File No.: CR-13-0112

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

LIONEL STAN SOLOMON

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE M. FUERST

on Tuesday, February 17, 2015, at NEWMARKET, Ontario

APPEARANCES:

K. Staats Counsel for the Crown

S. Newbould Counsel for Lionel Solomon

TUESDAY, February 17, 2015

R E A S O N S F O R S E N T E N C E

FUERST, J. (Orally):

In February 2014, Lionel Solomon pleaded guilty to assault causing bodily harm. So that he could continue his seasonal employment, a lengthy adjournment of the sentencing hearing was granted. Thereafter, Crown and defence counsel needed additional time to resolve matters of fact.

In the result, Mr. Solomon is before me for sentencing a year after he entered his guilty plea.

The Circumstances of the Offence

Mr. Solomon went to a nightclub in Orillia on the evening of September 20, 2012. There he met Paul Cooper for the first time. They left the nightclub and went to Mr. Cooper’s apartment in Orillia, where they drank alcohol together.

A short time later, Mr. Cooper’s friend, Stephen Brown, picked them up and took them to a party. Mr. Brown had never met Mr. Solomon before. The party was at the home of Debra McRae. Ms. McRae is Mr. Solomon’s common-law spouse.

Mr. Solomon and Mr. Cooper got into an argument. Mr. Cooper and Mr. Brown went back to Mr. Cooper’s apartment. Mr. Solomon and others pursued the men, in more than one vehicle.

Mr. Solomon caught up to Mr. Brown in the laneway behind Mr. Cooper’s apartment. Mr. Brown got into a car with Mr. Solomon inside it. The car began to drive away, but Mr. Brown was able to get out of it.

Mr. Solomon pursued Mr. Brown on foot. He pushed Mr. Brown to the ground and began to beat him. Mr. Brown recalls being pushed to the ground, and then going unconscious.

A witness saw Mr. Solomon strike Mr. Brown a few times while Mr. Brown was on the ground. Two others, one of them a woman, stood near Mr. Solomon. Then Mr. Solomon and the others got into the vehicles and left the scene.

Mr. Cooper summoned the police, who attended and found Mr. Brown with obvious injuries. Mr. Brown was taken to hospital in Orillia. He sustained a fractured left orbital bone, a fractured nasal cavity, and a fracture to the upper portion of the jaw as it meets the maxilla in front of the ear. He had soft tissue damage within the ear, lacerations to the face and head, a large abrasion to the back of the head, and abrasions to the right upper arm and left shoulder. He suffered a severe concussion. He received stitches over the left eye and on the chin.

Mr. Solomon was arrested on September 21, 2012. He was held in custody until his release on bail on December 17, 2012, on conditions that included a form of house arrest. That condition remained in place until it was varied on February 24, 2014.

In his Victim Impact Statement, Mr. Brown describes experiencing depression and fear. He has headaches and memory loss, and his jaw does not close properly. His appearance has been forever altered by scarring on the face and head.

The Circumstances of Mr. Solomon

Mr. Solomon is 30 years old. His father, who is deceased, was Anishnawbe, and his mother Caucasian. Mr. Solomon is a Status Indian under the Indian Act, and is registered with the Chippewas of Nawash Unceded First Nation, known as Cape Croker.

A Gladue report was requested for this sentencing. For reasons not explained to me, that request was not received by those responsible for preparing such reports. Rather than delay the sentencing hearing, defence counsel provided a copy of a Gladue report concerning Mr. Solomon that was prepared in January of this year for another matter in another court location. Defence and Crown counsel agreed that this report satisfies any Gladue requirement.

The report summarizes the destructive impact of the residential schools system on Canada’s Aboriginal people. The effects include a loss of traditional knowledge, broken families, and unresolved issues of trauma and abuse that led to a loss of parenting skills and abilities on the part of residential school survivors. Long-term intergenerational harm has resulted.

Mr. Solomon’s paternal grandfather and grandmother were both residential school survivors.

Mr. Solomon grew up on Cape Croker Reserve, where his parents had a home and his mother still resides. Mr. Solomon’s father was employed as a trucker and his mother had a cleaning business. When Mr. Solomon was five years old, his parents separated. His father moved to Brampton and his mother stayed on the reserve with Mr. Solomon and his older brothers. Mr. Solomon’s father continued to be involved in his children’s lives and maintained a good relationship with Mr. Solomon’s mother until his death in 2010.

Mr. Solomon’s mother describes his childhood as one in which he struggled to fit in, because of the fact that she was not Aboriginal. He had problems in school and was often suspended for bad behaviour.

Mr. Solomon began playing hockey at a young age and at age 16 was drafted into the Ontario Hockey League. He left home to play in Sudbury, and then in Manitoba in the Manitoba Junior Hockey League. While he was in Manitoba, a team-mate committed suicide. This had an impact on Mr. Solomon. At age 19, he moved to Halifax to play for the Halifax Mooseheads, and dropped out of school.

Mr. Solomon believed that he had prospects of playing in the National Hockey League, but that came to an end when he got shot in the leg outside a Halifax bar owned by his billet family. He suffered from depression and anxiety as a result, and began abusing alcohol.

In 2006 when he was 22 years old, he moved back to his mother’s home on the reserve. He met a woman from Saugeen First Nation and moved in with her on her reserve. He found employment with the housing department on Cape Croker. He and his common-law spouse had a son in 2009, but their relationship was volatile and complicated by Mr. Solomon’s drinking.

In 2011 Mr. Solomon returned to school and completed his General Education Diploma. Subsequently he completed an Ontario Forest Firefighter Training program in 2013. He also was employed as a baseball player with a Rama First Nations team.

Mr. Solomon’s common-law relationship ended when he was arrested for assault and sexual assault in June 2012. He returned to his mother’s home. He has had no contact with his son for three years, because of those charges and his problematic relationship with his ex-spouse. He wants to seek access to his son through the courts in the future.

In June 2012, Mr. Solomon met Debra McRae. They became common-law spouses. Mr. Solomon assumed the role of father to her two young children. Mr. Solomon and Ms. McRae are expecting a child in March.

In 2013 Mr. Solomon began working for a commercial fishing company. The work was seasonal. He was described as a good employee. He continued to be involved with hockey and baseball in the community, some of it in a volunteer capacity.

Mr. Solomon has a previous criminal record dating back to 2000 when he was a youth. That record includes previous convictions for crimes of violence.

In January of this year Mr. Solomon enrolled in the I am a Kind Man program, but did not complete it as a result of his re-incarceration. He was sentenced on January 19th to two years in jail for offences of sexual assault and assault that were committed prior to the offence involving Mr. Brown.

The Positions of the Parties

On behalf of the Crown, Ms. Staats seeks a sentence of 12 months in jail concurrent to the sentence being served, less pre-trial custody for the period from arrest to release on bail calculated on a one and a half to one basis, plus at least 18 months’ probation. She also seeks a DNA order, a s. 109 order for 10 years, and a non-communication order.

On behalf of Mr. Solomon, Ms. Newbould seeks a jail term of 9 to 12 months, less pre-trial custody credit calculated on a one and a half to one basis plus credit of 3 months for the period on bail on house arrest, concurrent to the sentence being served. She takes no issue with the period of probation sought by Ms. Staats, or with the ancillary orders requested.

The Principles of Sentencing

The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

Section 718.2(e) provides that in considering the latter factor, particular attention should be given to the circumstances of Aboriginal offenders. The Supreme Court of Canada explained in R. v. Gladue, [1991] 1 S.C.R. 688, and again in R. v. Ipeelee, 2012 SCC 13, that this requires a sentencing judge to consider the unique systemic or background factors that may have played a role in bringing the Aboriginal offender before the courts, and the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his Aboriginal heritage or connection.

Analysis

I take judicial notice of the history of colonialism, displacement, and residential schools that impacted Aboriginal persons, and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal offenders: see Ipeelee at para. 60.

Against that context, I consider the aggravating and mitigating factors revealed by the case-specific information about Mr. Solomon, and as well the circumstances of the offence.

The aggravating factors in this case include:

1. Mr. Brown was not involved in the dispute between Mr. Cooper and Mr. Solomon.

2. This was not an impulsive act. Mr. Solomon pursued Mr. Cooper and Mr. Brown from Rama to Orillia.

3. Mr. Solomon pushed Mr. Brown to the ground, and then, when Mr. Brown posed no threat, struck him more than once.

4. Mr. Brown suffered significant injuries, which have caused him lasting physical and emotional harm.

5. Mr. Solomon fled the scene knowing that Mr. Brown was injured and did nothing to seek help for him.

6. Mr. Solomon has a previous criminal record for violence.

7. Mr. Solomon was bound by a recognizance of bail at the time, and in particular, by a condition that he not consume alcohol.

In mitigation, I take into account that Mr. Solomon pleaded guilty, which is a sign of his remorse and willingness to take responsibility for his actions. He expressed remorse in the courtroom. He is capable of being a responsible member of the community as evidenced by the nature of his past employment and his volunteerism in the community. He has willingly assisted his partner in parenting her children. He has considerable family support, including that of his mother and his partner and her parents.

I have considered that there has been a long delay from the time Mr. Solomon entered his guilty plea until this sentencing.

The primary objectives of sentencing in this case are denunciation, deterrence both general and specific, and the protection of the public, but Mr. Solomon’s rehabilitation cannot be overlooked.

I am satisfied that a reformatory jail term is appropriate, and that probation is necessary to assist Mr. Solomon in his rehabilitation. I also agree that it is appropriate that the jail term be imposed concurrent to the sentence being served, so that there can be a period of probation to follow.

I treat the period of pre-trial custody, calculated on a one and a half to one basis, as 130 days. I agree that some additional credit is appropriate because of the more than one year spent on a house arrest bail. On a combined basis, I treat this as a credit of seven months.

The range of sentence for assault involving serious violence is very wide. If the admitted facts included that Mr. Solomon used a weapon in the assault, such as a broken beer bottle, I would agree that a sentence in the range of 18 months’ imprisonment would be appropriate: see, for example, R. v. Chickekoo, [2008] O.J. No. 2435 (C.A.). In the absence of such evidence, I am satisfied that a lesser sentence should be imposed in the circumstances of this case.

Conclusion

Mr. Solomon, please stand. I sentence you to a period of eleven months in jail less credit of seven months for pre-trial custody combined with strict bail terms, leaving a sentence of four months in jail to be served concurrent to the sentence you are serving, followed by 18 months of probation. The terms of probation are the statutory terms, plus the following:

1. Report to a probation officer immediately upon release and thereafter as required;

2. Reside at an address approved by the probation officer and not change it without prior written approval of the probation officer;

3. Not purchase, possess or consume alcohol or non-prescription drugs;

4. Attend for assessment and counselling for anger management and substance abuse as your probation officer directs and not stop without prior written permission of the probation officer;

5. Sign releases of information between your counsellor and the probation officer so that your progress can be monitored;

6. Have no contact direct or indirect with Stephen Brown or Paul Cooper;

7. Not be within 400 metres of the known places of residence, employment or education of Stephen Brown and Paul Cooper;

8. Not be on the premises of Tux II nightclub and Body Co Tattoo.

I order that you provide bodily fluid samples for the purpose of DNA testing. I impose a s. 109(1)(a) weapons prohibition order and a s. 109(2)(b) order, both for life. Under s. 743.21 of the Criminal Code I order that you have no communication direct or indirect with Stephen Brown or Paul Cooper while you serve the custodial portion of the sentence. Do you understand?

LIONEL SOLOMON: Yes.

THE COURT: All right. You can be seated. Ms. Staats, just to clarify, I know you had suggested a 109 order for ten years ...

MS. STAATS: Yes.

THE COURT: ... but on checking the criminal record, I see that there previously was a section 109 for life, so it has to be ...

MS. STAATS: For life.

THE COURT: ... as I read the Code provision, for life.

MS. STAATS: That’s correct, thank you.

THE COURT: Is there anything else that needs to be clarified?

MS. STAATS: No thank you Your Honour.

THE COURT: Ms. Newbould?

MS. NEWBOULD: No thank you.

THE COURT: All right, and what I will do Madam Registrar, I have the conditions on my computer typed, so I will just print out an excerpted copy of the conditions for you to speed things along.

MS. STAATS: If there are any remaining counts in the indictment, they can be marked as withdrawn at this time please?

THE COURT: All right, just give me a minute. I will give you back all of the exhibits Madam Registrar.

All right, I have endorsed on the indictments, Mr. Solomon is sentenced on count two to eleven months in jail, which after credit of seven months for pre-trial custody and strict bail terms, leaves a sentence to be served of four months concurrent to any other sentence being served, to be followed by 18 months’ probation on conditions read into the record. There is a section 109(2)(a), and (2)(b) order for life, a DNA order, and a section 743.21 non-communication order in respect of Stephen Brown and Paul Cooper. All other counts are withdrawn at the request of the Crown.

All right, I will send out that excerpt as soon as I get back into my chambers. Thank you and I think that is everything for today.

... WHEREUPON THESE PROCEEDINGS WERE CONCLUDED.