Court File and Parties
ONTARIO COURT OF JUSTICE DATE: 2024 03 21 COURT FILE No.: Brampton 3111 998 21 15390
BETWEEN:
HIS MAJESTY THE KING
— AND —
SHANE SPRINGER
Before: Justice G.P. Renwick
Heard on: 21 March 2024 Reasons for Judgment released on: 21 March 2024
Counsel: L. Taye, for the Crown A. Bakaity, for the Offender Shane Springer
Reasons for Sentence
RENWICK J.:
Introduction
[1] Following a trial, I rejected the Offender’s evidence and I was not left in any reasonable doubt that the Offender had struck the complainant, Ricardo Pilgrim, with a bag that caused two significant head injuries.
[2] During his allocution, the Offender stressed that he wants to remain in Canada, he wants to be a “better person,” and he wants to provide for his son and family back in Barbados. There has not been any acknowledgment of the pain and suffering this assault has had on the complainant.
[3] In these reasons, I will explain the parties’ positions on sentence and how I arrived at the sentence to be imposed.
Governing Sentencing Principles
[4] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society, where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[5] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.
[6] In R. v. Hamilton and Mason, 2004 ONCA 5549, Doherty J.A. of the Ontario Court of Appeal stated that:
The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence…
The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.
[7] The Court quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest, 1996 ONCA 1381:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.
[8] Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[9] In R. v. Proulx, 2000 SCC 5, the Supreme Court spoke about the principle of restraint when considering imprisonment:
Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e). Section 718.2(d) provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances", while s. 718.2(e) provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders". Further evidence of Parliament's desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(c) qualifies the sentencing objective of separating offenders from society with the words "where necessary", thereby indicating that caution be exercised in sentencing offenders to prison...
[10] The Supreme Court has instructed that section 718 requires a sentencing judge to consider more than simply denunciation, deterrence, and rehabilitation. The court must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused by an offender, while attempting to rehabilitate or heal the offender. R. v. Gladue, 1999 SCC 679.
[11] Although the rehabilitation of the Offender is a secondary consideration in the overall calculus of an appropriate sentence in this case (behind denunciation and deterrence), it is still a factor I must consider.
Positions of the Parties
[12] In addition to ancillary orders, the prosecutor seeks six months of imprisonment and 24 months of probation.
[13] The Offender seeks a conditional sentence of imprisonment. He remained silent in respect of the request for probation, DNA, and weapons prohibition Orders.
Mitigating and Aggravating Features
[14] It is mitigating that the Offender is a first offender. In fact, the Offender’s immigration situation in Canada is in jeopardy, because he is currently a refugee claimant from Barbados. While this does not mitigate the seriousness of the offence or the moral culpability of the Offender, it does underline the need for penal parsimony and forbearance.
[15] The Offender is a contributing member of the community and he has successfully been on bail for 30 months. He has worked as a general labourer. He has a supportive father and mother, who are separated. His father lives in Toronto. The offender has two step-siblings and an uncle here as well, but those relationships seem less significant. The Offender is a father, although he does not support the child, and in the past, he has had stable intimate relationships. He has been a reliable tenant for almost two years where he pays his rent without issue. As a teenager in Barbados, the Offender was the victim of a gunshot wound to the chest.
[16] The aggravating features include the following:
i. The Offender struck his co-worker/landlord in their then shared home, in the midst of an argument about bringing strangers over; ii. The assault happened when the complainant was looking down (he never saw it coming and he could not protect his head from the assault); iii. The Offender used his bag, which contained an object that was hard enough that the single blow caused two gashes to the complainant’s head, which required multiple staples in two places to close; iv. The Offender was verbally abusive during/after the unprovoked attack and did not render aid to the complainant despite obvious head trauma and bleeding; and v. The complainant’s eyesight has been affected; his uncorrected vision is no longer as sharp as it was before the assault.
[17] It is important to note that the pre-sentence report is favourable. The Offender has family here. He came to Canada at age 22 in 2015 and has never had any involvement with the criminal law before this.
[18] The Offender has a sporadic work history, and his immigration status is precarious. He has lived here without status until 2023 (approximately two years post-offence) when his claim for refugee status began. The Offender may well be deportable as a result of this offence and/or the sentence I impose. The Offender has no substance issues. The author of the pre-sentence report indicates that the Offender is a suitable candidate for community supervision.
Discussion
[19] On a continuum of assaults causing bodily harm, this offence is toward the most serious extremity. It involves an unprovoked attack with a weapon which caused two serious head injuries to a middle-aged man who was unable to defend himself. The effects of the assault have continued for over two years and the Offender seems to lack insight into his behaviour or the serious consequences it caused. In my view, there is a significant need for the sentence to denounce and deter this crime in the strongest of terms. The parties agree that imprisonment, in some form, in the low-reformatory range is appropriate.
[20] Given the mitigating and aggravating factors, I would attribute the appropriate range of sentence between 4-8 months of imprisonment in a custodial facility. The need for restraint in recognition of the likely ancillary immigration consequences militates toward a six or seven-month jail sentence.
[21] I have considered and rejected a conditional sentence of imprisonment for the following reasons:
i. The sentence should reflect the extreme nature of the assault and the injuries; and ii. There has been no remorse expressed for the harm caused to the complainant. Without any insight into his responsibility, there is a greater need for specific deterrence.
[22] Theoretically, a conditional sentence of imprisonment can include deprivations to approximate a prison sentence. However in this case, even the maximum period of a conditional sentence (two years less one day) would fail to strike the appropriate chord of denunciation or serve to deter the Offender or others from this type of nasty assault. I have also determined that the Offender’s immigration situation militates against a conditional sentence of imprisonment given the Offender’s lengthy Canadian residence without status (he evaded immigration authorities for approximately eight years).
[23] Moreover, serving a sentence of imprisonment in the community in a case such as this, involving an unprovoked attack of a house-mate/landlord resulting in severe and long-lasting injuries, would not adequately address fundamental sentencing principles (specific and general deterrence) or the foundational purpose of sentencing (proportional accountability for the harm caused).
Conclusion
[24] In my view, the only appropriate sentence for this Offender in these circumstances is six months-imprisonment in a provincial reformatory. This will possibly result in the Offender’s deportation from Canada, which is unfortunate. However, in my view, this is the shortest possible prison sentence which would adequately address all of the aggravating and mitigating circumstances and the Offender’s culpability for this significant and violent assault.
[25] I agree with the parties that the Offender would benefit from probation for two years with the following terms:
i. Keep the peace and be of good behaviour; ii. Attend court when required; iii. Notify any changes of name, address, and occupation; iv. Report to a probation officer within 2 business days of your release from custody by calling 905-457-6887 (from 8:30 am to 5:00 pm), and thereafter as required, but not less than once per month for the first six months; v. Do not have any contact, directly or indirectly, with Ricardo Pilgrim; vi. Do not attend at or within 50m of any place of residence, occupation, education, worship, recreation, or any place you know or find Ricardo Pilgrim to be; vii. Do not possess any weapons; viii. Take counselling for anger management; and ix. Complete releases of information in favour of your probation officer to monitor your attendance, participation, and completion of counselling.
[26] While you are in custody, you will submit to a sampling of your deoxyribonucleic acid (DNA) to be analyzed and to have the results uploaded into the national DNA databank. Your DNA is to be taken by a qualified person in circumstances that are hygienic, that respect your bodily integrity and privacy, and that respect your health and safety. Force may be used to extract your DNA if you do not submit to the DNA sampling voluntarily.
[27] Lastly, you are prohibited from possessing the items referred to in s. 110 for 10 years.
[28] If you remain in Canada, I wish that you become rehabilitated Mr. Springer, for your sake and that of our community.