Court File and Parties
COURT FILE NO.: 14-46 DATE: 20170515 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Edward Hall, Defendant
COUNSEL: A. Kapend, counsel for the Crown P. Giancanterino, counsel for the Defendant
HEARD: January 27, 2017
Reasons for Sentence
LACELLE, J.
Introduction
[1] Following a trial before me, Edward Hall was found guilty of a number of offences, including aggravated assault, assault with a weapon, possession of a weapon for a dangerous purpose, assault, and breach of probation. I found that Mr. Hall had stabbed the victim in the aftermath of a house party. The matter is before me now for sentencing.
[2] At the time of the sentencing hearing, Mr. Hall was awaiting the imposition of sentence by Laliberte J. for another aggravated assault and other offences. The parties agreed that prior to the imposition of sentence in this case, it was necessary to confirm the court’s sentence in that matter in order to confirm what period of pre-sentence custody was used in that sentence, and to make further submissions in writing on the issue of the totality of the sentence appropriate in this case. I have now received those written submissions and they have amplified the record on the sentencing hearing. I have also reviewed the reasons for sentence given by Laliberte J.
The positions of the parties
[3] The defence argues that a sentence in the range of 4 years is appropriate in this case, subject to reduction for various factors. In support of this position, counsel highlights that the accused is an aboriginal offender whose life has been seriously impacted by the circumstances of his upbringing. Counsel also argues that all the pre-sentence custody served by the accused warrants enhanced credit at the rate of 1.5 to 1, as well as an additional 90 days of qualitative credit. He further suggests that the totality principle should reduce the sentence by twelve months. Accordingly, this would leave an additional term of imprisonment of 265 days to be imposed at this time. In oral submissions, the defence also suggested a period of probation for two years to follow the custodial portion of the sentence.
[4] The Crown seeks a sentence of six years consecutive to the sentence imposed on January 30th, 2017 by Justice Laliberte, less credit for the pre-sentence custody. The Crown does not agree that all the pre-sentence custody should be credited at a rate of 1:5 to 1. While she concedes that the conditions in which the accused was incarcerated prior to his trial during the second period of pre-sentence custody warrants some enhanced qualitative credit, she submits that a sentence of six years would reflect that credit. Similarly, the Crown argues that a sentence of six years would give meaningful application to the Gladue principles which apply in this case, and that a consecutive sentence of this length respects the totality principle.
[5] The issue I must decide is what sentence is appropriate given the circumstances of the offence, the offender, the relevant principles of sentencing, and the range of sentence imposed in similar cases.
The circumstances of the offence
[6] I begin by outlining the circumstances of the offence. In my reasons for decision, I found that the accused had kicked and stabbed the victim in the stairway of a house where a house party attended by both men had occurred. I further found that there was no provocation by the victim leading up to this assault, and that it was totally unexpected.
[7] At this time, I also confirm that I am satisfied beyond a reasonable doubt that prior to these events, the accused and the victim had been friends. At the time of the offence, the accused was intoxicated. He had ordered everyone to leave the house after being assaulted by other individuals. I accept beyond a reasonable doubt that the accused lashed out at the victim after the victim returned to the house to retrieve a backpack he had left behind, and that the accused yelled at him to get out. I accept the victim’s evidence that he had retrieved his backpack and was making his way down the stairs to leave the house when he was attacked by the accused. After kicking the victim in the back when he was at the top of the stairs, the accused stabbed the victim multiple times with a butcher type knife. The victim suffered four stab wounds, two in the area of his under arm and two to his upper left arm. He also had a cut to the left side of his face.
[8] While the wounds were relatively shallow, the medical evidence indicated that the victim suffered a pneumothorax (collapsed lung) to his left lung. While there was no viva voce evidence called to clarify whether this was caused by the kick to the victim’s back or the stabbing, I am satisfied beyond a reasonable doubt that the accused’s assaultive behaviour caused this injury. Further, the victim required stitches to close his wounds, and morphine for the significant pain his injuries caused him. At the time of the trial, the victim continued to experience physical problems as a result of the injuries. He said that over-exertion could cause his lung to deflate again, and that he could not sleep on his left side too long because of pain to his rib cage, which he attributed to the medical treatment he received following the stabbing.
The circumstances of the offender
[9] With respect to the circumstances of the offender, two pre-sentence reports and a Gladue report have provided me with information about Mr. Hall’s background and circumstances. I accept the contents of those reports.
[10] Mr. Hall is a member of the Mohawk First Nation. He is 47 years old. He grew up in Syracuse, New York, before moving with his mother to the Akwesasne Reserve on Cornwall Island when he was about 16 years old.
[11] His childhood was not a happy one. Both of his parents were alcoholics. His father, who was a police officer, was abusive towards his mother, and towards the accused. The accused’s mother was violent with the accused’s father. The accused and his sister were present in the home when their parents fought, and witnessed the abuse. The accused also suffered significant trauma at the hands of his father, and another family member. He has not received treatment for these traumas.
[12] Mr. Hall is now estranged from his father, but he does maintain a relationship with his mother, who now resides in a nursing home to receive care for dementia. While he has extended family in the area, he has not had contact with them since his incarceration.
[13] Mr. Hall is himself a father. He has five children. He is estranged from the children’s mother, who was the victim of an assault by him in 2012. At this time, Mr. Hall believes that the children may have been removed from their mother’s care, and they may be in the care of social services. He indicates that it is his hope upon release that he would get his children back.
[14] Mr. Hall has limited education. He was bullied at school, and suffered from discrimination. His report is that the last year of schooling he completed was grade 8 or 9, and that he never returned to school after the age of 16. Notwithstanding that, he managed to support his family when he resided with them. However, he has never had a job for longer than eight months.
[15] Insofar as his mental health is concerned, Mr. Hall reports that he was diagnosed with ADHD and bi-polar disorder at the age of thirteen. Because he had a history of running away from home, he was placed in a psychiatric program by his parents. He saw a psychologist a few times a week for a year or two.
[16] Substance abuse is an issue for Mr. Hall. He has been consuming marijuana steadily since he was twelve. He was introduced to alcohol before he was ten. His drug and alcohol abuse have led to admissions in a residential substance abuse programme. He has also attended Alcoholics Anonymous. He described his substance use to the author of the PSR as daily marijuana use and binge drinking, and acknowledged that his drinking can resemble his father’s drinking.
[17] Mr. Hall acknowledges he had a problem with anger prior to his incarceration. He has made efforts to change since coming into custody, however. He has participated in bible study and religious correspondence courses and has become a born again Christian. He has attended AA meetings and worked with the Native Institutional Liaison Officer. He has not participated in any anger management or partner assault programming.
[18] In terms of Mr. Hall’s heritage, the PSR Addendum and Gladue Report set out the history of Mr. Hall’s Mohawk community. Like so many others in this country, the residential school legacy is part of their history. It is part of Mr. Hall’s immediate family’s history, as his grandmother and mother were sent to residential schools. This was part of Canada’s aboriginal policy historically, and it has been described as cultural genocide by the Truth and Reconciliation Commission of Canada in the summary of their final report. The Gladue evidence confirms that because of that history the Mohawk community has suffered from tragedy, abuse, violence and alcoholism. A shattered cultural identity and fractured social support systems have been the result for families and individuals. As noted by the author of the PSR addendum, “these factors increased the likelihood of difficulties for the subject throughout his life”. They have contributed to the social problems experienced by Mr. Hall.
[19] Mr. Hall is now reconnecting with his aboriginal heritage, and has expressed a willingness to participate in aboriginal programming in the community. The reports confirm that such programming is available in the community.
The principles of sentencing
[20] The Criminal Code sets out a number of principles of sentencing which must be considered in determining a fit sentence. The fundamental purpose of sentencing is confirmed in s. 718. That section provides that the sanction imposed by the court should have one or more of the following objectives:
a. To denounce 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 and to the community.
[21] In sentencing an offender, s. 718.1 provides that the court must adhere to the fundamental principle of ensuring that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 of the Code identifies additional principles of sentencing, including that the court should increase or decrease the sentence to account for any relevant aggravating or mitigating factors.
[22] In this case, s. 718.2(c), (d), and (e) have particular relevance, and merit further discussion.
The totality principle
[23] Section 718.2(c) of the Code provides that “where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh”. This expression of the principle of totality is an important component of the fundamental principle of proportionality: R. v. Johnson, 2012 ONCA 339 at para. 16.
[24] What this means for sentencing judges is that care must be taken in sentencing to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender, and that the sentence is not crushing having regard to the accused’s age, circumstances, and rehabilitative prospects. The Supreme Court has directed in R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 42 that
[t]he effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”.
[25] As summarized in R. v. Johnson, 2012 ONCA 339 at para. 18,
… a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender. The overall length of the custodial period imposed must still relate to and reflect the variety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders from society where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safe society: Criminal Code, s. 718. In this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns. [citations omitted]
[26] The totality principle applies even where part of the total term of incarceration includes a pre-existing sentence. In these circumstances, the totality of all the sentences must satisfy the proportionality requirement: see R. v. Parry, 2012 ONCA 171 at paras. 18 and 23, and Johnson at paras. 19-20. However, in these circumstances, the totality principle has a “somewhat tempered effect”: see Johnson at para. 22. A sentence cannot be either unduly harsh and excessive, or overly lenient and unresponsive to other purposes and principles of sentencing, including denunciation, deterrence, the promotion of a sense of responsibility in offenders and acknowledgement of harm done to victims and the community, and the protection of the public. Our Court of Appeal has held that it is in this sense that an offender “ought not to be seen to be reaping benefits from his previous serious criminal misconduct”: see Johnson at para. 23.
[27] Accordingly, as directed in Johnson at paras. 24 and 25, a sentencing judge must consider that in addition to the principle of totality there are other considerations regarding the need to protect the integrity of the sentencing process – public “confidence in the fairness and rationality of the system” … This need to protect the integrity of the sentencing process, and the overall purposes and goals of sentencing, are to be balanced against the recognition that there will be situations where, globally speaking, a combined sentence will simply be too harsh and excessive … at the end of the day, the subsequent sentencing judge will determine how much weight to give to the existing remaining sentence by assessing whether the length of the proposed sentence plus the existing sentence will result in a “just and appropriate” disposition that reflects as aptly as possible the relevant principles and goals of sentencing in the circumstances.
The principle of restraint and consideration of the circumstances of aboriginal offenders (the Gladue principles)
[28] Sections 718.2(d) and (e) codify the principle of restraint in sentencing. Section 718.2(e), which requires the court to consider all available sanctions other than imprisonment for all offenders, “with particular attention to the circumstances of aboriginal offenders”, is also intended to be remedial. It is intended to ameliorate the serious problem of overrepresentation of aboriginal people in custody, and to encourage sentencing judges to have recourse to a restorative approach to sentencing: R. v. Gladue, [1999] 1 S.C.R. 688 at para. 93.
[29] There is a judicial duty to give the provision’s remedial purpose real force: Gladue at para. 93. Unfortunately, as noted by the Supreme Court in R. v. Ipeelee, notwithstanding this direction in Gladue, the circumstances requiring the remedial function of s. 718.2(e) remain pressing. Rates of incarceration of indigenous persons increased from 12 percent of all federal inmates in 1999 when Gladue was released, to 17 percent in 2005: Ipeelee at para. 62.
[30] The provision applies to all indigenous offenders. It does not require an indigenous offender to establish a causal link between his or her background factors and the commission of the offence before those factors are considered by the sentencing judge: Gladue at para. 93 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at paras. 82 and 87.
[31] Judges must take a special approach in sentencing indigenous offenders. A judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular heritage or connection: Gladue at para. 93. Courts must take judicial notice of the history of aboriginal persons in Canada, including the history of colonialism, displacement and residential schools, and how that history continues to translate into various social problems in indigenous communities, including higher rates of substance abuse, unemployment, suicide, and incarceration for indigenous peoples: Gladue at para. 93 and Ipeelee at para. 60.
[32] While in some cases the jail term for an aboriginal offender may be less than that imposed on a non-aboriginal offender for the same offence (see Gladue at para. 93), these factors will not necessarily lead to a different sentence. They will always, however, provide a context for considering the circumstances of the offender involved in the case: Ipeelee at para. 60. As explained in Ipeelee, “systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness”. They are understood to be mitigating in nature because “they may have played a part in the aboriginal offender’s conduct”. In other words, for many indigenous offenders, “the reality is that their constrained circumstances may diminish their moral culpability”: see Ipeelee at para. 73.
[33] As far as the sentencing analysis is concerned, the Court of Appeal for Ontario in R. v. Kreko, [2016] ONCA 367 at para. 23 explained that “what is required is that the factors must be tied to the particular offender and offence(s) in that they must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives in sentencing”[emphasis added](see also Ipeelee at para. 83). The fundamental principle of sentencing, that is of ensuring that the sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender, is thus respected: Ipeelee at paras. 37 and 73.
[34] This distinct methodological approach to sentencing is required in all cases involving indigenous offenders, and applies to cases involving serious offences: see Ipeelee at paras. 84-87 and Kreko at para. 23. The court in Gladue directed that “even where an offence is considered serious, the length of the term of imprisonment must be considered”: see para. 79. While the court in Gladue went on to state that the more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between indigenous and other offenders, it later cautioned in R. v. Wells that this “was not meant to be a principle of universal application”: see Wells, 2000 SCC 10, [2000] 1 S.C.R. 207 at para. 49. In the end, as stated in Gladue, “[a]s with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis. … The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances”: see Gladue at paras. 80-81.
[35] As regards the need to consider the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his particular aboriginal heritage or connection, the Supreme Court recognized in Wells that “it is often the case that imposing a custodial sentence on an indigenous offender does not advance the remedial purpose of s. 718.2(e)” for the offender or his community. This is particularly true for less serious or non-violent offences where the goal of restorative justice may be given greater weight: Wells at para. 39.
[36] At the same time, the court clarified that it is reasonable to assume that for some indigenous offenders, depending on the nature of the offence, the goals of denunciation and deterrence are relevant to the offender’s community: see para. 42 and Gladue at para. 78. Further, even if they are not, those goals may predominate in appropriate cases: see Gladue at para. 78. Accordingly, it is open to trial judges to give primacy to the principles of denunciation and deterrence on the basis that the crime involved is a serious one: Wells at para. 44.
[37] Nevertheless, in the appropriate circumstances, a sentencing judge may accord the greatest weight to the concept of restorative justice in a case involving a serious crime. These circumstances may include cases where there is evidence of the manner in which the community is addressing “criminal activity associated with social problems … in a manner that emphasizes the goal of restorative justice”: Wells at para. 49. Regardless, sentencing judges must consider the effectiveness of the sentence itself given the offender’s indigenous history and heritage: see Ipeelee at para. 74.
The pre-sentence custody
The legal principles
[38] Section 719(3) provides that a court may take into account time spent in custody by an offender prior to sentencing. Section 719(3.1) permits a judge to provide maximum credit for time spent in custody at a ratio of 1:5 to 1 “if the circumstances justify it”.
[39] In R. v. Summers, [2014] SCC 26, the Supreme Court of Canada considered whether the loss of eligibility for early release was a circumstance which justified enhanced credit under s. 719(3.1). The court confirmed at paras. 70-71 that judges should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres. It directed that the loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1:5 to 1 even if the conditions of detention are not particularly harsh. A lower rate may apply if the detention resulted from the accused’s bad conduct, or where the accused is not likely to obtain early release or parole.
[40] As regards enhanced credit that is qualitative in nature, the court noted that remand detention centres tend not to provide the rehabilitative programming available in correctional facilities. For this reason, pre-sentence detention may be more onerous. In addition, overcrowding, inmate turnover, labour disputes and other factors may make pre-sentence detention more onerous. In the result, the court directed that the “impact of overcrowding, or a lack of educational programs, varies depending on the particular offender’s needs, character and disposition. Assigning enhanced credit on this basis is a qualitative, fact-dependent and discretionary exercise”: see Summers at paras 28-29.
[41] Even before Summers, the Supreme Court of Canada had held that state misconduct may be a relevant factor in crafting a fit sentence: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 3, 53-55. Since Summers, various courts have determined that qualitative credit is appropriate because of various conditions, including the number of lockdowns which occurred while an offender served pre-sentence custody (see for instance R. v. Doyle, [2015] ONCJ 492, R. v. Sutherland-Cada, 2016 ONCJ 650, R. v. Bedward, 2016 ONSC 939, and R. v. Williams, 2016 ONCJ 96). As noted in Williams at para. 16, while lockdowns may be necessary in various circumstances, “what is not or should not be part of institutional life is repeated lockdowns due to staffing levels”. However, while patterns of lockdowns due to staffing issues may be worrisome, some evidence as to the effect of those conditions on the accused will be necessary to determine whether an offender has suffered particularly harsh treatment entitling him to additional mitigation beyond the 1.5 credit: see R. v. Duncan, 2016 ONCA 754 at para. 7.
Application of the principles to the facts
[42] The accused has served two periods of pre-sentence custody in relation to this offence. The first period of custody is not the subject of any dispute between the parties, who agree that the time served should be credited at a rate of 1:5 to 1. Accordingly, the accused will be credited for 193 days of custody at the rate of 1.5:1, in accordance with section 719(3.1) of the Code and the principles set out in Summers at paras. 34 and 71. This results in a credit of 280 days once time used for other sentences is subtracted. Given the evidence called on the sentencing hearing, I am satisfied that this enhanced credit is appropriate given the accused’s lost opportunity for early release.
[43] The second period of custody is for a period of 1010 days. This period of custody occurred following new charges incurred while the accused was released on bail for this offence. Those charges resulted in the conviction for aggravated assault referenced earlier in these reasons. This second period of pre-sentence custody was considered in the accused’s sentencing hearing before Laliberte J., who used 700 of the 1010 days in sentencing the accused. Therefore, 310 days remain for consideration in this case.
[44] The defence says that the 310 days that remain to be used toward this sentence ought to be credited at a rate of 1:5 to 1 and should result in an additional qualitative credit of 3 months. In support of that position, the defence called viva voce evidence from an official at the Ottawa Detention Center, and from the accused, as to the conditions in which the pre-sentence custody was served. The Crown argues that the ratio of pre-sentence credit should be assessed at a rate of 1:1, because the exceptions in s. 719(3.1) apply. That is, the accused was detained in custody under subsection 524(4) or (8). She agrees however that some additional qualitative credit should be given in view of the harsh conditions in which the accused was incarcerated.
[45] The defence called evidence during the sentencing hearing from Scott Munro, who is the security manager at the Ottawa Correctional Detention Centre. The evidence of Mr. Munro was not challenged, and I accept it in its entirety. The accused also testified. While I find some of the evidence given by him is not credible, particularly in regard to his notes of his time in custody, I accept his evidence about the conditions of his incarceration during the periods of triple bunking during lockdown, and the impact of those conditions upon him.
The applicability of the bail misconduct exclusions in s. 719(3.1)
[46] In arguing that the accused is restricted to credit at a rate of 1:1, the Crown relies upon the bail misconduct exclusion in s. 719(3.1). In order to do so, the Crown must satisfy the court that the accused was “detained in custody under subsection 524(4) or (8)”.
[47] In this case, it is common ground between the parties that the accused returned to custody following his commission of an additional offence. What is not clear on the record before me is that he was then detained in custody under subsection 524(8), which is the exception that might apply in the circumstances of this case.
[48] The Crown relies on the case of R. v. Akintunde, 2015 ONCA 597, in support of her position. However, that case clearly contemplates that an accused will only be found to be detained under s. 524(8) when the prior form of release is cancelled by a justice: see paras. 24, 34, 37 and 39. While it is not necessary that there be a further order detaining the accused in custody for a finding of detention under s. 524(8) (see Akintunde at paras. 29-33), at a minimum, there must be cancellation of the prior release.
[49] While there is evidence before me that would have justified the cancellation of the accused’s prior release, there is no evidence before me that this occurred. There are no endorsements to this effect on either the recognizance or the informations before the court. The only notation made was on February 4, 2014, when an order under s. 516 was indicated. No other evidence was adduced on the issue. As a result, I am not satisfied that the accused’s recognizance was cancelled, or that he was detained in custody under s. 524(8) of the Code.
[50] Consequently, I find that the bail misconduct exclusion does not apply and the accused may receive credit on a quantitative basis at a ratio of up to 1:5 to 1 in accordance with s. 719(3.1) of the Code. As with his first period of incarceration, I am satisfied that the circumstances of the accused’s second period of incarceration justify crediting the accused at a rate of 1:5 to 1 for each day served in custody because he was not entitled to early release for that period of incarceration. I am not satisfied that the evidence demonstrates that the accused would not have been entitled to early release or parole because of his misconduct or for other reasons. The evidence of Mr. Munro is that none of the conduct issues with the accused during his incarceration would have resulted in a loss of early remission. I accept that evidence.
[51] Consequently, the accused’s second period of pre-sentence custody of 310 days will receive a quantitative credit of 465 days.
Enhanced credit on a qualitative basis
[52] The Crown concedes that because the accused was subjected to lockdown on 109 occasions during 2015 alone, some enhanced credit on a qualitative basis is appropriate in this case. This is an appropriate concession in view of the evidence presented, which is that during the entirety of the accused’s pre-sentence incarceration, there was a full or partial lockdown on 228 days, which is roughly 20% of his time in pre-sentence custody. The evidence of Mr. Munro is that for a period of about a year and a half in 2015 and 2016, the number of lockdowns was particularly problematic. Mr. Munro attributes 90-95% of the lockdowns to staff shortages. The lockdowns were not caused by the accused in any way. Mr. Munro’s evidence further indicates that conditions only improved in August of 2016 after significant hiring had taken place to add to the staff at the facility. At the time of his testimony, there had been no lockdowns in 2017.
[53] Given this evidence, along with the evidence that on 60 occasions the accused was triple bunked (19 of those occasions occurred during a lockdown of some duration), I am satisfied that the accused was subjected to particularly harsh treatment during his pre-sentence custody and that an assessment of credit on a qualitative basis is appropriate in this case.
[54] In considering the credit to be given, I am mindful that the first 700 days of the second period of incarceration have been credited to another sentence, and that 45 days of enhanced qualitative credit was given to reflect the harshness of the conditions in which the accused served that period of custody. I am proceeding on the basis that the 310 days available for application to this sentence are the last 310 days of pre-sentence custody. For at least part of this period, the evidence shows that conditions had considerably improved at OCDC. Again, the evidence of Mr. Munro was that the conditions were at their worst during 2015 and part of 2016, with considerable improvement in August 2016. I therefore find that of the 310 days from the second period of custody or 10.3 months available for application to this sentence, about five months of that time was during the period of improved conditions. I consider as well the evidence about the conditions at OCDC during the first 183 day period of custody starting in 2013, during which time lockdowns occurred far less frequently than in the 2015-2016 period.
[55] In view of these facts, I find that an additional credit of 20 days is appropriate.
Analysis
[56] As to the appropriate sentence to be imposed in this case, I commence with consideration of the range of sentence identified in the case law, followed by consideration of the mitigating, aggravating, and Gladue factors.
The range of sentence for similar offences
[57] The parties agree that the case of R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245 (S.C.J.) provides useful guidance about the range of sentence for various types of aggravated assault cases. Mid-range cases are said to generally involve first offenders and contain some elements suggestive of consent fights where the accused resorted to excessive force. These cases typically result in high reformatory sentences of between eighteen months and two years less a day: see para. 28. Cases at the high end of the range “generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence”. These cases are said to attract sentences of between four and six years: see para. 30. I will make further comment as to where this case falls momentarily.
The mitigating factors
[58] In mitigation of sentence, there is evidence before me that the accused has demonstrated a desire to change, and has taken some steps towards his rehabilitation. In addition to his letter to the court professing this intention, the accused has demonstrated this desire in his time at the detention centre. He has participated in the limited programmes available to him, including sessions with the Native Institutional Liaison Officer and participation in a bible study programme. I accept that the accused wishes to make changes in his life and that he is capable of doing so.
[59] I also accept the evidence led at trial that the accused had been seriously assaulted prior to his assault upon the victim. I consider that the accused’s judgment and emotional condition was impacted by those events when he lashed out at the victim.
The aggravating factors
[60] The aggravating factors include the fact that the offences have had a substantial physical and psychological impact. I have already outlined the physical injuries sustained by the victim, who continues to experience pain. In addition, he does not trust people in the same way, and feels betrayed by the accused, who had been a friend. He has a re-occurring nightmare about being stabbed. Being incarcerated in the same institution as the accused following the offence also had an impact upon him, and he now worries for the safety of his family upon the accused’s release.
[61] I also consider that when he committed this offence, the accused had a prior record which included multiple convictions for breaches of court orders, and weapons offences, and some violence. At the time of this offence, his record for violence was limited to a single conviction each for assault and uttering threats. While the accused’s criminal record now includes a conviction for aggravated assault, this conviction related to events which occurred after this offence, and the accused had not had the benefit of any rehabilitative aspects of that sentence at the time this offence was committed. This is not a situation where the accused has not learned from his sentence for a prior similar offence: see R. v. Skolnick, [1982] 2 S.C.R. 47 and R. v. A.E., [2013] O.J. No. 5299 (C.A.) at para. 10.
[62] The accused used a butcher type knife in the course of the assault. The use of this type of weapon increased the likelihood of significant injury to the victim. The accused also stabbed the victim repeatedly. This not only increased the likelihood of significant physical injury, but also the emotional trauma of the events for the victim.
[63] Finally, I consider that the accused was on probation at the time of this offence. The breach of a prior court order is aggravating.
The Gladue factors
[64] In this case, the systemic and background factors at play in the accused’s aboriginal heritage are a significant part of the context for the offences before me. The accused was the child of two alcoholic parents, both of whom were abusive. He has suffered various traumas, including physical abuse, because of that history. The dislocation and fracturing of cultural identity as a result of residential schools is a background factor in this case, and there is evidence that the accused’s mother was directly and significantly affected. I take judicial notice that the destructive impact of residential schools is intergenerational. The accused’s own issues with substance abuse and violence are linked to the systemic disadvantage of his Mohawk community. In short, I find that there are intergenerational system factors which diminish the accused’s moral blameworthiness for his conduct in violently lashing out at a friend while he was intoxicated, and I consider that in determining a fit sentence.
[65] Nevertheless, the sentencing objectives related to denunciation and deterrence have primacy in this case in view of the seriousness of the offence. That said, the sentence imposed should also assist in the rehabilitation of the accused, and promote in him a sense of responsibility and understanding of the harm he has caused the victim and the community.
[66] As regards the length of the appropriate custodial term in this case, the decision in Tournville is of some assistance. I find that the facts here are more aggravating than in that case, which fell in the mid-range for sentences for aggravated assault, and also involved an aboriginal offender. The accused in Tournville was sentenced to twenty-one months in custody and two years’ probation. In contrast to Tournville, the accused in this case committed an unprovoked assault, he has demonstrated no remorse (apart from his comments to the victim on Facebook), and he has demonstrated a lesser commitment to his rehabilitation. Since this offence, he has also committed another aggravated assault. Accordingly, a sentence exceeding the custodial term imposed in Tournville is appropriate.
[67] In the result, I agree with the defence that given the considerations relating to totality, quantitative and qualitative pre-sentence credit of 765 days, and the restraint necessary to reflect the Gladue factors in this case, a global consecutive sentence of a further 265 days is fit. The custodial portion of the sentence in total is thus the equivalent of 34 months.
[68] This sentence, which permits the imposition of a probation order to run concurrently with that imposed by Laliberte J., also achieves the objectives of addressing the accused’s rehabilitation and will ensure he is able to participate in the culturally focused treatment programmes described in the Gladue report. As required by Gladue, in arriving at this sentence, I have considered that a sentence which permits the imposition of probation is the type of sanction that is appropriate because of the accused’s indigenous heritage. Probation conditions will also address the public interest, including ensuring the victim and his family remain protected from contact by the accused.
Conclusion
[69] Accordingly, the accused will be sentenced as follows:
Count 1 (aggravated assault): 265 days jail consecutive to any outstanding sentence plus pre-sentence custody credited at 765 days; Count 2 (assault with a weapon): stayed pursuant to Kienapple; Count 3 (possession of a weapon for a purpose dangerous to the public peace): 180 days concurrent to count 1; Count 4 (assault): 120 days concurrent to count 1; Count 5 (breach of probation): 120 days concurrent to count 1.
[70] In addition, the accused shall be placed on probation for a period of 12 months. In addition to the statutory conditions, the accused shall abide by the following conditions:
a. Report to a probation officer within two working days of your release from jail, and thereafter as required; b. Notify your probation officer in advance of any change of name or address and promptly notify your probation officer of any change of employment or occupation; c. Not to associate, contact, or hold any communication directly or indirectly with Anthony Marini or any member of his immediate family; d. Not to be within a radius of 500 metres of Anthony Marini or his immediate family, or any place where these individuals are known to reside, work or attend school; e. Attend for counselling as recommended by the probation officer, including mental health, anger management and substance abuse counselling, and including the Wholistic Health and Wellness program offered through the Mohawk Council of Akwesasne, and the Iohahi:io Education and Training Centre, should the accused remain in the Cornwall area, or other culturally focused programmes as may be available in the jurisdiction where he resides; f. Sign any releases of information that may be required by the probation officer to verify compliance with conditions; g. Not to possess any weapons.
[71] The following ancillary orders shall also issue: 1) Section 109 order for life; 2) an order for DNA under s. 487.051 of the Code; and 3) an order pursuant to s. 743.21 of the Code prohibiting the accused while he is in custody from having any communication directly or indirectly with the victim or any member of his immediate family.
Madam Justice Laurie Lacelle Released: May 15, 2017