ONTARIO COURT OF JUSTICE
DATE: 2024 06 21 COURT FILE No.: Toronto 23-1000577
BETWEEN:
HIS MAJESTY THE KING
— AND —
GERARD COOK
Before: Justice Brock Jones
Heard on: June 13, 2024 Reasons for Judgment released on: June 21, 2024
Counsel: E. Winocur............................................................................................ counsel for the Crown A. Ross...................................................................................................... counsel for G. Cook
Jones J.:
Introduction and Background Facts
[1] Gerard Cook was a security and loss prevention officer at the Ikea located at 384 Yonge Street in Toronto. On December 28, 2022, at 4:57 pm, he located Patrick Hemmings in the store’s restaurant. He received information that Mr. Hemmings was verbally abusive to another security officer and had been loitering there for some time. Mr. Hemmings was seated at a table, appearing to sleep. He did not respond to Mr. Cook’s verbal commands to leave.
[2] Suddenly and without provocation, Mr. Cook lunged at Mr. Hemmings and tackled him to the ground. He struck Mr. Hemmings multiple times with his elbow and knee, making contact with Mr. Hemming’s neck and head. Mr. Hemmings yelled for the police.
[3] Toronto Police Service officers attended and commenced an investigation. The incident was captured on the store video surveillance system. The officers arrested Mr. Cook for assault. Mr. Hemmings was taken to a hospital.
[4] Mr. Cook pleaded guilty to assault on June 13, 2024. I reserved my decision after hearing from the parties about an appropriate sentence.
Background of the Offender
[5] Mr. Cook is 53 years old. He does not have a criminal record. He is married with two children. His highest level of education was a successfully completed college program. He is an active member of his church.
[6] He has worked in the security industry for several years. Since the assault, he was re-assigned to another aspect of his company’s operations, which does not require him to interact with members of the public.
[7] In 2015, he was diagnosed with anxiety and depression. A psychiatrist and a psychotherapist were treating him until 2021. He is now engaged with a new counsellor.
[8] Mr. Ross explained that his client was under a great deal of pressure at the time of the assault. He reached his “breaking point.” In the past, he has been the victim of violent behaviour himself. His client accepts he made a wrong decision and abused his position of authority at Ikea.
[9] A letter from his employer was filed on consent, detailing the possible collateral consequences of a conviction. Through subsequent submissions, I learned that while he will not likely lose his job if convicted, he may be unable to take on specific assignments in regulated workspaces.
[10] Mr. Ross provided documentation that his client has been seeing a psychotherapist since January 31, 2024.
Position of the Parties
[11] On behalf of the Crown, Ms. Winocur argued for a six-month conditional sentence and a probation period. The victim was undeserving of this assault, which was significant and could have resulted in injuries. General deterrence and denunciation should be given priority.
[12] The Crown’s office has been unable to locate the victim and could not obtain a victim impact statement. He was believed to be homeless and transient. She emphasized that Mr. Cook abused his position as a security officer, and a custodial sentence is required to reflect his degree of responsibility for the offence.
[13] Mr. Ross submits a conditional discharge with two years of probation and 100 hours of community service is appropriate. Mr. Cook has apologized, demonstrated remorse, and continues to undergo therapy. If he is convicted, it may have a negative impact on his employment status and ability to provide for his family.
[14] Both parties agreed with the appropriate ancillary orders, including a DNA order and a section 110 weapons prohibition order for five years.
Sentencing Law
[15] A sentence must be proportionate to “the gravity of the offence committed and the moral blameworthiness of the offender”: see Criminal Code section 718.1; R. v. Suter, 2018 SCC 34, at para. 4. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence: see R. v. Lacasse, 2015 SCC 64, at para. 12.
[16] Crimes of violence, such as assault, require a sentencing court to emphasize the principles of general deterrence and denunciation. However, as a first-time offender, I must also give great weight to Mr. Cook’s rehabilitation.
[17] Criminal Code sections 718.2(d) and 718.2(e) codify the restraint principle, which holds that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered.
Aggravating Factors
[18] Criminal Code section 718.2(iii) states that a court that imposes a sentence shall take into consideration “evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.”
[19] Mr. Cook was employed as a security officer at Ikea at the time of this offence. The parties agree that he abused his position of authority when he assaulted Mr. Hemmings.
[20] I find the following additional aggravating factors are present in this case:
(1) The assault occurred in a crowded area of the store where other persons were present, including families with children who were exposed to the violence; (2) Mr. Hemmings was a vulnerable individual; (3) He was unarmed and defenceless; (4) The assault began with a lunge and included elbow and knee strikes and (5) However unruly Mr. Hemmings had previously been that day, he was struck needlessly and without warning.
Mitigating Factors
[21] There are several mitigating factors to consider.
[22] First, Mr. Cook entered a guilty plea. While the offence was captured on video, this is still somewhat meaningful. He spared Mr. Hemmings from having to testify if a trial had been set.
[23] He acknowledges his mental health concerns and meets regularly with a qualified therapist.
[24] His rehabilitative prospects remain good. He has not re-offended since this incident occurred, remains employed, and has the love and support of his family.
Analysis
[25] A discharge represents an opportunity for an offender to avoid a formal criminal conviction. The test for a discharge is contained in Criminal Code section 730(1):
(i) The court must be satisfied that it is in the best interests of the accused; and (ii) the court must be satisfied that it is not contrary to the public interest that the accused receive a discharge.
[26] In R. v. Smart-James, 2022 ONSC 3711, Justice Campbell noted that a discharge has some deterrent effect. However, a court should consider the range of sentencing options available to it as “occupying different positions on a scale of reproach” when considering proportionality: see para. 24.
[27] Even for a first-time offender, not every case justifies the imposition of a discharge. A discharge is typically reserved for cases where the offence is minor and the circumstances surrounding it sufficiently mitigating that a conviction would be an unduly harsh penalty. The court should also consider if a conviction would carry significant adverse repercussions for the offender: see R. v. Campbell, 2013 BCCA 43, at para. 27.
[28] In R. v. Taylor, the Ontario Court of Appeal held that a discharge is appropriate when an offence seems “out of character” or that the offender was struggling with “mental turmoil or some unusual disturbance in his life’s routine”: see p. 552. Justice Arnup wrote in R. v. Sanchez-Pino, that “it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is not contrary to the public interest.”
[29] In R. v. Huh, 2015 ONCA 356, the Ontario Court of Appeal reaffirmed that in cases of violence resulting in injury, general deterrence militates in almost every case against the imposition of a conditional discharge. While Mr. Hemmings was not seriously injured, he was sent to the hospital based on the officers’ assessment of his condition.
[30] Mr. Ross took me very carefully through his client’s documented mental health issues. He argued this is a significant mitigating factor. The difficulty I have with this position is that it is not enough to point to an offender’s mental health diagnosis, even a long-standing one, and expect any form of sentence reduction. For mental health issues to be considered a mitigating factor in sentencing, the offender must show a causal link between their illness and their criminal conduct: see R. v. Fabbro, 2021 ONCA 494, at para. 25.
[31] The British Columbia Court of Appeal described how to analyze a mental health concern in a sentencing context in R. v. Botticelli, 2022 BCCA 344, at para. 21 (my emphasis added):
A court can consider a medical disorder as a mitigating factor warranting a reduction in sentence where the court finds, on a balance of probabilities, the disorder caused or contributed to the commission of an offence: Penttila at para. 68; R. v. Forner, 2020 BCCA 103 at paras. 39–43; R. v. Pond, 2020 NBCA 54 at paras. 33–37. In such circumstances, a reduction in sentence is warranted on the grounds the offender’s moral culpability is attenuated: Penttila at para. 68. Where mental illness played a central role, the importance of deterrence and punishment is given less weight: Badhesa at para. 44.
[32] I am not satisfied that the assault was sufficiently linked to any underlying mental health issue based on the evidence presented during the sentencing hearing. Being anxious or depressed does not explain, let alone justify, assaulting a defenceless man.
[33] Discharges are typically reserved for immature young offenders. In R. v. Turner, 2022 ABCA 11, the appellant was 35 years old when he attacked and threatened his victim. He was an educated man with two university degrees. He was also an Indigenous Canadian and Gladue principles applied. On appeal, he argued he should receive a conditional discharge. The Court of Appeal noted that his crimes could not be “attributed to youthfulness, immaturity or lack of an opportunity to obtain an education and acquire skills needed to cope with adversity”: see para. 41. The trial judge’s sentence of six months in jail was upheld.
[34] Security officers are expected to exercise sound judgment. They are permitted to use force when necessary, but only to the extent that it is reasonable. [1] They are not empowered to resort to force when it is merely convenient, or the person they are dealing with has proven difficult. Indeed, it is precisely when dealing with challenging individuals that the sound exercise of that judgment matters.
[35] Abusing that authority needlessly and recklessly not only victimizes innocent persons, such as Mr. Hemmings. It diminishes respect for the rule of law more broadly, as the public may rightly question if those empowered with the legal right to use force may be trusted to do so responsibly. When a security officer violates that trust in a manner akin to how Mr. Cook did, there must be a meaningful consequence.
[36] In R. v. Nasogaluak, 2010 SCC 6, the Supreme Court of Canada commented on the use of force by police officers as follows at para. 32 (my emphasis added):
...police officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness. Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences.
[37] While Mr. Cook was not a police officer and should not be held to the same standard, the principle of the decision remains broadly applicable.
[38] At the sentencing hearing, I heard that Mr. Hemmings was homeless and marginalized. His reasons for overstaying his welcome at the Ikea were unclear. Mr. Cook was entitled to have him removed if he was loitering. However, Mr. Hemmings’ value as a human being was not diminished by his impoverished status. His rights to personal safety, bodily autonomy, and to be treated with compassion and dignity matter. It is often remarked that the measure of a civilized society is how we treat our most vulnerable citizens. In my view, the abusive treatment of Mr. Hemmings was nothing short of reprehensible.
[39] In this case, granting a discharge would be contrary to the public interest and send the wrong message to the community. All Canadians are entitled to the equal protection of the law. But for the guilty plea and absence of serious physical injuries, this case would have demanded a jail sentence.
[40] Section 742.1 of the Criminal Code lists the criteria a court must consider before imposing a conditional sentence order (“CSO”). These include that the term of imprisonment must be less than two years, the community's safety must not be endangered by the offender serving a sentence in the community, and a conditional sentence must be consistent with the fundamental purpose and principles of sentencing contained in sections 718 to 718.2.
[41] I am satisfied the Crown’s proposal is correct, although, given the mitigating factors present, a 90-day sentence is sufficient.
[42] After completing the CSO, Mr. Cook will be placed on probation for 18 months.
Ancillary Orders
[43] I impose a ten-year weapons prohibition order under Criminal Code section 110.
[44] The Crown requested a DNA order as assault is a secondary designated offence. A court may order that an offender provide a DNA sample for a secondary designated offence if the court is satisfied that “it is in the best interest of the administration of justice to do so”: Criminal Code section 487.051(3)(b). The court shall consider the offender’s criminal record, the circumstances surrounding the commission of the offence, and the impact the order would have on his privacy and security of the person.
[45] An offender has a diminished expectation of privacy following a criminal conviction, and the DNA databank serves vital interests. This was not a minor offence. I issue a DNA order accordingly.
[46] I impose the victim fine surcharge and grant six months to pay.
Released: June 21, 2024 Signed: Justice Brock Jones
[1] Private security officers must undergo basic training pursuant to Ontario Regulation 26/10 issued under the Private Security and Investigative Services Act, S.O. 2005, c. 34.