SUPERIOR COURT OF JUSTICE

Court File No. CR-13-678

HER MAJESTY THE QUEEN

v.

THEODORE ALLEN

REASONS FOR SENTENCE

BEFORE THE HONOURABLE JUSTICE FAIRBURN

on September 23, 2015 at BRAMPTON, Ontario

APPEARANCES:

J. Leising
Counsel for the Federal Crown

A. Captan
Counsel for T. Allen

WEDNESDAY, SEPTEMBER 23, 2015

REASONS FOR SENTENCE

Fairburn J. (Orally):

I am ready to pass sentence on this. I am going to read it out. The official sentence will obviously be what is recorded on the record.

Overview

At the outset of trial, Theodore Allen stood beside Travon Moulton. They were facing a four count indictment involving allegations related to trafficking in crack cocaine, obstructing justice and assaulting peace officers.

The trial started with a s. 24(2) motion to exclude the crack cocaine seized from a hotel room. Sections 8, 9, 10(a) and (b) Charter breaches were found and the evidence was excluded: R. v. Moulton, 2015 ONSC 1047. Following exclusion of the crack cocaine, the Crown invited acquittals on all counts but the one related to the assault of Constable Shawn Brabant of the Peel Regional Police. While Mr. Allen was charged under s. 270(1)(a) of the Criminal Code with assaulting a peace officer in the execution of his duty, owing to the Charter breaches, the Crown asked for a finding of guilt in respect to simple assault under s. 265 of the Criminal Code: R. v. Allen, 2015 ONSC 2594. Mr. Allen said he was acting in self-defence. I found beyond a reasonable doubt that he was not. He was convicted of simple assault.

My task is to sentence Mr. Allen for this offence.

Facts

During the evening of March 22, 2013, Mr. Allen and Mr. Moulton were using a room at the Motel 6 in Brampton. This location is known to be frequented by those engaged in drug, prostitution and gang activities. Officers Brabant and Holder attended at that location as part of the Strategic and Targeted Enforcement Program. With the permission of the Motel 6, the officers were walking the halls. They saw two men who were later determined to be Mr. Allen and Mr. Moulton, coming and going from a room. Their behaviour struck the officers as odd.

Later, when the officers were waiting for an elevator, the men appeared. The police officers engaged them in discussion and patted them down. A card key for the room the men had been seen coming and going from was located on the ground close to where Mr. Moulton was standing. Officer Holder used it to open the room where he located drugs.

When Officer Holder informed his partner that the men were arrestable, the accused ran. Officer Brabant chased after Mr. Allen. When he caught up to him, Officer Brabant swung Mr. Allen around. Mr. Allen responded by punching the officer twice in the face. The officer punched him back three times, all to the face. The officer was yelling, “you are under arrest” and “stop resisting.”

While Mr. Allen was eventually grounded, he managed to get back up. More punches were exchanged. Officer Brabant’s radio fell out. When the officer went for his radio, Mr. Allen could have fled but, instead, decided to get onto the officer’s back and place him in a choke-hold lasting, about 30 to 60 seconds. Officer Brabant was able to get his hands up under Mr. Allen’s hands to keep the pressure off of his neck. He started to see stars and feared for his life. He contemplated reaching for his gun because he thought he may “die there”. He could not get to his gun because of the choke hold he had been placed in.

Eventually Office Holder, who had pursued Mr. Moulton, arrived back to provide assistance. He managed to get Mr. Allen handcuffed.

Mr. Allen was taken to the hospital after the assault. He had a swollen face, bloody lips and a bump on his forehead. While Officer Brabant also attended at the hospital, he did not require treatment. He had a minor swelling to the right side of his face, a sore jaw and a cut to his right middle finger.

Circumstances Surrounding the Conviction For Simple Assault

Mr. Allen’s Charter rights were breached by the police. During a pre-trial motion I found that the accused had been arbitrarily detained by the police. Given they were detained, they should have been informed of the reasons for their detention and given their right to counsel. Moreover,

pat-down searches were performed on the accused without sufficient grounds to justify them. There was also a s. 8 Charter breach when the police entered the hotel room without warrant.

I do not take into account any of the facts in terms of what was located in the hotel room or any facts as they relate to the other offences on the indictment upon which acquittals were entered.

Mr. Allen was originally charged under

s. 270(1(a) of the Criminal Code which makes it an offence to assault a peace officer engaged in the execution of his or her duty. Part of the actus reus of this offence is that the officer is acting in the lawful course of his or her duties when the assault occurs: R. v. Allen, 2015 ONSC 2594, paras. 28-31. The reference to “execution of his duty” in s. 270(1)(a) does not refer to a police officer “on duty”. It refers to a peace officer acting in accordance with the powers conferred upon the officer under statute and common law: Allen, at paras. 29-31.

For purposes of s. 270(1)(a), the assault must occur while the officer is acting in the lawful execution of his or her duty. In other words, the police must be acting lawfully. Given the Charter breaches that were found, the Crown invited the court to enter a conviction on the lesser and included offence of assault under s. 265: Allen at paras. 32-34, 36.

In asking for a conviction for assault, the Crown acknowledged that a person is entitled to resist an unlawful arrest. In resisting the unlawful arrest, though, Mr. Allen was not permitted to use more force than necessary to defend himself against the arrest. He had to act reasonably in the circumstances: Allen, at para. 38.

Mr. Allen said that he acted in self-defence. I concluded beyond a reasonable doubt that Mr. Allen was not acting in self-defence during the altercation in the hallway because his actions were not reasonable in the circumstances.

The Circumstances of the Offender

Mr. Allen is a 25 year old first time offender. He resides with his mother and grandmother.

He has two diplomas from Trios College in Brampton. He has successfully completed the requirements for an Occupational Therapy Assistant and Physiotherapy Assistant. I have reviewed his official transcripts and they are good. He spent between January 16, 2012 and November 9, 2012 accumulating a grade average of 83 percent and December 3, 2012 and April 12, 2013 accumulating a grade average of 71 percent. I am informed by counsel that his long term professional goal is to become a physiotherapist. He wishes to attend the University of Toronto to pursue this goal. Counsel says that a conviction will interfere with this professional pursuit.

Mr. Allen is currently working at Germs Cleaning. I have considered a letter authored by the owner of that business. She says that Mr. Allen is a very good worker and generally all around good person who has made a mistake. According to the author, he is smart, hardworking and a “joy to be around”.

Also filed at the sentencing hearing was a letter from Mr. Allen’s pastor at the Zoe Ministries International - Canada. Mr. Allen’s mother attends this church on a regular basis. While Mr. Allen’s attendance has been more sporadic, Pastor Ralph Boyce writes that he knows him well. When Mr. Allen got into difficulty in this matter he sought out assistance from the pastor, who provided a reference for Spiritual Neuro-Linguistic Program. He has successfully completed the 60-hour training program and did “extremely well”. Pastor Boyce writes about Mr. Allen’s strong regret about and remorse over this incident.

As a further demonstration of his remorse, Mr. Allen wrote to the officers involved and expressed a sincere apology for what he did. He acknowledges that they have a right to “feel angry”. Nonetheless, he wants them to know how sorry he is for what happened.

His mother also wrote to the court. She loves her son and is committed to him. I have seen her present in court throughout parts of these proceedings. She expresses regret for what her son did and her confidence that his conduct will not be repeated. She says that he is a good man and takes care of his grandmother who requires assistance. As Ms. Allen works long hours as a nurse, she relies upon Mr. Allen to assist with his grandmother.

An acquaintance of Mr. Allen also wrote to the court expressing sentiments about Mr. Allen’s kind and generous spirit. She trusts her young child to Mr. Allen who provides a male influence to him. She feels that Mr. Allen regrets what he has done.

Mr. Allen spent five days in pre-trial custody. Upon release he was required to reside with this mother. There have been no incidents while he has been out on bail.

No victim impact statement was provided. I have raised this with the Crown and the Crown is confident that all that could and would be said by the victim was said during his evidence at trial.

Positions of the Parties

On behalf of Mr. Allen, Mr. Captan takes the position that I should enter a conditional discharge, to be followed by 18 months of probation. He says that only a conditional discharge will ensure that Mr. Allen does not experience roadblocks to his career aspirations. Mr. Captan suggests that a period of community service, somewhere in the range of 100 to 150 hours, would be appropriate and suffice to bring home to Mr. Allen the seriousness of his conduct. If I were to impose a counselling condition then counsel suggests it would be appropriate to have it relate to anger management.

On behalf of the Crown, Mr. Leising takes the position that Mr. Allen should receive a six to nine month conditional sentence. Mr. Leising says that at least half to three quarters of this time should be spent under house arrest. A community service order should be imposed. While the Crown is not requesting a DNA order, he does ask for a weapons prohibition order.

Sentencing Principles

The objectives of sentencing are codified in s. 718 of the Criminal Code. The objectives include: denunciation for the harm done to victims or to the community by the unlawful conduct in question: general and specific deterrence; separation of the offender from society when necessary; rehabilitation; reparation for the harm done to victims or to the community; and the promotion of a sense of responsibility in offenders and an acknowledgement of the harm done to victims or to the community.

Pursuant to s. 718.1 of the Criminal Code, sentences must be proportionate to the gravity of the offence and degree of responsibility of the offender. Section 718.2 requires that sentences be increased or reduced based on a consideration of aggravating and mitigating factors. A number of aggravating factors are codified within s. 718.2(a).

Section 718.2(b) requires that a sentence be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Section 718.2(d) requires that the offender not be deprived of liberty if less restrictive sanctions are appropriate. Section 718.2(e) requires that all sanctions other than imprisonment be imposed provided they are “reasonable in the circumstances”. In assessing what is reasonable, the court must have specific regard to whether a non-custodial sentence is consistent with the harm done to victims and to the community.

Pursuant to s. 718.02 of the Criminal Code, Parliament has set out specific sentencing objectives when it comes to convictions for assaulting peace officers under sections 270(1), 270.01 and 270.02 of the Criminal Code. In these circumstances, primary consideration must be given to denunciation and deterrence. While Mr. Allen was charged with assaulting a peace officer pursuant to s. 270(1)(a), he was convicted of simple assault under s. 265. As such, s. 718.02 does not apply.

I take into account all sentencing principles in arriving at a fit disposition in this case.

For a conditional discharge to be imposed, the court must be satisfied that it is not contrary to the public interest. This principle is codified in s. 730(1) of the Criminal Code. For a conditional sentence to be imposed, the court must be satisfied that service of the sentence in the community would be consistent with the fundamental purpose and principles of sentencing and would not endanger the safety of the community: s. 742.1(a) of the Criminal Code.

Despite the fact that Mr. Allen was not convicted under a provision that engages s. 718.02 of the Code both counsel acknowledged that I must take into account the fact that the victim of this offence was a police officer. The police are justice participants who like others look to the courts for protection. By virtue of their employment they are vulnerable to attack and when this occurs the courts must impose sentences that demonstrate the seriousness with which such conduct will be treated. Through the imposition of sentence, the court sends a message to the police and community at large that they play a valued, respected and critically important role within the administration of justice and society at large.

There appears to be a wide range of sentence applicable in these circumstances, albeit in the context of convictions for assaulting peace officers engaged in the lawful execution of their duties. Many of the cases fall around the six month mark. I look to cases like -- and I am going to leave the citations out -- R. v. Boston, R. v. Courtney, R. v. Michaud, R. v. Horton, R. v. Zawislak.

Boston is a 2014 judgment in the Ontario Superior Court, Courtney a judgment from 2012 of the Ontario Court of Appeal, Michaud a 2010 judgment of the Ontario Court of Appeal, Horton a 2014 judgment of the Ontario Court of Appeal, and Zawislak of the Ontario Superior Court in 2013.

Aggravating and Mitigating Factors

There are numerous aggravating factors in this case. This was a very serious assault. While the officer had breached Mr. Allen’s constitutional rights, as found in the pre-trial ruling, he had been acting in good faith when he did so. The officer had formed a clear subjective belief, albeit informed by the unlawful search of the hotel room, that he had the grounds to arrest Mr. Allen. It was during this attempted arrest that Mr. Allen assaulted the officer. It was a police officer that was assaulted. While I am not sentencing Mr. Allen for an assault peace officer under s. 270(1)(a) of the Code, as counsel suggest, I must take into account the circumstances of the victim when imposing sentence. The fact is that the victim in this case is a police officer who was on duty.

The factors in mitigation of sentence include that Mr. Allen is a relatively youthful first time offender. He has spent five days in pre-trial custody. The Crown suggests that a 1.5:1 ratio should be used to calculate the time for purposes of sentence. I grant Mr. Allen eight days.

Mr. Allen has made a deep and I believe sincere expression of remorse. This includes an expression of remorse to the court when asked whether he had any comments. While it is somewhat late in the day, he has gone the extra step of extending a written apology to the officers involved in this matter. The officers were not engaged in the lawful execution of their duties when this assault occurred. Mr. Allen has support from his community and family. Mr. Allen was also injured in the incident.

Conclusion

I find that Mr. Allen is a very good candidate for rehabilitation. His expression of remorse bodes well for his future. He has demonstrated that he is committed to turning his life around, recovering from this incident, and becoming a contributing member of the community.

While counsel to Mr. Allen suggests that rehabilitation and specific deterrence should be the primary sentencing goals here, I disagree. All sentencing principles must be taken into account. While the rehabilitation and deterrence of Mr. Allen is undoubtedly important, and I place emphasis on it, so too is deterrence of the general public. A fit sentence in this case will send a message that police officers should not be attacked, even in circumstances where constitutional infringements have taken place. The sentence must denounce Mr. Allen’s conduct which involved punching an officer in the face and getting on his back and placing his hands on the officer’s throat, causing the officer to wonder whether he may pass out in fear for his life.

It would be contrary to the public interest to impose a conditional discharge in this case. Notwithstanding the great strides Mr. Allen has taken, and the legitimate expression of remorse he has shown, I find that a conditional discharge in the circumstances of this serious offence would be unfit and fail to meet the many sentencing principles at issue. At the same time, the sentence should not be crushing to Mr. Allen and ensure that he is not taken off course in terms of his future aspirations. The community will be best served if Mr. Allen gets back on track in terms of his career pursuits.

In the circumstances, I find that an appropriate sentence is one of six months. I am satisfied that serving this sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of the Criminal Code. As such, I order that Mr. Allen serve this sentence in the community.

The sentence shall be served on the mandatory statutory terms and the following discretionary ones:

(1) Mr. Allen is to stay in his mother’s residence for the first four months except for matters reported in advance to the conditional sentence order supervisor and where he has received permission of the supervisor to leave. He may also leave the residence to travel directly to:

(a) scheduled meetings with the supervisor;

(b) attendance at any counselling program directed by the supervisor and if so directed to provide proof of such attendance:

(c) employment or education as approved by the supervisor;

(d) his own scheduled medical appointments and if necessary medical appointments for his grandmother; and

(e) such other exceptions as may be pre-approved by the supervisor in writing.

(2) For the following two months, or the balance of his sentence, Mr. Allen must observe a daily curfew of 9:00 p.m. to 6:00 a.m., meaning that he must be in his residence between those hours.

(3) He must seek and maintain gainful employment or enrol in an educational program.

(4) He must abstain from the possession of any weapon as defined in the Criminal Code.

(5) He must have in his immediate possession a copy of the conditional sentence order whenever absent from the residence and produce the order for inspection when requested by a police officer.

The six month sentence should also reflect eight days of pre-trial custody -- meaning that Mr. Allen will actually serve six months minus eight days.

There will be a weapons prohibition order for a period of 10 years pursuant to s. 110(1)(a) of the Criminal Code.

FORM 2

CERTIFICATE OF TRANSCRIPT
EVIDENCE ACT, SUBSECTION 5(2)

I, Angelina E. Falcone, certify that this document is a true and accurate transcript of the recording of R. v. T. Allen in the Superior Court of Justice held at 7755 Hurontario Street, Brampton, Ontario, taken from recording 3199_211_20150923_084423__30_FAIRBUM on September 23, 2015,

which has been certified in Form 1 by K. Jacobe.

Date: October 21, 2015

Angelina E. Falcone
Official Court Reporter
ACT ID 9403640849
angelinaefalcone@gmail.com
416-953-5377