Court File and Parties
COURT FILE NO.: CR-16-50000500-0000 DATE: 20170914 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – DEION CAMPBELL
Counsel: Alana Pasut for the Crown Enzo Battigaglia for the Defendant
HEARD: JUNE 16, 2017
G. DOW, J.
Reasons for Sentence
[1] Deion Campbell proceeded to trial with a jury on February 28, to March 15, 2017 on the following three counts:
Aggravated assault on Tyrone Francis in the City of Toronto on the third day of June, 2015 contrary to Section 268(2) of the Criminal Code;
Assault using a weapon, to wit, a knife on Tyrone Francis on the third day of June, 2015 contrary to Section 267(a) of the Criminal Code; and
Possession of a weapon, a knife, for a purpose dangerous to the public peace on the third day of June, 2015 contrary to Section 88(2)(a) of the Criminal Code.
[2] On March 15, 2017, Deion Campbell was found not guilty on the first two counts but guilty on the third count. The submissions on sentencing were adjourned to June 16, 2017 for the purpose of obtaining a pre-sentence report.
[3] The incident giving rise to the charges occurred in the parking lot at Humber College for which there was video surveillance. Deion Campbell testified at the trial that he purchased the small pocket knife involved in this matter at a flea market about two weeks previously and that it was in the pocket of his short pants before retrieved and seen in his hands on the video with the blade exposed during a disagreement with Tyrone Francis.
[4] The Crown seeks a suspended sentence with probation and other conditions. Deion Campbell seeks an absolute discharge. The parties agreed Deion Campbell is entitled to three days of credit for the time spent in custody following his arrest on June 7, 2015 until his release on June 8, 2015.
Mitigating and Aggravating Factors
[5] The mitigating factors are as follows:
a) that Deion Campbell acted in self-defence which may have been accepted by the jury given the finding of not guilty on the other two counts;
b) a positive pre-sentence report with regard to a stable family upbringing with five older siblings and the absence of a criminal record; and
c) Deion Campbell is looking to upgrade his education, having expressed some interest in culinary arts, a program presumably available from a local community college although it appears he is currently one credit short of having earned his high school diploma.
[6] The aggravating factors are the following:
a) the location of the offence being the public parking lot of a community college which, was submitted by the Crown to be inherently dangerous;
b) the brandishing of the knife escalated the disagreement between he and Tyrone Francis; and
c) Deion Campbell’s ongoing non-medicinal use of marijuana two or three times per week which must be noted to be less than the previous daily use, while in high school.
Circumstances of the Offence and Impact on the Community
[7] Having been found not guilty of the other offences and having raised self-defence, Deion Campbell argues the finding of guilt on the offence before me is inconsistent. I disagree. I rely on section 724(2)(a) of the Criminal Code that I must accept as proven the facts essential to the jury’s verdict which, in this instance, is that Deion Campbell was carrying or possessed a weapon for a purpose dangerous to the public peace (as opposed to for the purpose of committing an offence). I further disagree because it was also possible the jury was not satisfied based on the evidence before it beyond a reasonable doubt that the other two offences had been committed. Further, to have found Deion Campbell guilty, the jury must have not accepted some portion of his evidence, particularly with regard to why the knife was in his possession and about his willingness to use it.
The Law
[8] The fundamental purpose of sentencing is fully described in Section 718 of the Criminal Code and speaks of the need to protect society and contribute to society’s respect for the law. In Section 718.1 of the Criminal Code, the further principle of a sentence being “proportionate to the gravity of the offence and the degree of the responsibility of the offender” is stated. Section 718.2 of the Criminal Code sets out a variety of sentencing principles, both aggravating and mitigating, the key ones in my view being:
a) the sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances; and
b) the offender should not be deprived of liberty, if less restrictive sanctions may be appropriate.
[9] I must also acknowledge the defence submission that Deion Campbell’s bail conditions of house arrest with a 10:00 pm curfew was tantamount to partial custodial time.
[10] While submissions were also made about Deion Campbell’s decision to return to school and pursue training in a trade or in the culinary arts, I am pleased to be advised today that this now 20 year old has taken steps forward regarding employment over the last three months.
Conclusion
[11] In order to conclude a discharge, whether conditional or absolute is appropriate, I must and do conclude that this would be in the best interests of the accused and not contrary to the public interest.
[12] As a result, in my view, a conditional discharge is the appropriate sentence. It is to be accompanied by the following obligatory and discretionary conditions:
a) keep the peace and be of good behaviour;
b) abstain from communicating or being within 100 meters of Tyrone Francis, the residence or workplace of Tyrone Francis without his written consent;
c) abstain from attending the premises of Humber College, specifically the campus on Humber College Boulevard, unless registered to attend an educational program there;
d) serve 12 months of probation, reporting to a probation officer within seven days and thereafter when required by the probation officer and in the manner directed by the probation officer;
e) a prohibition from processing any weapon as described in Section 109 of the Criminal Code for the ten year period provided for in that section; and
f) remain in the jurisdiction of the court unless written permission to do otherwise has been obtained from the court or probation officer.
[13] Counsel for the Crown also raised the application of the $200 victim surcharge payment under section 737(2)(b)(ii) of the Criminal Code. While this was opposed by counsel for Deion Campbell, I was not provided with any authority or manner in which it could be avoided. The section states “shall” and thus it must, in my view, be included as a term of this sentence.
[14] Crown counsel requested in submissions Mr. Campbell be ordered to provide a DNA sample to the authorities and I decline to make that order in these circumstances.
[15] Should there be a breach of any of the conditions of this sentence while Deion Campbell is subject to probation, I direct that he be returned before me for sentencing on that matter and this one.