COURT FILE NO.: CR-10-9347

DATE: 2013/02/21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JESSY COLTON BRETHOUR

Matthew James Geigen-Miller, for the Crown

Marni D. Munsterman, for the Accused

HEARD: April 23, 24, 25, 26, 27, 30 and May 2, 3, 4, 2012 (Ottawa)

REASONS FOR SENTENCING

BEAUDOIN J. (orally)

[1] On October 29^th, 2012, I found the offender, Jessy Colton Brethour, guilty of one count of aggravated assault, contrary to Section 268(2) of the Criminal Code of Canada and two counts of failing to comply with an undertaking or condition contrary to Section 145(3) of the Criminal Code of Canada.

[2] These offences arise out of the events that took place in the early hours of September 26, 2009. On that evening, Khosrow Nazary had been out drinking where he met up with some young women in a bar. He later proposed to go to an after-party with them and, in the course of the evening, they went to a gas station on the corner of Parkdale and Wellington so that one of the young women by the name of Andrea Portillo could purchase some ecstasy for the party. Mr. Nazary entered the gas station to purchase supplies for the party and during that time, the offender, Jessy Brethour, along with his cousin Chad Dalton and another friend, approached the young women who were waiting in the car. When Mr. Nazary exited the store, Mr. Brethour was speaking to Ms Portillo and Mr. Nazary said words to the effect that the girls had not arrived at that location with Mr. Brethour. On all of the evidence, I concluded that Mr. Brethour then “sucker punched” Mr. Nazary. I also found that nothing that Mr. Nazary may have done or said at that moment constituted any threat to Mr. Brethour. I accepted the evidence of the witnesses that Mr. Brethour was the first to deliver the punch to Mr. Nazary’s head and that, thereafter, he and his cousin, Chad Dalton, engaged in a two-on-one fight on Mr. Nazary who unsuccessfully tried to defend himself. Either the initial blow or the subsequent blows delivered by Mr. Brethour along with his cousin were the cause of serious injuries to Mr. Nazary.

[3] After realizing what they had done, Mr. Brethour and Mr. Dalton ran across the street to Mr. Brethour’s mother’s apartment to avoid detection. The injuries inflicted on Mr. Nazary ultimately resulted in a brain haemorrhage that required surgery to save his life; he is left with a prominent and disfiguring scar and he continues to suffer from the injuries he sustained that night. Mr. Brethour is now before me for sentencing.

[4] In this case, the defence submits that an appropriate sentence is two years plus an additional seven and one half months representing the time served by Mr. Brethour in detention before trial. As the information was sworn before February 28, 2010, the provisions of the Truth in Sentencing Act do not apply to this offence. The Crown agrees that the “two for one credit” is still applicable. The accused was taken into custody on February 7, 2010 and released after a contested bail hearing on May 28, 2010 for a total of 111 days. At the two for one level, this pre‑sentence custody is worth a credit of 222 days or 7.3 months. The defence submits that I should impose a penitentiary term of two years, for a total 2 years and 7.3 months less the credit of 7.3 months, and that for an effective period of incarceration of 2 years to be followed by 18 months of probation with conditions to be imposed. In her submissions, defence counsel argues that this represents a nearly three year sentence and that a a two year sentence would allow Mr, Brethour to be placed on probation and that this would assist him in developing pro-social behaviours. She also notes that a sentence of two years would be a big step up from his last custodial sentence of six months secure custody as youth. She also suggests that community service be added as a term of probation.

[5] The Crown’s position is that appropriate range of sentence is 42 months less credit for the time spent in pre-sentence custody. The Crown seeks six months jail concurrent on each count of breach of Section 145(3). The Crown suggests that the parole provisions would adequately ensure Mr. Brethour’s rehabilitation efforts. In addition to any period of incarceration that may be imposed, the Crown is also seeking ancillary orders pursuant to Section 109 of the Criminal Code and a DNA order pursuant to Section 487.05(1) of the Criminal Code. Neither of these orders is opposed.

Victim Impact Statement

[6] I was provided with a Victim Impact Statement from Mr. Nazary dated November 15, 2012. In that Statement, Mr. Nazary reports that he has been unable to work on a regular basis and that his health has not been completely restored. He suffers from headaches which cause sleepless nights. For a long period of time, he was paranoid and was too frightened to leave his home as he did not feel safe. He has been unable to perform many physical activities that he was used to doing as he fatigues easily and gets dizzy. He has lost nearly 40 pounds and has lost his appetite. His physical condition is at an ultimate low. Financially, he went from making $1,500.00 a week on average to not having any income as he has been unable to work due to the paranoia, fatigue and headaches all relating to the injuries he sustained that night.

Pre-Sentence Report

[7] A Pre-Sentence Report was prepared for the benefit of the Court. The details of the accused’s previous record are set out therein. It goes to back to the year 2000 when the offender was a young offender.

Level/Location of Court Date	Offence	Disposition
2000 – 07 – 21 Youth Court Ottawa, ON	1. Assault - Sec 266 CC 2. Assault Peace Officer with Intent to Resist Arrest – Sec 270(2) CC 3. Assault – Sec 266 CC	1. (Time Served) 30 days Open Custody 2. (Time Served) 30 days Open Custody - Concurrent 3. (Time Served) 30 days Open Custody - Concurrent
2001 – 11 – 08 Youth Court Ottawa, ON	1. Escape Lawful Custody – Sec 145(1)(A) CC 2. Robbery – Sec 344 CC	1. 6 months Secure Custody & 18 Months Probation 2. 6 Months Secure Custody & 18 Months Probation -Concurrent
2005 – 03 – 22 Adult Court Ottawa, ON	1. Fail to Comply with Recognizance – Sec 145(3) CC 2. Obstruct Peace Officer – Sec 129(A) CC	1. 1 Day (& 5 Day Pre-Sentence Custody) 2. 1 Day - Concurrent
2005 – 04 – 27 Adult Court Ottawa, ON	Fail to Comply with Recognizance – Sec 145(3) CC	$300. (& 1 Day Pre-Sentence Custody)
2005 – 06 – 17 Adult Court Ottawa, ON	Mischief – Sec 430(1)	Suspended Sentence & 15 Months Probation & Discretionary Prohibition Order – Sec 110 CC for 2 years
2007 – 02 – 19 Adult Court Pembroke, ON	Fail to Comply with Probation Order – Sec 733(1)(C) CC	1 Day (& 35 Days Pre-Sentence Custody)
2007 – 08 – 24 Adult Court Ottawa, ON	Mischief Under $5,000. – Sec 430(4) CC	$1,000 & 3 Months Probation & Restitution $300
2010 – 05 – 20 Adult Court Ottawa, ON	1. Assault – Sec 266 CC 2. Mischief Under $5,000 – Sec 430(4) CC 3. Fail to Comply with Recognizance – Sec 145(3) CC	1. 1 Day (& 15 days Pre-Sentence Custody) 2. 1 Day Concurrent (& 15 days Pre-Sentence Custody) 3. 1 Day Concurrent (& 15 days Pre-Sentence Custody)

[8] The Report notes that the Mr. Brethour is 27 year old repeat offender. It appears that he never had a relationship with his father and that his mother co-habited in a common-law relationship with one John Breyeur who spent several years in federal correctional institutes. The mother had a drug addiction problem, several live-in boyfriends, and several address changes while he was growing up. At nine years of age, the Children’s Aid Society apprehended the offender and placed him in a group home. He had a number of group home placements due to his acting out behaviour. When the offender was 15 years old, he was incarcerated in a youth correctional facility for 11 months. While he was still quite young, he began a relationship with another young woman who became pregnant and they have a daughter, Eve, who is now nine years of age. The offender did not have any sort of stable home during a subsequent period of time and that his life involved moving from one place to the other, drinking and partying. When he was 18 years of age, he began selling crack for six months, and then took up residence with his former partner and their daughter for a period of time. They subsequently separated.

[9] After that separation, he relocated to Alberta for employment purposes and specifically worked as a cook in a work camp in Fort McMurray. He was there for a short time and returned to Ottawa. He then began another dating relationship and he and that partner moved to Fort McMurray and that relationship lasted for two years before they separated. He returned to his mother’s residence where he resided up until his arrest in the present matter. Shortly after his release in May 2010, the offender began dating Angela Tizaini and they began a common-law relationship. The offender reported to the probation officer that his relationship with Ms. Tizaini ended in December 2012 and that he had relocated to his mother’s residence. Ms. Tizaini, however, was in court with the offender on the date of sentencing as she was throughout these proceedings and I have been advised by counsel that she is still supportive although the exact nature of her relationship with Mr. Brethour is unclear at the present time.

[10] With respect to education and employment, the offender has completed grade eight education and did not complete any further educational courses. Apparently, he was diagnosed at an early age with attention deficit and hyperactivity disorder. He had behavioural issues in school and problems concentrating. The offender reports being self-employed as a contractor building decks and fences and that he has had this employment for approximately one year. When he was in Fort McMurray, he claimed he worked two years full-time as a labourer at a pipeline construction company. According to the offender, he has held some sort of employment since the age of 14 and he has never had any difficulty finding a job.

[11] Mr. Brethour realizes he has a problem with alcohol and that alcohol has always been problematic for him even at a young age. He is self-described as a binge drinker but claims to have not consumed any alcohol since his arrest in the present matter. He has never attended any residential substance abuse program but did attend regular Alcoholic Anonymous meetings while residing in Fort McMurray for approximately six months. He has experimented with marijuana and cocaine but these have never been problematic for him.

[12] Mr. Brethour was co-operative with the probation officer in discussing his personal history. He accepts limited responsibility for his actions and verbalized remorse. He maintained the same position that he took at trial, namely, that he only pushed the victim once and when the victim came at him in retaliation, he struck him once in the face and left. He takes full responsibility for hitting the victim once but does not feel he was the person who injured the victim. He says he is sorry for the incident that occurred between him and victim.

[13] The report concludes that the offender had a very dysfunctional childhood and a troubled relationship with his mother. According to the report, the offender realized in 2010 that he did not want to live the type of lifestyle he previously had and that he is trying to distance himself from his negative friends and acquaintances. The offender also acknowledged that he can have an issue with anger especially when he consumes alcohol. His future plans are to return to Alberta to resume employment in pipeline construction or heavy equipment and to maintain regular contact with his daughter.

[14] The offender was only able to provide three collateral sources for the preparation of this report. Only one collateral source was contacted. That person advised that the offender had changed his ways for the better and is not the same person he used to be. Ms. Tizaini chose to not provide additional information.

[15] The report concludes that the offender’s last period of community supervision was 2007 and that the offender admitted that he did not respond well to community supervision in the past because he had a poor attitude. The offender claims he has matured and now wants to live a pro‑social lifestyle. The assessment concludes as follows: “Only time will tell if the subject is going through the motions for sentencing purposes or if the subject is truly committed for positive change.” The offender was found to be a suitable candidate for further community supervision.

Sentencing Principals

[16] Section 718 of the Criminal Code provides as follows:

718. The fundamental purpose of sentencing is 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;

(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 and to the community.

Case law

[17] Justice Code in R. v. Tourville, 2011 ONSC 1677, [2011] ONSC 1677, [2011] O.J. No. 1245 summarized the range of sentences for aggravated assault in the case law. He identified three ranges for this type of offence: The first being the low range, he described these cases as “exceptional”; these sentences are characterized by an unusual degree of mitigation, permitting a court to deviate from the usual sentence of significant jail. The examples cited by Justice Code included an offender without a criminal record, a guilty plea, the presence of significant mitigating factors, and the application of the Gladue sentencing principals.

[18] With respect to the mid-range sentencing, Justice Code indicated these as being high reformatory sentences between 18 months and two years less a day. There cases generally involve first offenders and generally contain some element suggestive of consent fights but where the accused has resorted to excessive force.

[19] Finally, with respect to high range of sentences, these were described by Justice Code as penitentiary sentences for four to six years. These cases generally involved recidivists, with serious prior criminal records or they involved unprovoked or premeditated assaults with no suggestion of any elements of consent or self-defence.

[20] The Defence submitted the decisions of R. v. Neshinapaise, 2012 ONCJ 82, R. v. Sukhu, 2005 ONCJ 109, R. v. Chickekoo, 2008 ONCA 488 and R. v. Addley, 2012 ONSC 137 where, in some cases sentences of 18 months were imposed. Tourville, Neshinapaise, Addley and Chikekoo all involved aboriginal offenders and the required the application of the Gladue principles; which is not the case here. R. v Lubienga, an unreported decision of Justice Nadelle of the Ontario Court of Justice here in Ottawa. While there are some similarities, in that case, the victim had been involved in altercation with a woman and the accused had intervened.

[21] Both Crown and defence acknowledge that the denunciation and deterrence for significant factors are the primary factors to be considered in the case of an aggravated assault especially when there are serious injuries such as the those that were sustained in this case. Nevertheless, I must consider not only the offence but the offender. With respect to the offence, the mitigating factors are these: the event was impulsive rather than planned and the offender appears to have been operating under the influence of alcohol.

[22] There are, nevertheless, very significant aggravating factors. I concluded that this was a two-on-one assault and that the offender was the aggressor who threw the first punch. Mr. Brethour was angry about the frustrating events that had happened earlier in the evening and that had spoiled his planned birthday celebrations. Mr. Nazary was not involved in any of those prior events; he simply was the person who bore the brunt of that anger. This was an unprovoked assault against a stranger in a public place. The offender made no effort to assist the victim; instead he ran off with his cousin in order to escape apprehension. The victim’s life was in endangered by the assault without emergency brain surgery, he would have died. Mr. Nazary has been left with a permanent disfiguring scar on his face and there have been significant consequences for him; every aspect of his life has been affected.

[23] As for the offender, at the time of the offence, he was relatively youthful and it is important to note that there had been no new criminal charges since the date of his arrest; a period of nearly three years. There are self-reports of consistent employment although none of this was verified by the probation officer.

[24] As for the aggravating factors, the offender has a prior criminal record for related offences, violence and non-compliance with court orders. Even though it has been some time ago, he had poor performance on probation and has showed a past lack of interest in treatment or rehabilitation. He has not sought any treatment for his alcohol abuse nor for his anger management problems. While his personal history invokes some sympathy, it nevertheless demonstrates a long pattern of problems and difficulties in leading a pro-social lifestyle. I agree with the Crown’s submission that the Pre-Sentence Report is guarded at best.

Analysis

[25] As noted by both Crown and defence, deterrence and denunciation are the primary sentencing principles to be applied in this case and that the principle of rehabilitation must be given some weight but it takes a secondary consideration to the first two. In applying the range of cases described by Justice Code in Tourville, the facts of this case clearly put this above Justice Code’s “mid-range”. Mr. Brethour’s record is significant having regard to his young age. The offence does not contain any elements suggestive of a consent fight or self-defence. This is a simple case of a big “bully” beating up an unfortunate man who happened to be in the wrong place at the wrong time. The victim could have died and he will live with the consequences of this assault for the rest of his life.

[26] The case contains some of the features found in Justice Code’s “high range”. The assault was unprovoked and Mr. Brethour is a repeat offender. Nevertheless, this offence was in impulsive act and not planned. And although Mr. Brethour has a prior criminal record, this is the first serious assault with which he has been charged and it is significant to note that he has not had any further charges since his arrest for this offence. I agree with the Crown’s submission that a proper consideration of the aggravating and mitigating factors places this case between the mid-range and the high range of sentences.

[27] Mr. Brethour seeks to move on with his life and he is at a crossroads and I cannot conclude with any confidence what path he will choose. It is important that he remain accountable for what he has done if we are to give the principle of denunciation proper weight and to encourage him to seek out help in the future that he needs. While acknowledging a problem with alcohol, he has not taken any steps to address his problem by attending Alcoholics Anonymous as he once did when he was in Fort McMurray. There seems to be a significant problem in managing his anger and he has taken no steps to address that issue at all. While his counsel speaks of the positive effects of Ms. Tizaini in his life, it appears that relationship is now in limbo. His plans are to return to Alberta once again and his future is vague. While he cannot be punished for his limited remorse or for insisting on his right to a trial, he cannot claim the benefit that a guilty plea might have had on his sentence.

[28] I am of the view that a global sentence of imprisonment of 36 months less 222 days of pre-sentence custody is an appropriate sentence in this case. I also sentence him to six months concurrent on each of the two counts of breach of conditions. There will be a weapons prohibition order for 10 years pursuant to Section 109 in the Criminal Code and a DNA order pursuant to Section 487.05(1) of the Criminal Code. In this case, the defence has asked that I waive the victim’s fine surcharge and I decline to do so. By his own accounts, Mr. Brethour has had no difficulty finding and maintaining employment and he fully expects to be able to return to full-time employment once he is released from incarceration. In a case where there is such an obvious and tragic victim, and I see no basis for the waiver of that surcharge.

Mr. Justice Robert N. Beaudoin

Released Orally: February 21, 2013

COURT FILE NO.: CR-10-9347

DATE: 2013/02/21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

JESSY COLTON BRETHOUR

REASONS FOR SENTENCING

Beaudoin J.

Released Orally: February 21, 2013