ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-50000097
DATE: 20140602
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
WILSON POLANCO-GABRIEL
Maureen Bellmore, for the Crown
Patrick Barry, for the Accused
HEARD: April 7, 2014
K.L. Campbell J.:
Reasons for Sentence
A. Introduction
[1] The accused, Wilson Polanco-Gabriel, was tried by a jury on an indictment that charged him with two counts of threatening bodily harm, one count of possession of a weapon for the purpose of committing an offence, one count of aggravated assault by wounding, and one count of assault with a weapon. All of these offences were alleged to have been committed by the accused in Toronto on October 3, 2010. Ultimately, the jury was only able to reach a unanimous verdict with respect to one count of the indictment. The jury found the accused guilty of having had in “his possession a weapon, to wit: a machete, for the purpose of committing an offence,” contrary to s. 88 of the Criminal Code, R.S.C. 1985, chap. C-46. A mistrial was declared with respect to the remaining four counts of the indictment. The Crown subsequently stayed proceedings in relation to those four remaining counts. The accused now appears for sentencing in relation to the one offence for which he was found guilty.
[2] The Crown seeks the imposition of a four to six month term of reformatory imprisonment and a two year term of probation, together with some ancillary sentencing orders. The accused, on the other hand, seeks a conditional discharge and probation. These disparate sentencing positions flow largely from their very different interpretations of the jury’s verdict.
B. The Facts of the Offence
1. Introduction
[3] The witnesses who gave evidence in this case gave divergent accounts of the events that took place on October 3, 2010. Given that the accused was only found guilty of one offence, I need not resolve all of those factual discrepancies. For sentencing purposes, I make the following findings of fact, which are based largely upon the independent evidence of Thomas Hammond, who knew none of the participants, and who fortuitously observed the events from his nearby apartment balcony.
[4] In so doing I realize that, in accordance with s. 724 of the Criminal Code, I must “accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty,” and may find any other relevant fact that was disclosed by evidence at the trial to be proven. However, the Crown must establish any alleged “aggravating fact” beyond a reasonable doubt. As stated by Laskin J.A. in R. v. Roncaioli, 2011 ONCA 378, 271 C.C.C. (3d) 385, at paras. 58-59, where the factual basis of the jury’s verdict is unclear, the sentencing judge “should make his or her own independent determination of the facts, consistent with the jury’s verdict.” See also: R. v. Brown, 1991 SCC 73, [1991] 2 S.C.R. 518, at pp. 522-523; R. v. Tempelaar, 1995 SCC 133, [1995] 1 S.C.R. 760; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18, 21-22.
2. The Facts of the Offence – As Found
[5] On the afternoon of October 3, 2010, there was a baseball game being played on the east baseball diamond at Amesbury Park in Toronto. It was a bright and sunny day and there were approximately 80 people in attendance at the baseball diamond. The accused attended the game as a spectator with a friend.
[6] At one point during the game there was a physical scuffle between the accused and another spectator, Wilvin Diaz. This altercation started with a verbal dispute between the accused and Mr. Diaz’s brother, Jose “Junior” Asencio, over a woman. Mr. Asencio was one of the players in the baseball game, and his girlfriend, Erica Campuzano, was a spectator. The accused and Ms. Campuzano had dated on earlier occasions, and when they found themselves at the ballpark together that day, the accused offered her a beer. Mr. Asencio took objection to this and declined the beer on her behalf, and asked her to come and get their four-year-old son.
[7] Shortly thereafter, when Mr. Ascencio told Mr. Diaz what had happened between the accused and Ms. Campuzano, Mr. Diaz, who was sitting in the bleachers nearby, approached the accused and intervened on behalf of his brother. At first, words were exchanged between them. However, the accused took objection to this intervention and he and Mr. Diaz became involved in a physical confrontation. This physical scuffle was brief as a number of other men quickly intervened to separate them. While there was some yelling back and forth (in Spanish) between the accused and Mr. Diaz and some pushing, cooler heads prevailed and the confrontation ended.
[8] At that point, a friend of the accused escorted him away from the baseball diamond, westerly along a footpath that ultimately led back toward the parking lot. Once the accused was on his way toward the parking lot, his friend turned back and returned to the baseball diamond to watch the remainder of the game. The accused disappeared from view along the tree-lined pathway as it turned northward toward the parking lot.
[9] Approximately five or ten minutes later, the accused returned to the area of the baseball diamond along the same pathway. He was carrying a machete. By the time he was seen by others, including Mr. Hammond, the accused was again in the company of his friend. At first, the accused held the machete by his side, with the long blade pointed in a downward direction. However, as he walked back toward the baseball diamond, the accused started waving the machete around in the air and yelling, apparently to let everyone know that he had returned with a machete.
[10] At that point, the baseball game stopped, and people began to make their way toward the accused. There was a lot of yelling and anger. A large crowd of people soon gathered around the accused, forming a type of semi-circle up against the nearby fence separating the baseball field from the nearby apartment building. The accused did not try to use his machete against anyone in this group of people.
[11] When he saw the accused had returned to the baseball diamond with a machete, Mr. Diaz armed himself with a baseball bat from one of the dugouts, and he moved through the crowd of people toward the accused. When the two men came face-to-face there was another confrontation between them. They exchanged words (again in Spanish). There was a lot of yelling, and pointing and gesturing with the weapons. Then the two men started swinging at each other – the accused using his machete, and Mr. Diaz using his bat.
[12] According to Mr. Hammond, who observed the incident from his vantage point on his nearby apartment balcony, Mr. Diaz was hit two to three times on his forearm with the machete, as the accused delivered “downward hacks” while Mr. Diaz “put his arm up to protect himself.” The two men continuing to swing at each other. This fencing within the semi-circle crowd of people went on for approximately 30-40 seconds. Eventually, Mr. Diaz struck the accused on the head with the bat, and the accused fell to the ground, apparently unconscious. Mr. Diaz then stood over the accused yelling down at him in anger.
[13] Some people from the crowd then grabbed Mr. Diaz and pulled him back. No further blows were delivered. Before the crowd dispersed, some unknown third party (another man) grabbed the machete from the ground and tried to conceal it. When the police quickly arrived on the scene, however, this unknown third party was detained and the machete was retrieved.
G. Conclusion
[54] In summary, after giving the accused 12 days credit for his eight days spent in pre-sentence custody, the accused is sentenced to a reformatory term of imprisonment of three months and 18 days duration, to be followed by two years of probation on the terms outlined. The accused will also be subject to the four ancillary sentencing orders mentioned. I will endorse the indictment and the warrant of committal accordingly.
Kenneth L. Campbell J.
Released: June 2, 2014
COURT FILE NO.: CR-12-50000097
DATE: 20140602
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
WILSON POLANCO-GABRIEL
REASONS FOR SENTENCE
K.L. Campbell J.
Released: June 2, 2014