ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR12400008040000
DATE: 20140320
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TYRONE LEWIS
Defendant
K. Nedelkopoulos, for the Crown
R. O’Brien, for the Defendant
HEARD: December 23, 2013
J. macdonald j.
R E A S O N S F O R S E N T E N C I N G
BEFORE THE HONOURABLE MR. JUSTICE J. MACDONALD
On DECEMBER 23, 2013, at Toronto, Ontario
APPEARANCES:
R. O’Brien Counsel for the Crown
K. Nedelkopoulos Counsel for the Defence
MONDAY, December 23, 2013:
R E A S O N S F O R S E N T E N C I N G
J. MACDONALD, J. (Orally):
Mr. Lewis has pleaded guilty to four counts of failure to comply with a recognizance arising from events on April 7th, May 1st, July 27th and November 19, 2011. The recognizance required Mr. Lewis not to associate with Ms. C, with whom he had a troubled domestic relationship.
Mr. Lewis pleaded not guilty to charges of assaulting Ms. C on the aforesaid dates and was acquitted of all of these charges by a jury.
Ms. C’s evidence at trial discloses the nature and dimension of the first three failures to comply as follows. This evidence was not contested by Mr. Lewis, as his guilty pleas indicate.
My conclusions about the November 19, 2011 offence are based on the testimony of Ms. Tracy Rich, a witness called by Mr. Lewis whom the jury believed, in my opinion.
On April 7, 2011, with Ms. C's consent and permission, Mr. Lewis visited with her in her apartment. On May 1, 2011, on Ms. C’s invitation, Mr. Lewis was with Ms. C in her apartment for her daughter's birthday. On July 27, 2011 the relationship between Mr. Lewis and Ms. C had deteriorated. He was in a barber shop. She went looking for him and approached the barber shop. Mr. Lewis saw her approaching and got up from his chair and ran downstairs to the basement. She followed him downstairs. A witness, Nolita Steven, who worked in the barber shop, heard the sounds of a door slamming. These sounds were consistent with Mr. Lewis having entered the washroom in the basement and having closed the door. However, Mr. Lewis did not exit from the basement through an available exterior door and admits by his plea that he had sufficient dealings with Ms. C to have breached the recognizance.
On November 19, 2011 Mr. Lewis and his new girlfriend, Ms. Rich, went to an afterhours bar located in a unit in the basement of Ms. C’s apartment building. Ms. C was there and spoke with Ms. Rich. Mr. Lewis observed this and became upset. He did not leave. His cousin pulled him away from the two women. When Ms. C appeared to Ms. Rich to become aggressive, Mr. Lewis called out, from a number of feet away, saying, “Leave my girlfriend alone.” Ms. Rich was upset by Ms. C and wanted to leave. It was only then that Mr. Lewis left, in company with Ms. Rich.
Mr. Lewis has a relevant criminal record as follows:
April 2010, criminal harassment involving someone other than Ms. C, for which he received a conditional discharge, 18 months’ probation, and a Section 110 prohibition order for five years. He was in custody prior to sentencing for three days.
July 2010, assault causing bodily harm, arising from a domestic relationship with another person, and failure to comply with a recognizance, for which Mr. Lewis received a suspended sentence and two years’ probation. He was in custody prior to trial for seven days.
December 2010, assault with a weapon upon Ms. C, threatening death to Ms. C and failure to comply with a probation order, for which Mr. Lewis received a sentence of incarceration for 45 days plus two years’ probation. He was in custody prior to trial for 89 days.
February 2013, failure to comply with a recognizance, for which Mr. Lewis received a sentence of incarceration for 28 days. He was in custody prior to trial for 12 days.
May 2013, failure to comply with a recognizance for which Mr. Lewis received a sentence of incarceration for 14 days. He was in custody prior to trial for 30 days.
The 2011 offences in issue before me happened after the 2010 convictions and sentencings and before the 2013 convictions and sentencings. I will therefore regard Mr. Lewis, for the purpose of this sentencing, as having a record for the three prior 2010 convictions. See: R. v. Skolnick 1982 54 (SCC), [1982] 2 SCR 47 and R. v. Pritchard [1973] O.J. No. 901 (Ont.C.A.). Nonetheless, some use properly may be made of the two subsequent convictions in 2013. These may assist in determining, for example, Mr. Lewis' rehabilitation potential.
The fundamental principle of sentencing, which is found in Section 718.1 of the Code, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principles of sentencing are set out in Section 718 of the Code and include rehabilitation, reformation of the character of the offender, deterrence of the offender and others from committing offences, promoting a sense of responsibility and understanding of the harm done, and denunciation of unlawful conduct. Section 718.2 also provides that a sentence should be increased or decreased to account for any relevant aggravating or mitigating factors, and specific aggravating factors are set out. In addition, Section 718.2 contains additional sentencing principles which are relevant here, as follows:
a) All available sanctions other than imprisonment that are reasonable in the circumstances should be considered.
b) An offender should not be deprived of liberty if less restrictive sanctions may be appropriate.
c) Where consecutive sentences are imposed, which is an option in this case, the combined sentence should not be unduly long or harsh. This is referred to generally as the "totality principle”.
Section 718.2(a)(ii) states that abuse of a spouse or a common law partner is deemed to be an aggravating factor in sentencing. It is inapplicable in this case because the offences in issue do not amount to "abuse" in my opinion.
I also wish to mention the principle that reasonably incremental increases in sentence are appropriate when there are sequential offences, particularly of the same type. This is referred to as the "step principle”.
The principle that all available sanctions other than imprisonment that are reasonable should be considered has led me to consider a conditional sentence in this case. I will address this after I have determined whether a sentence of less than two years imprisonment is a fit sentence in respect of one or more of these offences.
The aggravating factors in this case are as follows:
Mr. Lewis’ record for convictions imposed prior to these offences discloses the following aggravating factors:
a) There is a history of domestic violence. That domestic violence is relatively substantial, even though relatively recent and involving only two incidents. Assault causing bodily harm and assault with a weapon demonstrate physical violence and threatening death demonstrates emotional violence directed at two different partners, one of whom was Ms. C.
b) There is a history of violating court orders: one failure to comply with a recognizance and one failure to comply with a probation order, both related to the aforesaid convictions arising from domestic relationships, and thus also relatively recent.
There are four new convictions for failure to comply with a recognizance, spread over a period of months.
From the criminal record, the pre-sentence report and the events in issue, I find that Mr. Lewis is a single man with a history of problematic and failed domestic relationships who has difficulty letting go when these relationships end.
The presentence report establishes that Mr. Lewis has psychiatric issues, likely related to his childhood experiences. He had brief treatment which provided benefits, but he did not continue with it. His psychiatric issues likely play a role in his difficulty letting go when relationships end and likely also play a role in his repeated failure to comply with court orders which limit his actions in respect of those failed relationships. His failure to grasp that he must comply with court orders creates a risk of further noncompliance in similar circumstances in the future and that is relevant to determination of a fit sentence for the present offences.
Mr. Lewis' psychiatric issues are triggered easily by minimal consumption of alcohol. He undergoes a personality change in those circumstances, according to his mother. I find from this that his psychiatric issues are not well controlled, being close to the surface of his emotions. This also creates a risk of further noncompliance in similar circumstances in the future, which is relevant to the determination of a fit sentence for the present offences.
The two 2013 convictions for failure to comply with a recognizance demonstrate that the prospects of rehabilitation are limited to a degree. Taken together with the present convictions and the record of prior similar and identical convictions, I find that Mr. Lewis is quite set in his noncompliance to the point where I have been concerned that he is actually defiant of the law. However, having considered the totality of the evidence, I conclude that defiance is not established. I bear in mind in particular the psychiatric issues.
Nonetheless, the incident of November 19, 2011 is a significant breach of Mr. Lewis’ legal obligations. This was not contact with Ms. C with her concurrence, which would also have been a breach of Mr. Lewis’ legal obligations but of lesser seriousness. This was an intrusion into her sphere, provocative in nature because he took his new girlfriend there, and it continued because of his failure to withdraw as soon as he became aware of Ms. C’s presence. This demonstrates a significant lack of compliance with the law’s requirements.
The mitigating factors herein are as follows:
The April and May 2011 breaches were with Ms. C's concurrence. While they are offences nonetheless, they are reduced in seriousness by this factor.
The July breach, was in my opinion, close to being a technical breach. He withdrew from Ms. C and she pursued him. While I cannot say that this demonstrates respect for the law because of the number of similar breaches, including what happened in November 2011, at the least Mr. Lewis took significant steps consistent with compliance, even if they were for reasons of his own choosing and not because of respect for the law.
Mr. Lewis has pleaded guilty to the offences in issue. The dimension of this mitigating factor is however reduced by the lateness of these pleas, which were entered a the opening of trial.
Ms. C, who had nothing else good to say about Mr. Lewis, testified that he was really good with her children. Ms. Rich said the same thing.
Mr. Lewis, according to the presentence report, had an excellent work record with a furniture company for his first ten years in Canada. The employer thought highly of his work. Unfortunately, the company failed in 2008 and Mr. Lewis was put out of work.
From the positive evidence about his kindness towards two of his former girlfriends’ children and about his excellent work record over a ten year period, from the evidence in the presentence report that for some time Mr. Lewis accepted psychotherapy and made some progress and also engaged in helpful programs, from the fact that his criminal record is relatively recent, namely since the loss of his job due to the company's bankruptcy, and is also confined to a discreet area of his life, namely domestic relationships, I conclude that Mr. Lewis is a man with a good heart and a good work ethic, who recognizes in some degree that he has psychiatric issues which require therapy. From this, I am satisfied that Mr. Lewis has real rehabilitative potential, provided that he is adequately supervised and, from the sentence imposed upon him, he recognizes that he must comply with such orders.
The Crown seeks a global sentence of nine to twelve months in custody, less pretrial custody of seven and two thirds’ months as of today on a one to one basis, plus one year of probation.
Mr. O’Brien, for the defence, proposes a global sentence of five and one half months in custody, less pretrial custody, plus probation of one year or longer if the court is of the view that that will be beneficial to Mr. Lewis.
My conclusions are as follows:
In my opinion, these are not minor offences. When problematic and failed relationships give rise to criminal charges and/or convictions, the primary means by which the Criminal Code stabilizes these relationships and/or protects a vulnerable or frightened former domestic partner are bail recognisances and probation orders. For many people there is little other protection available. These are significant orders because of the significant issues they address. Violation of them must be, and must be seen to be a significant issue or the stability and protection these orders provide will be diluted, with potentially serious individual and societal consequences. In addition, while Mr. Lewis has rehabilitative potential, his lack of compliance with court orders is substantial, even though from his perspective it arises from a discreet area of his life.
I conclude there is a real risk of further recurrence, absent effective psychotherapy. That is because Mr. Lewis is a single man who is likely to continue dating and to continue attempting to develop relationships. He does not grasp that, early on, dating and new relationships are exploratory in nature and thus, it is inevitable that others will choose not to continue, just as he will from time to time. With Mr. Lewis, there is at present a real risk that he will not walk away and let go in these circumstances. For that he needs help. But, the court must also make the point to him and for others who refuse to understand what these orders require of them that noncompliance with these orders is a matter of significance.
Mr. O'Brien has referred to the step principle and has submitted that the Crown’s proposed sentence is too sharp a jump. Mr. O’Brien bases this on Mr. Lewis’ prior custodial sentence of forty-five days in 2010, which included one count of failure to comply with a probation order.
Given the assault with a weapon and threatening death convictions, I think that the 2010 conviction for failure to comply with a probation order likely attracted a custodial sentence in the range of twelve days, although this was not specified.
Looking at all factors, and bearing in mind the totality principle and the step principle, I impose consecutive sentences on Mr. Lewis as follows:
For the April 7, 2011 offence, one month imprisonment.
For the May 1, 2011 offence, one and three-quarter months imprisonment.
For the July 27, 2011 offence, one week imprisonment, being one quarter of a month.
For the November 19, 2011 offence, four months imprisonment.
This is a total sentence of seven months imprisonment, less pretrial custody of seven and two-thirds months. Mr. Lewis has therefore served all of his custodial sentence.
In addition I impose probation for a period of 18 months on the standard terms in Section 732.1(2) plus the following additional terms:
No contact with Ms. C. or any member of her family.
He shall not be within 200 yards of Ms. C’s residence, her place of employment or any place where he knows her to be.
He shall report to a probation officer within ten days of today, and thereafter as required by the probation officer. I would have made that a shorter period if not for the imminent Christmas break.
He shall reside at an address approved by his probation officer.
He shall enroll in, diligently pursue, and comply with the requirements of any programs or therapeutic treatments as directed by his probation officer, which may include a substance abuse program, an impulse or anger management program, psychotherapy, and job or skills retraining.
In addition, no argument having been made about lack of retrospective effect of the recent amendments to the Code, I impose a victim surcharge of $200 per conviction, or $800 total.
The Crown has led no evidence that Mr. Lewis has the means of paying this now, or at any time in the near future. I must therefore make some provision for time to pay. Mr. Lewis has been out of work in large measure since 2008, and I regard him as presently in need of job retraining and psychotherapy. I therefore order that Mr. Lewis shall pay $200 within six months, a further $200 within ten months, a further $200 within 14 months, and the last $200 within 18 months of today.
There are two other matters to address. Mr. O’Brien stated in his submissions that if Mr. Lewis is sentenced to more than six months, he is in jeopardy of an order removing him from Canada, pursuant to the Immigration and Refugee Protection Act, SC 2001 Chapter 27, as amended, (the IRPA), and that I should take this factor into account in the sentence I impose. Pursuant to the IRPA, a finding that a non-citizen like Mr. Lewis has engaged in “serious criminality” in Canada is grounds for a removal order. “Serious criminality” is defined in the Act as a crime punished in Canada by a term of imprisonment of at least six months. Recently, on June 19, 2013, Parliament restricted the right to appeal a removal order to persons whose sentence is less than six months.
In my opinion, it is the responsibility of the Immigration and Refugee Board to determine Mr. Lewis’ immigration fate and thus to determine such matters as the extent to which, under the IRPA, the multiple sentences with a total period of incarceration of more than six months, which I have imposed herein, mean that Mr. Lewis has engaged in serious criminality as defined in that Act. It is the responsibility of the Immigration Appeal Division to determine whether the recent amendments do or do not have application to Mr. Lewis whose offences in 2011 preceded the 2013 amendment restricting appeal rights. My role is not to decide these issues but to determine the degree of risk of an adverse immigration determination arising from the sentences I propose to impose and to reflect that in any such sentences, if appropriate, unless to do so would render the sentences unfit. See: R. v. Pham [2013] SCC 15 per Wagner, J. for the court.
In my opinion, Mr. Lewis’ record for similar and identical offences and the need to deter him and others from violating orders of this type, which protect the safety and too often the lives of so many vulnerable people, mean that, despite his psychiatric issues and his rehabilitative potential, any sentences of incarceration for a total period of less than six months would be unfit in the circumstances of this case.
I have considered Mr. O'Brien's submissions and I conclude that, if there is a risk of an adverse immigration consequence, which I doubt because IRPA defines “serious criminality” as occurring when a sentence of at least six months is imposed in respect of an offence and not in respect of several offences which result in a cumulative total of six months or more, it is not a reason to vary the total sentence herein to less than six months imprisonment. I note that the Board and the Appeal Division may choose to take into account my conclusions that Mr. Lewis has a fine work record, a good heart and that his problems with the criminal law began after he lost his job, for reasons unrelated to him.
I also wish to state that, while a conditional sentence is an available sentencing option, it is not appropriate herein. Neither the Crown nor defence counsel sought a conditional sentence, the Crown because of the need to deter and to denounce such criminal conduct and the defence because of the pretrial custody credit. I am of the view that a custodial sentence is required in all of the circumstances to meet the objectives of sentencing in this case, including deterrence, both specific and general and denunciation of the conduct in issue.
A D J O U R N E D
Form 2
Certificate of Transcript (Subsection 5(2))
Evidence Act
I, P. Lacroix, certify that this document is a true and accurate transcript of the recording of DECEMBER 23, 2014 in the Superior Court of Justice, held at 361 University Avenue, taken from recording no. 4899_2-3_20131223_094615__10_MACDONJOHN which has been certified in Form 1.
Date P. Lacroix
THIS TRANSCRIPT IS THE PROPERTY OF THE MINISTRY OF THE ATTORNEY GENERAL AND THE COURT REPORTER NAMED ABOVE. DUPLICATION OR ANY ALTERATION OF THIS TRANSCRIPT IS STRICTLY PROHIBITED.
Mr. Justice John Macdonald J.
Released: March 20, 2014
COURT FILE NO.: CR12400008040000
DATE: 20140320
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TYRONE LEWIS
Defendant
REASONS FOR sentencing
J. Macdonald J.
Released: March 20, 2014