Court File No. CR-15-1235
CITATION: R. v. Pera, 2016 ONSC 2800
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ZAKI PERA
PROCEEDINGS
BEFORE THE HONOURABLE JUSTICE HILL
on April 8, 2016, at BRAMPTON, Ontario
APPEARANCES:
C. Waite Counsel for the Crown
J. Hue Counsel for Zaki Pera
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
E X H I B I T S
EXHIBIT NUMBER
ENTERED ON PAGE
4
Letter dated April 7th, 2016
2
REASONS FOR SENTENCE
13
Transcript Ordered: April 8, 2016
Transcript Completed: April 26, 2016
Ordering Party Notified: April 27, 2016
FRIDAY, APRIL 8, 2016
THE COURT: Are we all ready?
MS. HUE: We are ready. Mr. Zaki Pera is present before the court, Your Honour.
THE COURT: Okay. He should be seated beside you then.
MS. HUE: Thank you, Your Honour.
THE COURT: Yes, go ahead.
MS. HUE: Thank you, Your Honour. So, Your Honour, I have provided you with a casebook of authorities.
THE COURT: I’ve been through it.
MS. HUE: Thank you kindly, Your Honour. It’s – it’s not overly broad but it is refined and so will be my submissions. Your Honour, my position, and I’m going to be....
THE COURT: Come to the mic just so we make sure we pick up what you’re saying. We’re you introducing any further documentary evidence beyond the three exhibits?
MS. HUE: Yes, Your Honour. I do have a letter – the reason for the adjournment on the last date was for a letter to be provided with regards to any opportunities that are available to Mr. Pera in his soccer career.
THE COURT: Yes.
MS. HUE: And I do have a letter. I have shown it to my friend.
THE COURT: Mr. Waite’s reviewed it?
MS. HUE: Yes.
MR. WAITE: I have. Yes.
THE COURT: Thank you.
MS. HUE: It is not very lengthy, Your Honour.
THE COURT: All right. Well we’ll take it as Exhibit 4 then.
EXHIBIT NUMBER 4: Letter dated April 7th, 2016 – produced and marked.
MS. HUE: Thank you, kindly. And I’ve just received it this morning and that is the reason why I didn’t provide it to you earlier.
THE COURT: Thank you.
MS. HUE: That was per the time crunch. Letter’s dated April the 7th, 2016, Your Honour.
THE COURT: All right, go ahead.
MS. HUE: Thank you, Your Honour. Mr. Pera is 23 years of age. He is not married, has no dependants. He’s currently residing with his mother in Brampton. His mother is joined in the body of the court and she’s raising her hand in the back. Also present today is Mr. Pera’s girlfriend who is from the city of London. She’s in the body of the court. She’s currently studying at Western University. And I can just say, Your Honour, that for various court appearances, both of them have remained at Mr. Pera’s side as well as other family members that have been present to show their support to Mr. Pera and I think that that denotes the support that he has surrounding him and – and honesty with the people that he loves as to what’s going on and the fact that they’re willing to support him and – and help him through his recovery into society – reintegration into society, Your Honour. My position – I’m seeking a conditional discharge with a period of probation. Now, Your Honour, the casebook that I have provided, I would like to specifically refer to Tab number 3, R. v. Novielli with Justice ODonnell in the Ontario Court of Justice. Paragraph 19 and 20 speak to – I – I would suggest, Your Honour, the current situation with criminal records in the Canadian justice system and just the system in general. And that’s looking in the past where a conviction – because media and information wasn’t as readily accessible at the time in the 1970’s, 1980’s as referenced by Justice ODonnell. Now and – if you look at paragraph 19, the information sharing now, post 9/11, having a criminal conviction on your record means more now than it did in the past and can have quite a detrimental effect on someone, I would suggest more now than in the past, Your Honour. Mr. Pera – the letter I provided to you – he does have a career in professional soccer. In high school he played for the TFC – while he was in high school, for approximately – just a moment’s indulgence – two years. Following that, he played for the Brampton United, which is a Canadian soccer league for approximately one year and then played for the London City for approximately two years. Due to being charged and restrictive bail conditions he had to stop playing for the city of London and essentially since then, to now, his life has been put onto hold. Now he is making efforts to go back to playing soccer professionally. It’s a Canadian soccer league which means that the – the teams that he’s playing are in Canada, however, there are tournaments in the United States and in order to be employed, a criminal record is required – a criminal record check is required for the team to know that if he’s going to be going to the United States for tournaments that are required, there – there shouldn’t be any problems with him going to the United States. So currently he – he is trying out with the London City Soccer and he’s also making efforts to – to also apply for the Mississauga team that’s closer to home. One of the reasons I’m asking for a conditional discharge, Your Honour, is – is not only because of the professional implications a criminal record would have on Mr. Pera at this young age, but it’s also because of the time that he’s already served in custody. As well as community service that he has done on his own accord without being told to do so and that’s the letter that I have also previously provided...
THE COURT: I’ve read that.
MS. HUE: ...to Your Honour. I believe that’s Exhibit number 1 on sentencing.
THE COURT: It is.
MS. HUE: Certainly, Your Honour, I – I don’t think that – I – I do think that a conditional discharge would be in Mr. Pera’s best interest. But if – if you look at the interests of society in terms of would – would a conditional discharge be contrary to the interest of justice in society, I would suggest, Your Honour, and submit respectfully, that society does have a very good interest in making sure that someone is given an opportunity to give back to society and with a conditional discharge Mr. Pera has opportunities to him that wouldn’t be available with the suspended sentence or criminal conviction and it gives him an opportunity to excel as a citizen in our community, and would therefore be in society’s interest to have someone that’s giving back to the society, contributing to society in – in a way that’s much better than being hindered almost permanently or unless a criminal record suspension application is made some 5 years down the road when the opportunities that are currently present to Mr. Pera may not – may no longer be available to him. Now, Your Honour, I would like – also like to submit that this resolution, while it is at – at this level, at the Superior Court of Justice, it is at an early stage, I would suggest, Your Honour. And – and I say that because the evidence that came out at the preliminary hearing is – is what allowed us to come to this resolution position. It wasn’t available prior to now so I would suggest that Mr. Pera should get some credit for resolving at an early stage and I think Your Honour can take notice that through the – the various judicial pretrials and meetings we’ve had with the Crown resolution has been a focus that’s been taken seriously and we have certainly afforded the court the time that it would’ve needed to – to prosecute the charges going forward, as well as the witnesses having to come and testify. In – in pleading guilty, Your Honour, Mr. Pera’s also giving up his right to bring certain Charter applications that may have had some merit to them, I would suggest, with respect to the detention of Mr. Pera at the convenient store to begin with – with respecting his ID and the reasons for the detainment initially. So along...
THE COURT: I’m not sure I see that but....
MS. HUE: Along – along with him not going to trial and – and having the Crown prove the case.
THE COURT: I understand that.
MS. HUE: Yes.
THE COURT: Yes.
MS. HUE: There’s also the potential for the Charter application he could have brought and saving the court time in that fashion as well.
THE COURT: Thank you.
MS. HUE: Thank you, Your Honour. Pending any questions you have for me...
THE COURT: Nope. I don’t believe so.
MS. HUE: Thank you, Your Honour.
THE COURT: Thank you.
MS. HUE: Those are my submissions.
THE COURT: Mr. Waite.
MR. WAITE: Your Honour, at the outset I’ll indicate the Crown position is a period of 60 days in jail followed by a period of probation of 12 months. I can indicate that Mr. Pera was arrested on the 8th day of May, 2015. He ultimately was granted bail on the 24th day of June.
THE COURT: I made that to be 48 days, is that your math?
MR. WAITE: That is my math. And at 1.5:1 as the existing case law would suggest should be credited, that would be a total of 72 days so I would be seeking to have 60 of those days already served, attributed to a sentence followed by a period of probation for 12 months with the primary term being a period of community service of 100 hours. Your Honour, I’ll address primarily the – first of all, the section 718.02 of the Criminal Code which indicates the court, upon a finding of guilt in relation to assault resist arrest, and – and other counts within, shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. The conduct, of course, in this particular incident led to a – a relatively lengthy run from police. I say relatively lengthy, probably less than two blocks, but nevertheless a – a running pursuit. And set in motion a chain of events, which although of course, Mr. Pera was not criminally responsible for an assault cause bodily harm, were it not for his actions in resisting the arrest, the injury that was suffered by Constable Hope would never have taken place. The – he at the time – since September of 2014, had been subject to the order which he has pled guilty to breaching. And I’m going to concentrate really on the second branch of the test for conditional discharges, which of course with conceding obviously the first branch would be in the best interests of Mr. Pera. The second branch being in the – not being contrary to the interest of the public, I’d ask Your Honour to consider that it’s difficult to imagine that if the Criminal Code is requiring the court to emphasize denunciation and deterrence that the public interest could be satisfied by a conditional discharge. I’ll concede of course that the case law is very clear that it could be. That each of the cases contained in the casebook prepared by my friend provide a series of circumstances that, while unique on their face, had various aggravating factors and various mitigating factors, in certain circumstances would not of course been considered for a conditional discharge but in this particular unique circumstances of the case became something that could fit within the confines of the conditional discharge. Virtually all of the cases she provided, of course, were focusing on the second branch of the test. It is difficult, as well, to imagine a set of circumstances where at paragraph 19 of the R. v. Novielli case which my friend made specific reference to would not in some fashion impact upon somebody going forward. I would concede that Justice ODonell’s analysis of the impact of the criminal record is perhaps greater than it once was only because of the types of emphasises that are put upon the use of a criminal record for job searches, for volunteer work in the community, and to a certain extent, for travel. Travel of course is the focus of the application here. Interestingly enough it’s probably the least changed part of the – the regime of the criminal records.
THE COURT: That’s right.
MR. WAITE: And because it’s always been something that somebody would have to be conscious of, particularly if they wish to travel in the U.S., to a lesser extent throughout the rest of the – of the world.
THE COURT: I think I agree with that, Mr. Waite, because certainly in our jurisprudence respecting conditional discharges going back 30, 40 years, travel has been a relatively consistent theme as an unusual circumstance in particular cases.
MR. WAITE: Yes. The – and while I understand that Mr. Pera may have a need to travel for tournaments to the United States....
THE COURT: And it’s almost inevitable when you play at a semi-professional level.
MR. WAITE: It is - that something would take him down to the United States and certainly if he is fortunate enough to advance beyond that level to a professional level and reintegrate himself with the TFC, or another professional club that require an opportunity to travel to the United States. Now that may be something of course that could be obtained even with a criminal record with the assistance of the league that he is playing with, with the assistance of communication with the United States immigration authorities but obviously it would be much more difficult, much more time timely, and much less certain. If he were to be considered today for a conditional discharge my submission emphasizes though that denunciation and deterrence must be considered. His offence, of course, was against two separate police officers and although it’s structured as assault resist arrest, of course the assaults....
THE COURT: Well he’s – he’s only pleaded guilty with respect to one.
MR. WAITE: Respect to one.
THE COURT: Yes.
MR. WAITE: The assault as defined from the purpose of the – for the offence itself is relatively minor. The assault caused no injury. The assault was more in the means of a push than it was of anything else. And it was really to facilitate his flight. That notwithstanding he has committed a breach against the administration of justice. Something that again I would ask Your Honour to accept the primary consideration in sentencing should be denunciation and deterrence. Court orders must be respected to enable them to have any effect within the community and section 718.02, of course, mandates that denunciation and deterrence be the primary factors. Primarily of course in – without any specific knowledge of what was in the mind of the drafters of that section to protect peace officers who are mandated to preserve the peace in the community. Those are my submissions, Your Honour.
THE COURT: Thank you, Mr. Waite. Anything in reply?
MS. HUE: Just in reply with respect to general and specific deterrence, Your Honour, I – I would echo that a sentence can be crafted to specifically address general and specific deterrence within the compounds of a conditional discharge taking into consideration the 72 days Mr. Pera has served in custody as well as a restrictive probationary term.
THE COURT: I didn’t hear from you on the issue of proposed probation terms or duration.
MS. HUE: Your Honour, I would – in terms – I would leave that to Your Honour. I would suggest a probationary term of two years. Mr. Pera has done upfront community service. If Your Honour feels that more community service would be needed then certainly more community service can be put into a probationary term. As well as the statutory conditions, keep the peace and be of good behaviour, and so forth, Your Honour.
THE COURT: Mr. Waite, did you want to add anything on the probation issue?
MR. WAITE: No. Thank you, Your Honour.
THE COURT: Ms. Hue, did your client, before I stand down briefly to deliberate on the fit sentence, wish to say anything on his own behalf or is he content to rely upon the submission that you have made?
MS. HUE: Your Honour, Mr. Pera would like to address you.
THE COURT: Mr. Pera you can come over to the microphone.
ZAKI PERA: I just want to say that I’m sorry for running away from the officers in the first place. When they asked me – when they said I was under arrest I should’ve just listened and got into custody because this – all of this wouldn’t have happened. And it – just – and I want to say sorry – sorry for Officer Hope getting hurt – injured too in the altercation. That’s basically everything I want to say.
THE COURT: What have you done to stay in shape in terms of playing soccer while you’ve been on bail?
ZAKI PERA: I just go to the gym, me and my girl, mostly. We just go to the gym and workout. I’m fit regardless.
THE COURT: What’s the Mississauga team?
ZAKI PERA: Mississauga?
THE COURT: What’s the Mississauga team that you potentially will try out with?
ZAKI PERA: They play by the Hershey Center.
THE COURT: Yes.
ZAKI PERA: They’re an OSL league. They’re not in the CSL; they’re in a different league. I went through – I know someone that already plays there so they told me to come and try out, that they – they’ve been waiting for me. They have a spot there for me. I know a lot of people in the league already. I’m well known. It just that I’ve been going through the court system I had to put it on hold.
THE COURT: What did your mother think about what happened here?
ZAKI PERA: She’s disappointed in me. Basically she just – she just – she asked me why did I run. Don’t run.
THE COURT: What do you see doing with your future?
ZAKI PERA: I just want to basically – I want to try and get back into soccer right now. I want to focus on that and also I wanted to go to – the course I want to take in Fanshawe (ph) College. It’s for Engineering. It’s like from – from making, like, the vocals for audio. From beats to music, to everything.
THE COURT: All right, thank you. All right. I’ll be back at 20 minutes to for sentence at that time.
R E C E S S
THE COURT: Mr. Waite, what do you want done with the remaining counts?
MR. WAITE: I’d ask those counts be marked withdrawn.
THE COURT: Thank you, sir.
REASONS FOR SENTENCE
HILL, J. (Orally):
Mr. Pera pled guilty to charges of breach of recognizance and assault of a peace officer with intent to resist arrest. It falls to be determined what a fit sentence is for a commission of these crimes.
On May 8th, 2015, at about 6:40 p.m., the offender was bound by a condition of a recognizance to remain in his residence at all times unless in the company of his surety. On this date, Peel Regional Police Service Constable Michael Hope recognized the offender at a public location in Brampton. The offender did not see Mr. Pera in the company of his surety as was required. When Constable Hope approached the offender telling him he was under arrest the offender resisted the constable’s efforts to secure physical control by pushing away from the officer.
A short foot chase ensued during which Constable Hope fell over a small ledge injuring himself. The officer broke his fibula, which required surgery and weeks of physiotherapy.
When a second officer, Constable Miller, caught up to the offender he too was pushed away. The offender fled a further 300 to 400 metres before being apprehended by other police officers. The offender was cooperative after being arrested.
Constable Hope returned to active duty and is essentially pain free following his recovery from his injury. Both Constable Hope and Constable Miller are of the view that the offender had no intention to try and injure either one of them.
At the time of the offences, Mr. Pera was 22 years old and without a prior criminal record. Mr. Pera currently resides with his mother. Letters admitted in this sentencing hearing disclose the following information:
(1) The offender has been doing volunteer work for the Newmarket Residence.
(2) He is a high-level performance semi-pro soccer player and is a member of the Toronto FC Academy, has traveled extensively within Canada, the United States, and internationally playing soccer competitively at the junior level, having won numerous awards and having been selected numerous times as the MVP at various soccer tournaments.
(3) The offender has encouraged youth in various soccer leagues to show great sportsmanship and leadership.
(4) The offences committed are out-of-character for this individual.
(5) The London City Soccer Club has invited the offender to the April 15th, 2016 team try-outs.
Speaking for the offender, Ms. Hue submitted that a conditional discharge would be a fit sentence in the particular circumstances of this case.
Counsel noted the offender’s age, lack of a prior record, his presentence custody, volunteer work, and the pleas of guilt.
Ms. Hue reviewed the offender’s soccer-playing career and his current and future prospects. A criminal record would detrimentally affect future opportunities and threatens Mr. Pera’s ability to play in the States in tournaments with a Canadian team for which he may play.
It was submitted that the offender’s rehabilitation through furtherance of his soccer-playing career would be in the community’s best interests as well.
On behalf of the Crown, Mr. Waite submitted that a fit sentence would be a further 60 days in jail beyond the presentence custody already served. Counsel noted that section 718.02 of the Code directs the sentencing court to give primary consideration to the principles of denunciation and deterrence in instances of assault police to resist arrest.
Mr. Waite submitted that while the resistance offered to Constable Hope was only a push to facilitate flight, the officer was nevertheless injured as a consequence of the offender’s failure to surrender to a lawful arrest. Counsel noted that the court in sentencing the offender is sentencing the offender for two offences, the second being a court order breach.
Crown counsel submitted that while a conditional discharge would be in Mr. Pera’s best interests, denunciation and deterrence principles in the circumstances of the present case foreclose such a disposition being in the best interests of society.
The aggravating circumstances of the case include:
(1) The offender has been found guilty of not one but two crimes.
(2) The offences both threaten the orderly administration of criminal justice,
(3) Athletes as examples to youth should not be committing criminal offences.
In the balance, in mitigation, these factors must be considered:
(1) The offender was only age 22 at the time of the offences.
(2) He appears before the court as a first offender.
(3) He is genuinely remorseful for his conduct.
(4) His pleas of guilt underline his rehabilitative potential and serve the utilitarian objectives of saving court time and resources and the need for witnesses to attend to testify.
(5) He has a stable family support.
(6) The offender has realistic opportunities to return to playing soccer at a semi-professional level.
Section 730(1) of the Criminal Code provides:
Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under section 731(2).
Our sentencing jurisprudence has developed certain governing principles relating to discharge dispositions including the following:
(1) A conditional discharge is a real sentencing disposition whereby an offender is subject to probation conditions to earn a full discharge – see R. v. Menezes, 1974 1659 (ON CA), [1974] O.J. No. 736 (C.A.), at paragraph 12:
It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing an offence.
(2) A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: R. v. Cheung & Chow (1976), 19 Crim. L. Q. 281 (Ont. C. A.)
(3) While discharges are not restricted to trivial matters (R. v. Vincente (1975), 18 Crim. L. Q. 292 (Ont. C.A.)), and therefore over-emphasis on the nature of the offence as not warranting a conditional discharge must be avoided (R. v. D’Souza, 2015, ONCA 805, at paragraphs 3-5), in the case of violence resulting in injury, the requirement of general deterrence generally militates against the grant of a discharge notwithstanding considerations personal to the accused: R. v. Huh, 2015 ONCA 356, at paragraph 12.
(4) The sentencing court may take into account any particular hardship a conviction and criminal record may have insofar as it relates to an offender’s travel and employment: R. v. Neundorf, 2011 ONCA 732, at paragraphs 31-35; R. v. Myers, (1978), 1977 1959 (ON CA), 37 C.C.C. (2d), 182 (Ont. C.A.), at pages 184-185.
(5) In considering the fitness of a discharge at the time of sentencing, a court may take into account punishment already imposed by virtue of presentence custody: R. v. Udoka, 2014 ONCA 347, at paragraph 3.
Mr. Pera served 48 days in presentence custody before securing judicial interim release. Recognizing that a person held in presentence custody who is subsequently sentenced is generally entitled to credit for that detention on a 1.5:1 basis (R. v. M.O., 2016 ONCA 236, at paragraph 22; and R. v. Johnson, 2016 ONCA 69, at paragraph 6), the offender here is credited with 72 days of presentence custody. It is this custody which, in the particular circumstances of this case, goes a considerable distance to serving the principles of denunciation and deterrence.
The imposition of a conditional discharge is clearly in the best interests of Mr. Pera given his age, lack of a criminal record prior to the commission of these offences, and the impact a conviction would have upon the offender’s prospects for international travel, in particular participation in soccer tournaments.
Respect for court orders and cooperation with the lawful direction of a police officer is essential to the administration of justice and the maintenance of a safe and orderly society. Those who commit such crimes must be deterred from repeating such conduct, as must others in the community.
Without minimizing the seriousness of the confrontation with the police, the offender’s conduct was limited to a push and unsuccessful flight. The injuries were accidental and unforeseen and not directly inflicted by the offender.
In my view, in this case, a conditional discharge meets the test enunciated in section 730(1) of the Code. Concurrent sentences are imposed on count numbers 1 and 3 of a conditional discharge with credit for 72 days of presentence custody with a term of probation of 18 months duration on the statutory terms in section 732.1(2) of the Criminal Code and the following optional conditions:
(1) Report to probation services within 7 days and thereafter as directed by your probation officer.
(2) Perform 100 hours of community service as directed by your probation officer within the first 14 months of the order with a recommendation for such service to be at the Newmarket Residence and/or participation in soccer coaching/assistance to youth.
The remaining counts in the indictment, at Mr. Waite’s request, will be marked as withdrawn. Anything further, Mr. Waite, on your part?
MR. WAITE: No. Thank you, Your Honour.
THE COURT: On your part?
MS. HUE: No. Thank you very much, Your Honour.
THE COURT: Mr. Pera, stand up. This was a close case, I’m sure Ms. Hue told you that. Having a criminal record has the consequences that were described by her in her submissions to me. Whether or not this proves to be successful, whether your mother’s wishes for your hope - are in hopes for the future demonstrate that you’re able to turn around very much depends upon you. If there’s a breach of the conditions for the probation order you’ll be arrested and obviously there’ll be the consequences of criminal charges brought back before the courts. So this is a second chance. I’d advise you to make the best of it.
...PROCEEDINGS CONCLUDED.
Form 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Anka Bijelic, certify that this document is a true and accurate transcript of the recording of R. v. Pera, Zaki in the Superior Court of Justice, held at 7755 Hurontario Street, Brampton, taken from Recording(3199_406_20160408_084747__30_HILLCAS) which has been certified in Form 1.
(Date) (Anka Bijelic)