ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 112/11
DATE: 2012-05-08
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
FRANK ROSA
Appellant
James Coppolino, Counsel for the Crown, Respondent
Thomas M. Hicks, Counsel for Mr. Rosa, Appellant
HEARD: April 27, 2012
REASONS FOR JUDGMENT
GRAY J.
[1] Mr. Rosa was employed as a correctional officer at Maplehurst Correctional Complex. He assaulted an inmate, and he pleaded guilty to assault. Zisman J. sentenced him to 60 days in jail. He appeals the sentence, arguing that he should have been given a conditional sentence.
[2] Notwithstanding an error committed by the trial judge, the appeal is dismissed for the reasons that follow.
Background
[3] Mr. Rosa was employed as a correctional officer at Maplehurst Correctional Complex, for six years. He was so employed on May 23, 2009, when he escorted an inmate, one Rudy Deleon, from his cell and from the unit in which he was housed, because smoke was detected. While Mr. Deleon was being escorted, he was assaulted by Mr. Rosa.
[4] An investigation ensued. No one cooperated in the investigation, but it was finally concluded in October, 2009. On November 17, 2009, Mr. Rosa was charged with assault. Mr. Rosa’s trial came on before Zisman J. of the Ontario Court of Justice on January 17, 2011. The Crown proceeded summarily, and Mr. Rosa pleaded guilty.
[5] The Crown read into the record its version of the allegations as contained in a Crown synopsis. While admitting the assault, Mr. Rosa indicated that he was challenging a number of the allegations. It was agreed that the Crown’s synopsis would be filed as an exhibit, and that a subsequent Gardiner hearing would be held to determine the factual issues (see R. v. Gardiner, 1982 30 (SCC), [1982] S.C.J. No. 71).
[6] Mr. Deleon had made a statement that was reduced to writing on June 16, 2009. In the statement, Mr. Deleon denied threatening Mr. Rosa or his family. It was filed at Mr. Rosa’s sentencing hearing on the understanding that Mr. Rosa was not admitting the factual correctness of Mr. Deleon’s version. The statement would be available to the Court as a “narrative guide” only. A videotape of the assault itself was also filed as an exhibit at the sentencing hearing.
[7] The Gardiner hearing was held on May 13, 2011. Mr. Rosa testified.
[8] Mr. Rosa had commenced his 12-hour shift at 6:45 a.m. on May 23, 2009. The atmosphere was tense at Maplehurst because of a work to rule dispute. Mr. Rosa had been working at Maplehurst for six years.
[9] The unit manager had ordered a “laundry sweep”. The sweep lasted from 9:00 o’clock a.m. until 2:00 o’clock p.m., and every cell was searched. The inmates were angry, constantly yelling obscenities and were threatening the correctional officers. By 2:00 o’clock p.m., Mr. Rosa had not had any breaks. He did not get a lunch break until 5:00 o’clock p.m.
[10] At approximately 6:30 p.m., the supervisor ordered the correctional officers to lock the unit down, due to the discovery of three inmates smoking marijuana. The inmates, including Mr. Deleon, became angry and verbally abusive. The supervisor ordered the officers to remove Mr. Deleon from his cell.
[11] Mr. Rosa testified that Mr. Deleon had become verbally abusive and started threatening Mr. Rosa’s family. Mr. Rosa testified that he told Mr. Deleon to stand against the wall, but Mr. Deleon disobeyed the order. Mr. Rosa then assaulted Mr. Deleon.
[12] Mr. Rosa was required, as part of his duties, to file a full report of the incident. He filed a report, but it was incomplete. Mr. Rosa did not mention Mr. Deleon’s alleged threat against Mr. Rosa and his family. He testified that he and Mr. Deleon had made a “jailhouse agreement” to not mention the threat in Mr. Rosa’s report.
[13] In a subsequent interview, Mr. Rosa said he dealt with Mr. Deleon through “open-handed distractions”. In fact, there were at least some punches and one or two knees. He lied in his initial report to justify his actions. He agreed that Mr. Deleon was essentially defenceless against him, given the relationship between prison guard and inmate.
[14] With respect to the assault itself, and Mr. Rosa’s attempt to cover it up, Zisman J. made the following findings of fact:
In reviewing the oral evidence of Mr. Rosa and in watching the DVD of the assault several times, I find that the Crown has proved that Mr. Rosa continually struck the victim at least 11 times while four other correctional officers looked on; that he kneed him two times, and struck him at least three times when the victim had his hands over his head. Even when the victim was standing up with his hands behind his back, he forcefully pushed him against the wall six times. I find as a fact that there was no evidence that the victim was pushing back, fighting back or struggling with Mr. Rosa. In this regard, I reject Mr. Rosa’s evidence regarding the number of times that he hit, punched or kneed the victim; I reject Mr. Rosa’s evidence that some force was necessary to restrain the victim. It’s clear that the victim was submissive throughout. I therefore find that the force used by Mr. Rosa was unwarranted, unreasonable and there was no necessity or justification for the assault.
I further find that Mr. Rosa attempted to cover up this incident and he did not tell the truth in either the occurrence report he filed immediately after the incident, or in the statement he made several months later. Mr. Rosa, in his own evidence, admitted he didn’t tell the whole truth and that he felt justified in what he did. He further admitted, as I indicated before, that he made a jailhouse deal to cover up this incident.
[15] With respect to the issue of whether Mr. Deleon had threatened Mr. Rosa and his family, Zisman J. stated as follows:
With respect to the issue of whether or not Mr. Rosa was threatened by the victim, the onus is on him to prove that fact on a balance of probabilities. I do not accept his evidence that he was threatened or that he felt threatened by Mr. Deleon. As Mr. Deleon did not testify, the Crown cannot directly dispute that Mr. Deleon may have uttered threats against Mr. Rosa or his family but, Mr. Deleon’s statement was admitted on consent and in that statement he denies he threatened Mr. Rosa. Mr. Rosa never mentioned any threat in his occurrence report prepared almost immediately after the event. He only mentioned the threat after he was being investigated when he tried to justify his assault against the victim. None of the correctional officers who were present refer to any such threats in their statements as part of the internal investigation. Mr. Rosa’s actions after the assault are not consistent with someone who felt threatened, in that the victim was not searched or made to open his mouth, despite Mr. Rosa’s evidence that he thought the victim had a weapon in his mouth. Further, Mr. Rosa – if – further, if Mr. Rosa felt threatened by Mr. Deleon, there’s no explanation as to why he then did not request assistance from the three officers that were standing very close to him. I do not find Mr. Rosa to be a credible witness, based on the inconsistent versions of the incident he provided and because of his attempts to cover up the full extent of his actions. Even if Mr. Deleon was momentarily rude or verbally abusive to Mr. Rosa when he was being removed from the cell, he was clearly submissive as soon as he was removed and walking towards the exit as is evident in reviewing the video recording.
[16] In considering what the appropriate sentence should be, Zisman J. reviewed the personal circumstances of Mr. Rosa, including the fact that he had been dismissed from his employment in March, 2010 as a result of the assault on Mr. Deleon. She also considered a number of letters of support indicating that Mr. Rosa is a person of good character.
[17] In terms of aggravating factors, the trial judge noted that Mr. Rosa was a correctional officer in a position of authority over inmates, and that the assault was an abuse of that authority and a breach of trust. The assault was committed against a vulnerable victim who was submissive. She found that there was no evidence that Mr. Rosa was verbally or physically threatened by Mr. Deleon. While the assault was not premeditated, it was continuous and consisted of punches, slaps, pushes and kneeing of a defenceless victim. Even after the victim was on the ground with his hands over his head, Mr. Rosa continued to hit and kick him. Mr. Rosa had worked at Maplehurst for a significant amount of time and therefore unruly inmates and labour strife were not unusual. It was part of his training and his duty as a correctional officer to cope with these working conditions. Even though he pleaded guilty and accepted responsibility for the assault, he continued to minimize the extent of the assault and continued to exert blame on the victim. After the assault, he tried to cover up the incident by filing an incomplete and untruthful report and provided an untruthful version of the incident.
[18] In terms of mitigating factors, Zisman J. noted that Mr. Rosa had never been convicted of any criminal offence. He was employed as a correctional officer for six years, and there was no evidence that he had ever abused any inmates in the past. He was held in high regard by his co-workers, his family and his friends. He was described as a reliable employee and a person of good character. He had suffered serious financial consequences, as he had been dismissed from his employment. His long-term relationship with his girlfriend ended due to the stress of the events. The victim had not been seriously injured.
[19] In discussing the appropriate sentencing principles, Zisman J. stated that in these circumstances, the paramount considerations are general deterrence and denunciation. She stated:
Correctional officers like police officers, court or sheriff’s officers, are in special positions of power over prisoners. Prisoners who are in custody can do little to protect themselves against assaults by those in whom the law has entrusted their care. They are the least likely to be believed if they allege maltreatment against themselves. Correctional officers are given extraordinary powers over prisoners so that they properly carry out their duties. When a correctional officer assaults a prisoner it’s a serious crime, not only against the prisoner, but against the justice system itself. The public expects a high standard of conduct on the part of trained correctional officers, and any abuse of power or excessive use of force, must not be tolerated. There is no question that the job of the correctional officer is a very difficult one. They are regularly subject to all kinds of abuse from those who are incarcerated and as in this case, are subject to difficult working conditions. However, it must be remembered that a prisoner who is in custody is vulnerable and defenceless, and must be protected from assault and excessive use of force.
[20] The trial judge considered whether a conditional discharge would be appropriate, and concluded that it would not be appropriate.
[21] The trial judge also considered whether a conditional sentence would be appropriate, and concluded, relying particularly on R. v. Feeney, that it would not be appropriate.
[22] In the result, Zisman J. sentenced Mr. Rosa to a period of incarceration for 60 days.
Submissions
[23] Mr. Hicks attacks the sentence on two grounds. First, he submits that Zisman J. erred in considering as proven an allegation that there had been no threat to Mr. Rosa or his family by Mr. Deleon, and in doing so improperly relied on a hearsay statement by Mr. Deleon. Second, Mr. Hicks submits that the sentence is unfit.
[24] Mr. Hicks submits that Mr. Deleon’s statement was admitted at the original sentencing hearing only as a narrative guide for the assistance of the trial judge, but subject to the express stipulation that the facts outlined in Mr. Deleon’s statement were not accepted, and that they would be subject to evidence at the subsequent Gardiner hearing. Notwithstanding that express understanding, the trial judge in her reasons for judgment states that “Mr. Deleon’s statement was admitted on consent and in that statement he denies he threatened Mr. Rosa.” To the extent that the trial judge relied on the fact that the assault was unprovoked, her conclusion is based, at least in part, on her erroneous reliance on the hearsay statement of Mr. Deleon.
[25] Mr. Hicks submits that in any event the sentence is unfit. He accepts that an appellate court should not interfere with a sentence unless it is demonstrably unfit, but he submits that this sentence is demonstrably unfit in the circumstances of this case.
[26] Mr. Hicks submits that the trial judge erred in overemphasizing the factors of denunciation and deterrence. He submits that, of significance, there was no premeditation, and the conviction has had a devastating impact on Mr. Rosa’s life. The appropriate sentencing factors can be accommodated through a conditional sentence. He relies particularly on R. v. Proulx, 2000 SCC 5 (), [2000] S.C.J. No. 6.
[27] Mr. Coppolino, for the Crown, submits that the appeal should be dismissed. In the final analysis, the sentence is not demonstrably unfit, and should be upheld.
[28] Mr. Coppolino submits that it was Mr. Rosa who raised the issue of provocation, and the onus was on him to prove that Mr. Deleon had threatened him. Mr. Coppolino submits that the trial judge found that there were no threats by Mr. Deleon, but relied on evidence apart from Mr. Deleon’s statement. For example, Mr. Rosa had never mentioned any alleged threats in his report. Mr. Rosa was found by the trial judge to be not credible.
[29] Mr. Coppolino submits that the trial judge did not overemphasize the principles of denunciation and deterrence. He submits that they are of primary importance in a case of this sort, since it involved an assault by a correctional officer on a vulnerable inmate, thus constituting a significant breach of trust. Mr. Coppolino specifically relies on R. v. Feeney, supra.
[30] Mr. Coppolino submits that a sentence should not be interfered with unless it is clearly unfit. He relies on R. v. Shropshire, 1995 47 (SCC), [1995] S.C.J. No. 52. He submits that the sentence in this case is not clearly unfit, and is quite appropriate.
Analysis
[31] Section 724(3) of the Criminal Code provides as follows:
Disputed facts
724 (3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,
( a ) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;
( b ) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;
( c ) either party may cross-examine any witness called by the other party;
( d ) subject to paragraph ( e ), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and
( e ) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender .
[emphasis added]
[32] It is clear from s. 724(3) (e) that the onus is on the Crown to prove any aggravating fact beyond a reasonable doubt. Indeed, that was the conclusion of the Supreme Court of Canada in Gardiner itself.
[33] In this case, the trial judge held that the onus was on Mr. Rosa to prove that Mr. Deleon had threatened him. With respect, she erred in so holding. If the assault was unprovoked, that would be an aggravating fact, and it would be for the Crown to prove it beyond a reasonable doubt.
[34] Notwithstanding the error, the sentence imposed by the trial judge is nevertheless a fit one. In coming to this conclusion, I will assume, without deciding, that Mr. Deleon threatened Mr. Rosa.
[35] Abuse and threats by inmates are a fact of life in a correctional institution. They are simply part of the job.
[36] An inmate in a correctional institution is under the complete control of the correctional officers. If a correctional officer is of a mind to assault or abuse an inmate, it is no contest. The inmate has no alternative but to succumb.
[37] In this case, while not premeditated, the assault was, as found by the trial judge, unwarranted, unreasonable, and without justification. Mr. Rosa struck the victim at least 11 times while four other correctional officers looked on.
[38] The facts of this case are not dissimilar from the facts in R. v. Feeney, supra.
[39] In that case, the accused persons were four Toronto police officers. They had assaulted a prisoner who had spilled juice on one of the court officers. When he refused to clean up the juice, he was knocked to the ground and beaten. He was kicked in the face, given flying kicks, and punched in the back and face. The accused attempted to cover up their involvement, and falsified reports.
[40] The trial judge imposed conditional sentences on all four police officers. The Court of Appeal overturned the sentences, and imposed periods of incarceration.
[41] At paras. 4, 5 and 6 of its Reasons for Judgment, the Court of Appeal stated:
4 While we recognize the well-established principle that an appellate court owes deference to the sentencing judge, we are persuaded that the sentence imposed in this case was demonstrably unfit and that the trial judge erred by failing to give sufficient weight to the principles of general deterrence and denunciation.
5 The conduct of the respondents must be considered in the light of the fact that they are officers in the justice system. They owe a duty to the public to uphold the values of that system. The respondents held a position of authority conferred upon them by virtue of their important public duties, and they owed the victim, a prisoner entrusted in their custody, a duty to take care for his safety.
6 When officers entrusted with such duties commit a collective, premeditated, vicious and humiliating assault upon a defenceless prisoner, and then try to cover up their actions, a sentence emphasizing the principles of deterrence and denunciation is called for. We agree with the appellant that the situation was akin to a breach of trust which normally calls for a custodial term. Moreover, this was a case where the values of our society and its justice system must be vindicated and reflected by a sentence that clearly tells those vested with power and authority that attacks by court officers on vulnerable prisoners will not be tolerated and that when they occur, serious sanctions will be imposed.
[42] Mr. Hicks submits that Feeney is distinguishable. He submits that the assaults in that case were far more serious than they were in this case. Furthermore, the descriptive words used to describe the assaults by the Court of Appeal in Feeney, namely, “collective, premeditated, vicious and humiliating” cannot reasonably be applied to this case.
[43] I disagree. In my view, the principles discussed by the Court of Appeal in Feeney are equally applicable to this case.
[44] For the reasons articulated by the trial judge here, and reviewed by the Court of Appeal in Feeney, the principles of denunciation and deterrence are of paramount importance. A conditional sentence would not sufficiently give recognition to the need for denunciation and deterrence.
[45] It was recognized in R. v. Proulx, supra, that there are circumstances in which the principles of denunciation and deterrence will require incarceration instead of a conditional sentence. In discussing denunciation, Lamer C.J.C., stated at para. 106, “However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.” In discussing deterrence, he stated, at para. 107, “Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence.” In the same paragraph, he stated, “Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration. This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed.”
[46] In this case, the offence is one in which the effects of incarceration are likely to have a real deterrent effect. The community in which the offence was committed is a correctional institution. Indeed, the assault was committed while four other correctional officers watched and did nothing. It must be clearly understood by correctional officers that conduct of this sort will not be tolerated, and that serious consequences will follow if it occurs. As stated by the Court of Appeal in Feeney, a sentence must be imposed that tells those vested with power and authority that attacks of this sort on vulnerable prisoners will not be tolerated and when they occur, serious sanctions will be imposed.
[47] It is clear that a sentence should not be interfered with unless it is unfit. As stated by Iacobucci J. in R. v. Shropshire, supra, at para. 46 :
An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.
[48] In this case, Zisman J. has given full consideration to all of the relevant principles of sentencing. She has considered all of the aggravating and mitigating factors. She has determined, correctly in my view, that the factors of denunciation and deterrence are paramount. The sentence she has imposed is not clearly unreasonable. Indeed, I agree with it. The sentence is fit.
Disposition
[49] For the foregoing reasons, the appeal is dismissed.
GRAY J.
Released: May 8, 2012
COURT FILE NO.: CR 112/11
DATE: 2012-05-08
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – FRANK ROSA
REASONS FOR JUDGMENT
GRAY J.
Released: May 8, 2012