Court File and Parties

COURT FILE NO.: 159/16 DATE: 2016-08-11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen, Appellant AND: Patrick Oelkuch, Respondent

BEFORE: J.A. Ramsay J.

COUNSEL: I. Singh for the appellant Crown M. Shea for the respondent

HEARD: August 10, 2016 at St Catharines

Endorsement

[1] This is an appeal by the Crown under s.813 of the Criminal Code from the sentence imposed by Mr Justice Colvin in proceedings on summary conviction. The judge sentenced the respondent to 1 day in gaol on top of 10.5 months presentence custody plus three years’ probation for simple assault and assault with a weapon. The Crown submits that the omission of a condition of probation that would prohibit the respondent from continuing to reside in the same condominium apartment building as the victim was unreasonable and resulted in a sentence that was demonstrably unfit.

[2] The facts were determined by the judge after three days’ of trial. The victim bought an apartment in the building in which the respondent was living with his mother. He was renovating the unit. This involved the use of power tools and as a result noise. There had apparently been complaints from some of the other residents of the building. On … April 24, 2015 [the victim] had been using a grinder to remove a popcorn ceiling. At six o’clock in the evening, or thereabouts, he decided to stop work. He was putting his tools away. As he did so, he heard a knock at the door. Mr Oelkuch was at the door. He was upset and complaining about the noise. According to Mr Edwards’ testimony he was swearing. He said something about not being able to enjoy his dinner for the noise.

Unbeknownst to [the victim] he was dealing with someone who suffers from a number of psychiatric and emotional problems. … [The victim’s] initial response was to tell Mr Oelkuch to “lose the attitude.” Under these circumstances, and dealing with someone suffering from these illnesses, this did not calm the situation or Mr Oelkuch at all. Mr Oelkuch then came at [the victim] and, according to the latter, threw punches at him. The accused’s version is that he came at [the victim] but that he grabbed him by the neck. In the course of this scuffle, they backed into the unit and ended up on the floor. [The victim] ended up on top and was telling Mr Oelkuch to stop.

[The victim] in cross-examination was uncertain as to whether he had the hammer in his hand when he opened the door. The hammer, obviously, was ultimately caught under his arm and was either pulled from him or scraped against him in the course of the struggle. He testifies to the hammer being swung at him and hitting him a glancing blow to his elbow. The struggle seemed over. They backed towards the entrance and as they did, Mr Oelkuch reached into a drawer and took up a kitchen knife. … The struggle resumed. In the course of it, [the victim’s] shirt was cut and he received a scratch mark on his chest that can be seen in the pictures of Exhibit 1. At this point [the victim] managed to pin Mr Oelkuch to the door and he fell to the floor. The knife fell from his grip to the floor and [the victim] stood on it, preventing Mr Oelkuch from getting it back.

Mr Oelkuch then went to the elevator and returned to his unit. [The victim] called the police.

[3] The respondent denied having the hammer. The injuries to the victim were consistent with a fall on the floor, a blow from a hammer or a blow from fists. The judge resolved the doubt on that point in the respondent’s favour. As to the initial attack, the judge convicted the respondent of simple assault only. On the charge involving the resumption of the attack with the knife the issue put to the judge was self-defence. The judge rejected the defence position and convicted the respondent of assault with a weapon.

[4] The respondent is 55 years old. The victim would be close to that one way or the other.

[5] The respondent’s previous criminal record consists of a fine for assault in 1987 and imprisonment for three years on top of 20 months’ pretrial custody for attempted murder. The latter conviction was imposed in 2006 for an offence committed in 2004. From the psychiatric assessment report before the judge it appears that in 2004 the respondent seriously injured his boss, a man named Rob, and Rob’s wife in a stabbing. He showed no remorse for this to his own psychiatrist in 2011. In 2016 the respondent said of the 2004 stabbing, “To me Rob had it coming.”

[6] In 2013 the respondent was seen at St Catharines General for assessment of mood, anxiety and homicidal ideation. In 2015 his chief complaint was suicidal ideation because of his return to prison.

[7] The judge ordered a mental health assessment before sentencing. The assessment took place at St Joseph’s in Hamilton from January 27 to February 26, 2016.

[8] The report shows that the respondent spontaneously endorsed ideas of fascination towards death: “For 30 years I have been fascinated by the fine line between life and death. You are there and then you are not. I picture the process of dying, but I have no plan to kill.” Of the index offence, the respondent said, “The victim lives in the same building as my mom, he deserved it, I am not moving.” The respondent showed insight into his conduct only to the extent of saying, “I should not have done what I did but people have no respect, it makes me angry.” The respondent acted appropriately throughout his stay at St Joseph’s, but the doctors noted an undertone of irritability.

[9] In both the 2004 and 2016 cases the respondent expressed remorse in court. The quality of the remorse appears doubtful, but the judge did not rely on it.

[10] The report notes that in 2011 the respondent told his own psychiatrist that he has a desire to harm people.

[11] The doctors diagnosed Major Depression with anxiety and Personality Disorder with borderline and antisocial features. They considered the respondent a “moderate risk to re-offend violently.”

[12] The judge considered the presentence custody to be the equivalent of a 15-month sentence. In his opinion that was sufficient incarceration. He imposed a DNA order and a firearm prohibition. No one takes issue with these three aspects of the sentence. The judge also imposed a lengthy probation order with conditions that the respondent report to a probation officer as often as required. In addition the respondent was forbidden to have any communication with the victim or his wife. He was required to participate in psychiatric treatment directed by the probation officer and to provide any directions necessary to monitor compliance.

[13] The judge considered victim impact statements to the effect that the victim and his wife are afraid of the respondent being in the building and concerned about the future. In dealing with the Crown's submission that the respondent should not be allowed to continue to live in the building, the judge said:

I have a lengthy report done by [two psychiatrists]. They have, in detail, identified Mr Oelkuch’s problems. He has a longstanding history of Depressive Disorder with anxiety. He is in need of continuing treatment. He also has a Personality Disorder with borderline anti-social traits, for which he needs psychotherapeutic intervention.

The other factor is that they have done a careful risk assessment. Mr Oelkuch comes through as a moderate risk to re-offend violently. There are three entries on his record. They are each about 10 years apart, including this one; so that he can, and does, go lengthy periods of time without getting into problems as a result of his combination of medical and emotional problems.

What concerns me is that in the same report … the authors raise a concern that if Mr Oelkuch cannot use his mother’s residence … as a safe place and have the support of his mother, there is a risk of suicide.

[14] The judge was referring to the conclusion of the report, in which Dr Davila and Dr Ferencz quote Dr Mamak to say:

Mr Oelkuch is a rather isolated individual with very few supports in the community, save his mother. He has few friends and is estranged from sisters. Mr Oelkuch presents as rather dependent on his mother for support and he is rather fearful of not being able to return to his mother’s residence in the future. Given his claim that he will execute a plan to jump off of a bridge if he is not allowed to return home, Mr Oelkuch’s suicide risk will need to be closely monitored if such a condition is imposed. He would benefit from being provided support and assistance in securing alternative accommodation.

[15] The judge therefore decided not to impose the requested condition, but provided that whenever the respondent is in the public areas of the building he must be accompanied by a responsible adult and that in any event he must keep at least 10 metres away from the victim and his wife.

[16] On consent both parties have filed fresh evidence. The Crown’s evidence consists of an affidavit from the victim and one from his wife, attesting to their fear of the respondent and how it has made life uncomfortable for them since his release. They are constantly on alert and cannot enjoy their property normally. The common areas are small and narrow and often without an easy means of escape. There is also an affidavit from the probation officer who deposes that since sentence was imposed,

a. the respondent has resided with his 80-year-old mother, whom he helps with her daily needs in view of her health problems; b. there are no other responsible adults living with him; c. the respondent’s mother appears to understand her role as responsible adult; d. the respondent lives on ODSP and could afford to live on his own; and e. Ministry records show that the respondent has reported longstanding chronic anger and impulse control issues and is inclined to hold grudges and engage in vindictive, revenge-seeking behaviour.

[17] The respondent has filed the report of Mr Climenhaga, the therapist at the coping skills group attended by the respondent from July 2013 to March 2015, and again beginning on June 14, 2016. The respondent has also agreed to attend the Mental Health/Addictions group beginning next week. Mr Climenhaga reports that he has met with the respondent, and the respondent has demonstrated strategies to cope with avoiding any conflict with the victim and his wife.

[18] Mr Climenhaga also says

Mr Oelkuch has stable housing and support with his mother. In my opinion if Mr Oelkuch was forced to move out of his residence with his mother this could have a negative effect on his mental health because of the loss of his support and the risks that come from residing in low income housing.

[19] Mr Climenhaga provided a report to the judge at the time of sentencing. It did not address the question of the potential effect of forcing the respondent to change his residence. At the sentencing, the judge only had comment on that issue from the psychiatric assessment report.

[20] The Crown submits that the sentence is demonstrably unfit and that the judge unreasonably failed to give adequate consideration to the protection of the victim, contrary not only to accepted principles of sentencing but to ss. 9 and 10 of the Canadian Victims’ Bill of Rights, S.C. 2015, c.13. The conditions imposed in their practical effect provide no protection. Furthermore the order makes no workable provision for an adequate responsible person.

[21] The respondent submits that the judge was in the best position to assess the situation and that his sentence reflects reasonable protection for the victim. Deference is due his findings of fact, which are supported by evidence, and his conclusions, which are the product of transparent and logical reasoning. Disrupting the stability of the respondent’s living arrangements do more harm than good.

[22] The applicable principle is set out in R. v. Shropshire, [1995] 4 SCR 227. Absent legal error, an appeal court will not interfere unless the sentence is clearly excessive or inadequate. Unreasonableness in the sentencing process involves a sentencing order falling outside the acceptable range.

[23] It is difficult to speak of terms of probation falling into a range. There are innumerable ways to confront any given practical problem. Here the judge chose not to exclude the offender from the apartment complex, but to impose restrictions on his movements within the complex.

[24] There are problems with the chosen solution, but so would there be with any solution. I understand the frustration of the victims, who have to walk on eggshells when they were not in the wrong. The judge however owed a duty not only to them, but to the community as a whole. In his judgment, what tipped the balance was the potential harmful effect of disrupting the respondent’s living arrangements. It might not have done so for me but I cannot say that the judge’s conclusion was unreasonable or that it resulted in a disposition that is clearly unfit.

[25] For these reasons the appeal is dismissed.

J.A. Ramsay J. Date: 2016-08-11