ONTARIO COURT OF JUSTICE

DATE: August 18, 2023 COURT FILE No.: Toronto 23-70000-513

BETWEEN:

HIS MAJESTY THE KING

— AND —

NIGEL WHITE

Before: Justice Hafeez S. Amarshi

Oral judgment: August 10, 2023 Written reasons for sentence released on: August 18, 2023

Counsel: A. Spiegel, for the Crown V. Tatsis-Yeh, for Nigel White

H.S. Amarshi J.:

A. Introduction

1. Nigel White pled guilty to attacking two people at St. Clair subway station in Toronto. The attacks were random, he did not know the victims.

2. Mr. White further pled guilty to breaching a recent probation order. Specifically, he did not report to a probation officer as he was required upon his release from custody in January 2022.

3. The Crown proceeded by indictment.

4. The plea before me proceeded by way of an agreed statement of facts which was filed as an exhibit at the sentencing hearing. The offender’s criminal record, a victim impact statement, a pre-sentence report, and photos of injuries suffered by the victims were also filed as exhibits.

5. The Crown is seeking a two-and-a-half-year sentence citing the aggravating nature of a crime of violence on public transport. Further, emphasizing Mr. White’s recent history of similar types of violence.

6. The defence agrees jail is an appropriate sanction given the seriousness of these offences, but argues a twelve-month sentence is appropriate. Mr. White suffers from schizophrenia and Ms. Tatsis-Yeh, his counsel, argues the offender’s mental health illness is a relevant mitigating factor in sentencing.

B. Circumstances of the Offence

7. On January 12, 2023, Mr. White approached Lisa Saballa, who was standing on the northbound platform at St. Clair subway station. He asked her for money. Ms. Saballa ignored the request and continued waiting for the next train. Without warning Mr. White punched her left arm with a closed fist. Ms. Saballa lost her balance and fell against a parked subway train which had pulled into the station. The offender punched the victim a second time striking her head. She lost consciousness. Fellow passengers came to her assistance, and she was pulled into a waiting subway train to stop the attack.

8. Mr. White then walked over to a second victim – Arthur Lambert, who was on the same TTC platform. Mr. White punched him in the head, striking his left temple area. The victim fell to the ground and lay at the edge of the platform.

9. The offender continued. He walked over to Anwerali Dhira. Mr. Dhira worked for the TTC. Without warning, he punched the victim in the face. Mr. Dhira fell to the ground.

10. Police received multiple 911 calls from TTC patrons at the subway station. Police arrived and arrested Mr. White without incident. He was bound by two separate probation orders at the time of these offences.

11. One of the orders dated back to November 12, 2021. The probation order required the offender to report to a probation officer by telephone upon his release from custody. Mr. White was released from jail on January 21, 2022. The offender never made that call. The assigned probation officer made multiple attempts to contact Mr. White but was unsuccessful. This is not surprising since this offender is periodically homeless and has no fixed address nor a phone number.

12. All of the facts were read in at the sentencing hearing. Mr. White has pled guilty to two counts of assault bodily harm, specifically the attacks on Lisa Saballa and Arthur Lambert. Further, he has pled guilty to one count of failing to comply with a probation order, specifically his failure to contact his probation officer upon his release from custody.

C. Circumstances of the Offender

13. Mr. White is 46 years old. He is homeless. The offender had a difficult childhood, which he described to the pre-sentence report writer as “very sad,” that he was neglected. He does not know his father and has no meaningful relationship with his mother.

14. His mother kicked him out of the house when he was in high school. He has been living on the streets ever since.

15. He has no relationship with any family members. He has no friends. He is alone.

16. Mr. White completed high school and worked for 10 years as a chef’s assistant, but he can no longer work and is supported through the Ontario Disability Assistance Plan (ODSP). Approximately 18 years ago Mr. White was diagnosed with schizophrenia. He has auditory hallucinations when he does not consistently take his medication. He further suffers from depression.

17. According to Ms. Tatsis-Yeh, the offender does not remember the events from January 12, 2023. In the pre-sentence report, he reported blacking out, that he didn’t take his medication on the date of the offences. [^1]

18. Mr. White self-reports using alcohol and marijuana on a daily basis. That he uses crack cocaine regularly. He denies, however, having an addiction and believes he does not need treatment or counselling.

D. Criminal History

19. Nigel White’s criminal record contains 30 entries, starting in 1998. His criminal record largely contains acts of violence and breaches of court orders. There are two significant gaps in his criminal history – a seven-year period between December 2004 and March 2012 and a four-and-a-half-year gap between September 2016 and February 2021. Of particular concern, however, are a number of recent entries – nine alone in 2021. These include assault, indecent act, assault with a weapon and assault bodily harm. The most serious entry on his criminal record is from 2016, where the offender was sentenced to nine months in jail after serving 16 months pre-trial custody for aggravated assault and assault causing bodily harm. Of note, this offender has 19 violent convictions on his record.

E. Victim Impact Statement

20. Of the three victims that were attacked by Nigel White at St. Clair subway station, only Albert Lambert provided a victim impact statement.

21. He described the following injuries – a cut to his right cheek bone and bruising to his hip, shoulder and neck. He continues to suffer pain in his shoulders, hip and lower waist. The pain, he says, is a reminder of the attack, which he describes as “very unsettling emotionally.”

22. Mr. Lambert describes now being very nervous when he travels on the TTC, which is his primary mode of travel.

F. Admissibility of Circumstances of Prior Convictions

23. The Crown further seeks to tender a chart entitled, “Location and Victim Profile of Related Convictions” as part of this sentencing proceedings. The chart contains the following headings: date of conviction; type of offence; relationship to victim; and location of offence.

24. Of the seven entries – six involve previous acts of violence either at or in proximity to TTC subway stations or at a bus stop or on a bus.

25. These include the following:

    • On September 26, 2016, Mr. White was convicted of aggravated assault, assault and assault bodily harm. The three victims were strangers to the offender. The offences took place at an entrance to College Park subway station.
    • Entries on his criminal record dated February 19, 2021, April 21, 2021, and November 12, 2021, relate to assaults by Mr. White on strangers at Finch, Spadina and Eglinton subway stations.
    • On March 29, 2021, this offender was convicted of two counts of assault and an indecent act. One victim was waiting at a bus stop, the other victim was a passerby. The incident occurred in Scarborough.
    • An entry on November 12, 2021, related to an indecent act. The victim was a TTC bus driver. [^2]

26. The chart was drafted by Crown Counsel Mr. Spiegel by cross-referencing the offender’s criminal record with SCOPE, a digital information system, largely populated by prosecutors, that would contain detailed information about each entry on Mr. White’s criminal record, including facts that were agreed upon as part of any resolution. [^3]

27. The defence is opposed to the admission of the chart, arguing that it is irrelevant for the purposes of sentencing. Ms. Tatsis-Yeh submits this offender’s criminal record is sufficient for this court to make accurate assessments about Mr. White’s criminal history and the determination of a fit sentence. The defence further points out that the pre-sentence report already contains information about this offender’s previous attacks on strangers. The chart’s main purpose therefore would be to unnecessarily highlight aggravating features about Mr. White’s criminal history – offences for which he has already been punished.

28. The Crown counters the chart is presumptively admissible pursuant to s. 723(5) of the Criminal Code. Mr. Spiegel notes the level of detail is limited and that the information contained in the chart is important in order for this court to assess the relevance of certain sentencing principles that are engaged by Mr. White’s criminal conduct. For example, the likelihood of success in future rehabilitation efforts and the need to separate this offender from the community.

Analysis & Conclusion

29. The strict rules of evidence applicable at trial do not govern sentencing proceedings. Once guilt has been established beyond a reasonable doubt, the task of a sentencing judge is to tailor a sentence that is appropriate to the particular circumstances of each offender. For that reason, as the Supreme Court of Canada explained in R. v. Gardiner, [1982] 2 S.C.R. 368, [1982] at p. 414, the sentencing judge "must have the fullest possible information concerning the background of the [offender]." [^4]

30. Hearsay evidence is admissible so long as it is found to be "credible and trustworthy." [^5]

31. I note this common law principle is codified in s. 723(5) of the Criminal Code which permits the use of hearsay evidence at sentencing proceedings.

32. This is not a case where the Crown seeks to rely on police synopses, where the narrative of facts can significantly diverge from the facts proven at trial or admitted on a guilty plea.

33. The chart includes basic facts about the specific locations of the incidents and the relationship between the victims of those prior offences and the offender. The details furnished are brief and the tone neutral. The information is derived from reliable sources.

34. This information is relevant to these proceedings, especially given the public safety issues engaged in this hearing and in my consideration of the risk of recidivism, which is a live issue at this sentencing. It provides a level of detail not contained in the pre-sentence report or can be reasonably gleaned from Mr. White’s criminal record.

35. The chart outlining circumstances of prior convictions meets the threshold for admissibility.

36. The issue remains one of weight. Ms. Tatsis-Yeh does not dispute the accuracy of the information contained in the related recent convictions chart. Accordingly, those details support the existence of an aggravating factor in this sentencing hearing, specifically Mr. White’s current offences are part of a pattern of random attacks on strangers using public transportation. [^6]

G. Sentencing Principles

37. Section 718 of the Criminal Code instructs that the goal of any criminal sentence is to “protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society."

38. Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community. [^7]

39. A fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is achieved by identifying and considering the aggravating and mitigating factors and circumstances of the offence and the offender bearing in mind the established principles of sentencing including those set out in section 718.2 of the Code.

40. In addition, the Court must always be mindful of the principle of restraint. [^8] The impact on any victim must also be considered. It is in this context and in considering these principles, goals, objectives and factors, that the Court determines a fit sentence that will best achieve the sentencing objectives and is similar to sentences imposed in similar cases. [^9]

41. I further note that sentencing is a highly individualized process. It is driven by the facts of every offence and the unique characteristics of every offender. Sentencing principles must be applied to the unique circumstances of the case. This means that, for the sentence I impose to be appropriate, it must be tailored to Mr. White’s circumstances, and the circumstances of the offence he has committed.

42. Mr. White has an illness. He suffers from schizophrenia. An offender’s mental illness is a factor to be taken into account in sentencing. [^10] The courts have generally treated an offender’s mental illness at the time of the offence as a mitigating factor consistent with diminished moral responsibility. As the Alberta Court of Appeal observed in R. v. Ayorech, 2012 ABCA 82, at para. 12: 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 like mental conditions distinguish those afflicted from the ordinary offender who is fully accountable for his or her conduct [case references omitted].

H. Aggravating and Mitigating Circumstances

43. As I indicated, the Criminal Code mandates a consideration of any relevant mitigating or aggravating circumstances related to the offence or the offender.

I find the following aggravating factors: (i) The offender attacked strangers on a subway platform. The violence was random and unprovoked. The risk of injury was significant. Mr. White struck Lisa Saballa in the head. She could have easily been propelled onto the subway tracks. She fell against a waiting train and was saved by her fellow passengers who pulled her into the train for her safety. The offender continued his attack, striking Albert Lambert in the head knocking him to the ground. He then set upon TTC employee Amirali Dhira, punching him in the face. He also fell to the ground. The victims were in no position to defend themselves. The acts of violence were senseless. (ii) The attacks took place on a vital public service. The public is entitled to be able to travel on the TTC freely and safely without fear of being the victims of random acts of violence. (iii) Mr. White’s actions have exacted a significant physical and emotional toll on Mr. Lambert who continues to be “very nervous” while using public transportation. His physical injuries and pain persist. (iv) The offender was bound by two probations orders at time of this offence. Of significance, Mr. White pled guilty to failing to report to a probation officer after his last release from jail. It is a breach of a core term of his probation. It is the probation officer that is best placed to identify counselling and treatment options for an offender in the community and subsequently monitor attendance and progress. Those rehabilitative efforts, which are particularly pressing given Mr. White’s multiple vulnerabilities, cannot take place without consistent reporting. (v) These offences are part of pattern of related criminal conduct. On multiple occasions since 2016, Mr. White has attacked victims unknown to him who are using public transportation.

44. In mitigation, Mr. White has entered a relatively early guilty plea in this matter. I understand his intention shortly upon his arrest was to take responsibility for his actions. By pleading guilty he has saved court resources in a busy jurisdiction. Of particular significance, he has spared the victims in this matter from having to testify at trial and reliving the trauma of that day.

45. When given an opportunity to address this Court at the conclusion of the sentencing hearing, Mr. White expressed remorse for his actions. He apologized to the victims. It was genuine.

Mental Health Considerations

46. Part of the difficulty in this case is the medical evidence is sparse. I do not have the benefit of a formal psychiatric assessment or medical records.

47. Information related to Mr. White’s schizophrenia diagnosis is contained in four paragraphs in the pre-sentence report, based on a review of medical records by a mental health court support worker.

48. So, while I accept this offender experiences delusions and hallucinations, which is specifically referenced in the report, I have no further information on the severity and extent of the defendant’s illness – whether for example, his psychosis has been exacerbated by his consistent drug use. I am informed by Ms. Tatsis-Yeh, that the nature of his auditory hallucinations takes the form of voices of people of insulting him and making racist comments.

49. I have limited information about Mr. White’s plan of treatment and the effectiveness of his current medication regime.

50. Specifically, this absence of first-hand medical information makes it difficult to make concrete conclusions about whether this offender’s mental illness is solely linked to the commission of this offence.

51. That said, I accept as a matter of common sense, that Mr. White’s mental health deteriorates when he is not compliant with his anti-psychotic medication. That based on his comments to the pre-sentence report writer, he did not take his medication the day of the assaults. Whether one missed dosage is sufficient for his symptoms to re-emerge is unclear. Ms. Tatsis-Yeh indicates there has been a history of non-compliance and the offender may have not been taking his medication for an extended period.

52. I accept based on the evidence before me that Mr. White’s underlying mental health illness is a contributing factor, albeit it remains unclear, whether it is the main cause, underlying the commission of these offences.

53. That distinction, however, does not significantly impact the sentence in this case. The causal link is sufficient that I treat Mr. White mental health illness as a mitigating factor in sentencing. [^11]

54. Given this conclusion, the importance of deterrence and denunciation is attenuated, although they remain operating principles of sentencing in this case.

55. I recognize Mr. White’s risk of recidivism. Without consistent compliance with his prescribed anti-psychotic medication, the offender presents a danger to the public. His continued substance abuse is a possible aggravating factor to the worst symptoms of his mental health illness.

56. Regardless of the custodial sentence I impose, which is certainly warranted in these circumstances, Mr. White will eventually be released from jail and return to the community. Rehabilitation is a relevant factor in this sentencing. The public is protected over the long-term when this offender adequately and meaningfully addresses his underlying mental health illness and his chronic use of toxic substances.

57. I am cognizant of the limits of any probation order I impose in this case. It is neither reasonable nor possible that I mandate compliance with his prescribed medications. I cannot force him to actively see and follow-up with a psychiatrist.

58. Mr. White does have some supports in the community, specifically he has accessed psychiatric care with Cota Health, a community non-profit. An organization that will continue to assist him upon his release from jail.

59. This offender has had a difficult life. His childhood was marred by abuse and neglect. He has spent most of his life homeless and alone. He hears voices. His schizophrenia is a life-long affliction, that can be managed but not cured. He can easily access toxic drugs on the street yet has had limited access to mental health professionals. Mr. White’s prospects for employment are negligible and permanent housing is out of reach. He has inflicted considerable harm, yet he remains vulnerable, a victim himself to his terrible life circumstances.

I. Determination of a Fit Sentence

60. These types of cases are difficult and require a careful balancing of sentencing principles. This offender’s moral blameworthiness is diminished, his underlying mental health illness having contributed to the commission of these offences. I also recognize the public must be protected from violent offenders. Mr. White has demonstrated a poor ability to follow past court orders, and in this case, with these circumstances, the separation of Mr. White from the community is a relevant sentencing principle.

61. Although attenuated, the principles of deterrence and denunciation are relevant sentencing principles in this case.

62. It is highly aggravating that these attacks took place on the TTC, these acts were random and senseless. They contribute to a sense of helplessness among the public. Over time it diminishes the community’s trust in public transportation. A sense our public spaces are no longer safe.

63. It is not lost on me that Mr. White’s crimes of violence were witnessed by many commuters at St. Clair station. The incident would have been highly distressing. Police received multiple 911 calls. Knocked unconscious on the subway platform Lisa Saballa was fortunate those same commuters bravely came to her aid.

64. In the determination of a fit sentence, I have also taken into account the principles of restraint and rehabilitation. Although I have concerns that this offender without adequate psychiatric care and counseling will be prone to future acts of violence, there are gaps in his record which according to Ms. Tatsis-Yeh reflect periods when he has been compliant with his medication regime. There are prospects for rehabilitation. He has been connected to community supports in the past and has benefited from engagement with those social services.

J. Conclusion

65. I have determined the appropriate sentence is a 20-month jail sentence less credit for pre-trial custody. As of the date of sentencing Mr. White has served the equivalent of 10 ½ months in jail. He will be sentenced to an additional 283 days in custody, a further 9 ½ months. Those sentences will be concurrent on each charge.

66. Upon his release from custody, Mr. White will be bound by a probation order for a term of 2 years with the following conditions:

    • Report to a probation officer in person within 72 hours of his release from custody. Thereafter at all times as directed by the probation officer;
    • No direct or indirect contact with Lisa Saballa, Arthur Lambert, and Anwerali Dhira;
    • Not to attend at St. Clair subway station at St Clair. Ave. and Yonge St., except while passing directly though the station on a train or bus or streetcar;
    • Take counselling as directed by a probation officer for mental health challenges and substance abuse and sign any forms to enable the probation office to monitor enrollment attendance and completion of those programs;
    • Attend Cota Health at 550 Queen St. E., Toronto, within 45 days of your release from custody and initiate contact with a Mental Health Services Worker;
    • Make an appointment within 30 days of your release from custody with a family physician for the purposes of a referral to a psychiatrist. If a referral is provided, you are to make an appointment with a psychiatrist within 60 days of your release from custody.

67. There will be a s. 109 order for life, and DNA sampling is ordered as a primary designated offence for assault bodily harm. Mr. White has no means of support. The victim fine surcharge is waived.

68. The Crown had sought a term of probation that Mr. White be prohibited from attending on any TTC property for the duration of this order. After soliciting written submissions on this issue, I determined that for this offender to be able to meaningfully access rehabilitative services and psychiatric care he needs to be able access the TTC. He has no other mode of transportation available to him.

69. I want to thank both counsel or their fulsome and thoughtful submissions in this matter.

H.S. Amarshi J.

[^1]: The PSR writer contacted Rachel Ross-Vance, a mental health support worker, with the Canadian Mental Health Association. Ms. Ross-Vance confirmed through a review of medical records that Nigel White has been prescribed olanzapine, an antipsychotic medication, used to treat symptoms of schizophrenia. [^2]: Mr. White has two separate entries from November 12, 2021. [^3]: Ms. Tatsis-Yeh advised that most of Mr. White’s recent convictions on his criminal record were a result of pleas of guilt. [^4]: As explained in R. v. Williams, 2018 ONCA 437 at para. 47. [^5]: Williams, ibid, at para. 49. See also R. v. Pahl, 2016 BCCA 23, where the court stated, at para. 59: “With respect to hearsay statements contained in documents tendered at a sentencing hearing, R. v. Albright, [1987] 2 S.C.R. 383, also reflects the fact that the focus is on whether the information comes from a credible and trustworthy source.” [^6]: The Crown must prove any aggravating fact in a sentencing hearing beyond a reasonable doubt: s. 724(3)(e) of the Criminal Code. [^7]: Section 718 (a) to (f) of the Code. [^8]: Section 718.2 (c) to (e) of the Code. [^9]: Sentencing principles as summarized by Justice Paciocco, as he then was, in R. v. Casselman, [2014] ONCJ 198 at para. 3. [^10]: See R. v. Ellis, 2013 ONCA 739. [^11]: I have also considered the comments of Arthur Lambert in the pre-sentence report. He stated that there were clear signs of mental health issues with the subject at the time of the attack.