26] Unless he was on full lockdown, the offender had access to all inmate privileges. He also had access to a wide range of rehabilitative, religious, and medical programs.

[27] The cells at the MCC are designed to accommodate two inmates. For 119 days of his 208 days in detention, the offender shared his cell with two other inmates. This phenomenon is called triple-bunking and involves not only crowding but also one of the inmates sleeping upon a mattress on the floor. The offender was triple-bunked for 6 out of every 10 days of detention up to April 14, 2023.

[28] Records filed from MCC indicate that as of January 17, 2023, 8 inmates and 4 staff tested positive for COVID. There is no evidence that the offender was exposed to, or contracted, COVID while in detention.

[29] While in detention the offender was not written up for any conduct requiring disciplinary measures.

4.0: POSITIONS OF THE PARTIES

4.1: The Prosecution

[30] The prosecution advocates a sentence of five years less credits for the effects of bail and pre-trial custody. They also seek ancillary orders including DNA, a firearms prohibition, and so on.

4.2: The Defence

[31] The defence submits that a fit disposition in this case is a sentence of 12 to 18 months, less a deduction for bail and detention, followed by lengthy probation. The defence agrees with the ancillary orders sought by the prosecution.

5.0: MITIGATING, AGGRAVATING, AND OTHER RELEVANT FACTORS

5.1: Mitigating Factors

[32] The following are mitigating factors on sentencing.

[33] The offender pled guilty. This is always an important mitigating factor, particularly in this case where both counsel stated there were legitimate triable issues. Furthermore, his plea of guilt is accompanied by genuine remorse. At the time of his arrest, he expressed to the police how sorry he was for what he did.

[34] The offender admits he has a substance abuse problem and is taking steps to deal with it. His prospects for rehabilitation are good.

[35] The offender is employable and has a job waiting for him when he finishes his sentence.

[36] The offender is a responsible parent who enjoys strong family and community support.

[37] The pre-sentence report is generally positive.

[38] The offender was subject to pre-trial detention and conditions of bail which each caused real hardship to him.

5.2: Aggravating Factors

[39] Aggravating factors are present. They include the following.

[40] The victim in this case was the subject of a vicious, unprovoked, sudden, and nearly fatal attack. The offence of aggravated assault is, by its nature, a very serious crime.

[41] The victim sustained seven wounds requiring extensive emergency surgery. She required nearly one hundred stitches or staples to close the wounds. More than two years after the attack the victim remains far from healthy due to the wounds inflicted on her by her former friend.

[42] The impact on the victim is profound. She continues to suffer excruciating pain from life-altering injuries, has lost much of her independence, and has endured significant financial hardship.

[43] The offender has a modest but cognate criminal record including two prior findings of guilt for violent crimes. This offence was committed less than two months after finishing probation for another assault.

[44] His abuse of alcohol was a major aggravating factor in this case, especially since he had the benefit of rehabilitative programming prior to this crime.

[45] The moral blameworthiness of this offender for this offence is very high. In a drunken rage, he wantonly stabbed and nearly killed somebody who was a friend at the time and who was trying to deescalate an emotionally charged situation.

5.3: Other Relevant Sentencing Factors

[46] The effects of bail and pre-trial detention must be considered as relevant factors that mitigate sentence by providing credit, or deductions, from the appropriate period of incarceration.

[47] Time spent under stringent bail conditions must be considered as a relevant mitigating factor on sentence, which is referred to as 'Downes credit': R. v. Downes, 2006 ONCA 3957, 79 O.R. (3d) 321 (C.A.), [2006] O.J. No. 555 (C.A.). While the amount of credit to be given for time spent on bail is within the discretion of the sentencing judge, several factors must be considered in the assessment including: the length of time spent on bail under house arrest; the stringency of the bail conditions; the impact of bail on the offender's liberty; and the ability of the offender to carry on normal relationships, employment, and other activities. It is therefore inappropriate to adopt a rigid formula because there can be a wide variation in bail conditions.

[48] When sentencing an offender, the court may give credit for pre-trial custody. Normally that credit is 1:1 but may be enhanced to 1.5:1 where information or evidence warrant such augmentation. In Ontario, this enhancement is known as 'Summers credit': R. v. Summers, 2013 ONCA 147, (2013) 114 OR (3d) 641 (C.A.); sections 719(3) and (3.1), Criminal Code.

[49] Where particularly harsh conditions of pre-trial detention exist, this can provide mitigation apart from, and beyond, the Summers credit, which in Ontario is called 'Duncan credit': R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (C.A.). In considering whether any additional enhanced credit should be given, the court will consider both the conditions of pre-trial detention and the impact of those conditions on the offender. There is no mathematical formula to calculate the appropriate additional enhanced pre-sentence credit; the assessment is case specific and at the discretion of the court, utilizing “broad brush” methodology rather than assigning credit to each specific material incident or factor: R. v. Rajmoolie, 2020 ONCA 800.

[50] In this case, the offender was on bail for over 18 months. I find that some of the conditions of bail were significantly punitive and unduly restricted his liberty. There will be a deduction of 90 days from the sentence to be imposed to account for the impact of bail on this offender.

[51] With respect to credit for pre-trial custody, the offender spent a total of 208 days in jail. The Summers credit is therefore 312 days. I find that the lockdowns and triple-bunking were particularly harsh conditions of imprisonment and were unfairly severe upon this offender. I assess the Duncan credit to be an additional 100 days. In the result, I shall reduce the appropriate period of incarceration in this case by 412 days due to the impact of pre-trial detention.

[52] I will therefore reduce the overall sentence by 502 days, or 16¾ months, because of the punitive impacts of bail and pre-trial custody on Mr. Joseph.

6.0: THE SENTENCE

[53] Both parties provided me with case authorities that demonstrate that the sentencing range for aggravated assault is very broad. This is not surprising since sentencing is a highly individualized process that must not only consider general principles of sentencing, but also the circumstances of the given offence and offender.

[54] Of all the authorities provided to me, I find the case of R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245 (S.C.J.) to be most helpful. In that case the learned trial judge set out a guideline for sentencing offenders convicted of aggravated assault at paragraphs 27 to 30.

[55] Upon applying the guideline set out Tourville to the circumstances of this offence and this offender, and after considering the submissions of counsel, I find that the appropriate sentence is 50 months imprisonment from which I deduct 16¾ months for a net period of incarceration of 33¼ months.

[56] I reach this conclusion for the following reasons. This case falls into the high range of 4 to 6 years as described in Tourville. Here, the offender is a recidivist with a record for violence, including a recent finding guilt for assault. The offence was an especially violent and unprovoked assault on a defenceless victim who was only trying to help diffuse a domestic argument. The attack involved multiple stabs resulting in nearly fatal injuries. The offender knew that alcohol was a problem, but he became extremely drunk and then attacked the victim, despite having been subject to alcohol counselling as part of prior court dispositions. The impact of the offence of the victim is profound. But for the remorse of the offender, his good prospects for a lawful future, the triable issues, and other mitigating features, the sentence would have been higher.

[57] I make the following ancillary orders: a s.743.21 non-communication order for the victim and her immediate family; a s. 109 order for life; a primary, in-custody DNA order; a forfeiture order for the weapon used; and a victim surcharge of $200 payable within 60 days.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice