COURT FILE NO.: CR-13-204 DATE: 20160516 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – AARON LEWIS and COURTNEY ANTHONY LEWIS

Counsel: I. Kandola, for the Crown R.C. Bottomley, for Aaron Lewis and H. Pringle, for Courtney Lewis

Heard: April 21, 2016

REASONS FOR SENTENCE

HEALEY J.

DELIVERED ORALLY

Introduction

[1] Courtney Lewis and Aaron Lewis are cousins. They were each found guilty of the offence of aggravated assault following trial by jury, arising from the wounding of Ryan Turcotte. As a result of the offences, Turcotte was seriously injured in the early morning hours of June 26, 2012 in the plaza located at the intersection of Duckworth and Grove Streets (the “plaza”) in Barrie, Ontario. As a result of the assaults, Turcotte suffered a subdural hematoma when his head collided with the asphalt-covered parking lot. He has been left with a brain injury with significant sequelae.

[2] These reasons contain the sentence to be imposed on each of Aaron and Courtney Lewis for their crimes, and the basis for their respective sentences.

The Circumstances of the Offence

The bus ride back from the Kee to Bala

[3] On June 25, 2012 Turcotte and Aaron Lewis were two of dozens of young people who were on a bus that provided round-trip transportation between Barrie and a nightclub in Muskoka, the Kee to Bala. There is no evidence that they knew one another prior to that night.

[4] The northbound trip was uneventful, as was their time at the Kee.

[5] At the end of the evening they boarded the bus at approximately 2:00 a.m. The evidence at trial was that the bus arrived back in Barrie at the Duckworth plaza between 3:15 and 3:30 a.m., although it may have been closer to 4:00 a.m. based on the time shown on the video taken inside a convenience store located in the plaza. That video showed Courtney Lewis in the convenience store; he testified he was in the store just before the bus arrived.

[6] The trip back to Barrie was not uneventful. In terms of what took place on that bus, I find that the evidence of Ryan Zaroski, the security guard supplied by the nightclub to travel on the bus, is to be preferred over any competing versions of events supplied by other witnesses. Zaroski was seated facing the passengers and it was his job to observe what was occurring on the bus. The bus driver, David Ribble, would have had his attention primarily on the road. The only other witnesses to testify about what occurred on the bus were Turcotte and his friend, Kikki Mukendi. Turcotte's memory has been affected by his injuries, and his recollection at trial of the events on the bus was a marked departure from an earlier lack of memory for the events in question when he provided his statement to the police. Mukendi's testimony was largely lacking in credibility overall, not only because of prior inconsistent statements on many subjects, but because his version of events upon arrival at the plaza was unbelievable. His assertion that it was a sheer coincidence that three of his friends were present in the plaza when the bus arrived, and his description of two of those friends exiting from the Tim Horton's with food when he first saw them, was inconsistent with other, more credible, testimony. It is in particular inconsistent with the testimony of one of those friends, Brian Konrad, who I found to be a careful witness.

[7] Ribble testified that Turcotte and Lewis were the main players in the altercation, and the evidence of Zaroski supports that observation. Zaroski stated that there was a person at the back of the bus wearing a "Kush" top, who was being belligerent. By this Zaroski explained that the male was frequently yelling, and his body language suggested that he was being outspoken. The conviction of Aaron Lewis in this case means that the jury accepted the evidence provided during the trial that he was the individual who was wearing a shirt with the word "Kush" on it that evening. Other people on the bus were involved, and Turcotte was one of the people who was yelling. Turcotte was getting upset and did not seem to want to be subjected to the ruckus. Eventually this verbal sparring culminated in a physical interaction between Lewis and Turcotte, with Lewis pushing Turcotte. Despite moving Turcotte to the front of the bus, Zaroski stated that this did not stop the escalation of yelling from Lewis and those seated around him, with comments being directed toward individuals seated in the middle and front of the bus. Approximately ten minutes away from the plaza the yelling escalated further, with cheering, again coming from Lewis and those in his area. Zaroski was concerned that these interactions were going to culminate in physical aggression, and so he placed a call to the Barrie police dispatch to request that a cruiser be sent to the plaza. No officers were present when the bus arrived.

The presence of Turcotte's friends at the plaza

[8] As is often the case at the end of a trial, the evidence leaves us with gaps in our understanding of what really went on that night, and in particular, why certain people were in that plaza when the bus arrived.

[9] The evidence leaves no doubt, however, that at least two, and possibly three, friends of both Mukendi and Turcotte came to the plaza that night before the bus arrived. At least two of them went there as a result of receiving a text message from another friend who was on the bus. The evidence confirmed that all of these young men, but not Aaron Lewis, had been together socializing at Mukendi's house before they left for the nightclub that night. What their intentions were in coming to the plaza remains unclear. Konrad stated that he went to the plaza just to see what was going to happen.

The presence of Courtney Lewis in the plaza

[10] There is no contest in the evidence that Courtney Lewis went to the plaza that night in response to a phone call from Aaron. He testified that he received an initial call from Aaron at 2:45 a.m. during which time Aaron told him that he might have a problem at the plaza, but did not give him any details. Sometime later he received a second phone call from Aaron; this time Aaron sounded scared and asked him to come to the plaza. Aaron did not give him details, but Courtney formed the impression that his cousin was in trouble and was going to get beaten up by a few people.

[11] Courtney testified that he went to the plaza alone, with the intention to diffuse the situation. The bus had not arrived yet. He testified that, while he was waiting, he noticed two or three males appear on bicycles by a Kentucky Fried Chicken store at the east side of the plaza. As he was waiting he heard the sound of glass breaking, coming from the direction of those males, which sounded to him like bottles being smashed. He inferred that they were preparing to use the broken bottles in a fight. He then entered the convenience store located in the plaza, where he was briefly captured on videotape.

Self-defence

[12] Despite Courtney's stated intention to act as a peacemaker at the plaza when the bus returned, that is not what transpired. By his own admission Courtney hit Turcotte in the face, twice. His evidence was that he did so in self-defence, because Turcotte had grabbed him by his clothing close to his neck and would not let go.

[13] In finding Courtney Lewis guilty, the jury may have either rejected his evidence that Turcotte grabbed him or, believing that evidence, they may have found that the force that he used in striking Turcotte was more than necessary to defend himself, resulting in an assault. An assault arising from an initial assault by Turcotte may be entitled to greater leniency for sentencing purposes. The facts relating to the use of self-defence by Courtney remain in dispute and therefore the court must resolve this dispute through application of s. 724(3) of the Criminal Code of Canada, R.S.C, 1985 c. C-46 (the “Criminal Code”).

[14] Pursuant to s. 724(3)(d) of the Criminal Code, the court must be satisfied on a balance of probabilities that Turcotte initially held Courtney Lewis by the collar and would not release his hold when he was asked by Lewis to do so, before being able to conclude that Courtney was acting in self-defence. Courtney Lewis has the burden of proving this fact. Given that he chose to testify, and would certainly have provided all of the available evidence of assistance to him in advancing this defence, I am satisfied that there is no further evidence to be adduced on this point.

[15] I find that Courtney Lewis has not discharged this burden for the following reasons:

(a) Courtney’s demeanor in the videotape, occurring shortly after reaching the conclusion that the males in the immediate vicinity were ready to use broken bottles to fight his cousin, is at odds with his stated feelings of fear. His manner appears to be casual, and he makes no attempt to call the police or request assistance from the cashier. Although he testified that he did not have time to call the police before the bus pulled in to the plaza, it would have taken two seconds to ask that cashier, an individual who he testified was not a stranger to him, to make a 911 call in that situation. I do not believe, therefore, that Courtney had in fact reached the conclusion that a violent fight was imminent, or if he did, I do not accept that it influenced his actions from that point forward. It is noteworthy, however, that he did not mention anything about broken bottles when giving his statement to the police following the incident;

(b) Despite the presence of Turcotte’s friends in the plaza that night, there is no evidence that any one of them became threatening or aggressive in any way, or that they were involved in this altercation;

(c) Neither Ribble nor Zaroski saw Turcotte take hold of Courtney's clothing. Both of these witnesses were watching Turcotte from the time that he exited the bus, they had the best viewpoint, and neither had been drinking that night;

(d) After Turcotte got off the bus, Zaroski observed Aaron Lewis approach Courtney. Courtney is a person who Zaroski recognized from previous contact. Shortly thereafter, the two of them took up position around Turcotte, along with two or three other individuals. This occurred within 30 to 90 seconds after Turcotte had exited the bus. He observed that Aaron and Courtney were talking to Turcotte. He observed that Turcotte had his hands up in a non-threatening manner, with his palms turned outward and his hands between waist and shoulder height. He then saw Aaron shove Turcotte, after which Courtney immediately punched Turcotte on the left side of his face. He did not see Turcotte touch anyone before he was pushed and punched. This substantially accords with Ribble’s evidence, which was that there was a scuffle that started within half a minute of Turcotte exiting the bus. Ribble described that Turcotte was confronting another individual. It first looked as though they were conversing, then they were pushing at one another, and then it escalated to a punch within seconds. Although Ribble did not see Aaron being involved in the altercation, his evidence did not place Aaron at some other location at the time. Overall, it was Zaroski’s evidence at trial that was the most careful, thorough, and internally consistent and therefore I rely on it to conclude that Aaron was the first individual to initiate physical contact;

(e) Having watched the YouTube video from the plaza multiple times at various speeds, despite the poor quality of the video, I observe that there are several individuals initially standing together as a group. The exact number cannot be counted and some may be in a separate cluster in the foreground. But what can be distinctly seen is that shortly after the video begins, four individuals, including Turcotte, move together as a group across the parking lot prior to the blow that knocks Turcotte to the ground. None of their faces are visible. They all appear to be aggressors; after Turcotte falls, none of them appear to assist him, and one of them kicks Turcotte after he falls to the ground. I conclude that none are his friends. It is quite possible that the jury concluded that Aaron was the individual who did the kicking, as that individual was wearing a white shirt. A fourth aggressor appears in the frame immediately thereafter and also uses his foot against Turcotte. It is only in subsequent frames that other people appear to demonstrate concern, one of them crouching by Turcotte. None of this accords with Courtney’s evidence that this was a situation in which he alone had to fend off Turcotte’s aggression.

(f) Further, Courtney’s evidence is that Turcotte remained standing after he punched him a second time, and that others then took over to deliver more punches. He gave no details of these individuals or how those events unfolded. The time between the initial group standing, to the four individuals moving across the lot away from the bus, to Turcotte falling, it is a matter of approximately 6 to 7 seconds on the videotape. If Courtney's account was true, given his location to these events, and the speed at which the altercation occurs, Courtney could be expected to have a much more thorough description of those individuals and what occurred to Turcotte after he delivered a second punch. He gave no such evidence. None of the evidence pointed to a reason why other individuals would be motivated to assault Turcotte. I do not accept Courtney’s evidence that anyone other than him hit Turcotte. The conviction by the jury also infers that they rejected this evidence; it was the Lewis’ who were found to have been responsible for the harm that came to Turcotte that night;

(g) Finally, the movement of the four men on the video is not at all how Courtney described his blows; he said they were measured and inflicted while Turcotte was standing right in front of him, still holding onto him. The movement of the men on the video covers an indeterminate distance, but it is obvious from the video that several yards were covered before Turcotte fell to the ground.

[16] From these facts that I have found, I conclude that Turcotte did not initiate the aggression by holding Courtney’s clothing against his will, and that the basis of the conviction against Courtney was not related to the elements of self-defence. Any suggestion that this was a consent fight is negated both by the jury’s verdict and the finding that Courtney was not responding to an assault.

[17] In rejecting evidence of self-defence, I am also unable to find that Courtney came to the plaza that night intending to act as a peacemaker. Whatever it was that caused him to become physical had nothing to do with feeling threatened by Turcotte or others. His physical aggression toward Turcotte was extreme, and none of the evidence explains why Courtney would have flipped from intending to diffuse the situation, to then inflicting such physical harm in the short time period between meeting up with Aaron and delivering the punches. The evidence points to the events on the bus as being the genesis of the aggression.

The assault of Ryan Turcotte

[18] Although Zaroski only saw one punch make contact, he described that there were a couple of other punches after the first one and then Turcotte went down. He described the other punches as a flurry of movement, and he did not see who threw them. Ribble’s evidence differs in that he only saw one punch and then Turcotte collapsed. Konrad saw two individuals hit Turcotte; the second punch put him to the ground. Whatever version of events they accepted, the jury must have concluded that Courtney was the primary actor in throwing punches, either one or two, but in any event it was his punch that made Turcotte fall.

[19] The basis upon which the jury found Aaron Lewis guilty of the offence of aggravated assault remains uncertain. Mukendi is the only individual who testified that he saw Aaron punch Turcotte. As earlier stated, both Zaroski and Ribble testified that they saw Aaron Lewis initiate the altercation by pushing Turcotte. But there is no evidence that this initial push caused Turcotte to fall to the ground. The conviction of Aaron Lewis could have been on the basis that some or all of the jurors accepted Mukendi's version of events, such that they found that Aaron Lewis delivered a punch. Alternatively, some or all may have accepted that Aaron’s participation in this offence was to abet and encourage Courtney to assault Turcotte, or that he agreed to help Courtney assault Turcotte. The jurors were entitled to arrive at their unanimous verdict based on the different modes of participation explained to them in the charge.

[20] No authority was cited for the principle that one of these modes of participation would reduce Aaron’s degree of culpability for the offence, and I was unable to locate such authority. Accordingly, for the purpose of sentencing I do not believe that it is necessary for me to make factual findings, consistent with the jury’s finding of guilt, about whether Aaron Lewis participated as a principal or party. Ultimately, the jury’s verdict renders him guilty of the same offence as his cousin.

[21] If I am wrong in this conclusion, based on the evidence of Ribble and Zaroski, I would find that the Crown was unable to prove that Aaron Lewis’ physical act was anything other than a shove of Turcotte from the outset, and one kick after Turcotte hit the ground. In the result, the basis of Aaron Lewis’ guilt would either be by abetting Courtney by encouraging him to come to the plaza to confront and harm Turcotte, or by acting in concert with him to assault Turcotte, which ultimately had the unintended result of causing serious bodily harm. These conclusions would have been easily reached by the evidence of Aaron’s antagonistic behavior on the bus, the phone call that he placed to his cousin, and Turcotte’s friends coming to the plaza.

[22] In reaching these conclusions I do not dismiss the possibility that Turcotte’s friends anticipated a fight, and that they either wanted to witness it or be there to assist Turcotte. But in the final analysis, there is no evidence that they posed any kind of threat to either of the Lewises in the plaza that night.

The Effects on Turcotte

[23] It was agreed as fact during the trial that Turcotte suffered a brain injury on the night in question. His injuries required immediate neurosurgery to relieve the pressure in his skull. It was also agreed that his head struck the pavement when he fell. The jury's verdict implies a finding that the actions of both Lewises caused or contributed to Turcotte's injuries.

[24] Turcotte was assessed as having a high level of cognitive impairment on his discharge from St. Michael's Hospital in Toronto. This refers to information processing efficiency and speed, attention, comprehension and executive functioning.

[25] Turcotte's victim impact statement reveals that his injuries are physical, emotional, psychological and permanent. He has an acquired brain injury which now affects every facet of his life. He has gone through years of medical appointments and therapies, trying to recover as much functioning as possible. He was working before this assault and had plans to go back to school and was looking forward to many things. He was working to purchase a home with his partner. Now he resides with his parents, has lost his relationship, is on disability and has undergone a radical personality change. In his words, his life is nothing but a “mangled mess”. It has caused him to feel suicidal. Physically he has permanent scarring and some deformity in his skull from his surgeries, and he also suffers from double vision, such that he can no longer drive, and has to constantly keep his head lowered to focus, which causes neck pain. He describes a significant change in the way that he is able to relate to others, including his family.

The Effects on the Victim’s Family

[26] Turcotte’s parents and sister have suffered an enormous impact as well. Their victim impact statements highlight for the court that these offences continue to cause them enormous strain, financially and emotionally, as they struggle to continue to support their son in all ways, within the fabric of a family that has been shredded by these events and the changes that have occurred in their son. For his mother, the life that her son and entire family has had to live since June 26, 2012 has pushed her to the ultimate point of despair, causing her to feel suicidal. The result has been the complete loss of life as they knew it; his parents, in particular, have had their enjoyment of life virtually destroyed.

Expressions of Remorse

[27] Any expressions of remorse that the offenders may have wished to express are hampered by the fact that a civil suit has been commenced against them by Turcotte.

[28] Counsel for Courtney Lewis requested that consideration be given to the fact that he contacted the police voluntarily and gave them a statement after someone showed him the YouTube video made on the night in question. Courtney's evidence was that he went to the police because he wanted to help Turcotte. There's no evidence that he asked for any benefit in return for giving the statement.

[29] It is difficult to objectively assess what Courtney Lewis’ subjective state of mind was when he went to the police station. He told the police that he punched Turcotte. He made statements that were both incriminating and exculpatory.

[30] What I do accept is that it was not the existence of the videotape itself which motivated Lewis to go to the police station. He is not recognizable on that video, and would have known that from watching it himself.

[31] I also accept that injuring Turcotte to the extent that occurred was not something that Courtney Lewis expected or wanted to happen. There is no precedent in his life that would lead this court to accept that he is a person motivated to hurt others, and those who have expressed to the court their observations and knowledge of him describe him to the contrary.

[32] I believe that his underlying motivations in providing a statement were complicated and not as clear-cut as Crown counsel asks this court to accept. It is quite possible that, at the time, part of that motivation was remorse.

The Circumstances of the Offenders

Courtney Lewis

[33] Courtney Lewis is currently 27 years of age. Since graduating from high school in 2008 he has pursued some university and college courses. He currently works part-time at a local gas station. He had completed a security course prior to the offence, and was hoping eventually to obtain a degree and perhaps apply to law school.

[34] Lewis is the father to a six-year-old daughter, and has an equal time-sharing arrangement with his daughter's mother, such that he spends time with her every day and every second weekend.

[35] Lewis also has been highly involved in athletics, participating in football, rugby and basketball both while in school and out, and is presently training as a wrestler with the goal to obtaining placement on the Olympic team for Trinidad and Tobago. He has coached and mentored young people in these athletic endeavors, and received awards in high school for his leadership role. One of these was presented during his graduating year for excellence in mentorship, leadership and the teaching of vulnerable young people at a local public school. He has also received a certificate in peer mediation following a one-day seminar.

[36] Lewis has the full support of his mother and extended family.

[37] His counsel provided an abundance of character reference letters from individuals who have known Lewis for a significant period of time. They include both professionals and people from many walks of life, friends from the continuum of childhood through university, family and family friends. They all speak to the kindness of this man, his respect and caring for others, and his level-headedness. He is considered to be very calm, patient and reasonable, even when confronted with adversity. It is clear that he has had many positive impacts on the lives of others around him. Others see this offence as being completely out of character.

[38] Crown counsel presented two general occurrence reports from the Barrie Police Service during the sentencing hearing for the purpose of painting a different picture of Lewis. One of the occurrences was from 2011, and alleges an altercation in the washroom of a local nightclub between several men, one of whom is alleged to have been Courtney Lewis. As a result of statements given by two of the individuals involved, the police concluded that this was a consensual fight, with conflicting stories, and laid no charges. Courtney Lewis was not interviewed to provide any input into the version of events advanced in either the initial or the supplementary occurrence report. I put no weight on these reports for the purpose of sentencing.

[39] The other occurrence report arose four days prior to the offence in question. It describes that police had been called to an address where a black male had been seen pacing in front of a residence and swinging a baseball bat at a tree. The report indicates that the address in question was an apartment building in which the male lived. The male identified himself as Courtney Lewis, was immediately compliant with the officer's request to release the bat and sit on the grass. He explained to the officers that he was angry and upset and was not intending to damage anything or hurt anyone, but rather was taking his frustrations out on a tree with a baseball bat. No charges were laid. Similarly, I put no weight on this occurrence report for the purpose of sentencing. The details provided in it are without context and cannot justifiably lead to the conclusion that Courtney Lewis is prone to aggression, even assuming that the identification of the individual involved is accurate.

[40] Lewis has no criminal record.

Aaron Lewis

[41] Aaron Lewis graduated from high school in 2010, and went on to obtain an Ontario college certificate from Georgian College for welding technique. He was on the Dean's list during his first semester. He is currently employed full-time in Brampton as a welder.

[42] He is presently 24 years old, making him 21 years old at the time of the offence.

[43] Like his older cousin, Lewis was a star athlete in highschool. A former employer described him as hard-working, always punctual and a good employee. The father of a friend, an RCMP officer, has known Aaron Lewis for over 10 years and described him as being very sociable, well-mannered and helpful.

[44] Like his cousin, there is no antisocial behavior that predates this offence that would lead the court to believe that Aaron Lewis has been anything other than a well behaved, contributing member of society. As in the case of Courtney, Aaron's behavior on the night in question appears to be highly out of character.

[45] He, too, has no criminal record. Aaron Lewis also has the support of his family.

The Position of the Parties

[46] The parties differ significantly on what constitutes a fit sentence in this case.

The Crown

[47] The Crown seeks a sentence of 6 years imprisonment for both Courtney and Aaron Lewis.

[48] Crown counsel argues that the only mitigating factors in this case are the youthfulness of the offenders and their lack of prior record, but argues that these factors are not outweighed by the seriousness of the offence and its effects.

[49] Crown counsel submits that there are 8 aggravating factors that the court may wish to take into account including:

1. that this was an unprovoked attack;
2. that this was a group attack that involved more than one punch;
3. that there was planning involved over the course of the bus ride, evidenced by Courtney Lewis attending at the scene;
4. that Turcotte was defenceless;
5. that the nature of the attack was such that there was a high likelihood of serious personal injury;
6. the seriousness of the injury;
7. the extent of the impact on the victims;
8. that both accused fled the scene with no concern for the condition of Turcotte.

[50] As ancillary orders, the Crown seeks an order prohibiting either Courtney or Aaron Lewis from having contact, directly or indirectly, with Ryan Turcotte or any member of his family, or also with Kiki Mukendi. The Crown also seeks an order that they provide a sample of their DNA, and that there be an order prohibiting them from possessing any firearm, weapon or ammunition for a period of 20 years.

[51] The Crown relies on several cases in which the assault on the victim resulted in a brain injury.

[52] In R. v. Gagliardi, 2000 ABCA 137, 2000 CarswellAlta 442 (Alta. C.A.), two offenders aged 19 and 21 at the time of the offence, received a custodial sentence of 7 and 9 years as a result of being part of a gang that inflicted serious head injuries on the victim. The Court of Appeal found that both sentences were appropriate, noting that the trial judge properly characterized the attack in which the two appellants participated as being close to attempted murder. The offender who received 9 years was responsible for “sucker punching” the victim, rendering him immediately unconscious, and then participated in kicking him about the head. The offender who received 7 years also participated in kicking the victim. The blows were concentrated on his facial and head area. The younger offender was also waving a machete, although the court noted that only the blunt end may have hit the victim. The extent of the victim's brain injury was more severe than that of Turcotte's. It was described by the Alberta Court of Appeal as an attack extraordinary in nature, involving extreme and extraordinary violence, and earning extraordinary sentences. Both had prior records, which the court referred to as insignificant factors in their sentences.

[53] In R. v. Dunn, [2002] O.J. No. 864, 2002 CarswellOnt 716 (C.A.) the offender appealed his sentence of 9 years imprisonment for one count of aggravated assault. The victim was seriously injured, and was left in an injured condition, knowingly, by the offender. The victim’s injuries were devastating, requiring him to live in a long-term care home, with severely reduced intellect and almost no eyesight. The offender, who was only 28 years old at the time he committed the offence, had a criminal record consisting of 11 prior convictions over a period of approximately 8 years, including convictions for assault with a weapon, possession of a weapon and two convictions for uttering threats. Dunn references three other appellate decisions in which sentences of 9 and 10 years were imposed in cases involving severe assaults, in which the nature of the attack and the victims’ injuries appear to have been closer to a case of attempted murder.

[54] The Crown also relies on R. v. Sotera, [1987] O.J. No. 515, 1987 CarswellOnt 804 (C.A.) and R. v. Vickerson, [2005] O.J. No. 2798, 2005 CarswellOnt 2812 (C.A.), in which the offenders received sentences of 7½ and 6 years, respectively. Both offenders had significant records for violent offences. In Sotera the victim’s brain injury was so severe that it rendered him unable to look after himself without assistance, requiring him to live in a protective environment. In Vickerson there were two victims, and no details are provided about their injuries other than that they were not life threatening, but substantial and permanent. In Vickerson the offender was convicted of two counts of aggravated assault and two counts of assault with a weapon.

[55] The Crown also relies on R. v. Woodward, 2011 BCCA 251, 2011 CarswellBC 1268 (C.A.), in which a single punch which knocked the victim unconscious and left him with a permanent brain injury resulted in a 6 year period of incarceration for an offender who had only a minor criminal record prior to the offence in question. The victim in that case suffered on acquired brain injury that required him to live permanently in an assisted living facility. This case is distinguishable because it was an offence motivated by homophobic sentiments, which the sentencing judge referenced as the "abhorrent motivation behind this assault", requiring emphasis to be placed on denunciation and deterrence. The British Columbia Court of Appeal found that this was a relevant factor considered by the sentencing judge.

Courtney Lewis

[56] On behalf of Courtney Lewis, his counsel submits that an appropriate sentence is one year of incarceration, and a probationary term of three years.

[57] Counsel stresses Courtney Lewis’ youth and pro-social behavior predating the offence, that the offence was out of character, that he demonstrated remorse by approaching the police. While she agrees that a custodial sentence should be imposed given the gravity of the offence and its result, as an initial sentence of incarceration, it should be as short as possible, taking into account Lewis’ previously unblemished record and the balance of his personal circumstances.

[58] His counsel likewise puts before the court a number of cases to support her submissions on the appropriate sentence.

[59] In R. v. Gugaruban, 2013 ONSC 3243, 2013 CarswellOnt 7291(Ont. S.C.J.) the court imposed a sentence of 90 days intermittent, less 25 days of pretrial custody, and probation for a period of 1 year on a youthful offender with no record. As a result of tensions within the family, offender punched the victim in the face and then continued to kick him while he was on the ground. The offender and victim were extended family members and close friends. The trial judge made a finding that the offender reasonably believed that he was under assault but that he used more force than was necessary or reasonable under the circumstances. The victim suffered serious injuries to his orbital bone that required surgery, but had recovered. A factor that the court took into account was that the victim wanted to repair the family rift and did not want to see the offender incarcerated.

[60] In R. v. Addley, 2013 ONCA 50, 2013 CarswellOnt 833 (C.A.), a 20 year old Aboriginal offender was sentenced to a custodial term of 18 months followed by 3 years of probation for an aggravated assault which involved the victim being kicked in his head by the offender, and then repeatedly being kicked in the head by accomplices while unconscious. This resulted in a significant impact on the victim, who had numerous broken bones around his eyes, metal plates inserted into his head, permanent vision problems, nightmares, emotional problems and sleep disturbance. His mother also developed posttraumatic stress disorder as a result of the attack on her son. The offender had a youth record for nonviolent offences and suffered from substance abuse issues. The Court of Appeal noted that the trial judge took into account the offenders Aboriginal background in imposing a sentence that had a significant rehabilitative element.

[61] In R. v. MacDonald, 2008 CarswellOnt 9418 (Ont. C.J.) ; affirmed 2010 ONCA 178, 2010 CarswellOnt 1311 (C.A.), the sentence of 12 months’ incarceration and 12 months’ probation was upheld on appeal even though the Court described the aggravated assault as a vicious attack. At the time of sentencing the offender had no record, but given the degree of violence in that case, the appeal court found that denunciation and general deterrence operated as the paramount sentencing objectives in the case. The victim suffered a significant injury to his face resulting in permanent disfigurement and problems with the operation of his jaw due to being attacked by the offender and his friend with a beer bottle and beer mug. He also continued to fear for his safety in the community.

[62] In R. v. Monchka, [2000] O.J. No. 1069, 2000 CarswellOnt 1074 (C.A), the Ontario Court of Appeal imposed an 18 month conditional sentence followed by 9 months’ probation for aggravated assault, noting that although the matter involved a very serious offence, the appellant was a young first offender with an unblemished background.

[63] In R. v. Miller, [1990] O.J. No. 1448, 1990 CarswellOnt 871(C.A.), the appellate court overturned the suspended sentence with probation imposed at the trial level, and substituted a 60 day intermittent sentence. As a result of the assault the victim suffered injury to the left side of his face and eye socket, requiring two surgeries. At the time of trial his appearance had not yet returned to normal, and it was his intention to undergo further surgery.

Aaron Lewis

[64] On behalf of Aaron Lewis, his counsel submits that an appropriate sentence is a period of incarceration of 6 to 8 months, followed by a 2 year probationary term.

[65] Mr. Bottomley echoes the submissions of Ms. Pringle as to the rationale for a custodial sentence at the low end of the range.

[66] He relies on the case law provided by Ms. Pringle as well, and also refers the court to R. v Berry, 2015 ONSC 2002, 2015 CarswellOnt 5573 (Ont. S.C.J.), R. v. Desgagne, 2013 ONSC 6319, 2013 CarswellOnt 14898 (Ont. S.C.J.), and R. v. Ahier, 2006 ONCJ 135.

[67] In Desgagne, the 51 year old accused pleaded guilty to assault causing bodily harm. The victim suffered a brain injury that had an impact on both he and his family closely resembling the effects of the assaults on the Turcottes. The victim hit his head on concrete after being punched. The accused had no criminal record, but had a problem with alcohol use and was drinking on the night of the offence. He was sentenced to 8 months in custody, plus 2 years' probation.

[68] Berry is a case decided just last year after a contested trial resulting in a conviction for aggravated assault. The victim was hit or pushed in the chest causing him to fall down and hit his head on a curb. He suffered four skull fractures, broken bones in the ear and swelling around the brain area. He spent a month in St. Michael's Hospital undergoing numerous surgeries, followed by months in physiotherapy, re-learning fundamental skills. His parents had to come out of retirement to support their son and his family. The offender had no criminal record and had been working steadily up until the time of the offence. The sentence imposed was 4 months’ incarceration followed by a probationary term of 2 years.

[69] Last, in Ahier, following a guilty plea to a charge of aggravated assault, the court imposed a conditional sentence of 2 years less a day, with 3 years’ probation. Although a conditional sentence is no longer available for this offence, defence counsel presented it to the court as an example of the imposition of a sentence below the penitentiary range, even though the victim suffered a brain injury after being struck on the head with a hammer.

Analysis

The Law

[70] A sentencing judge must take into account the relevant sentencing objectives, principles and factors, then apply these to the circumstances of the case. The sentencing decision must be dictated by the fundamental principle that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[71] The Criminal Code dictates that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.

[72] The Criminal Code lists several objectives to be achieved by the imposition of just sanctions, which include:

(a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) To deter the offender and other persons from committing offences; (c) To separate offenders from society, where necessary; (d) To assist in rehabilitating offenders; (e) To provide reparations for harm done to victims or to the community; and (f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[73] Depending on the offence and the offender, some of these objectives will be more relevant than others. Provided that a court takes into account all relevant aggravating and mitigating factors, properly weighs and emphasises the objectives and principles of sentencing, and imposes a sentence that fits the offence and the offender, a just sentence will have been achieved.

[74] A sentencing judge is also to take into account the principle that the sentence imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is to ensure that unjustified, substantial differences in sentences do not exist between similar offences and offenders.

[75] Restraint must be exercised with first time offenders, although this principle may be relaxed depending upon the crime and the particular circumstances of the case. The Ontario Court of Appeal has held that the primary objectives in sentencing a first offender are individual deterrence and rehabilitation, except for very serious offences and offences involving violence: R. v. Priest, [1996] O.J. No. 3369, 1996 CarswellOnt 3588 (C.A.), at paras. 17. Accordingly, a custodial sentence should only be imposed on the first time offender when the circumstances of the offence are such that a less onerous sentence would be inappropriate. And where a custodial sentence is imposed, a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence: Priest, at para. 23.

[76] While the court is entitled to give much weight to the consequences of the criminal behavior, it is also entitled to take into account that while an offender may have intended harm, he may not have intended the extent of the harm that resulted to the victim. In R. v. Klair, (2004), 71 O.R. (3d) 336 (C.A.), for example, the Court of Appeal reduced the life sentence imposed by the trial judge because of the panel’s reasoning that the offender had not intended the victim, his young grandson, to suffer devastating burns and injuries when he deliberately set fire to the residence while caring for the child. In contrast is British Columbia Court of Appeal’s conclusion in Woodward that a devastating brain injury resulting from a punch to a defenceless person made with such force that the assailant should have known that it would result in serious injury, does not lessen the offender’s culpability.

Mitigating and Aggravating Factors

[77] I find that the mitigating factors in this case are: the offenders’ ages, their lack of record, their solid academic and work histories, their family and community support, the fact that the subject offence is entirely out of character, and to a minor degree and giving him the benefit of the doubt, the possible expression of remorse demonstrated by Courtney Lewis by giving a statement to the police.

[78] The aggravating factors are: that there is no credible explanation for what preceded this assault, and therefore it seems to have been unprovoked; this appears to be a group attack against Turcotte involving at least 4 individuals, 2 of whom are the offenders, involving more than 1 punch and 2 kicks; Turcotte had his hands up in a non-threatening manner and was not attempting to defend himself when the assault began; the last punch was hard enough to knock Turcotte from his feet, which Courtney Lewis should have known had a high likelihood of causing injury given that they were on a paved surface; the extent of the injury and its wide-ranging effects on the victim’s life and those of his family; and, the offenders immediately left the scene without any apparent concern for the victim at the time.

Application of the Principles

[79] Aggravated assault carries a maximum penalty, by way of imprisonment, of 14 years.

[80] As can be seen from the range of sentencing in the case law put before this court, the length of any period of incarceration, and any other penalties imposed, depends on the particular circumstances of each case. In the cases relied on by the defence, while all appear to involve serious injuries, only Berry is comparable. It is the only case presented that involved both a lack of a guilty plea and permanent brain damage caused by the assault.

[81] The cases relied on by the Crown, with the exception of Gagliardi, all involved accused persons with significant records for violent offences. Or, in the case of Woodward, the court was required by the Criminal Code to take into account the evidence that the offence was motivated by prejudice or hate on the basis of sexual orientation.

[82] The sentence that this court is handing down today is not a measure of the value of losses to Ryan Turcotte and his family. The criminal court cannot adequately compensate these losses. The court wishes Ryan Turcotte and his family to know that it recognizes the devastating effect of these crimes, and the senselessness of them. The best that this court can do is to impose a sentence that takes into account the permanency and extent of Ryan Turcotte’s injuries. However, other factors must be taken into account as well.

[83] The sentence must also recognize that Aaron and Courtney Lewis are first time offenders, the offences being single instances of criminal conduct in otherwise commendable lives.

[84] As discussed previously I have grappled with the issue of Aaron Lewis’ involvement as a party to this offence and I am not satisfied that the two offenders should receive differing sentences based on their involvement.

[85] Rehabilitation is, of course, of greatest significance with first offenders and deserves attention in this case, although there are no anti-social behaviors other than the subject offences to address with these offenders. Similarly, specific deterrence would seem to have little place in this sentencing, as neither Courtney nor Aaron Lewis display the need to be influenced away from a life of crime. There is nothing in their past to suggest that they were headed in this direction.

[86] General deterrence plays a role in this case. Statistics show us that the most violent group in our society are young males between the ages of 19 and 25, into which group the Lewises fell at the time of their offences. Alcohol or drugs often play a role in triggering such violent offences.

[87] Denunciation is at the forefront of the sentencing in this case. This objective aims at expressing society’s general abhorrence and condemnation of the crime and its outcome. The importance of denunciation increases with the nature of the offence and the manner in which it is carried out. This offence involved some pre-planning arising from the phone call, seen by the fact that the two quickly came together in the parking lot, and initiated the confrontation very quickly thereafter. The evidence shows that almost immediately after meeting they approached Turcotte, and Aaron administered the initial shove. Whatever provoked this attack, which I have already found was not an assault by Turcotte, could never justify the use of such violent force against another human being. It is these senseless acts of violence that our society abhors. When such an act robs a young man of so much, as it has in this case, the court must respond with a custodial sentence of some duration even for a first time offender, even if such an offence is unlikely to happen again.

[88] The harmful consequences that flow from a criminal act are a pertinent consideration on sentencing: R. v. Dunn, at para. 32. I am therefore entitled to place significant weight upon the consequences of the actions of Courtney and Aaron Lewis, and I do. Even if they did not have the remotest intention of causing a brain injury, the violence involved in the attack, occurring where it did, made it foreseeable that something very bad could happen. And it did. And both must be held accountable.

[89] Yet because of their solid backgrounds and the other mitigating factors in this case, their penalty must only be long enough to satisfy the objectives of denunciation and deterrence.

[90] The cases of Berry, MacDonald and Desgagne all arise in Ontario and all involve custodial sentences that avoid penitentiary time for first time offenders. The sentence in Gagliardi that was upheld by the Alberta Court of Appeal seems to be somewhat of an outlier given that the Court, in upholding the sentences of 7 and 9 years, noted that the offenders’ prior records were not significant factors in the sentencing or in the appeal. In R. v. Tourville, 2011 ONSC 1677, Code J. reviewed the reported cases involving sentencing for aggravated assault and noted that the high range was from 4 to 6 years’ imprisonment for a person with a prior criminal record who commits unprovoked or premeditated assaults, and where there is no suggestion of any elements of consent or self-defence: para. 30. Based on all of the circumstances of this case, a sentence outside of the penitentiary range is an appropriate one, taking into account the objectives of sentencing, the mitigating and aggravating factors present, and the circumstances of these particular offenders.

Sentence

[91] Aaron Lewis, I am sentencing you to a period of incarceration of 2 years less one day, followed by a probationary period of 3 years.

[92] Courtney Lewis, I am sentencing you to a period of incarceration of 2 years less one day, followed by a probationary period of 3 years.

[93] There will be an order prohibiting both Aaron and Courtney Lewis from possessing any prohibited firearm, weapon or ammunition for 20 years pursuant to s. 109 of the Criminal Code.

[94] There will be an order that each provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code.

[95] There will be an order that neither shall have contact, directly or indirectly, with Ryan, Richard or Kerry Turcotte, or Melissa Turcotte-Sturdy, or Kikki Mukendi pursuant to s. 743.21 of the Criminal Code for the duration of each of his sentence.

[96] During the period of your probation you will:

1. keep the peace and be of good behavior;
2. report to probation within 72 hours of your release and thereafter as directed by probation;
3. reside at an address approved by your probation officer;
4. participate in such treatment as is directed by your probation officer;
5. have no direct or indirect contact with Ryan Turcotte or his family except through counsel during the course of and for the purposes of legal proceedings;
6. perform 200 hours of community service at a rate of no less than 12 hours per month; and
7. sign all releases and provide proof such as may be necessary for your probation officer to ensure compliance with these conditions.

HEALEY J.

Released in Open Court: May 16, 2016 NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedence over the oral reasons read into the record. In the event of any discrepancies between the oral and written versions, it is the written ruling that is to be relied upon.