ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-40000354-0000

DATE: 20140917

B E T W E E N:

HER MAJESTY THE QUEEN

Rochelle Liberman, for the Crown

• and -

KENDELL CLARKE

Enzo Battigaglia, for the Defendant

Defendant

HEARD: July 18, 2014,
at Toronto, Ontario

MICHAEL G. QUIGLEY J.

Reasons for Sentence

Overview

[1] Kendell Clarke was charged with attempted murder and having committed an aggravated assault on John Lourenco. I found him guilty of aggravated assault but not guilty of attempted murder. It was admitted that the injury caused and the harm done to the victim meets the test for an aggravated assault. The issue on this sentencing hearing is what is a fit sentence for this essentially first-time offender in all of the circumstances of this case.

Summary of Background Facts

Circumstances of the Offences

[2] The charges arose out of an altercation on Sunday, July 8, 2012, just after 9 o’clock in the evening, when he slashed John Lourenco in a knife attack steps away from the Oakwood Café at 359 Oakwood Avenue in Toronto. John Lourenco had been drinking beers there moments earlier in the company of his friend, Tony Valadao. He had an angry face-to-face confrontation with Mr. Clarke about 20 minutes before that, an altercation in which Mr. Lourenco spoke several racial epithets at Kendell Clarke.

[3] Mr. Lourenco had had a number of drinks before arriving at the Oakwood Café. When he arrived there, he found his girlfriend, Liz, in the company of another guy, a black male with dreadlocks, who he assumed was delivering drugs to her. He accused him of being her “pizza boy,” an expression meant to refer to a person who delivers drugs. He was shouting and accusatory towards the “pizza boy.” Shortly after that exchange, that black male and Mr. Lourenco’s girlfriend Liz both left the bar.

[4] It was shortly after they left that a second black male arrived in the bar. Mr. Clarke acknowledged that he was that person. He challenged Mr. Lourenco, asking what it was that Mr. Lourenco had said about his friend, the “Pizza Guy,” moments earlier. He yelled “What are you saying about my friend?” Lourenco claimed to have told Clarke to “bugger off” or “f—k off” and “leave me alone.”

[5] The exchange of words between them quickly escalated to become heated and angry. It involved the two of them yelling at each other, face to face, only a short distance apart. Mr. Lourenco’s diatribe included despicable and derogatory racial epithets. Mr. Lourenco called Mr. Clarke a “nigger.” He called his friends “monkeys.” This gave rise to Mr. Clarke calling the victim outside to settle the matter. Mr. Lourenco declined to go outside. Then the owner of the bar interceded and told Mr. Clarke to leave the bar.

[6] After Mr. Clarke was escorted out of the bar, Mr. Lourenco had another beer. Fifteen or twenty minutes passed and then he left the Oakwood Café, exiting onto Oakwood Avenue. As he started to walk in a southerly direction, an assailant hidden in the shadows of a doorway to his left pulled out a knife from his back area and attacked him. Mr. Lourenco was able to fend off the attacker. He took several serious blows to his arm, stomach and forehead. He got a very good look at that person’s face and recognized the assailant as Kendell Clarke, the man he had argued with in the Oakwood Café 20 minutes earlier.

[7] Mr. Lourenco sustained serious injuries as a result of this assault. Those injuries required 23 stitches to his left hand and further surgery to repair that damage, six staples to close his abdomen wound and 13 staples to close the stab wound he sustained on his forehead. He was bleeding profusely after the attack. There was also an abrasion on his neck from the knife attack. If he had not raised his arm to defend himself and suffered the knife-slash injuries he did to his left hand, it is possible that abrasion might have cut his throat. However, the actual injuries sustained were not life threatening, and Mr. Lourenco was cleaned up and released from hospital several hours after the attack. He did require follow-up surgery to repair the damaged hand, which will never operate perfectly again.

Circumstances of the Offender

[8] Mr. Clarke is 28 years old, born on June 9, 1986. He was raised in a positive environment by grandparents and relatives in Grenada. He came to Canada with his biological father when he was 11. He was largely raised in Toronto, and saw little of his mother until he went to Trinidad and Tobago to visit her when he was 16 years of age. That was a very positive visit. However, his father was critical that he had used money for the purposes of visiting his mother, and started to insist that his son pay rent to continue to live with him. This factor, combined with his feelings that his father cared more about the 14-year-old son of the woman with whom he had a new, common law relationship, caused him to leave his father's residence in 2003 when he was 16. He has not had contact with his father since that time and has no desire to pursue that relationship. He continues to have positive contact with his mother, who continues to reside in Trinidad and Tobago.

[9] It is interesting to note the difference in perspective in some of what he learned growing up going to school. He told the probation officer that when he went to school growing up in Grenada, he was taught that the famous Portuguese explorer, Christopher Columbus, was a slave trader, but when he came to school in Toronto, Christopher Columbus’s status was that of a famous explorer. This arguably has at least some relevance here in so far as the angry confrontation involving racial epithets between Mr. Clarke and Ioao (John) Lourenco, the Portuguese victim in this case, was the trigger of the assault for which he was convicted.

[10] Mr. Clarke was suspended on many occasions as a result of incidents of fighting with other students, mouthing off to teachers at school, and absenteeism. He was expelled in grade 9 following an incident with another male student. As a result, he does not recall his high school experience in positive terms. He just quit school at 17 years of age.

[11] He commenced employment at 16 years of age working in a retail environment, initially on a part-time and later on a full-time basis. Between 18 and 20 years of age, he was receiving Ontario Works subsidies and working only sporadically, but he was able to obtain a position cooking at a diner and by age 24 was cooking for a restaurant which also provided catering. His cooking career has continued to advance, and his future plans include his desire to become a chef. He applied to a culinary college in 2013 but did not pursue the opportunity at that time because of financial concerns, but he enjoys cooking and hopes to one day own and operate his own restaurant. He expressed concern, however, that having a criminal record will negatively impact future employment opportunities with other employers.

[12] In my view, his prospects of rehabilitation are significant, assuming anger management issues are addressed and given that this is his first substantive offence. They must form a significant factor on this sentencing. The sentence that is imposed upon him, while necessarily reflecting the relevant factors of deterrence and denunciation, must also give voice to prospects of rehabilitation and not crush Mr. Clarke and his future efforts to again be a law-abiding citizen.

[13] Mr. Clarke uses alcohol in social settings but claims that he does not use illegal drugs. While he has been on bail during these proceedings, the Duncan family with whom he has lived for over 18 months have not experienced any concerns or issues with respect to his behaviour. He has been bright and respectful in completing tasks that have been asked of him. He contributes towards room and board. He attends church with the Duncan family on Sundays. His uncle is the pastor of that church. He does not have a previous counselling history, has never suffered mental illness, and claims to have always had to be strong and take care of himself. He was polite and courteous with the probation officer who wrote the pre-sentence report and indicated that he would comply with any conditions that were ordered by the court, but Mr. Clarke also insists that he is innocent of the offence for which he has been convicted and that he will assess his options to appeal any sentence that is imposed upon him. This, of course, is his right.

[14] Finally, the pre-sentence report notes that the probation officer attempted to contact Mr. Lourenco, the victim of the assault in this case. He attempted to contact him by telephone and left voicemail messages identifying himself and requesting that he be called back. His calls were not returned. As a result, there does not appear to be any victim impact statement that was prepared relative to the injuries sustained by the victim as a result of the knife attack in this place.

[15] There is no current evidence of whether the injuries sustained by Mr. Lourenco are long lasting. It is inappropriate in such circumstances to rely on an assumption that the injuries caused here will be of long-lasting duration. Plainly, the evidence shows some permanent nerve damage in the arm that resisted several of the blows. The police occurrence report does indicate that the injury sustained by the victim required him to have 23 stitches in his left hand, six staples to his abdomen, 13 staples in his forehead, and that he suffered an abrasion on the neck.

[16] So it is what it is, but against the Crown’s assertions that these injuries were life-threatening and demanding of a penitentiary sentence is the fact that Mr. Lourenco was released from hospital and gave a police statement within four hours of the incident, and that he has not himself provided any evidence to assist in determining the appropriate sentence in these circumstances.

Legal Parameters:

Positions of the Crown and the Defence:

[17] Stated succinctly, Crown counsel argues that this was “a vicious and unprovoked attack” that could have killed the victim had he not deflected several of the blows against him. She says the principal factors that must be reflected in Mr. Clarke’s sentence are deterrence and denunciation, and specific deterrence of this offender. She seeks a term of imprisonment of three to four years before pre-trial custody credit. In doing so, she relies on five decisions, three from the Court of Appeal[1] and two from this court.[2] She argues that there is no demonstrated aspect of rehabilitation that should play in the equation. She claims there are no mitigating factors, apart from the relative youth of the offender and having committed no significant prior offence.

[18] Defence counsel argues for a sentence of time served after pre-sentence custody credit of 4.5 months. If I were to find that I wished to impose a lengthier sentence, defence counsel asked me to consider the imposition of a conditional sentence.

[19] Defence counsel also argues that any sentence of this offender must take account of his contention that this assault resulted from a bar fight. He focuses on the complainant, John Lourenco, and the offender, Kendell Clarke, having been in a face-to-face screaming match. The complainant was plainly and on his own admission verbally abusive towards the accused and spat despicable racial epithets at him. The attack followed about 20 minutes later.

Mitigating and Aggravating Factors

[20] The pre-sentence report prepared by the probation officer shows real and meaningful prospects of a future career and rehabilitation for this essentially first-time offender. That is an important mitigating factor. While Mr. Clarke has not expressed remorse for the offence, as I have expressed on other occasions, this is hardly an aggravating factor given his insistence that he did not commit the offence and that he will continue to consider exercising his constitutional rights to appeal any sentence that may be imposed upon him.

[21] In my view, for reasons I will explain later in this sentence, the racially based insults directed at Mr. Clarke by the victim, Mr. Lourenco, while not justifying his conduct, must be taken into account in determining what is a fit sentence having regard to all the circumstances: see Durno J. in R. v. Smith, below, although that case was not exactly the same as this one, as I will discuss further in the reasons that follow.

[22] The sole aggravating factor in this case is the seriousness of the assault against Mr. Lourenco. Crown counsel was insistent that he sustained life-threatening injuries and that the sentence imposed must take account of that. Mr. Lourenco’s injuries were significant, but unlike in Smith and other cases, no extensive period of hospitalization or surgery was required. He did require numerous stitches and staples and he had to have surgery on his hand. Nevertheless, after the blood was cleaned up and he was bandaged, his wounds were stitched closed and stapled, he was sent home from the hospital the same evening as the assault occurred. He identified the assailant that same evening, or early the next morning, with his bandaged hand visible in the video recording.

Principles of Sentencing

[23] Section 718 of the Criminal Code states the fundamental purposes of sentencing and lists its underlying objectives. The fundamental purpose of any sentence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. Among the specific objectives listed in section 718 of the Criminal Code, there are several that are relevant here. They are to denounce unlawful conduct, to deter the offender and others from committing offences and to separate offenders from society where necessary. In a case such as this, general deterrence to others is paramount. Specific deterrence of this offender also occupies a prominent place in deciding what sentence to impose.

[24] Section 718.1 of the Code requires that the sentence be proportionate to the offence and the degree of the offender’s responsibility. While it is true that all available sanctions, other than imprisonment, that are reasonable in the circumstances must generally be considered for all offenders, this is not a case where a non-custodial or a conditional sentence could be imposed. That follows because this offence is a serious personal injury offence as defined in s. 752 of the Code. As such, a non-custodial sentence is not available, even if it might otherwise have been appropriate.

[25] In R. v. Nasogaluak[3], the Supreme Court of Canada emphasized that the court must strive to ensure that the sentence imposed on an accused person respects the principles of proportionality and consistency of sentences for similar offences. A sentence must speak out against the offence, but may not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence. Equally, sentencing is an individualized process that requires the judge to weigh the objectives of sentencing in a balanced manner that best reflects the circumstances of the case, with mitigating or aggravating factors weighing in on where the sentence should fall on the scale of appropriate sentences for similar offences. The fit sentence in any case will be the one that is tailored to the nature of the particular offence and the circumstances of the offender, but also one consistent with other decisions and that falls within the general range of sentences for similar offences as governed by the case law.

[26] The fit sentence in any one case is also statutorily limited by (i) the general sentencing principles and objectives enshrined in the Code, (ii) statutory restrictions on the availability of certain sanctions, such as conditional sentences, for certain offences, and (iii) any applicable statutory mandated minimum absent a declaration that the minimum sentence is unconstitutional. This is not a case where a minimum sentence is mandated, but it is one where a conditional sentence is not available. Beyond that, however, and not surprisingly, the case law shows that the application of proportionality in aggravated assault cases has produced a very wide range of potentially fit sentences.

Reasons

[27] The case law advanced before me reflects sentences ranging from time served of four months pre-trial custody with an extensive period of probation at the light end (R. v. Smith) to a penitentiary sentence of seven years before credit for pre-sentence custody on a two-for-one basis at the opposite end (R. v. Roberts), with a panoply of other sentences imposed at differing points on that wide continuum for aggravated assaults resulting from knife attacks: three years’ imprisonment in R. v. Haly; two years less a day and three years’ probation in R. v. Tusek; two years less a day and two years’ probation in R. v. Basilio; 21 months’ imprisonment and three years’ probation in R. v. Moreira; and 9 months’ imprisonment and two years’ probation in R. v. Vargas.

[28] I referred to Mr. Clarke previously as a virtual first-time offender. That was because while he does have a record for failing to comply with a term of a prior recognizance, he was acquitted of the related offence. His sentence for that infraction was minor, a suspended sentence and six months’ probation. So for practical purposes, he has no criminal antecedents that are relevant to my mind on this sentencing for his first substantive conviction.

[29] Further, it is also relevant that he was youthful at 26 years of age when the offence occurred, even if he was not a youth. This will be essentially the first time that he will receive a sentence for a substantive offence. As such, in my opinion, as Rosenberg J.A. observed in R. v. Borde[4], and where there is the prospect of a first-time penitentiary sentence, the offender should receive the most lenient sentence that can achieve the objective of sentencing in the circumstances of the particular case. He must not have a crushing sentence imposed, but rather one that is proportionate to the circumstances of the offence, the circumstances of the offender, but that also holds the promise of rehabilitation at a youthful age, and that permits Mr. Clarke to return to a lawful path for his life from this point forward.

[30] Looking first at R. v. Roberts, it seems clear to me that Mr. Clarke cannot be sentenced on the basis that the injuries Mr. Lourenco sustained were of the same severity as those in R. v. Roberts. The multi-year sentence imposed in that case resulted from a totally unprovoked attack against a total stranger, by an increasingly violent multiple repeat offender, unlike Mr. Clarke, even though the Crown does advance that case in support of her position. Similarly, I consider the sentence of 36 months, before 15 months of pre-sentence custody credit imposed in R. v. Haly to be beyond the length of sentence required here, even though that was also a case of a first-time offender. The distinguishing features, as in Roberts, were that there had been no dealings of any kind between the offender and the victim prior to an unprovoked stabbing in the back while the victim was working out at a fitness club.

[31] On the other hand, even though there are aspects that have similarity, neither is this a case where the result in R. v. Smith could be appropriate, even though that also was a case involving a fight that broke out arising from an incident of road rage and where the accused was subjected to racially based abuse by the offender, as Mr. Clarke was here.

[32] In Smith, the accused had cut the victim off in his car, and when the two of them stopped at a stop light together, a verbal exchange ensued in which the victim, a white man, hurled racist comments at Smith who was black. The exchange intensified. The victim got out of his car in a rage and approached the driver side of Smith’s car. When the victim approached, Smith was sitting in his car with the door open. A shoving match ensued. Smith then reached into his car, grabbed a knife and stabbed the victim in the abdomen. The victim was taken to hospital and underwent immediate surgery, receiving 32 stitches to the centre of his stomach. He remained hospitalized for one month. Smith was 23 years old at the time, three years younger than this offender. He had prior convictions for assault, carrying a concealed weapon, and possession of a narcotic.

[33] In that case, Crown counsel had sought a term of imprisonment of 15 to 18 months less pre-trial custody. Nevertheless, in imposing sentence, Durno J. determined that the facts mandated a jail term in the range of 9 to 15 months given the accused’s prior record, but also importantly, given that there was a self-defence aspect to the altercation between the victim and the accused. At paragraph 7 of his reasons, Durno J. stated as follows, relative to the altercation between the parties:

The final mitigating factor is critical in determining an appropriate sentence in this case. This case is one of excessive force in self-defence during an incident in which Mr. McShane engaged in repulsive racist behavior and was the initiator of physical aggression. It was agreed in sentencing submissions