R. v. TAYLOR 2017 ONSC 7822

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

TRISTAN TAYLOR

P R O C E E D I N G S

BEFORE THE HONOURABLE JUSTICE FUERST

on MARCH 10, 2017 at BARRIE, Ontario

Appearances:

L. Shirreffs Counsel for the Provincial Crown

H. Gladstone Counsel for Tristan Taylor

ONTARIO COURT OF JUSTICE

T A B L E O F C O N T E N T S

WITNESSES	IN-CH	CR-EX	RE-EX
No Witness Examinations

Transcript Ordered....................... November 2018

Transcript Completed..................... February 11, 2019

Ordering Party Notified.................. February 11, 2019

FRIDAY, MARCH 10, 2017

CITATION: R. V. TAYLOR 2017 ONSC 7822

R E A S O N S F O R S E N T E N C E

FUERST, J.(Orally):

Michael Thorne was brutally assaulted by Tristan Taylor while both were inmates of a correctional centre. Mr. Taylor was charged with attempt murder, and aggravated assault by wounding.

Mr. Taylor pleaded guilty to aggravated assault.

Crown and defence counsel take markedly different positions as to the sentence he should receive.

THE CIRCUMSTANCES OF THE OFFENCE

In July 2015, Mr. Taylor and Michael Thorne were cell mates at the Central North Correctional Centre ("CNCC"). Mr Thorne had been in custody there for three or four months. The two men shared cell number 10 on Unit 1, Wing C, for about one month. They got along relatively well.

The cells were not video monitored. Correctional officers checked them about once a week.

In the week leading up to July 26th, 2015, Mr. Taylor and Mr. Thorne made "home brew", an alcoholic beverage, in their cell.

On July 26th, Mr. Taylor, and Mr. Thorne handed out bottles of the home brew to other inmates on the range. This occurred during afternoon free time in the common area. Many inmates were drunk, stumbling and slurring their words as a result of consuming the home brew.

Mr. Taylor was described as the most intoxicated of the inmates. He needed Mr. Thorne's assistance to walk up the stairs back to their cell. While in the cell after evening lockdown, Mr. Taylor threw up several times. Mr. Thorne helped him up and down from the top bunk so that he vomited in the toilet, and cleaned up after him.

Mr. Thorne had no issues with Mr. Taylor that evening. Mr. Thorne believed that he had only one bottle of brew, and denied stealing anyone else's, although blood samples taken at 10:40 p.m. showed his ethanol reading as 34 mmol per litre. He also testified positive for cannabinoids and opioids.

Mr. Thorne took his prescribed sleeping medication and went to sleep. The next thing he remembers is waking up at St. Michael's Hospital in Toronto.

Timothy Langille was in the adjoining cell. After evening lockdown, he could hear Mr. Taylor yelling through the open hatch doors on the cells. He described Mr. Taylor's speech as being slurred, changing in volume, and indicative of being intoxicated. He heard Mr. Taylor yell about his "celly" [cellmate] trying to "punk" [steal] his bottles, and call Mr. Thorne a "fucking goof" a few times. Mr. Taylor yelled that his celly stole his bottles, that he "will stomp him a new mud hole", and that he did not care how big they were, if anyone tried to steal from him, he would "fuck them up". The yelling was followed by a few thumps. The pattern of yelling, then thumping lasted for some time. Mr. Langille estimated that there were numerous thumping sounds in total.

Correctional officers began tours of the cells of Unit 1, Wing C, around 7:30 p.m. Around 8:50 p.m. Mr. Langille signalled to a correctional officer that something was happening in cell number 10. She looked into the cell and saw Mr. Taylor pacing the floor. He did not appear to notice her. Mr. Thorne was not moving on his bunk, and there was blood all over him and on the wall by his bunk. The correctional officer initiated an emergency call and asked her partner to assist her.

The correctional officer returned to the doorway of cell number 10. She saw Mr. Taylor brace himself on the top bunk and kick Mr. Thorne three to four times on the left side of the face. Mr. Taylor was wearing prison issued canvas slip-on style shoes that had a very flexible rubber sole. He was yelling something. The correctional officer did not see Mr. Taylor do anything else to Mr. Thorne.

The correctional officer observed that Mr. Thorne did not respond. He was not moving. He did not try to defend himself. The correctional officer initiated a medical emergency call and asked that the cell door be opened before additional staff arrived there.

Once the cell door was opened, Mr. Taylor walked out immediately, without prompting.

Mr. Thorne lay on his bunk on his left side with his back against the wall, slumped over in an awkward position. He was not responsive. His breathing was laboured. He was making groaning and moaning sounds, and moving slightly. There were lacerations all over his head. His eyes were swollen shut. Blood was coming from his ears, nose, mouth and head.

The correctional officer ensured that Mr. Thorne was breathing, and waited for medical staff to arrive.

Meanwhile, Mr. Taylor was taken to segregation by another correctional officer. Mr. Taylor began yelling, "I'm GP and I'll take anyone on", "I'm 120 pounds and will fuck anybody up", and "I don't care how big you are, if you try to punk [steal from] me, I'll fuck your face up". He told the correctional officers that he did not care what they did to him.

Mr. Taylor had no marks or injuries. There was a lot of blood on his shoes. When one of the correctional officers held up one of the shoes Mr. Taylor laughed and said, "It's just syrup." According to the correctional officers, he did not exhibit signs of intoxication, apart from appearing agitated and wound up and continuously repeating himself.

When the nurses arrived, Mr. Thorne was moved out of the cell by dragging his mattress on the floor. His head was swollen, his eyes were swollen shut, and there was blood beside his head. When the nurses attempted to put a cervical collar on him, he tried to sit up and fight them off. He was otherwise unresponsive when his name was called.

Paramedics arrived about 15 minutes later. One of them noted that Mr. Thorne was unable to open his eyes because they were extremely swollen. He was moaning, but was unable to speak. He moved his arms and legs around, but would not stay still when asked to do so. Touching his face caused him to move about. The paramedic rated him as a six on the Glasgow Coma Scale (with 15 being fully alert, and three being unable to open eyes, move, or verbally respond). He had significant swelling around the head and neck area, and crunching to the jaw. She was concerned about possible fractures to his head or face. During transport to the hospital, she suctioned blood from his mouth because his oxygen level dropped below 90 percent.

Mr. Thorne was treated in the emergency room at Georgian Bay Hospital. His Glasgow coma scale was seven. His oxygen saturation was low. He had to be intubated. The swelling to his face, eyes and ears was so significant that intubation tape had to be supplemented to reach around his head. A CT scan showed a fracture of the left cheekbone. The emergency room physician was concerned about brain injury. As there was no neurosurgeon or MRI machine available, Mr. Thorne was airlifted to St. Michael's Hospital in Toronto. His prognosis at that point was guarded.

Ultimately, Mr. Thorne's injuries were identified as:

• Severe black eyes
• Blood in his eyes
• Stitches in both eyelids and one ear
• A fracture of the cheekbone, right orbital floor, and two nasal bones
• Tenderness about the head, including bruising and soreness around the eyes and cheeks
• Blurred vision for about one month
• Headaches that lasted several months
• Voice, speech and swallowing difficulties for about one month
• Right lung aspiration
• A defensive mark on his right forearm

Fortunately, Mr. Thorne suffered no permanent brain damage. By the time of the preliminary hearing in February 2016, he had started working part-time and was feeling quite well, although not 100 percent. In his Victim Impact Statement, he said that he has difficulty sleeping in strange places or with strange people around.

Crown and defence counsel agree that at the time of the offence, Mr. Taylor was under the influence of alcohol. Defence counsel specifically acknowledged that this did not negative the mens rea for the offence.

THE CIRCUMSTANCES MR. TAYLOR

Mr. Taylor is 25 years old. Hw was raised by his mother. She passed away a few years ago. He did not meet his biological father until he was 10 years old. They have no relationship now.

Mr. Taylor has a grade 12 education. He attended a civil engineering program at a community college, but dropped out for financial reasons. He has worked as a labourer, but it has been sporadic.

His youth court record includes three offences of assault. He has a prior adult criminal record. It includes, but is not limited to, convictions for drug trafficking, a firearms offence, and assault.

He has addiction issues with opiates.

At the time he committed this offence, Mr. Taylor had been in custody since March 2015 awaiting trial on charges of robbery, assault with a weapon, disguise with intent, and possession of a firearm while prohibited. He was later found guilty and sentenced for those offences to a total of six years in jail, less credit for presentence custody, for a net sentence of 4 years, 8 months and 22 days in jail.

Mr. Taylor committed a number of misconducts involving assaults while in custody awaiting trial. After he committed the aggravated assault on Mr. Thorne, Mr. Taylor was found guilty of misconduct in the form of another assault.

On his release from jail, Mr. Taylor has the option of living with a close friend of his late mother, who wrote a letter in support of him. He wants to complete the community college program.

In open court, Mr. Taylor said that he accepts full responsibility for his offence, and was sorry for it.

THE POSITIONS OF THE PARTIES

On behalf of the Crown, Ms. Ross submits that Mr. Taylor should be sentenced to six years in jail, less pre-sentence custody of 365 days credited on a one and a half to one basis, consecutive to the sentence being served. If totality is taken into account, she suggests that the consecutive sentence be one of five years less pre-sentence custody.

She emphasizes that this was a vicious assault on a captive victim, who was either asleep or "knocked out" at the time. Significant injuries were inflicted. Mr. Taylor knew what he was doing, and boasted about it afterward. He has a previous criminal record, and was in jail awaiting trial at the time. There are no mitigating factors aside from the guilty plea. He is still relatively young, but his rehabilitative prospects are not good. Mr. Ross also seeks a lifetime weapons prohibition order, a DNA order, and a s. 743.21 non-communication order in respect of Mr. Thorne.

On behalf of Mr. Taylor, Mr. Sheppard submits that a concurrent sentence of 18 months in jail, less pre-sentence custody of one year credited on a one and a half to one basis resulting in a sentence of time served should be imposed, or in the alternative, a concurrent sentence of 24 months less pre-sentence custody. Mr. Sheppard made no submissions about the ancillary orders sought.

He emphasizes that Mr. Taylor's moral culpability is reduced because he was intoxicated when he committed the offence. There is no evidence that the assault was planned. It was an intoxicated reaction. The jails bears responsibility because staff must have known that the inmates were drinking home brew, and because they placed two intoxicated inmates together in a cell. The offence was out of character for Mr. Taylor. It is a mitigating factor that he pleaded guilty. He is only 25 years old. He has rehabilitative prospects.

THE PRINCIPLES OF SENTENCING

The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct and the harm done to victims or the community by that unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community be considered.

ANALYSIS

The maximum sentence for aggravated assault is 14 years in jail. This reflects the seriousness of the offence. There is no minimum sentence.

The range of sentence for the offence is broad. Occasionally, offenders have received suspended sentences, but typically jail terms from mid-range reformatory to significant periods in the penitentiary have been imposed.

I recognize that, as the Supreme Court of Canada said in R. v. Lacasse, 2015 SCC 64, the determination of a just and appropriate sentence is a highly individualized exercise. The presence of aggravating and mitigating factors specific to the case must be considered.

This case involves a multiplicity of aggravating factors. The assault was a vicious attack. It was perpetrated by one inmate of a correctional facility against another, in circumstances devoid of any element of self-defence. The nature of the assault on Mr. Thorne is highly aggravating. It involved multiple kicks to his head, at a time when he was confined to a cell with his attacker, and rendered additionally vulnerable because he was asleep or "passed out". Mr. Thorne suffered very significant injuries, including facial fractures. It is fortuitous, and not due to any mitigating conduct on the part of Mr. Taylor, that no permanent brain injury resulted.

Additional aggravating factors relate to Mr. Taylor's background. He is not a first offender. He has a prior adult criminal record for a variety of offences. Regrettably, violent behaviour is not out of character for him. He has a predisposition for violence, as evidenced by a previous criminal conviction for assault, the perpetration of assaults as a youth, and his involvement in assaultive behaviour while in jail, including after the commission of the assault on Mr. Thorne.

The mitigating factors are few. Mr. Taylor pleaded guilty. His plea is a sign of his remorse and willingness to accept responsibility for his actions. Its weight is somewhat diminished because it was not entered at an early point, but rather after a preliminary hearing. Mr. Taylor expressed a measure of remorse in court. I also take into account that the offence was not planned.

In the circumstances of this case, the fact that Mr. Taylor became intoxicated of his own volition by consuming an alcoholic concoction that he was involved in making is not a mitigating factor. Whether correctional staff were aware that he and others, including Mr. Thorne, were drinking is not some sort of contributory negligence that reduces Mr. Taylor's moral blameworthiness for the crime that he, and he alone, committed. Although he is relatively young, on the information before me his rehabilitative prospects are at best uncertain.

Denunciation and deterrence both general and specific, are the governing principles of sentencing in this case.

I am satisfied that the sentence for this offence is appropriately made consecutive to the sentence Mr. Taylor is serving for other crimes. See R. v. Sahota, 2015 ONCA 336; R. v. Williams, 2008 ONCA 271.

While a sentence in the range of five to six years in jail would not be excessive for this offence given its gravity, I must take the principle of totality into account because of the length of the sentence that Mr. Taylor is already serving. I agree with defence counsel that the sentence I impose should not result in a combined sentence that would be crushing. For that reason, I have determined that a consecutive sentence of four years in jail, less credit for pre-sentencing custody of one year calculated on a one and a half to one basis as 18 months, is appropriate.

CONCLUSION

Mr. Taylor, please stand. I sentence you to four 4 years in jail, less credit of one year for pre-sentence custody calculated on the basis one and a half to one as 18 months, leaving a net sentence of two and a half years in jail. The sentence is consecutive to the sentence you are already serving. There is a DNA order and a lifetime s. 109 weapons prohibition order. While you are in custody, you will have no contact direct or indirect with Michael Thorne, pursuant to s. 743.21 of the Criminal Code. You may be seated.

Ms. Shirreffs, is there anything that needs to be clarified?

MS. SHIRREFFS: Not for the Crown, thank you.

THE COURT: Ms. Gladstone?

MS. GLADSTONE: Not for the defence, thank you.

THE COURT: I mean I'm not sure, since I'll be asked, that the victim surcharge applies, given the date of the offence. It's July 2015.

CLERK OF THE COURT: Yes it would.

THE COURT: Does it apply?

CLERK OF THE COURT: Yes Your Honour.

THE COURT: And it would be $200?

CLERK OF THE COURT: Yes.

THE COURT: With time to pay obviously.

MS. GLADSTONE: Yes I would ask for the longest amount of time possible, given that Mr. Taylor will be in custody for the next several years.

THE COURT: I'm not sure if the legislation limits the time I can give to pay. There's no indication on the form, is there, of the limitation?

CLERK OF THE COURT: No.

THE COURT: So if I give five years.

MS. GLADSTONE: That should be enough. I'll advise my client that if he requires extension he needs to apply for one.

THE COURT: Yes. Ms. Shirreffs?

MS. SHIRREFFS: Thank you. I have no submissions on that Your Honour.

THE COURT: And the other count?

MS. SHIRREFFS: To be marked withdrawn, please.

THE COURT: I have endorsed on the indictment, Mr. Taylor is sentenced to four years in jail, les credit for pre-sentence custody of one year, treated as 18 months, leaving a net sentence of two and a half years consecutive to the sentence being served. There is a DNA order and a lifetime s. 109 order. A s. 743.21 order with respect to Michael Thorne is made. A victim fine surcharge imposed of $200 with five years to pay. The remaining count withdrawn at the request of the Crown. All right, thank you.

MS. GLADSTONE: Thank you Your Honour, and I thank my friend.

MS. SHIRREFFS: Thank you. And I think that completes our list Your Honour.

THE COURT: Thank you all very much and thank you to the staff for your help today. I hope everyone has a nice weekend.

C O U R T A D J O U R N S

FORM 2

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Shannon Heryet, certify that this document is a true and

accurate transcript of the recording of R. v. Tristan Taylor in

the Ontario Court of Justice, held at 75 Mulcaster Street,

Barrie, Ontario, taken from Recording

No.(’s)3811_02_20180310_092524_10_FUERSTM.dcr which has been

certified in Form 1.

February 11, 2019 __________________________________

Shannon Heryet - ACT #3389634078