Ontario Court of Justice

Date: 2024 05 15 Court File No.: Windsor 23-81102748, 23-81104456

Between:

HIS MAJESTY THE KING

— AND —

TIMOTHY BOLTON

Before: Justice S. G. Pratt

Heard on: 25, 30 April 2024 Reasons for Judgment released on: 15 May 2024

Counsel: Susan Landine, Counsel for the Crown Gytis Pabedinskas, Counsel for the Defendant

Pratt J.:

[1] Timothy Bolton, hereinafter the Offender, is to be sentenced for two counts of Robbery. Counsel for the Offender seeks mitigation of the sentence on the basis of difficult conditions the Offender has faced while in custody. The parties disagree on this point and are some distance apart in their respective positions. These are my reasons for sentence.

Facts

[2] On 18 May 2023, the Offender approached the victim Parayolical Thomas at a bus stop. He asked Mr. Thomas to call a cab for him. Mr. Thomas agreed and took out his cell phone. The Offender then produced a knife, pointed it at the victim’s neck, and took the phone. He left the area with the victim trying to follow him.

[3] I say “trying to follow him” because Mr. Thomas was 73 years old at the time he was robbed. He used a walker to move around. He was motivated to get his phone back, however, and left the walker behind when he followed the Offender. He tried but couldn’t keep up with the Offender. When ultimately the police arrived, they found Mr. Thomas in tears. His phone was never recovered.

[4] A Good Samaritan drove past at the time of the incident and followed the Offender. He considered approaching the Offender but saw the knife and chose not to. He watched the Offender walk through a parking lot. He was seen crawling through a fence and disappearing. The witness remained with Mr. Thomas until police arrived. The incident was caught at least partially on surveillance video. The police released a photo from that video and a source led them to the Offender. When they went to his residence, he answered the door wearing the same clothing he had on at the time of the robbery. He was arrested.

[5] The Offender was then released on bail.

[6] On 2 October 2023, Windsor Police were dispatched to an assault call for service at 842 Dufferin Place in Windsor. A witness advised that an unknown male had assaulted a female and then gone north on Dufferin. Within minutes, police had the assailant, identified as the Offender, under arrest. Efforts to locate the victim of the assault led police to the Downtown Mission. There, they found EMS already on scene and tending to a woman with blood on her shirt coming from a wound to her face. It was determined that she had a 3” puncture wound on her right cheek.

[7] The victim, Samantha Nantais, gave a statement to police. She said she was behind the former Windsor Public Library main branch when the Offender approached her from behind. He grabbed her by the hair and stabbed her in the face. He got her in a chokehold, threw her to the ground, and demanded money.

[8] Surveillance video corroborated what Ms. Nanatais told police. Video showed the Offender sneak up behind her, conceal his face with his shirt, and stab her in the face. A folding knife with dried blood was found at the scene. Ms. Nantais required 3-4 stitches to close the wound on her cheek.

Positions of the Parties

[9] This matter was pre-tried before a different justice. There was some disagreement about what was said by that justice during that meeting. Counsel for the Offender said the judge agreed to consider a sentence of 14 months custody. Crown counsel’s notes are quite different. They reflect the judge saying “you don’t have a hope” of 14 months, but that he would consider it if there was a strong plan in place to address the Offender’s issues on release.

[10] Given the discrepancy, and that even on the defence’s telling of the pre-trial the judge only said he’d consider a 14-month sentence, I find I am not bound in any way by that number. These are open sentencing submissions, and I am free to impose the sentence I deem appropriate.

[11] The Offender, then, seeks a sentence of 14 months custody. He seeks credit for presentence custody of 211 days, enhanced at 1.5:1 to 317 days. Beyond that, as I will discuss later in these reasons, he seeks additional mitigation for the difficult conditions he’s experienced in custody to reduce that 14-month sentence to 10 ½ months. His enhanced presentence custody of 317 days would cover that sentence, so on counsel’s calculation the Offender is essentially at time served.

[12] The Crown seeks a sentence of 20 months custody. While it does not dispute 1.5:1 credit for presentence custody, the Crown argues against additional reduction based on presentence conditions. In the Crown’s submission, any additional mitigation of sentence based on presentence conditions is already factored into the 20-month position, which the Crown contends is lenient.

[13] The Crown submitted the Offender had 207 days of presentence custody, enhanced to 311 days. No agreement on that point was reached, so I have elected to give the Offender the benefit of the higher number provided by his counsel throughout.

Principles of Sentencing

[14] Section 718 and onward of the Criminal Code sets out the principles that must guide judges in fashioning fit sentences. I will not reproduce those sections here, but I have considered them.

[15] To summarize, the fundamental purpose of sentencing is to protect society and contribute to respect for the law. A sentence must also be proportional to the gravity of the offence and the degree of responsibility of the Offender.

[16] While rehabilitation and reintegration cannot be forgotten in a sentencing analysis, denunciation and deterrence must be given paramount consideration when an offence involves serious violence. Further to that point, s. 718.04 of the Criminal Code requires denunciation and deterrence to be the foremost considerations when offences involve the victimization of vulnerable persons. In my view, both victims in this case meet the definition of vulnerable. Mr. Thomas is an elderly man who was sitting at a bus stop. He had a walker with him and so it was plain to see he was a person of limited physical means. Ms. Nantais had her back turned to the Offender when he chose to sneak up behind her. Both victims were vulnerable, and the robberies committed against them were more serious as a result.

Aggravating and Mitigating Factors

[17] The aggravating factors in this case include, as I’ve just mentioned, the vulnerability of the victims. The Offender did not choose to attack two members of the Detroit Lions; he chose a 73-year old man with a walker, and a woman who had her back turned to him. Both were easy prey, and their victimization is aggravating.

[18] One aspect of these offences that I cannot use as an aggravating factor is the presence of the knife in each incident. The robberies are charged as stealing while armed with a knife. The weapon, therefore, is itself an element of the offence. An element of an offence cannot be used as an aggravating factor (see: R. v. Sears [2021] O.J. No. 3926 (C.A.) at paragraph 41).

[19] That said, the section only says “while armed” with the knife. The section only makes possession of the knife an element of the offences. Any use of the weapon can properly be considered in aggravation of sentence. On that point, the Offender used the knife on both occasions. With Mr. Thomas, he brandished a large kitchen knife and pointed it at Mr. Thomas’s neck. With Ms. Nantais, he used a folding knife to stab her in the face. Those actions, particularly the unprovoked stabbing of Ms. Nantais, are clearly aggravating.

[20] The impact on the victims is also a statutorily aggravating factor as codified in s. 718.2(iii.1). Mr. Thomas was reduced to tears by the Offender’s actions. His cell phone was valued at just $150, which tells me it was not a state-of-the-art device. It was not recovered. Ms. Nantais was so emotionally overcome and hyperventilating in the aftermath of her robbery that she was unable to finish her statement.

[21] There also seems to be at least some rudimentary level of planning present in the robberies. The Offender saw Mr. Thomas at the bus stop and used the ruse of calling a cab to get the victim to take out his phone. He also chose to approach Ms. Nantais from behind, taking care to cover his face before he did. I don’t mean to suggest there was significant premeditation or advance targeting of the victims, but his actions do suggest at least some forethought and consideration. That is also aggravating.

[22] An unusual aggravating factor present in this case came out in counsel’s submissions. The Offender was himself once robbed with a weapon. He was struck in the head and, counsel said, hospitalized for three months. One might expect this would give the Offender unique insight into the impact robbery can have on a victim. That he’d suffered this experience but still chose to commit these crimes gives me great concern for his risk of re-offending. He clearly did not consider his experience when choosing to victimize Mr. Thomas and Ms. Nantais. This failure to consider his actions’ impact on others, even after experiencing that impact personally, evinces a lack of comprehension of the seriousness of his conduct.

[23] Finally, it is aggravating that the Offender committed the second robbery while on bail for the first robbery. At a time when he should have been on his best behaviour, he instead escalated his violent conduct and seriously injured an innocent victim.

[24] In mitigation I have the Offender’s guilty pleas. The pleas are a sign of remorse. He has taken responsibility for his very serious actions. In admitting his culpability, he has also saved the victims from testifying. This is significant. While it seems the Crown’s case was strong based on witnesses and video evidence, trial outcomes are never certain. His pleas of guilt weigh strongly in his favour.

[25] While in custody, the Offender has conducted himself appropriately enough that he secured a job working in the facility’s kitchen. That is positive and shows he can be productive and follow the rules when he needs to. He has also rekindled his faith and has begun reading the Bible. Certainly, that could have a positive effect on his future if he allows it to.

[26] The Offender has also had a 13-year gap in his criminal record. That is important, and it’s further evidence he can be successful. Counsel advised it was his drug use and addiction to fentanyl that returned him to the criminal justice system. On that point, I am told he has attended Narcotics Anonymous while in custody. That he has taken at least some steps to address his dependency is encouraging. That encouragement is tempered, however, by counsel’s submission that the Offender does not require any further treatment or counselling, and that I should not be concerned that he will return to drug use on his release from custody. This is an addiction that led to repeated knifepoint robberies and to the Offender stabbing a stranger in the face in an attempt to steal her money. The confidence that a few months of Narcotics Anonymous classes in custody has fully and finally disposed of his addiction to the most insidious and pervasive drug Canada has ever seen is not one I share. To the contrary, I see his belief that everything has been taken care of and that no further treatment is necessary is inviting relapse. Given the consequences of his addiction to this point, that stance places the public in danger. I also add to that concern the fact that he continues to take prescription painkillers for degenerative disc disease. The spectre of resumed drug abuse looms all too large for the Offender, especially in the absence of any continuing counselling or treatment.

[27] Finally, I have heard that efforts have been made to secure a residence for the Offender on his release. I’m told he has spoken with the Downtown Mission about getting an apartment at 920 Ouellette Avenue. The rent would somehow be just $300 a month. He will be entitled to collect Old Age Security and the Canada Pension, which would total about $1,600 a month. A secure residence and steady income both bode well for the Offender’s future.

[28] There is, however, an area of great concern to me. If and when the Offender gets this apartment, his 16-year old grandson Jackson will apparently be moving in with him. The Offender, a 65-year old man with a history of violence and drug addiction, will on release be responsible for raising a teenager? I don’t know who thought that sounded like a good idea but I have heard nothing to suggest it is. Rather, a person who I believe will be teetering on opioid relapse will now have on his shoulders the massive responsibility of caring for a child. This is not a satisfactory plan to address his issues on release. It’s a situation that all but ensures further problems.

[29] I turn now to the assessment of presentence custody conditions. A court can take those conditions into account when determining a fit sentence pursuant to R. v. Duncan 2016 ONCA 754, where the Court said, “particularly harsh presentence incarceration conditions can provide mitigation”. It is important to note the use of the word “particularly”. That presentence conditions are ordinarily harsh is already accounted for in the usual enhancement of presentence custody pursuant to s. 719(3.1). To qualify as additional mitigation, conditions must be “particularly harsh”.

[30] In support of that argument in the present case, the Offender has filed several documents and called one witness. The documents are Southwest Detention Centre Lockdown Reports and Shared Bed/Cell Assignments. I have also received an affidavit from the Offender.

[31] The witness called was Paul Kitchen, deputy superintendent at the Southwest Detention Centre (SWDC).

[32] The evidence confirms the Offender was three-to-a-cell on 134 days. Of those 134 days, he was assigned to the mattress on the floor of the cell for 38 days. The remainder of his time in custody, 77 days, he was no more than two-to-a-cell, which is what the cells were designed for.

[33] Further, the Offender experienced many lockdowns while in custody. He saw 28 unscheduled lockdowns, 9 of which were institution-wide while 19 were specific to his unit.

[34] Deputy Superintendent Kitchen provided helpful information on what takes place when a lockdown is in effect. Inmates are confined to their cells, but where possible, they are still given the opportunity for visits with people outside the institution and for showers. Sometimes these activities can be accommodated, and sometimes they cannot. Ordinarily each unit would have three staff members. If that number drops to two, there could be a lockdown but with the activities remaining available. If that number drops to one, he said they’d have to curtail activities. Staffing could drop because of a staff member being absent that day, or because a staff member had to accompany an inmate to the medical area of the facility, resulting in a temporary staffing shortage. He said the night shift, from 7pm – 7 am, generally had fewer staff members scheduled, so staffing absences in those hours could have a greater impact on inmates as there are fewer staff members present to begin with. He was unable to say which of the lockdowns experienced by the Offender resulted in the suspension of activities.

[35] Looking at the total number of lockdowns, 17 were due to staff absences. Five were due to medical transfer of inmates, and six were a result of contraband/security searches. Eleven lockdowns were 11 hours and 59 minutes long or longer. The rest were approximately three hours long and ran from 7pm – 10pm. This would accord with Deputy Superintendent Kitchen’s evidence that the night shift was more prone to unscheduled lockdowns as staffing levels were already lower than the day shift.

[36] Without question, staffing at correctional facilities has been an ongoing problem for years. There is no appreciable slack in the system, such that if some staff members are absent, there are still enough present to preserve normal operations. If even one staff member is missing from a unit, that absence can lead to a lockdown. This is a persistent, well-known issue that should be addressed.

[37] Overcrowding is another notorious situation in many correctional facilities. Deputy Superintendent Kitchen estimated that SWDC is currently at 145% of capacity. This is why so many inmates are triple-bunked in cells built for two.

[38] To assess the impact, if any, of “particularly harsh” presentence conditions, I must consider the specific impact on the Offender. He has established the triple-bunking and lockdown conditions he experienced. I take some issue, however, with his claims of the effects those conditions had on him.

[39] In his affidavit, the Offender said he would “have my head close to the toilet, sometimes under it” when he was assigned the mattress on the floor. I agree having to sleep under a toilet would be distressing. According to Deputy Superintendent Kitchen, however, it would also be entirely unnecessary. The cell, he said, is large enough that the head of the mattress can be placed at the rear of the cell, opposite where the toilet is located. There would be no reason to sleep anywhere near the toilet.

[40] The Offender also deposed that sleeping on the floor was especially difficult given his degenerative disc disease. I have no evidence, however, about just how different the sleeping experience is on the floor versus on a bunk. The floor is concrete, but what is the bunk frame made of? Is it solid metal, or does it have some form of box spring such that the bunk would be more comfortable? I have no evidence that the mattress on the floor is noticeably different from the mattress on a bunk.

[41] The Offender said he spent approximately one month in lockdown. Respectfully, this is a significant exaggeration. Yes, there were 28 days when unscheduled lockdowns were in effect, but the majority of those were approximately three hours long. He said, “This further exasperated [sic] all the issues as all that we could do during these periods is lie down due to the lack of space and the inability to leave our cells. This was quite hard on me due to my back condition as it meant I would be required to lie down all day.” This claim is contradicted by Deputy Superintendent Kitchen who said that there were often times during lockdowns that inmates could still leave their cells to shower and have visits. He also said that the floor mattress only took up approximately 1/3 of the floor space. The suggestion that all the inmates could do is lie down due to the lack of space seems to be an overstatement. I would say the same about the Offender’s claim that he was “required to lie down all day”. The totality of the evidence just doesn’t bear that out.

[42] He also complained about the cleanliness of the cell when triple-bunked. He said the smell was often overbearing, and that it impacted his mental health. I heard no evidence, however, about how often the cells were cleaned. Given the Offender’s other exaggerations, I have difficulty accepting this assertion.

[43] In summary, I am not satisfied that the conditions the Offender has experienced have been particularly harsh such that additional mitigation is called for. Presentence custody is never pleasant. That fact is addressed by the 1.5:1 enhancement routinely applied by sentencing courts. In his time in custody, the Offender was able to attend programming and work full-time in the facility kitchen. He has not provided sufficient evidence for me to conclude that his time in custody was so difficult that his sentence should be reduced as a result.

Result

[44] In my view, the Crown’s position of 20 months’ custody is lenient. This could easily have been a penitentiary sentence. The Offender robbed two innocent strangers at knifepoint. He inflicted serious injury to his second victim. He was also on bail at the time of that second robbery. I find his risk of recidivism to be high. These crimes were fuelled by his fentanyl addiction. His belief that his drug addiction has been cured after a few months in custody is one I do not share. Through his conduct, the Offender has shown his addiction does not only endanger his own health, but also the health and safety of members of the community. I must denounce his conduct and deter him and others from acting this way through a lengthy jail sentence.

[45] This is not a case where I feel it necessary to exceed the Crown position, though a sentence of over 20 months would certainly still be within the acceptable range for these offences. Taking into account the guilty pleas and the gap in the Offender’s record, I will impose the sentence sought by the Crown. That said, in the usual course sentences for these offences would be consecutive. The total length of the sentence being 20 months requires them to be concurrent.

[46] The sentence will be as follows:

[47] On Information 23-81102748: (1) A jail sentence of 12 months, minus credit for 211 days of presentence custody enhanced to 317 days. This leaves a further 48 days to be served; (2) Probation for three years on the following terms, in addition to the statutory conditions: (a) Report in person to a probation officer within 2 working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision. (b) Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request. (c) Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with Parayolical Thomas or Samantha Nantais. (d) Do not be within 100 metres of any place where you know any of the person(s) named above live, work, go to school, frequent or any place you know the person(s) to be except for required court attendances. (e) Do not possess any weapons as defined by the Criminal Code. (f) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer. (3) The Offender will provide a sample of his DNA to the Windsor Police for inclusion in the national DNA databank, on or before 30 June 2024; (4) There will be a freestanding restitution order under s. 738 in the amount of $150 payable to Parayolical Thomas; (5) There will be a s. 109 weapons prohibition for 10 years.

[48] On Information 23-81104456: (1) A jail sentence of 20 months, minus credit for 211 days of presentence custody enhanced to 317 days. This leaves a further 283 days to be served, concurrent to Information 23-81102748; (2) Probation for three years, concurrent to the probation ordered on Information 23-81102748; (3) The Offender will provide a sample of his DNA to the Windsor Police for inclusion in the national DNA databank, on or before 30 June 2024; (4) There will be a s. 109 weapons prohibition for 10 years.

[49] I have considered whether to impose Victim Surcharges in this case and have decided not to do so. The Offender is of limited financial means and I would prefer that he focus on paying the restitution to Mr. Thomas.

Released: 15 May 2024 Signed: Justice S. G. Pratt