CITATION: R. v. Badria, 2017 ONSC 5389

COURT FILE NO.: CR-16-40000560-0000

DATE: 20170911

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Norman Badria

Defendant

Sheila Cressman, for the Crown

Anthony DeMarco, for the Defendant

S.F. Dunphy, J.

Sentencing decision and reasons

[1] On June 12, 2017, the jury acquitted Mr. Norman Badria of the charge of attempted murder but convicted him of the included offence of assaulting Constable Karen Baird and causing her bodily harm by striking her on the head with a sledge hammer. He was also convicted of a number of other weapons and other charges arising from the same incident. These shall be reviewed below.

[2] Following his conviction, I ordered Mr. Badria to be examined pursuant to s. 21 of the Mental Health Act, R.S.O. 1990, c. M. 7 on June 12, 2017 and, having seen that report and heard from its author Dr. Gojer in viva voce testimony, Mr. Badria is now before me for sentencing.

[3] The following is my decision on sentencing and my reasons.

Background and Overview

(a) Circumstances of the Offence

[4] On March 13, 2015, Mr. Badria drove to a Toronto police station. He had with him a short-handled sledge hammer and, in his pocket, an exacto knife. He parked across the street. With the sledge hammer in one hand, Mr. Badria walked across the street and up towards the public entrance of the police station. From here his movements were picked up by security cameras. He opened the double doors leading to the lobby area. In that lobby was a counter separating the public part of the lobby from the part reserved for police officers.

[5] Constable Baird happened to be standing at the counter on the public side waiting to receive some papers from a colleague, Constable Tracy Johnson, before proceeding out on a call. She had her back to the door. She did not see Mr. Badria enter nor did he have any idea who she was beyond the police uniform that she wore.

[6] It was over in seconds. Mr. Badria quickened his pace as he opened the second set of double doors. He ran towards Constable Baird with the sledge hammer now held in both hands and raised over his head. Small in stature, he was required to leap upwards slightly as he brought the hammer down vertically in the direction of her head. He came so quickly that she neither saw nor heard him coming nor could Constable Johnson (who was facing him) give a warning in time. Constable Baird was in the process of retrieving the glasses perched on her head to read the documents just handed to her, a gesture that may well have saved her life. Mr. Badria brought the hammer down. Fortunately, only a glancing blow was struck, the hammer flying out of Mr. Badria’s hands in the process. The hammer first struck the counter before coming to a stop against the far wall with such force as to make a sound resembling a gun shot.

[7] Mr. Badria did not stop there. He continued past a stunned Constable Baird and sought to clamber over the counter to the police side of the lobby where Constable Johnson stood. Constable Johnson immediately moved toward danger and not away from it. She grabbed Mr. Badria as he came over the counter and put him on the floor and on his back. A struggle ensued. Other officers were already rushing over and soon several were on top of Mr. Badria, restraining him with considerable physical force but without resort to weapons. An alarm was sounded. Mr. Badria continued to struggle for a short while – doubtless it seemed much longer to all involved. The knife was removed from his pocket during the struggle. Mr. Badria finally went limp and thereafter was as submissive and docile as could be desired by any police officer of a prisoner.

[8] He was led away.

[9] The jury acquitted Mr. Badria of attempted murder of Constable Baird, from which verdict I must infer that the jury did not find that Mr. Badria possessed the intent to kill necessary to convict him upon such a charge. He was however convicted of the included offence of assault causing bodily harm by striking Constable Baird on the head with a sledge hammer.

[10] The jury also convicted Mr. Badria of the other offences charged which were:

a. Count 2 carry concealed weapon (exacto knife): s. 90(1) Criminal Code;

b. Count 3 carry weapon (sledge hammer) for purpose dangerous: s. 88(1) Criminal Code;

c. Count 4 carry weapon (exacto knife) for purpose dangerous: s. 88(1) Criminal Code;

d. Count 5 assault Constable Baird with a weapon (sledge hammer): s. 267(a) Criminal Code; and

e. Count 6 assault police officer in execution of her duties (Constable Johnson): s. 270(1)(a) Criminal Code.

(b) Circumstances of the offender

[11] Mr. Badria was and is a troubled man. He has a long history of struggling with schizophrenia, a condition for which he has been largely untreated since first diagnosed in 1998.

[12] Mr. Badria did not testify at trial. The s. 21 Mental Health Act order was made without opposition and Mr. Badria voluntarily co-operated with Dr. Gojer who performed the examination. Dr. Gojer’s report was made an exhibit at the sentencing hearing and he testified and was cross-examined at the hearing. His testimony and the victim impact statement of Constable Baird was the only evidence called at the sentencing hearing by either party. The information I have concerning Mr. Badria’s medical condition is derived from Dr. Gojer’s report and testimony.

[13] Mr. Badria is 43 years of age. His mental health deteriorated towards the end of high school. He became withdrawn and lost interest in school. There was an incident involving violence towards his mother in 1996, but nothing approaching the violence shown on March 13, 2015 has occurred in his past.

[14] He has anger management issues that have resulted in physical damage to walls and similar such incidents. His father has been able to provide him with employment in a family business until now. He has been able to live independently thanks to the means this job has given him, although his father – now 72 years of age – is looking to retire soon and it cannot be said how long the structured life Mr. Badria has thus far been able to lead will persist.

[15] While Mr. Badria’s illness has not resulted in significant violence until this incident, it has manifested itself with certain obsessions, principally the idea that certain celebrities will wish to marry him and have his children. These obsessions have carried him to Australia and Los Angeles in the past.

[16] Mr. Badria has seen a number of psychiatrists over the years and has been prescribed anti-psychotic drugs to control his mental illness. He has taken these treatments sometimes, but has not consistently followed any regime that has been prescribed for him. This has continued during the 2.5 years Mr. Badria has spent in custody until now. He has taken the medications prescribed on occasion, but has not done so consistently.

[17] There is no known cure for schizophrenia. Mr. Badria’s condition has not prevented him from functioning at a reasonably high level for a number of years, although his state has been subject to fluctuations during that time and clearly deteriorated quite dramatically before March 2015. Doubtless Mr. Badria’s comparative success in living independently until now has been due in no small measure to the staunch and unfailing support that a strong and loyal family have shown him. His younger sister has been an indefatigable champion for him, his family have appeared to support him at every court hearing. His father has given him access to a stable job until now in a structured environment where his occasional anger management outbursts have not had the negative consequences they might have had elsewhere.

[18] On the day in question, Mr. Badria had been having suicidal thoughts and was depressed. He was attempting to commit “suicide by cop”. He expected to be killed by police during the attack he carried out. He continues to have suicidal thoughts from time to time even now.

[19] Despite this, the psychiatric evidence before me supports the conclusion that Mr. Badria’s prognosis is potentially optimistic. Optimism is a relative term when referring to schizophrenia of course. If he were to accept and follow a course of treatment, his condition might be expected to stabilize in such a way as to present little risk to himself or the community. On the other hand, if he continues to decline treatment entirely or to follow it only intermittently, the potential for a recurrence of the suicidal thoughts that led him to the police station that day remains.

[20] The psychiatric evidence also leads me to conclude that when he is stable, Mr. Badria does not wish to harm anyone and is a non-violent person. He has expressed remorse for the harm done to Constable Baird. He has generally been docile and compliant while in custody, even if he has shown signs of deterioration and the occasional outburst.

[21] The biggest cloud on the horizon for Mr. Badria’s prospects remains his unwillingness to accept treatment for his mental illness over a sufficient time horizon to enable its benefits to be manifest even to him.

[22] Mr. Badria has a record of prior convictions. While he benefits from a record suspension that has removed these from the active database, these are able to be brought to my attention for sentencing purposes. In 1998 he was convicted of making harassing phone calls to a celebrity and given a 6 month conditional sentence with 3 years of probation requiring him to accept treatment as prescribed. In 1999, he was convicted of failing to comply with the terms of his probation and given a suspended sentence of 7 days with a further period of probation on similar terms.

(c) Victim impact

[23] Constable Baird exercised her right to provide her victim impact statement in person. It is true that her physical injuries were relatively minor – she was released from hospital the same evening and had symptoms consistent with a concussion. These continued to cause her pain and discomfort for a period of weeks. She suffered an injury to her finger – very likely incurred in the scuffle with Mr. Badria that occurred after he attempted to cross the counter – and that continues to bother her to this day and provides a daily reminder of this incident.

[24] Unfortunately, the most significant impact of this violent incident was in ways not detectable by x-ray or MRI scanner. She was severely traumatized and was off work with Post-Traumatic Stress Syndrome for fifteen months.

[25] Constable Baird had worked as a civilian contractor assigned to Toronto Police Service for three years before pursuing her goal of becoming a police constable. She was a single mother and the road to her career goal was not an easy one. She was the youngest of a large family raised in public housing and had a strong desire to contribute to the community. She had been employed by Toronto Police Service for 29 years when the attack upon her occurred.

[26] Healthy all of her life, Constable Baird had relatively little experience of the inside of a doctor’s office. Since the incident, she has had countless appointments. She was diagnosed with PTSD. Her sleep was disrupted for a year. It was fifteen months before she was able to return to work. She continues to experience vivid flashbacks of the incident. Dealing with PTSD has not been easy for her – the admission of weakness does not come easy for someone wearing a uniform who is expected to be strong. The impact upon her has been profound and lasting. She continues to struggle to process this.

[27] Constable Baird has been seeking treatment and help. It has not been easy for her to admit that she needed it. She finds it hard to understand how Mr. Badria has been so thoughtless of others to have failed to do the same and seek treatment for his psychiatric condition when his failure to do so has put the health and safety of others at risk.

Applicable Principles

[28] The applicable principles of sentencing do not vary with the circumstances of each offender and offence, even if their relative weight does.

[29] Clearly the principles of denunciation and deterrence – both general and specific – are applicable here. However, without necessarily taking a back seat, their importance must be assessed in light of the evidence of the psychiatric condition of the offender in this case. An exemplary sentence will not deter someone who is seeking to commit suicide, for that is precisely what Mr. Badria expected the outcome of that day to be.

[30] The protection of the public acquires a greater weight where, as here, Mr. Badria has declined to follow the treatment necessary to mitigate the risk he poses to himself and others.

[31] The criminal justice system is not the Mental Health Act. I cannot fashion a sentence to try to achieve a particular treatment objective. The medical evidence that I have does not give me the comfort of knowing that Mr. Badria suffers from an illness that is now under control and expected to remain so. He may pursue treatment, he may not. When sentencing someone who, by reason of his untreated mental illness, poses some level of continuing danger to the community, I may not set myself up as some sort of medical treatment board. As Humphrey J. put it in R. v. Webb, [1997] O.J. No. 5525 at para. 12, “there is no preventative medicine where the liberty of the subject is involved”.

[32] I must prescribe a sentence that is proportional to the gravity of the offence committed not to the time that might appear optimal to effect some treatment program or another. Other authorities operating under other statutes have that responsibility.

[33] I shall therefore review the seriousness of the offences for which Mr. Badria has been convicted in the light of the aggravating and mitigating circumstances suggested by the evidence before me.

Aggravating and Mitigating Circumstances

[34] Aggravating circumstances attached to these offences include:

a. The incident was entirely unprovoked;

b. Constable Baird was attacked from behind at her place of work and without warning;

c. The seriousness of the attack;

d. The evidence of planning and deliberation that went into the commission of these offences;

e. Mr. Badria has declined for many years to accept treatment for his medical condition and there were at least some warning signs of a building mental health crisis that he did not act upon; and

f. Mr. Badria’s stated motive of seeking to commit “suicide by cop”.

[35] Each of these can be expanded upon briefly.

[36] The attack – for that is what it was – was something that was clearly planned by Mr. Badria. He picked a police station, He drove to it, He came armed with two weapons, one of which he kept in his pocket. It was also quite unprovoked and sudden. Contestable Baird had no warning or ability to protect herself. She received only a relatively minor physical injury but missed a more serious injury by the thinnest of margins. The psychic scars left behind have been much slower to heal and were devastating. Mr. Badria has a long history of choosing to reject treatment altogether or to follow it for a while and then discontinue it. This preference on his part contributed in no small measure to the events that occurred.

[37] The case authority cited to me by the Crown, especially R. v. Robinson, 19 C.C.C. (2d) 193 (Ont. C.A.) and R. v. Butler, 2009 ABQB 2009 at para. 41 satisfies me that refusing to accept treatment is a basis for me to decline to treat mental illness as a mitigating circumstance. I have included it as an aggravating circumstance only to indicate that it is a factor that goes into the mix – whether I consider it as a factor that neutralizes an otherwise mitigating factor or as a stand-alone aggravating circumstance subject to a countervailing mitigating circumstance is a distinction without much in the way of practical difference.

[38] I wish to comment here briefly on the subject of “suicide by cop”. There are two reasons why this is an aggravating circumstance. Firstly, it encourages just the sort of police reaction towards agitated offenders that society wishes to minimize. Secondly, it has the potential to leave permanent scars on the peace officers affected.

[39] Mitigating circumstances include:

a. The important role Mr. Badria’s mental illness played in the circumstances leading up to the commission of the offences;

b. The remorse that Mr. Badria has shown; and

c. The potential for rehabilitation is there.

Credit

[40] Mr. Badria has been in custody since March 13, 2015. As of today’s date, he has therefore been in custody for two years, 182 days (or 2.499 years). Giving credit for pre-sentence custody at the rate of 1.5 days per day of custody, Mr. Badria would therefore potentially be entitled to credit of three years and nine months.

Application of sentencing principles to Mr. Badria

[41] The offences in this case were serious. Constable Baird missed being brutally killed by a matter of pure chance and a centimeter or two. If her head had moved one way instead of the other when she reached for her glasses, she would not be here today. The circumstances of the offences betrayed at least some degree of planning and deliberation. Mr. Badria had a home in Brampton and drove to this particular police station. He parked across the street. He armed himself with a sledge hammer he had very recently purchased and an exacto knife that he put in his pocket. He picked his target and ran straight at her.

[42] The criminal law offers only crude tools to effect its purposes in many instances and this is one of them. As I have noted, I am not acting under the Mental Health Act in this case and can only order a sentence that is appropriate in all of the circumstances. The protection of the public has a very high weight in these circumstances but cannot lead me towards a sentence that is outside of the acceptable range.

[43] The circumstances of this case call for a period of incarceration at the higher end of the range suggested by precedent. I have considered that having regard to the cases cited to me by both parties, the upper end of the range for assault causing bodily harm to Constable Baird would be in the range of between five and six years before consideration of presentence custody credit which in this case (three years and nine months) is close to four years. The net sentence will thus be in the reformatory range at all events.

[44] The position of the Crown is that a sentence of two years less a day is called for after allowing the applicable pre-sentence custody credit. The defence submits that the net sentence should be twelve months or at most 18 months.

[45] In my view, I cannot reverse engineer a sentence. Mr. Badria’s pre-sentence custody is what it is. It may be dead time from a treatment point of view, but it is time he has served. I agree with the defence submission that a sentence in excess of 50 months cannot be justified on the facts of this case. After allowing for 3 years and 9 months of pre-sentence credit, this would set an outside ceiling of 18 months of additional time to be served.

[46] I find in all of the circumstances that an additional sentence of 18 months custody is warranted on the charge of assault causing bodily harm of Constable Baird and I so order. My disposition of the sentence on the other counts follows below. There is no question that these are all to be served concurrently.

[47] Both Crown and Defence concur that three years’ probation on the terms that I have set forth below is appropriate. They also concur that the report of Dr. Gojer should be appended to these reasons warrant when he is committed and they also concur that I should make a recommendation that he be sent to the St. Lawrence Valley Correctional and Treatment Centre since this correctional centre will enable Mr. Badria to access the treatment facilities that he clearly needs and Dr. Gojer who has familiarity with his situation will be able to remain involved. I concur in these recommendations.

Disposition

[48] Accordingly, I order as follows:

a. On count 1 (assault Constable Baird with a sledge hammer causing bodily harm) Mr. Badria is sentenced to 18 months in custody after giving him credit for pre-sentence custody of 2 years and six months at the rate of 1.5:1 for a total pre-sentence credit of 3 years and 9 months;

b. Count 5 is stayed pursuant to R. v. Kienapple;

c. On the three weapons counts (count 2, 3 & 4) Mr. Badria is sentenced to an additional 30 days custody concurrent to the sentence on count 1 and after pre-sentence custody credit calculated as above;

d. On count 6 (assault police officer Constable Johnson in execution of her duties) Mr. Badria is sentenced to an additional 90 days to be served concurrently with the sentence on count 1 and after pre-sentence custody credit calculated as above;

e. Mr. Badria is also sentenced to probation for a period of three years subject to the following additional terms and conditions:

i. He shall have no communication with Karen Baird or Tracey Johnson;

ii. He shall not to be found within 100 metres of any police station unless under arrest or invited to attend by a police officer;

iii. He shall not possess any weapons as defined by the Criminal Code;

iv. He shall not possess any knives or hammers outside of his residence or unless required during the course of his employment;

v. He shall attend for medical appointments as recommended by his probation officer and shall sign releases for the purposes of monitoring by his probation officer;

vi. He shall meet with members of any ACT team assigned to his care as required by his probation officer and sign releases for purposes of monitoring by his probation officer;

f. The following ancillary orders shall issue:

i. Having been convicted and sentenced for a primary designated offence, a DNA order pursuant to s. 487.051 of the Criminal Code; and

ii. A lifetime prohibition on the possession of firearms pursuant to s. 109 of the Criminal Code.

[49] Finally, I am directing that Dr. Gojer’s report of August 22, 2017 shall be appended to these reasons when they are forwarded to his correctional institution and in addition I shall recommend strongly that Mr. Badria be sent to the St. Lawrence Valley Correctional and Treatment Centre to complete his sentence as soon as practicable.

S. F. Dunphy, J.

Released: September 11, 2017

N.B. These reasons have been CORRECTED to reflect alterations made to the original draft text when read in open court and to add table of cases considered as advised in open court. The original signed copy including handwritten corrections was retained in the court file.

CORRIGENDUM

In my decision released September 11, 2017 I wrote:

“[43] The circumstances of this case call for a period of incarceration at the higher end of the range suggested by precedent. I have considered that having regard to the cases cited to me by both parties, the upper end of the range for assault causing bodily harm to Constable Baird would be in the range of between five and six years before consideration of presentence custody credit which in this case (three years and nine months) is close to four years. The net sentence will thus be in the reformatory range at all events.

[44] The position of the Crown is that a sentence of two years less a day is called for after allowing the applicable pre-sentence custody credit. The defence submits that the net sentence should be twelve months or at most 18 months.

[45] In my view, I cannot reverse engineer a sentence. Mr. Badria’s pre-sentence custody is what it is. It may be dead time from a treatment point of view, but it is time he has served. I agree with the defence submission that a sentence in excess of 50 months cannot be justified on the facts of this case. After allowing for 3 years and 9 months of pre-sentence credit, this would set an outside ceiling of 18 months of additional time to be served.

[46] I find in all of the circumstances that an additional sentence of 18 months custody is warranted on the charge of assault causing bodily harm of Constable Baird and I so order. My disposition of the sentence on the other counts follows below. There is no question that these are all to be served concurrently.” (emphasis added)

It is clear that the 50 month figure in paragraph 45 simply does not compute. Fifty months minus 45 months of pre-sentence credit (3 years, 9 months credit) would produce a sentence of five months and not eighteen. This of course would be well below the range suggested by either side and the sentence I actually delivered.

The error is of course is mine and mine alone. What combination of clerical or computing error induced by switching figures from months to years and back again too many times I cannot now say, my drafts long since having been relegated to the shredder. My intent, however, was clear and is accurately set forth in the conclusion reached and in the warrant of committal I signed.

In summary, I agreed with defence counsel that no more than eighteen months in additional to the 45 months of credit for time served could be justified on the facts of this case and that is the sentence that I imposed. The precedents cited by both sides pointed to an aggregate sentence range between five and six years (or 60 – 72 months). The sentence in paragraph 45 should have read “I agree with the defence submission that a sentence in excess of 63 months cannot be justified on the facts of this case” as 18 months in addition to the agreed pre-sentence credit of 45 months was in fact what was submitted by the defence as the high end of the range, a submission that I accepted.

I am therefore issuing this corrigendum to my written reasons to correct paragraph 45 thereof to read “63 months” in lieu of “50 months”. I apologize for the confusion. As this changes the reasons for my sentence and not the sentence itself, no further amendments are required.

S.F. Dunphy J.

October 4, 2017

Table of Cases Considered

By Crown:

1. R. v. King, [1984] O.J. No. 115 (Ont. C.A.)

2. R. v. Gavrilovic, 2010 ONCJ 245

3. R. v. Webb, 1998 CarswellOnt 4715 (Ont. C.A.)

4. R. v. McArthur, [2004] O.J. No. 721 (Ont. C.A.)

5. R. v. McKinnon, 2011, ONSC 3160

6. R. v. Robinson, [1974] O.J. No. 545 (Ont. C.A.)

7. R. v. Butler, 2009 ABQB 218

By Defence:

1. R. v. Allen, 2010 CarswellOnt 1971

2. R. v. Savoie, 2011 ONCJ 268, 2011 CarswellOnt 3638

3. R. v. Blackwood, 2011 ONSC 6178, 2011 CarswellOnt 3006

4. R. v. Fobister, 2009 CarswellOnt 9947

5. R. v. Truscott, 2004 CarswellOnt 6212

CITATION: R. v. Badria, 2017 ONSC 5389

COURT FILE NO.: CR-16-40000560-0000

DATE: 20170911

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Plaintiff

– and –

Norman Badria

Defendant

REASONS FOR JUDGMENT

S. F. Dunphy, J.

Released: September 11, 2017