court file no.: CR/13/70000/2430000
DATE: 20140328
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Brent Lottering
E. Haydon, for the Applicant
R. Handlarski, for the Defendant
HEARD: February 28, 2014
KELLY J.
reasons for SENTENCE
[1] The defendant, Mr. Brent Lottering, pleaded not guilty to aggravated assault. Crown Counsel read certain facts into the record following which Mr. Lottering submitted that he did not contest the facts. Thereafter I made a finding of guilt. He now comes before me for sentencing.
[2] Crown Counsel seeks a custodial sentence of 7 years in custody less time served[^1] calculated on the basis of one day credit for each day served in presentence custody. Counsel for Mr. Lottering submits that a sentence of time served calculated on the basis of 1.5 days for each day served in pre-sentence custody (20 months x 1.5 days = 30 months) together with probation is appropriate. Both counsel agree on the ancillary orders referred to below.
[3] For the reasons set out below, I find that a sentence of 54 months less pre-sentence custody of 30 months is the appropriate. He will be required to serve a further 2 years less 1 day in custody to be followed by 3 years of probation. What follows are my reasons.
The Facts
[4] The factual background giving rise to the plea was provided by way of an Agreed Statement of Facts. It includes the following:
a. At the time of the incident, the defendant, Mr. Brent Lottering was 43 years old. The victim, Mr. Dale Hunter, was 66 years old. Mr. Lottering had been living with Mr. Hunter for a couple of months in the apartment Mr. Hunter had resided in for approximately 10 years, namely 100 Wellesley Street East, unit 2807. Mr. Lottering used to live in the same building (around 2011) and it was during this time that Mr. Lottering and Mr. Hunter became friends. In the period leading up to the incident, Mr. Hunter was paying some of Mr. Lottering’s expenses. Mr. Lottering was not employed at the time of the incident and was on a probation order.
b. On August 9, 2012, Mr. Lottering was at the residence. In the afternoon, two friends of his, Ms. Tomasina Knowles and Mr. Jordan Horner, visited him at the apartment. They spent the afternoon together and went swimming. Mr. Lottering consumed alcohol throughout the day.
c. Later in the afternoon, Mr. Hunter returned to the residence. An argument broke out between Mr. Lottering and Mr. Hunter because Mr. Lottering wanted money from Mr. Hunter in order to purchase more alcohol. Mr. Hunter did not want to give Mr. Lottering any money because he had already taken some from his wallet earlier.
d. Mr. Lottering and Mr. Hunter were in the bedroom together. Ms. Knowles and Mr. Horner heard yelling and screaming. They observed Mr. Lottering throw a number of household objects at Mr. Hunter, including a shoe and an ashtray. These items contacted Mr. Hunter’s head. Mr. Horner intervened to calm down the situation, restraining Mr. Lottering by pushing him to the floor. Mr. Lottering and Mr. Horner then took a walk together in order to further calm the situation.
e. After the walk, all four parties went for dinner at a nearby restaurant. All consumed food and alcohol. While at the restaurant, the waitress serving them noted that Mr. Hunter was very quiet. Mr. Lottering told her that Mr. Hunter wasn’t feeling well. The waitress asked Mr. Lottering what had happened. Mr. Lottering replied, “Oh, I did it to him earlier in the night.” The group stayed for a couple of hours at the restaurant. Mr. Hunter paid the bill.
f. The group of four returned to the residence after 11:00 p.m. Mr. Horner left the apartment to buy some marijuana.
g. Ms. Knowles went to lie down on the sofa in the living room. About half an hour later, now August 10, 2012, she heard Mr. Lottering screaming and yelling in the bedroom. Ms. Knowles went to the bedroom and opened the door. She saw Mr. Hunter sitting on the bed with Mr. Lottering standing in front of him. Mr. Lottering screamed at Mr. Hunter. Mr. Lottering threw some items at Mr. Hunter. Ms. Knowles told Mr. Lottering to stop. Mr. Hunter was not fighting back and was apologizing to Mr. Lottering.
h. Mr. Lottering started slapping Mr. Hunter in the face and kicking him in the legs. Mr. Lottering then punched Mr. Hunter in the temple. Ms. Knowles saw blood come from Mr. Hunter’s head. Mr. Hunter fell back onto the bed. He was breathing but his eyes were closed.
i. Mr. Lottering left the room and Ms. Knowles sat beside Mr. Hunter on the bed. Mr. Hunter gave Ms. Knowles his wallet to hide from Mr. Lottering. Mr. Lottering returned to the bedroom and did not like that Ms. Knowles had Mr. Hunter’s wallet. Mr. Lottering hit Ms. Knowles. Mr. Lottering then hit Mr. Hunter in the left jaw area. Mr. Hunter fell backwards onto the bed. Ms. Knowles tried to talk to Mr. Hunter, but he was unconscious.
j. Ms. Knowles ran out of the apartment and went down twenty-eight (28) flights of stairs. She went to a payphone outside of 100 Wellesley Street East and called for an ambulance. Ms. Knowles gave the 911 operator information about what had occurred and about Mr. Lottering.
k. Within minutes, police and other emergency services arrived at 100 Wellesley Street East.
l. P.C. Bradley Payne and P.C. Chris Wilson of the Toronto Police Service were first on scene. They made their way up to unit 2807 in the presence of Toronto Fire Services.
m. Upon arriving at unit 2807, P.C. Wilson knocked on the locked door. P.C. Wilson identified himself as police. Through the locked door, P.C. Wilson had a conversation with Mr. Lottering. P.C. Wilson advised Mr. Lottering that the police needed to come into the apartment to check on someone who may be injured inside. Mr. Lottering told P.C. Wilson he did not need to open the door without a warrant. P.C. Wilson told Mr. Lottering that the police would break down the door if he did not open it up.
n. After a few seconds, Mr. Lottering partially opened the door, standing in the open doorway. At this point, P.C. Payne began a conversation with Mr. Lottering. P.C. Payne asked who is in the apartment and Mr. Lottering advised that his “husband” was in the bedroom. P.C. Payne told Mr. Lottering they needed to get into the apartment to check on the well-being of an injured person. Mr. Lottering told the police that they could not come in. P.C. Payne then forced his way through the door, causing Mr. Lottering to fall backwards onto the floor.
o. Once inside the apartment, P.C. Payne started on his way to the closed bedroom door. Mr. Lottering came at him, saying, “Don’t fucking go in there, you cunts.” The officers restrained and handcuffed Mr. Lottering.
p. P.C. Payne gained entry into the bedroom. He turned on the lights. The bedroom was very messy. P.C. Payne observed Mr. Hunter on the floor, with his head and chest covered with a blanket or bedsheets. Mr. Hunter was on the floor between the bed and the wall. He appeared to be breathing, but was unconscious. Near Mr. Hunter’s feet was some broken glass. P.C. Payne observed small cuts on Mr. Hunter’s feet. P.C. Payne called for Toronto Fire Services to attend to Mr. Hunter.
q. Toronto Fire Services and paramedics attended to Mr. Hunter. He was not conscious.
r. P.C. Payne arrested Mr. Lottering for assault. Upon being read the words of assault, Mr. Lottering said to police, “My husband is fine. He does this all the time. He’s just a drunk. He hit his own head because he’s drunk.” The officers then transported Mr. Lottering to 51 Division for processing.
[5] The injuries to Mr. Hunter are agreed to as follows:
a. Mr. Hunter was transported to St. Michael’s Hospital. In the emergency room, there was a diagnosis of head injury made. Mr. Hunter had the lowest score in terms of neurological performance upon arrival at the hospital. He remained unconscious. Mr. Hunter was rushed into surgery after a CT scan and other observations confirmed a lesion on the brain.
b. Mr. Hunter was suffering from an acute, large, right-sided subdural hematoma and other secondary brain injuries. External injuries included a laceration to the scalp and signs of facial bruising.
c. The hematoma was 2.5 cm in size. It was creating significant mass effect on the brain, causing pressure on the brain stem. The cause of such an injury was high magnitude force, in particular some sort of blow to the left side of the head leading to the brain injury on the right side (a “coup-contrecoup” injury).
d. The type of injury suffered by Mr. Hunter – the subdural hematoma – is almost universally a fatal event, even with urgent surgery. The chance of survival is about 1%.
e. Mr. Hunter was ventilator-dependent for over a week after the incident. His prognosis was poor. Medical staff spoke with the family about withdrawal of care.
f. Remarkably, Mr. Hunter recovered from his injury. He was released from hospital on September 27, 2012 to a rehabilitation facility specializing in traumatic brain injury. In early 2013, Mr. Hunter returned to work. Mr. Hunter is in the 1% of 1% of individuals who suffer this type of injury with respect to his recovery. Mr. Hunter continues to have memory problems, particularly with respect to the time around the incident that led to his injury. Mr. Hunter has no memory of the incident itself.
[6] Based upon these facts, I will now address the issue of the appropriate sentence.
Analysis
[7] Section 718 of the Criminal Code, R.S.C., 1985, c. C-46 sets out the purposes of sentencing as follows:
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.
[8] Bearing the purposes of sentencing in mind, I must also take into consideration the following: that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[9] Crown Counsel made compelling arguments as to why a significant jail sentence is appropriate. She provided the Court with several cases in support of her position. Some of them are summarized as follows.
[10] In R. v. Pitkeathly,[^2] the Ontario Court of Appeal upheld a sentence of eight years imposed for what the Court describes as the brutal and horrible beating of the complainant and girlfriend of Mr. Pitkeathly. Most of the complainant’s injuries were the result of having been kicked in the face while Mr. Pitkeathly was wearing cowboy boots. She suffered multiple fractures, missing teeth, required reconstructive surgery, and had 12 steel plates surgically implanted in her face. The complainant was severely affected by the assault; she was suicidal and suffered from PTSD. Mr. Pitkeathly’s alcohol and substance abuse played a role in the assault but was not a mitigating factor, particularly in light of his refusal to seek assistance or address his substance abuse. The Court found that, despite the fact that a shorter sentence would have been appropriately responsive to denunciation and deterrence of this kind of brutal domestic assault, the sentence, while “very severe”, was not unfit.
[11] In R. v. Beckwith,[^3] a ten-year sentence was imposed as a result of a “barbaric, brutal and prolonged series of assaults” against Mr. Beckwith’s wife. Mr. Beckwith had a dozen prior convictions, half of which were for offences involving violence, including a prior assault on the same victim. The assault occurred on the night of their wedding. On this occasion, Mr. Beckwith repeatedly punched the complainant and smashed her face in to the ground. The trial judge emphasized the need to express society’s collective abhorrence against spousal violence, and considered the fact that the assault took place on their wedding day to be an aggravating factor. Of particular significance was Mr. Beckwith’s escalating pattern of violence and his poor potential for rehabilitation. He had been belligerent and cavalier throughout the investigation. The only mitigating factor was Mr. Beckwith’s guilty plea.
[12] In R. v. Robertson,[^4] Mr. Robertson beat his wife “without mercy until her physical injuries threatened her life” after consuming alcohol and then falling asleep. When he awoke, he found her unconscious, seriously injured, and incoherent. He left her in the apartment for three days without medical attention. Mr. Robertson had a lengthy record of assaults. The complainant suffered from permanent brain damage and Mr. Robertson showed no remorse, continuing to deny he inflicted the beating. He was sentenced to eight years.
[13] In R. v. Kakekagamick,[^5] Mr. Kakekagamick was sentenced to five years when, after an extended period of drinking, he beat his domestic partner, who suffered two broken vertebrae, fractured ribs and a fractured collarbone. The sentence was appealed due in part to that fact that the trial judge failed to take the Mr. Kakekagamick’s Aboriginal heritage into consideration. However, the Court found the sentence to be fit because Mr. Kakekagamick continued to deny any responsibility for the incident and denied ever abusing the victim despite the fact that she reported he was often violent with her.
[14] Crown counsel provided me with a case in which the influence of alcohol was found to be a mitigating factor. In R. v. Brethour,[^6] a sentence of 36 months less credit was imposed for aggravated assault when Mr. Brethour punched the complainant outside a gas station. The attack was entirely unprovoked. The impact on the complainant was significant: brain surgery was required and interfered with his health, emotional well-being and ability to work. Mr. Brethour fled the scene, further putting the complainant’s life at risk. A mitigating factor was that the attack was impulsive, and committed while Mr. Brethour was under the influence of alcohol.
[15] Equally compelling are the cases provided by counsel for Mr. Lottering. Some of those cases may be summarized as follows:
[16] In R. v. Frazer,[^7] Mr. Frazer was convicted of aggravated assault for injuries inflicted after a dispute that began in a bar. The two men were evicted and continued a fistfight in the parking lot. The staff later discovered Mr. Frazer sitting on the back of his opponent repeatedly smashing the complainant’s head into the ground, even though the complainant was unconscious. Mr. Frazer had been convicted of similar offences and refused to acknowledge his problems with alcohol. The Court described this as a horrible assault, resulting in severe traumatic brain injury to the complainant from which he was recovering, but from which he could as easily have been rendered “severely physically and/or mentally disabled.” The judge felt the assault was high in the spectrum because of the continuing application of force to another when he was no longer capable of self-defence or reaction. The judge felt a conditional sentence was not appropriate and imposed a sentence of two years.
[17] In R. v. Craig,[^8] the B.C. Court of Appeal increased a sentence imposed for aggravated assault from 12 months to 2 years. In that case, Mr. Craig approached a woman with whom he had lived for 23 years, but from whom he had recently separated. Armed with a knife, Mr. Craig put his arm around her as if to speak with her and proceeded to stab her repeatedly before he was pulled away. The attack was without provocation and the victim required emergency surgery and blood transfusions. Her functions were permanently impaired. Following the attack, Mr. Craig was found to have been drinking excessively. The Court of Appeal pointed out that two years was still in the low end of the range of sentences imposed for the commission of aggravated assault in similar situations. The Court did not consider Mr. Craig’s intoxication a mitigating factor, but was satisfied that the sentence properly served the objectives of denunciation and general deterrence, as well as promoting Mr. Craig’s rehabilitation.
[18] The cases relied upon by both counsel demonstrate that sentencing is not an exact science. As Doherty J. noted in R. v. Hamilton:[^9]
Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint by numbers landscape is to the real thing. The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and unique attributes of the specific offender.
[19] In addition to considering the facts of this plea and the legal principles, I have considered the following aggravating, mitigating and other factors.
The Aggravating Factors
[20] I find the following to be the aggravating factors.
a. Mr. Lottering has a history with the criminal justice system. It appears his first interaction with them was on April 27, 2010. As a result of an incident with a former roommate where Mr. Lottering grabbed her by the throat, he was charged with assault and given a peace bond. When police arrested him, Mr. Lottering pushed an officer in the chest. He received a discharge for assaulting the peace officer.
b. Mr. Lottering then began accumulating a criminal record. The entries in it are the result of a number of charges from different dates that were resolved on the same date as set out below. The background giving rise to these convictions is as follows:
i. December 1, 2011: On this occasion, Mr. Lottering spit on two security guards who attempted to escort him from a building. He was released on bail.
ii. December 22, 2011: Three weeks later the police were called to a restaurant where Mr. Lottering had ordered food and wine, but was unable to pay. Police came to escort him from the restaurant during which time Mr. Lottering kicked them. When he got into the scout car, Mr. Lottering kicked out the window. In addition to the charges of assaulting a peace officer and mischief, he was charged with failing to comply with his recognizance.
iii. July 2, 2012: On this occasion, Mr. Lottering had gone to the Bethlehem United Shelter. He got into an argument with another resident. In the cafeteria, Mr. Lottering turned over a table and then threw a chair at the resident. An employee and another resident intervened and Mr. Lottering assaulted them. He was removed from the cafeteria. Mr. Lottering went to a common room. There, he smashed a window and a phone. The total damage to the shelter was $1200.
c. As a result of these incidents, Mr. Lottering has a criminal record with the following entries:
Date
Conviction
Disposition
July 20, 2012
Assault with a weapon.
Suspended sentence and 18 months’ probation. The terms of Mr. Lottering’s probation included “no alcohol”.
Assault.
Concurrent to the sentence above.
Mischief under $5,000 (x3).
Concurrent to the sentence above.
Fail to comply: recognizance.
Concurrent to the sentence above.
Breach of recognizance.
Concurrent to the sentence above.
Assault a peace officer.
Concurrent to the sentence above.
d. Less than three weeks after the resolution of the above-mentioned matters, Mr. Lottering was highly intoxicated in breach of his bail and was arrested for the offences for which he is currently before the Court. Needless to say, the facts giving rise to these offences are horrifying.
e. Mr. Lottering abused the person who was providing him with a place to live while Mr. Lottering pursued counseling, etc. The victim was in his mid-sixties at the time of this offence. Mr. Lottering is 23 years younger. Witnesses described the vulnerability of the victim during the assault: he was seated and he was not fighting back. Apparently, the assault was unprovoked. The victim is heard apologizing to Mr. Lottering during the ordeal.
f. The assault occurred over a lengthy period of time. It started before Mr. Lottering left the apartment to go for dinner and continued thereafter. While at dinner, Mr. Lottering admitted to the waitress that he had caused injury to the victim. It involved punching, kicking and throwing things. It continued after dinner, in the presence of another, rendering Mr. Hunter unconscious.
g. When help in the form of the police arrived, Mr. Lottering would not let them into the apartment. When they did get in, he tried to interfere and stop them from going into the bedroom. Mr. Lottering used vile profanity when dealing with them. He then started to distance himself from the criminal conduct referring to the victim as a “drunk” and suggesting that the victim had hit his own head.
h. The fact that Mr. Lottering is a bad drunk was verified by police. Detective Dickinson, the investigating officer, stated that Mr. Lottering appeared to have been drinking heavily when arrested. The arresting officers described Mr. Lottering as: “the most belligerent and offensive person [they] have ever come into contact with”. Mr. Lottering showed no signs of remorse at the time; he was not cooperative with police and tried to bar the police from entering the apartment to provide medical assistance to someone in tremendous need.
i. When the police entered the apartment, Mr. Lottering continued to obstruct them, further jeopardizing Mr. Hunter’s life.
j. The police advised that had they not entered the apartment when they did, it is likely that the victim would have died. The victim required emergency brain surgery. The doctors had recommended that he be taken off life support but he defied the odds by surviving. He spent 1.5 months in the hospital and 3-4 months in rehabilitation. The victim is, miraculously, working again.
k. Victim Impact Statements were filed by the victim’s sons and the victim himself. One son attended in court to read his and was present for the sentencing submissions. He (Mr. Ben Hunter) feels that he should have “protected” his father better and is obviously guilt ridden as a result of this occurrence. He was forced to consider removing his father from the ventilator and “let nature take its course”. The care he had to provide to his father during rehabilitation and the mental fortitude required cannot be underestimated. He concluded by saying:
He [the victim] is “different”. My father is still “there” mentally, but there is something different I can’t put my finger on and no quick medical “check” from a doctor would detect. At times he seems himself and sometimes he seems like the clock has been pushed forward 10-15 years against his will. Although certainly helpful, no sentence, or possible expression of responsibility or remorse, can give this back.
l. The victim’s second son, Patrick, described the nightmares and guilt he has experienced due to Mr. Lottering’s actions on his father. As a result of this incident, his view of society has become “much darker”. He fears for his father’s safety.
m. The victim described his treatment and the stroke that he had as a result of the injuries. He has suffered a seizure resulting in the suspension of his driver’s license. He continues to have memory problems. Perhaps mercifully, he has no memory of this incident.
n. The injuries caused by Mr. Lottering are staggering. But for the intervention of the police on the night in question, it is highly likely that the victim would have died.
The Mitigating Factors
[21] I find the following to be the mitigating factors:
a. Mr. Lottering had a difficult childhood. He was the son of a Pentecostal preacher and grew up at the height of Apartheid in South Africa. He said that his life was difficult: being an openly gay black male.
b. His parents separated when he was 12 years of age and he was devastated. His father was required to step down as a minister in his church and he “demonized” his mother during the divorce proceedings.
c. Mr. Lottering and his brother were in their father’s custody following the divorce. He had the responsibility of taking care of the house: cleaning, cooking, taking care of his sibling, etc. while his father was at work. This divorce forced Mr. Lottering to become an adult at the age of 12.
d. Mr. Lottering suffered from a stuttering problem from age 11 until he started high school. He explained that he was very frustrated as he had a lot to say but was unable to do so.
e. At the age of 17, Mr. Lottering received a bursary to attend a white university as part of an experimental program. While there, it was considered to be an illegal gathering if two or more black persons were observed together. He became involved in a black student organization and accordingly, had to leave the university and run from police to avoid incarceration.
f. Mr. Lottering moved to Johannesburg at age 19 and he remained there for 11 years. He had a relationship with a woman 15 years his senior. Together they had twins who are currently 25 years of age.
g. Mr. Lottering commenced a relationship with a man and he stayed in that relationship for 6 years. He moved to Canada at the age of 30 as his partner had immigrated here.
h. Prior to immigrating to Canada, Mr. Lottering’s brother (age 27) died in a car accident. Both parents became “catatonic” as a result. It was a devastating loss for him.
i. Mr. Lottering’s transition to life in Canada was not a smooth one. Initially, he was not working, his long term relationship ended, he became depressed and he turned to cocaine and ecstasy.
j. Mr. Lottering moved to Toronto from Vancouver and landed a great job. His resume indicates that he was employed by powerhouse marketing agencies for a number of years. He was a Project Manager for a number of large marketing companies. He was earning a good living. Despite that, he began to drink excessively “to mask his loneliness”.
k. In 2008, Mr. Lottering lost his job. He had been attending work “smelling of booze”. Thereafter, things went downhill. Up until that point he had been supporting his mother. That ended and she stopped talking to him. He has not spoken with her since 2008.
l. Mr. Lottering fell into a deep depression. He became homeless and a resident in the shelter system. He attempted suicide and was “pulled off the Bloor Street bridge”. Thereafter, he was put in a “safe bed”.
m. At the time of these offences, Mr. Lottering was sleeping on the victim’s couch. He was drinking excessively and taking drugs and pills.
n. At the time of the offences, Mr. Lottering was unemployed and on “Ontario Works”. He has been described as a “bad drunk” and violent when in that state.
o. Two weeks prior to the offences giving rise to this conviction, he applied to be enrolled in a 21-day residential program at CAMH. He attended at the assessment but he does not know if he has a bed in the facility upon his release.
p. Mr. Lottering has also visited with a COTA Mental Health Worker. He received support since his initial intake on April 2, 2012 (prior to these offences). He received support from: Prevention Services – Mental Health and Justice case management (April, 2012 to March, 2013). He also received support from the Release Planning Case Management Program in the Toronto West Detention Centre (August, 2012 – March, 2013). He also received support from the Don Jail on a weekly basis.
q. Friends have described these offences as out of character. Addictions and mental health issues have caused a downward spiral in Mr. Lottering’s life.
r. Numerous letters were provided by friends, family and former co-workers. From reading these letters, it is hard to believe that Mr. Lottering behaved as the monster he did on the night in question. People have described him as peaceful, loving and certainly non-violent when sober. This offence was completely uncharacteristic.
s. People have recognized a change in Mr. Lottering since his incarceration. His mind and spirit remain strong even in such adverse conditions. He understands and accepts that he needs the help of professionals to overcome his personal obstacles. Two of his former co-workers (Ian and Hayley Taylor) said the following:
Brent is a good person. He is a man in possession of empathy, insight and self-awareness. Brent has the intelligence to recognize the moments and choices that set him on this current path. More importantly, I know he has the intelligence and moral strength to learn from his experience and be a better person – and a better person to others – for it.
t. Mr. Lottering has expressed remorse for the pain caused to his family, friends and others. As he indicated during the sentencing phase of the hearing: he “owns this mess”. He takes responsibility.
u. Although this is not an early plea (it occurred after a preliminary hearing and a statement voir dire) by pleading guilty, Mr. Lottering saved court time and spared various witnesses from testifying including civilians and medical experts. Further, the matter was to proceed with a jury and accordingly, 12 members of our community were spared having to decide the case. The plea provided certainty of result and spared the administration of justice some time and expense.
v. The victim has made almost full recovery.
w. There are potential immigration consequences to Mr. Lottering.
[22] The author of the pre-sentence report described the situation of Mr. Lottering as follows:
When interviewed for the purposes of this report, the subject was co-operative and impressed the writer as being a very intelligent and articulate man, a man who has had a tragic life, a man with much to be angry about, a man very much in need of treatment.
… a very different man than the violent offensive and belligerent one witnessed by police at the time of the offence.
Other Factors Considered
[23] Between the completion of sentencing submissions and the date upon which sentence was to be passed, I received a psychiatric report regarding Mr. Lottering from Dr. Julian Gojer. He reviewed the agreed statement of facts, some witness statements and conducted an interview with Mr. Lottering at the Toronto East Detention Centre. Based on this, he provided a mental health history which includes the following:
a. That Mr. Lottering has a stuttering problem.
b. That he spoke to a psychologist about being gay when he was in high school and that he found the counseling “very helpful in accepting his sexual orientation”.
c. That he was chronically depressed and saw a psychiatrist in 2001 (Dr. Levitsky). He did so for a few years and found the therapy “somewhat helpful”. He was treated with an antidepressant for a few years.
d. In 2011, Mr. Lottering was taken to the Gerstein Centre because he was suffering from panic attacks. He could not leave his home but to walk his dog. The Gerstein Centre sent him to CAMH.
[24] Dr. Gojer also provided a summary of Mr. Lottering’s substance abuse history which includes the following:
a. That Mr. Lottering began drinking alcohol at the age of 18.
b. He began using cocaine on weekends at age 25.
c. He began drinking 1-3 bottles of wine per night from 2007-2012.
d. He suffered early morning shakes, black outs, but no delirium tremens.
e. He had a seizure in 2011.
f. It has only been after his arrest that he has been able to admit his addiction to alcohol.
g. He has never had treatment for his alcohol problem.
h. He has experimented with marijuana, cocaine and valium. He would smoke marijuana to calm himself and mixed his antidepressant drug (Effexor) with alcohol.
[25] Various recommendations have been made by the professionals who provided information to this Court on sentencing. A summary of those recommendations are as follows:
a. The Probation Officer who provided the pre-sentence report: treatment for addictions and mental health issues in a residential setting. In other words, a treatment oriented facility pursuant to a custodial disposition.
If released, Mr. Lottering should be required to attend at a residential substance abuse treatment program. He should reside where approved, seek and maintain employment as well as attend for a mental health assessment and treatment.
b. Ms. Eugenie DaCosta of the Mental Health and Justice Prevention Program (Cota): CAMH (30 days’ safe bed); attend at a psychiatrist for a mental health evaluation; attend the anger management program at North York Branson Hospital; attend at Rainbow Services for addiction and mental health at CAMH; and secure long term housing.
c. Pursuant to documentation dated March 28, 2014, Mr. Lottering has secured a residence with The Ontario Disability Social Program. He would reside at 101 Gloucester Street in Toronto in suite 104. This facility is described as a “personal care boarding and lodging home”. The house rules include: “no drinking on the premises”. I am advised that the rent is $850 per month and it is anticipated that Mr. Lottering would reside there for 30 days while he completes his application to be admitted to the Rainbow program at CAMH.
d. Dr. Gojer’s diagnosis and recommendations for treatment are as follows:
Diagnosis
Alcohol abuse.
A substance and alcohol abuse program.
His drinking has an association with angry outbursts.
Anger management counseling.
A marred childhood and developmental history by his stressful life experiences.
Individual and/or group counseling for the stressful/traumatic life experiences he has had in his formative years: a trauma program.
Dr. Gojer states that if Mr. Lottering is released, he should be on probation to assist him in finding a psychiatrist in the community and deal with the counseling issues. He should access the Rainbow program at CAMH for substance abuse.
Dr. Gojer states that if a provincial sentence is imposed, he would be a suitable candidate for the St. Lawrence Valley Correctional and Treatment Centre in Brockville, Ontario. It is an institution dedicated to mentally ill offenders. They have a specialized unit to treat individuals who have trauma in their lives. They also have a good alcohol abuse program. In addition, there are doctors, nurses and social workers to engage him in therapy and assist in connecting him with community resources upon release.
What is the Fit Sentence?
a. Enhanced Credit
[26] There are two issues that must be decided in determining the appropriate sentence for Mr. Lottering. The first is: should Mr. Lottering be given enhanced credit of 1.5 days for each day spent in pre-sentence custody? The second is: how long should the sentence be?
[27] I am of the view that Mr. Lottering should be given enhanced credit for the time he has spent in pre-sentence custody. In coming to my conclusion, I have considered sections 719 (3) and (3.1) of the Criminal Code and R. v. Summers.[^10] Enhanced credit may be given to an offender for pre-sentence custody in order to account for the offender’s loss of remission and parole eligibility while in pre-sentence custody. Cronk J.A., writing on behalf of the Court, recognized that such a discretion exists. In reaching this conclusion, she noted that the legislation does not require “exceptional circumstances” to justify enhanced credit.
[28] Mr. Lottering has been incarcerated for almost 20 months. He has been in various institutions, including: the Toronto West Detention Centre, the Central North Detention Centre, the Toronto Jail (the Don) and the Metro East Detention Centre. He has been in segregation a number of times: once at the request of his own Counsel as he had concerns for Mr. Lottering’s safety. Mr. Lottering has been assaulted and he has suffered while incarcerated.
[29] Mr. Lottering described his incarceration at the Don Jail as follows:
… it was the epitome of cruel and unusual punishment. The conditions were so dire, I never could have imagined that such a place existed in a first world country like beautiful Canada. As a man, it removes all sense of dignity. I would even go so far as to say it has challenged my very humanity. It challenged me, was I actually human? My very humanity. As a proudly and openly gay man, who clearly presents as gay, it was not only dehumanizing, there was violence, there was blood, blatant and overt homophobia from inmates and senior staff as well. Isolation, loneliness, fear, danger, a feeling of dread and constant peril. Add to that segregation. … I wouldn’t have wished it on my worst enemy.
[30] There is a loss of remission for Mr. Lottering that warrants enhanced credit. It is also my view that the circumstances under which Mr. Lottering has been incarcerated warrant enhanced credit. Accordingly, he will be given credit of 30 months for the 20 months he has spent in presentence custody.
b. The Fit Sentence
[31] Mr. Lottering’s counsel concedes that they had “high hopes” when Mr. Lottering was sentenced three weeks before this assault. However, there was no effective plan of release. Mr. Lottering’s friends are intelligent and supportive but they are not able take him into their homes and provide funding for his treatment. There is no real history of treatment.
[32] Counsel, friends and others have made valiant and heroic efforts to provide a plan for Mr. Lottering should I release him from custody today. They are to be commended. However, the plan, other than the recommendation provided by Dr. Gojer for the St. Lawrence Valley Correctional and Treatment Centre is not acceptable. The residence suggested for the next 30 days provides no supervision of Mr. Lottering upon his release. There is no safeguard in place to prevent him from imbibing alcohol upon his release which led to the problems he faced approximately 3 weeks after his last criminal matter concluded. Further, the location of the residence is around the corner from where Mr. Hunter lives and less than 100 metres from his home which is wholly inappropriate.
[33] The plan to stay in the personal care boarding and lodging home pending admittance to the Rainbow program is flawed because there is no guarantee of acceptance in such a program. Put simply, there is little comfort that society can be adequately protected unless Mr. Lottering is in custody and gets the benefit of the treatment provided there.
[34] Based on the materials before me, it would appear that it is while incarcerated that Mr. Lottering may have the best chance at rehabilitation. At this time, Mr. Lottering must be separated from society for its protection. While a high penitentiary sentence may be warranted, I am satisfied that a sentence of 54 months will also address the sentencing principles of deterrence and denunciation.
[35] Accordingly, the sentence imposed is 54 months less 30 months pre-sentence custody for 2 years less one day remaining to be served. It will be recommended that Mr. Lottering serve his sentence at the St. Lawrence Valley Correctional Centre.
[36] Mr. Lottering will also be placed on probation for three years following his release. In addition to the statutory terms, I impose the following:
a. he shall have no contact direct or indirect with Mr. Dale Hunter, Mr. Ben Hunter and Mr. Patrick Hunter;
b. he shall not be within 100 metres of where he knows Messrs. Dale, Ben and Patrick Hunter to live and work;
c. he shall abstain from the possession and consumption of alcohol or other intoxicating substances;
d. he shall abstain from the possession and consumption of drugs except in accordance with a medical prescription;
e. he shall abstain from owning, possessing or carrying a weapon;
f. he shall seek and maintain employment or education; and
g. because it appears that he agrees, he shall continue in any counseling as recommended and provide proof thereof to his probation officer when he is required to do so.
c. The Ancillary Orders
[37] Mr. Lottering will also be subject to the following ancillary orders:
a. to provide such samples of his bodily substances as may be required for forensic analysis pursuant to s. 487.051(b) of the Criminal Code; and
b. an order pursuant to s. 109 of the Criminal Code preventing Mr. Lottering from possessing any weapons as defined by the Criminal Code for life.
Kelly J.
Released: March 28, 2014
court file no.: CR/13/70000/2430000
DATE: 20140328
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Brent Lottering
REASONS FOR SENTENCE
Kelly J.
Released: March 28, 2014
[^1]: As of the date of sentence, Mr. Lottering will have served 595 days in presentence custody. Using a 30-day month, it would be 19.8 months. I am giving him credit for 20 months. [^2]: (1994) 1994 222 (ON CA), 69 O.A.C. 352 [^3]: [1991] O.J. No. 2699 [^4]: [1994] O.J. No. 71 (O.C.J.) [^5]: (2006), 2006 28549 (ON CA), 81 O.R. (3d) 664 (C.A.) [^6]: 2013 ONSC 167 [^7]: [2001] O.J. No. 3584 [^8]: 2005 BCCA 484, 201 C.C.C. (3d) 495 [^9]: 2004 5549 (ON CA), [2004] O.J. No. 3252 (C.A.) [^10]: 2013 ONCA 147