Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 10 26 COURT FILE No.: Central West Region 998 22 S1372

BETWEEN:

HIS MAJESTY THE KING

— AND —

Christopher Judge

Before: Justice J. De Filippis

Heard on: October 13, 2023 Reasons for Sentence Released on: October 26, 2023

Counsel: MS. D. Polgar ....................................................................................... counsel for the Crown Mr. S. Buchanan......................................................................................... for the defendant

De Filippis J.:

Reasons for Sentence

[1] The defendant was found guilty after trial of the following offences:

• Assaulting PC Molnar with intent to resist arrest (s. 270(2))
• Assaulting PC Molnar while he was engaged in the execution of his duty (s. 270(2))
• Operating a conveyance and failing to stop at the scene of an accident (s. 320.16(1))
• Operating a conveyance and failing to stop while being pursued by a peace officer (s. 320.17(1))
• Operating a conveyance in a manner that was dangerous to the public (s. 320.13(1))

[2] The facts are fully set out in my written reasons for judgement (2023 ONCJ 319). In summary, however, the defendant assaulted a police officer and resisted arrest at a housing complex. He managed to get into his motor vehicle and struck two parked cars as he departed. Several police cruisers arrived, and had to take evasive action, as the defendant exited the parking lot. These officers pursued the defendant as he drove at excess speed in downtown St. Catharines. He ignored stop signs and traffic lights as he made his escape.

[3] The defendant has a relatively minor criminal record with the longest sentence being 21 days in jail. The presentence report chronicles the defendant’s struggle with death and drugs and limited employment. It contains the following statements:

With respect to the matters before the Court, the subject did not accept responsibility for his actions. He asserted he felt he was unfairly targeted and charged. He asserted he was at the residence waiting for his girlfriend to leave for a day of work when the residence was raided. He stated he was then told by police he could not leave as the house was a part of a drug investigation. He asserted the officer requested he step out of his vehicle after claiming he could see a folding knife and a bag of crystal meth. He advised the Court did not believe his version of events in this matter because he refused to give a witness statement on a previous matter. He revealed if he knew at the time of the offence, he was facing jail time, he should have retaliated to make it worthwhile. The subject reported he was injured after the altercation with the officers at the time of his arrest. He claimed these injuries have caused him to lose the ability to fully use his right arm.

Ms. Judge [the defendant’s mother] described the subject as having a heart of gold, nonviolent, and would be the first person to give you the shirt off his back if you needed it. She confirmed the subject was sexually abused by a neighbour but was unsure who the person was. When asked if she felt the subject took responsibility for his actions, her response was she was not sure what his view of reality was at the time, so he may feel he was justified in his actions. She reported the family is concerned for the subject’s safety and stated they feel he will die if he continues this way. She revealed when the subject is not using drugs or drinking, he is in constant contact with family and when he goes silent, they begin to suspect his has resumed using. She also reported the subject is a different person when using drugs and alcohol. She wanted it to be known the family feels the subject needs long term residential treatment and mental health counseling.

[4] Defence Counsel raised a preliminary issue: Does the rule in R v Kienapple, [1975] 1 S.C.R. 729, limiting multiple convictions arising from the same wrong act, mean that there should be a conditional stay on either the assault police officer or assault resist arrest? The Defence argues that the answer is yes because the actus reus for both offences is the same. The Crown, relying on R v Phan 2009 ABPC 190, submits that even if the factual nexus for both offences is the same, the legal nexus is not. The Court in Phan considered the application of Kienapple to the same two offences in question, before me. I accept the reasoning in Phan. It is a complete answer to the Defence argument. In any event, my reasons for judgement show that there is not a factual nexus between the two offences in the present case because the defendant not only assaulted the officer while resisting arrest, but having avoided the arrest, invited the officer to fight and threatened him just before he entered his motor vehicle and drove off. A conviction will be registered for both offences.

[5] The Crown suggests a total sentence of nine months in custody, followed by probation for three years (on terms that include counselling), a three-year driving prohibition, a weapons prohibition, pursuant to s. 110 for ten years and a DNA order. In support of this submission, counsel points out that the defendant unnecessarily accelerated events and drove in a most dangerous manner and notes, as well, that the defendant’s comments to the author of the presentence report clarify that he has no remorse.

[6] The Defence suggests that a nine-month conditional sentence order is appropriate with a one-year driving prohibition. Counsel advised me that the defendant is presently a suspended driver for medical reasons. As noted in the presentence report the defendant has suffered because of the death of his spouse, followed by that of his father. He has struggled with substance abuse and is currently addicted to crack cocaine. As a result, he has had sporadic employment over the past few years. Defence counsel is advised by the defendant that what he meant in speaking to the author of the presentence report about retaliation is ‘imagine what would have happened if I had done more’. I do not accept this explanation. The presentence report makes it clear this is not what was meant. The author of that report was not challenged by the Defence.

[7] The imposition of sentence is governed by Part XXIII of the Criminal Code. The following provisions are especially relevant in this case:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing…

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[8] The cardinal principle of sentencing is proportionality. This means that the severity of a sentence will depend on the seriousness of the offence (and its consequences) as well as the moral blameworthiness of the offender; R v Lacasse 2015 SCC 64. Personal circumstances are relevant in determining proportionality considering the seriousness of the offence, but they do not alter the seriousness of the offence: R v Schofield [2019] B.C.J. No. 22 (BCCA).

[9] The offences before me are quite serious. The defendant assaulted a police officer in lawful execution of his duties, successfully resisted arrest and drove in a dangerous manner in his flight from police. His moral blameworthiness is high. He would not respond to the officer’s several efforts to de-escalate. He has shown no remorse. I appreciate that the officer suffered minor injuries and that the defendant was tasered twice and cut his face in falling to the ground. These injuries are the unfortunate consequence of his misconduct.

[10] Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. The first two criteria are not obstacles in this case; the only issue is the third and fourth pre-requisite.

[11] A conditional sentence order does not meet the third and fourth statutory criteria. The fact that the defendant has shown no remorse and is addicted to crack cocaine persuades me that the safety of the community would be compromised by such an order. The Supreme Court of Canada has observed that a conditional sentence can meet the demands of denunciation and deterrence in the right circumstances (see R. v. Proulx 2000 SCC 5, [2000] 1 S.C.R. 61). The present case does not have the “right circumstances”. As noted, the defendant assaulted a police officer and successfully resisted arrest. He fled in a motor vehicle and immediately struck two cars. His flight from police cruisers put members of the public at risk and was so dangerous that the pursuit was called off and he escaped.

[12] The Crown suggestion that there be a custodial period of nine months is reasonable. However, I note that the defendant has only served one short jail sentence in the past. In these circumstances, the defendant is sentenced to five months and 21 days in jail, in addition to presentence custody, for an effective sentence of six months, as follows:

• Assault on a peace officer – 30 days less six days presentence custody at 1:15 means 21 days.
• Assault with intent to resist arrest – 30 days consecutive.
• Failure to stop while being pursued by police – 30 days consecutive.
• Dangerous operation of a conveyance – 90 days consecutive.
• Failure to stop at the scene of an accident – 30 days concurrent.

[13] Following his release from custody, the defendant will be on probation for a period of one year with an obligation to keep the peace and be of good behaviour, report to a probation officer, and take counseling for substance abuse. This is necessary to address his addiction.

[14] The defendant is prohibited from operation a conveyance for a period of three years. The driving offences in the present case significantly compromised public safety and he is still an addict. The Crown request is justified in these circumstances.

[15] The defendant will provide a sample of his DNA and be subject to a weapons prohibition, pursuant to s. 110, for a period of 10 years.

Released: October 26, 2023 Signed: Justice J. De Filippis