COURT FILE NO.: CR-15-10000620 DATE: 20160616 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Erin Winocur, for the Crown

• and -

JAMES FENSOM Ilan Neuman, for the Defendant

HEARD: June 16, 2016, at Toronto, Ontario Michael G. Quigley J.

Reasons For Sentence

Overview

[1] James Fensom was found guilty of assault causing bodily harm in relation to Craig Burden. He was acquitted of the charge of aggravated assault against Edward Haenel. Those charges arose out of the same late night altercation that occurred as the offender, a bouncer at the Light Lounge Nightclub in the Entertainment District in Toronto, expelled the two complainants and others associated with them just before closing time on April 4, 2010.

[2] A pre-sentence report has been prepared in this matter. It is somewhat disconcerting because there is no evident expression of remorse by the offender for his conduct. He understands that he has been found criminally culpable but he does not appear to understand why, and thus there is concern raised by Crown counsel that a more lenient type of sentence I discussed with counsel at the end of the trial upon giving judgment may not be appropriate in all the circumstances.

[3] So the question against this background is what is the fit sentence for this offender in all of the circumstances.

Summary of Background Facts relating to the Offence

Circumstances of the Offences

[4] These offences arose from the physical expulsion of one Craig Burden and his group of guests from the Light Lounge Nightclub just before closing time on April 4, 2010. Mr. Burden was drunk on the night of the assault. His intoxication resulted in a confrontation with staff that resulted in the staff then requesting him and his group to leave. [1] Mr. Burden refused to comply with the request that they leave. Although denied by Mr. Burden, I found that he was likely engaging in “physical flailing” and was probably aggressive and bellicose before being removed from the Light Lounge. [2] However, I also found that the assertion that Mr. Burden struck Mr. Fensom twice in the head was embellished and possibly exaggerated. [3]

[5] Mr. Fensom used physical force in dealing with an intoxicated belligerent patron who had to be physically ejected from the Light Lounge after refusing to leave peacefully. I found on the entirety of the evidence that James Fensom used considerably more force than was necessary. [4] Mr. Burden’s behaviour prior to the assault may have constituted some provocation. [5] His behaviour after being ejected was noted by Officer Torrance [6], but Mr. Burden also denied the actions described by Officer Torrance. I expect Officer Torrance had the better description of the conduct of that group of patrons that evening. I note, however, that provocation was not claimed to be or specifically found to be a defence to the charge. Nevertheless, I found that Mr. Burden’s behavior prior to the assault may have constituted provocation [7].

[6] Mr. Fensom kicked Mr. Burden several times. These kicks were forceful and not accidental. [8] It was objectively foreseeable that these kicks would cause bodily harm. [9] These kicks caused bodily harm to Mr. Burden; specifically a broken rib, bruising and pain. Mr. Burden was required to take pain medication for one month. While these kicks may not have engaged the maximum force available to Mr. Fensom, they did engage considerable force. The medical evidence was that ribs “do not break easily.” [10]

Circumstances of the Offender

[7] The pre-sentence report shows that Mr. Fensom is a first-time offender who has strong familial and social ties to his community. Mr. Fensom also has a strong employment record and he engages in a variety of worthy volunteer programs. He no longer works as a bouncer, and indeed it appeared to be a second job at the time of the offence; not his primary employment. As such, there would seem to be little concern for recidivism and a strong foundation for a very lenient sentence to be imposed in all of the circumstances.

[8] Nevertheless, it is important to consider the pre-sentence report carefully and to recognize the real concerns it raises. In that report, at the time that report was compiled, Mr. Fensom stated “I do not feel I was in the wrong. I feel I do not need to make amends. I was on the job and feel that I was in a self-defence situation. I feel my actions were justified.” [11]

[9] As such, the probation officer who drafted the pre-sentence report expressed the following significant concern:

James Fensom is a first time offender who minimizes his responsibility for his actions in the commission of his offence. The subject was determined that his actions in regard to the offence were in self-defence. In contrary to statements provided by the victims and the arresting police officer. The subject does not take responsibility for his actions. This is of great concern. [12]

Legal Parameters

Positions of the Crown and the Defence

[10] The Crown seeks a term of incarceration of 60 days to be served intermittently, followed by 12 months of probation, a firearms prohibition and a DNA order.

[11] Defence counsel claims that a conditional discharge with probation would be an adequate sentence in the circumstances. The defence accepts that a period of probation with community service is appropriate given the injury, and does not contest the firearm prohibition. Although this is a primary offence, given the circumstances of the offence and the extreme unlikelihood of Mr. Fensom becoming a repeat offender, defence counsel argues persuasively that the intrusiveness of a DNA order on personal integrity may be grossly proportionate to any benefit of having Mr. Fensom’s DNA included in the national registry.

Mitigating and Aggravating Factors

[12] The following are the obvious factors to take account of in mitigation:

(i) James Fensom is a first-time offender who has strong familial and social ties to his community;

(ii) Mr. Fensom was acting in the course of his employment and believed he was required both by law (the Liquor License Act) and by contract to eject a drunk and unruly patron; [13]

(iii) While the injury to Craig Burden was significant and resulted from the excessive force used in ejecting the complainant, there was no gratuitous violence;

(iv) James Fensom worked for many years as a security guard in clubs and for approximately 18 months or more at the Light Lounge with no evidence of any prior use of excess force and with no evidence of any animus towards the complainant;

(v) James Fensom has no criminal record and persons who know James Fensom speak highly of him;

(vi) The situation was initiated by the complainant being drunk and disorderly;

(vii) The accused has been an asset to the community and a hard worker;

(viii) Since these events occurred, James Fensom has experienced his own challenges of a life-threatening nature as he has been through cancer treatment and has survived with good prospects for the future;

(ix) It is both aggravating and mitigating, depending on ones perspective, that James Fensom was acting as a security guard at the time of this incident and as such was responsible for the safety of the other patrons of the Light Lounge Nightclub. It was the circumstances of the evening that resulted in the expulsion of the complainant and others;

(x) The excessive use of force appears to have been a momentary lapse, almost an autonomic response by James Fensom, but importantly, he did not pursue Mr. Burden out the door or try to engage in further contact when Mr. Burden re-entered the club seconds after being initially ejected;

(xi) Mr. Fensom has a strong employment record and engages in a variety of worthy volunteer programs; and

(xii) To the extent that I consider this assault to have arguably been provoked, as both counsel concede, that is a significant mitigating factor.

[13] Carrying on, however, regrettably, there are also factors that are claimed to be aggravating that I must factor into the assessment:

(i) There has been an absence of understanding or remorse until recently and particularly today. In fact, Mr. Fensom may continue to consider his actions to have been justified. He has made plain today the circumstances that gave rise to those actions. I accept what he says to me.

(ii) The injuries caused were significant; and

(iii) As noted, Mr. Fensom was acting as a security guard at the time of this incident and as such was responsible for the safety of the patrons of the Light Lounge Night Club.

Principles of Sentencing

[14] Section 718 of the Criminal Code states the fundamental purposes of sentencing and lists its underlying objectives. They are to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. Among the specific objectives listed in section 718 of the Criminal Code, there are several that are relevant here. They are to denounce unlawful conduct, to deter the offender and others from committing offences and to separate offenders from society where necessary. In a case such as this, general deterrence to others is paramount. However, the alleged absence of remorse or understanding by this offender of his actions also requires that I factor the specific needs and requirements of this offender into deciding what sentence to impose.

[15] Section 718.1 of the Code requires that the sentence be proportionate to the offence and the degree of the offender’s responsibility. An offender is not to be deprived of her liberty or his liberty if less restrictive sanctions may be appropriate in the circumstances of the case. All available sanctions that are reasonable in the circumstances, other than imprisonment, must generally be considered for all offenders.

Reasons

[16] Crown counsel says she appreciates the comments I made regarding sentence at the conclusion of the trial, specifically, that having regard to the element of provocation arguably present in this case, an appropriate sentence might be fashioned around Mr. Fensom performing community service. The suggestion was that efforts be made to find a place for Mr. Fensom to speak to people who are training to be security guards on how to properly eject patrons from nightclubs, and to focus on ensuring that they do not lose control of their actions and apply force that is excessive in all of the circumstances. Specifically, security guards like Mr. Fensom need to understand that there are limits to reasonable behavior, and that the use of excessive force in expelling unruly or bellicose patrons from drinking establishments will and can never be tolerated. It is and will remain criminally culpable under our law to apply excessive force in such circumstances and cause bodily harm.

[17] Since the conclusion of the trial, however, the Crown has received the pre-sentence report and is concerned that Mr. Fensom believes his actions in this case to have been justified. This causes the Crown to have several concerns:

(i) To date, Mr. Fensom has failed to appreciate that his actions were not justified. She claims he does not appreciate that they were criminal. He allegedly expresses an absence of remorse or concern for Mr. Burden. The Crown thus claims that the need for this sentence to address specific deterrence for this offender is far greater now than was apparent at the conclusion of the trial.

(ii) In light of Mr. Fensom’s views regarding his conduct, the Crown is of the view that Mr. Fensom should not be instructing persons training to be security guards.

(iii) The absence of remorse from Mr. Fensom increases the need for denunciation by the Court.

[18] On the basis of these factors, the Crown therefore invites me to find that the type of community service I initially contemplated is not appropriate in this case and that an intermittent sentence of 60 days is appropriate. The Crown requests that it be followed by 12 months of probation, a firearms prohibition and a DNA order.

[19] I would respond to those concerns with a number of observations. Although the author of the pre-sentence report notes a lack of remorse on the part of the offender, James Fensom testified that he believed he was at risk with this complainant. It is not entirely surprising to me that he takes the view that he does. The fact that he still holds that belief is not at odds with my finding that he used excessive force. Instead, I find James Fensom’s comments to be entirely consistent with the entire honesty of his evidence at trial and his assessment of the situation. I may not agree with his perception, but he did not try to cover up what happened or cloak it with any sort of mythical or distancing patina. He spoke plainly about what he saw, what caused him to act, and how he acted and believed he was justified in acting as he did.

[20] Without more extensive training and alternate resources he would, faced with the same situation, be in no better position to act differently. Mr. Fensom could and I believe would participate in speaking and advocating for greater training and greater reliance on the police to engage in physical contact with patrons. Before this sentence was pronounced today, Mr. Fensom asked to and was given the opportunity to address his response. He now shows more nuanced understanding of his conduct than was evident previously.

[21] The accused requests that the court grant a conditional discharge with probation. A conditional discharge will be an appropriate sentencing response where little is to be immediately gained from the imposition of a custodial or non-custodial conditional sentence, and where the real focus of the sentencing process is not retributive, but rather forward looking towards rehabilitation.

[22] Whether he realizes it or not, Mr. Fensom is a lucky man. While the offence for which he has been convicted is serious enough, he was acquitted of the far more serious offence of aggravated assault against Edward Haenel. He was acquitted on the basis of a right of self-defence in response to the sight of Mr. Haenel’s fist moving quickly towards his head. However, had he been convicted of that offence as well, the sentencing parameters here would have been quite different. Mr. Fensom could have been looking at a custodial sentence of some months duration. As it is, however, he has avoided that result.

[23] One of the most important messages that this case needs to convey is that it is not open to security staff at nightclubs and similar establishments to use excessive force in discharging their employment duties, and the fact that they may be employed as security staff, be totally sober and believe they are enforcing the Liquor Licence Act or maintaining security at nightclubs will not relieve them of criminal culpability and the punishment that may and will follow if excessive force is used in circumstances like this one.

[24] Of course the Craig Burden party was certainly drunk and disorderly. That is plain on the evidence. They had hired a private bus to drive them given their celebratory birthday intentions, and they had been drinking for many hours by the time this altercation arose just before the closing at the night club. Of course they were boisterous and unruly. Surprise, surprise! And of course, James Fensom and his fellow security staff members at the Light Lounge Night Club wanted to get them out of there as quickly as possible with minimum disruption to the enjoyment of other patrons that evening.

[25] But that does not become a carte blanche for this offender or any security guard to engage in any kind of aggressive violent conduct, such as kicking people with force while they are down on the floor. Concerns over self-protection cannot become the basis for an unrestrained physical response to be acceptable. It will not be, as this case shows. The message here is to this offender, for sure, and to assist in his rehabilitation and understanding of this phenomenon, but even more important is the deterrence of others, and the education of other security staff that they will ignore the need for restraint only at their own peril.

Ancillary Orders

[26] The weapons prohibition order will issue, but I agree with defence counsel that even though this is a primary offence, given the circumstances of the offence and the extreme unlikelihood that Mr. Fensom will become a repeat offender, the intrusiveness of a DNA order on personal integrity is seriously disproportionate to any benefit of having Mr. Fensom’s DNA included in a national registry. There will be no DNA order made. It is unnecessary.

Final Decision

Mr. Fensom, you will now stand up please, sir.

[27] Mr. Fensom, as your counsel has acknowledged, there are reported cases that support jail, suspended sentence and discharge for assaults causing bodily harm in circumstances like these. Defence counsel has submitted cases for my consideration in which more lenient sentences have been granted, and frankly, I am satisfied those are the appropriate cases in this circumstance. [14]

[28] I am satisfied here and have reached the conclusion that a conditional discharge is the appropriate disposition in the circumstances of this case.

[29] The terms of probation will be the statutory terms and as well, as follows:

(i) No contact with Craig Burden or Edward Haenel;

(ii) Report to probation as required and reside at an address approved of by the probation officer;

(iii) No weapons;

(iv) Perform 100 hours of community service as set out by the probation officer, and in particular, attend for counseling, education and sensitivity training relative to the appropriate and permitted conduct of nightclub and similar security officers as directed by the probation officer and after doing so, to speak to other guards to address the training that is given to the guards, specifically to speak to persons training to be a security guard. Both aspects of that community service may be completed at the Guard Course, I believe, subject to what the probation officer will say, which is at the Ontario Security Licence as indicated in the materials, located at 880 Ellesmere Road in Scarborough. Mr. Boutros is the contact person, and is number you both have it.

(v) You will sign the necessary releases, Mr. Fensom, to allow the probation officer to monitor progress in your counselling.

[30] As indicated, sir, I am conditionally discharging you to serve this term of probation as indicated. You must understand, however, that this is not a suspended sentence, it is rather a discharge of sentence that is conditional upon you fully and properly fulfilling the terms of your probation as I have ordered them. Should you fail to do so, you may be returned to me for the imposition of a sentence at that time that I consider fit. I am confident, however, that this will not be necessary, and that I can be confident that you will absorb the message that I have sought to convey to you today, and I need have no meaningful or realistic concern of you reappearing before Her Majesty’s Courts in the future.

[31] I hope you have learned from this experience, but I also wish you well with your health challenges and your future prospects. As a person I am confident you will be a fully law abiding Canadian citizen for the remainder of your days.

Michael G. Quigley J.

Released: June 16, 2016

COURT FILE NO.: CR-15-10000620 DATE: 20160616 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – JAMES FENSOM REASONS FOR SENTENCE Michael G. Quigley J. Released: June 16, 2016

[1] Paragraphs 36 and 67 Reasons for Judgment [2] Paragraph 41 Reasons for Judgment [3] Para 41 of the reasons for Judgment. [4] Paragraph 70 Reasons for Judgment [5] Paragraph 61 Reasons for Judgment [6] paragraph 22 Reasons for Judgment [7] Paragraph 61 of the Reasons for Judgment. [8] Paragraph 51 of the Reasons for Judgment. [9] Paragraph 53 of the Reasons for Judgment. [10] Paragraph 71 of the Reasons for Judgment. [11] Page 5 of the Pre-sentence Report. [12] Page 7 of the Pre-sentence Report [13] Paragraph 67 Reasons for Judgment [14]