CITATION: R. v. Barton, 2016 ONSC 1574
COURT FILE NO.: CR-15-30000418-0000
DATE: 20160401
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RYAN BARTON
Defendant
Peter Fraser, for the Crown
Robert Nuttall, for the Defendant
HEARD: December 21, 2015
REASONS FOR SENTENCE
Michael G. Quigley J.
[1] Ryan Barton was convicted on December 21, 2015, along with Kervon James, Bevon Marshall and Sadyk Sadykov, of aggravated assault, committing an assault using an edged weapon, and possession of an edged weapon for a purpose dangerous to the public peace.
[2] These four offenders were inmates of the Toronto East Detention Centre who had been moved into Range 3B West along with the victim, Andrew Burnett, on the evening of Friday, January 2, 2015. That range is a temporary overnight holding area for inmates who are anticipated to be attending at court on the next day, in this case, Monday, January 5, 2015. Andrew Burnett was scheduled to commence his trial for first-degree murder on that day. Ironically, Ryan Barton was to appear in court that day to plead guilty to a charge of possession of a firearm and to be released that day for pre-trial custody served.
[3] On the morning of Saturday, January 3, however, Ryan Barton participated with the three other offenders in a vicious and plainly pre-planned aggravated assault on Andrew Burnett. The assault took place inside his cell. The evidence is entirely circumstantial, consisting of the video surveillance of the actions of the four offenders that Saturday morning.
[4] At paragraph 61 of my Reasons for Judgment cited at R. v. Barton, 2015 ONSC 7990, I summarize my reasons for convicting the four accused as follows:
In summary, I am satisfied beyond a reasonable doubt that the Crown has made out the elements of the three offences of aggravated assault, assault with a weapon and possession of a weapon for a purpose dangerous to the public peace against each accused, based on my finding that they acted in concert to achieve this common unlawful purpose. However, I am not satisfied to the criminal standard that either Barton or James were core principals of the assaults, based on their location outside of Burnett's cell when the actual injuries had to have been inflicted by Sadykov and Marshall. As such, while they are plainly parties to the offences, they will be found guilty of the lesser but included offences of aiding and abetting, rather than being principals in the criminal action that took place that morning.
[5] Because of his prior record, the Attorney General has given notice of her intention to bring dangerous offender proceedings against Bevon Marshall. That leaves Sadyk Sadykov, Ryan Barton and Kervon James to be sentenced by me in the ordinary way.
[6] The Crown seeks a sentence of eight to nine years against Mr. Sadykov for his participation in these events as one of the two principals, and the Crown seeks sentences of three to four years against Mr. Barton and Mr. James for their convictions of having aided and abetted in the commission of that aggravated assault against Andrew Burnett. The Crown also seeks DNA orders on the basis that this is a primary designated offence, and a section 109 weapons prohibition for life. I note that neither of the last two orders are opposed and so given I am satisfied that both are appropriate in the circumstances, those ancillary orders will issue as requested.
[7] The circumstances of the offence are described at paragraphs 12 through 27 of my Reasons for Judgment. The assault commenced just after 9 o'clock in the morning after the cells were unlocked. Mr. Sadykov, Mr. Marshall and Mr. James can be seen on the video surveillance footage conferring in a back corner of the range, a couple of steps from Mr. Barton's cell, 3214. Several minutes later, Mr. Barton comes out of his cell and joins the three of them and they walked directly single file towards and into cell 3210, Andrew Burnett ‘s cell, after his cellmate, William Ferguson, had left some minutes earlier. The accused marched directly and plainly towards Mr. Burnett's cell. Mr. Sadykov is first in line, followed by Mr. Marshall, Mr. Barton and finally Mr. James. They close the door behind them as they enter Mr. Burnett's cell.
[8] About five seconds later, Mr. James emerges from the cell and closes the door behind him, and can be seen holding the door closed with the side of his foot for a short period of time, perhaps five seconds, and then he re-enters Mr. Burnett's cell. Some seconds after that, Mr. Barton exits Mr. Burnett's cell and walks towards his own, doing a congratulatory tap with Mr. Mendez as they pass.
[9] As I found in my Reasons, it is plain from the video surveillance footage that the top half of Mr. Barton’s orange jumpsuit had been ripped open. However, no blood was visible to my eye. His total involvement in the matter appears to have spanned about 30 seconds. Mr. Barton never goes back into Mr. Burnett's cell. The state of his orange jumpsuit as he exits, however, indicates that even if he was not involved in the actual slashing of Mr. Burnett that took place, for which I have found Mr. Sadykov and Mr. Marshall to be principally responsible, it seems that he was probably involved in some physical altercation at the front end during that first minute when the four of them entered the cell and restrained Mr. Burnett.
[10] That is the extent of Mr. Barton’s actual involvement physically in the perpetration of the aggravated assault, although as noted from my finding above, I found him to clearly be a part of the group and acting in concert with the others even if his role was materially less and even if I found him guilty of being an aider and abettor, rather than a principal.
[11] Ryan Barton is 24 years of age. He comes from a good home. His mother, father and sister attended at the trial and were here for the sentencing hearing. As I indicated to Mr. Nuttall, counsel for Mr. Barton, it was plain to me that Mr. Barton does enjoy support from his family. He is the only one of his siblings who has run afoul of the law. Nevertheless, he also has a relatively short criminal record.
[12] He was sentenced on March 21, 2012, of assault and theft under $5,000 for which he received a suspended sentence and twelve months of probation on each charge. He was also prohibited from possessing a weapon for five years under section 110 of the Criminal Code. His second sentencing took place on January 7, 2015, as I noted above, just after this offence took place, and on that day he was sentenced to one day in jail in addition to 360 days of credit for pre-sentence custody, thus totaling one year, for unauthorized possession of a firearm. His weapons prohibition was continued and kicked up a notch by being extended from five years on the first offence to ten years on the second.
[13] I also specifically note, however, that in the context of this sentencing, that was not in fact a sentence that was imposed before the commission of this offence. It was not technically a second offence that is aggravating for sentencing purposes at the time that this offence was committed.
[14] I agree with Mr. Nuttall that while he is a party to these offences, and while I found that he acted in concert with the others, it would be unsafe for me to conclude that Mr. Barton was present when the wounds were actually inflicted on Mr. Burnett. He certainly aided and abetted, but I cannot be sure beyond a reasonable doubt that he was present when the wounds were inflicted and I specifically made that point plain in paragraph 61 of my Reasons, because it seemed evident to me in the context of the whole of the video surveillance footage that the wounds would have been inflicted on Mr. Burnett after the initial 30 seconds, and after Mr. Barton and Mr. James left his cell.
[15] As I have made plain in my Reasons for Judgment, and in my Reasons for Sentence of Sadyk Sadykov, and again emphasize here, this is a very serious offence. Just because this is an assault that takes place between inmates in a correctional institution does not mean that it is less serious than it would be if it had taken place on the street, or in this courthouse, or somewhere else outside of a custodial corrections environment.
[16] It is very important that sentences for offences such as these emphasize denunciation and deterrence, generally, and specifically to the offender. While the Crown has not provided me with any authorities on ranges of sentence relative to circumstances of individuals who were aiding in the commission of such an offence, the cases the Crown has put forward relative to the sentence sought against Mr. Sadykov as a principal shows that the sentences that have been imposed for similar assaults against fellow inmates perpetrated in a correctional systems environment, in this province, have ranged from six to nine years although there have been sentences of considerably less severity also imposed in seemingly very serious circumstances: See references in: R. v. Sadykov, released together with these Reasons.
[17] Crown counsel emphasized as well that that sentence ought to be consecutive to whatever sentence the offender is serving at that time that causes him to be in the corrections facility where the inmate assault takes place. While it is true that the cases that the Crown has put forward all appear to reflect sentences imposed consecutive to the existing sentence being served by the offender, I do not believe that to be an appellate directive that such sentences must always be consecutive, particularly where the imposition of a significant potential sentence, combined with the predicate offence, would offend the principle of totality. I have discussed this issue in my Reasons relative to the sentencing of Mr. Sadykov.
[18] Here, however, there is no prior offence in respect of which this sentence can be imposed consecutive to some other sentence. It will stand alone. More importantly, while this was a vicious offence, and while Mr. Barton acted in concert with the other three, it is plain that his involvement is limited and of short duration.
[19] Equally importantly, to my eye, are the letters of reference provided for Mr. Barton that I find show that he does indeed have real prospects of rehabilitation. Moreover, Mr. Barton has completed his grade 12 education, and the letters provided in support of him provide substance, in my view, for the sentence in his circumstances to not be retributive, and to not focus exclusively on deterrence and denunciation, notwithstanding the severity of the offence to which he was an aider. I have concluded instead that he needs to be provided with one, not two, not three, but one and only one last opportunity to change the direction of his life and move away from his past bad decisions and instead turn towards a direction of becoming a law-abiding and productive Canadian citizen, with the assistance and support of his family and those who care for him.
[20] So against that background, and given that he has never been to the penitentiary before and is a relatively youthful offender of 24 years of age, the principles set out in R. v. Borde, 2003 ONCA 4187, would suggest that if it is possible to meet the principles of sentencing with the imposition of a sentence to be served in the provincial corrections system rather than in the federal penitentiary system, or at least the minimum penitentiary sentence that will meet the requirements of sentencing in the particular circumstances, that would be the preferable result.
[21] It would also be preferable in these circumstances, because the victim of the assault, Andrew Burnett, is now serving a life sentence in the federal penitentiary system. Federal corrections officials do everything in their power to ensure that there is no opportunity for one inmate to exact revenge on another for a prior assault or insult, though this case shows those efforts are not always successful. It can reasonably be anticipated that there is greater risk of that happening if Mr. Barton is sentenced to a term of penitentiary imprisonment than if he was sentenced to two years less a day.
[22] Mr. Barton's counsel also emphasizes, and the Crown agrees, that Mr. Barton would otherwise be entitled to approximately four months of credit for pre-trial custody. Mr. Nuttall also argues that Mr. Barton ought to be granted credit under R. v. Downes for strict conditions of bail imposed against him on March 25, 2015, that is for a period of eleven months. As such, defence counsel argues that in total, Mr. Barton should receive credit of six and a half to seven months. The problem with that line of argument is that if I accept the Crown’s position that a minimum sentence of three years is required in the circumstances of this case for Mr. Barton, applying that credit will not keep him out of the federal penitentiary.
[23] I do accept the proposition that a minimum sentence of at least two if not three years would typically be the level of sentence required in the circumstances of someone who aided in the commission of an offence of this gravity. Defence counsel suggests that a sentence of two years less a day, reduced by the credits he argues for, would meet the objectives of sentencing, but I am not persuaded by that argument.
[24] Nevertheless, I do not intend to impose a three-year level of sentence. I am persuaded instead that this is a unique circumstance where the prospects of rehabilitation for this man in his case and the need to keep him out of the federal penitentiary, do call for a sentence of two years less a day. However, they also call for a term of probation for a further 30 months. Further, in light of that global position, I have determined that no credit should be provided for his pre-trial custody or for the strict terms of his bail. Nevertheless, it will be plain to all that they are indeed factors that I have taken into account, along with his prospects of rehabilitation, in determining that the principles of sentencing in this case can best be met by a custodial sentence of two years less a day to be served in a provincial corrections facility, followed by two and a half years of probation. The Crown seeks a sentence of three to four years. The total “sentence” I am imposing on Mr. Barton is six months longer than four years, but composed differently of a shorter period of custody and a longer period of supervision, to meet the particular needs of this case, to encourage rehabilitation, but nevertheless to also keep him under the watchful eye of the state for a significant period.
[25] As a primary designated offence, however, as noted above, there is no dispute that Mr. Barton will provide a DNA sample and he will be subjected to a section 109 weapons prohibition order for life.
[26] I am imposing a sentence of two years less a day, plus two and a half years of probation. I have imposed two and a half rather than three years of probation taking additional account of the fact that Mr. Barton is receiving no specific credit for the time spent in pre-trial custody, even if that is a factor I have taken into account in imposing a more lenient custodial sentence. Relative to probation, however, I specifically have in mind creating a supervisory environment that will take Mr. Barton out until he is getting close to thirty years of age and keep him under the supervisory eye of the state for that period of time.
[27] Frankly, my hope is that the rehabilitation prospects which seem evident on the face of letters of support for him, and the support of his mother and father and other family members, will assist him to make the transition from his brief past criminal orientation towards one of respect for the law and contribution to the community that shows great faith in him, unproven I might add, that he is going to be capable of turning himself around. I certainly hope they are right.
[28] In the context of this matter, I regard this is the most lenient sentence that I can possibly impose that will still meet the objectives and principles of sentencing, and reflect the need to express the denunciation of our community and to seek to deter others who find themselves in a corrections environment from committing or participating in the commission of offences against other inmates, but that will also reflect hope that this individual can turn himself around, rehabilitate himself, and will not be again seen before our courts.
[29] Nevertheless, Mr. Barton, you need to know that I intend to order that these Reasons for Sentence be kept in your file and that if you are ever charged and convicted again on another matter, that these Reasons are specifically to be brought to the attention of the sentencing judge at that time. They are to be brought forward at that time to indicate to any future sentencing judge that you, Mr. Barton, have already received all of the leniency that, in my view, you are entitled to from our justice system.
[30] It will always be the prerogative of any future sentencing judge to determine what a fit sentence is for the offender in the particular circumstances of the offence. The message I am trying to convey to you today, however, is that if you re-offend in the face of the trust that I have placed in you in sentencing you in this way, while I may not have any influence on a future sentencing judge, I can let that judge know why I did what I did today and can let that judge know with certainty that Mr. Barton would receive no further leniency from me. There is an old expression, "Fool me once, shame on you. Fool me twice, shame on me.”
[31] I sincerely hope, Mr. Barton, that you will get the message that this sentence is seeking to convey to you and commit yourself to the direction it prescribes.
[32] Ryan Barton stand up.
[33] For the reasons I have indicated, I have determined that an appropriate sentence in the particular circumstances of your case will be a period of incarceration in a provincial corrections facility for two years less a day, to be followed by two and a half years of probation with the statutory terms and such other terms as agreed by counsel together, and approved by me. If counsel are unable to agree on all terms, I will hear further brief submissions and determine the terms accordingly.
Michael G. Quigley J.
Released: April 1, 2016
CITATION: R. v. Barton, 2016 ONSC 1574
COURT FILE NO.: CR-15-30000418-0000
DATE: 20160401
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RYAN BARTON
Defendant
REASONS FOR SENTENCE
M. G. Quigley J.
Released: April 1, 2016