COURT FILE NO.: CR-17-40000530-0000

DATE: 20180514

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TOLA DIRK PAUL

Accused

John Rinaldi, for the Crown

Maurice Mattis, for the Accused

HEARD: April 2, 2018

REASONS FOR SENTENCE

dunnet j. (Orally)

Overview

[1] The accused was charged with aggravated assault and assault with a weapon on Paul Campbell, also known as Tall P, aggravated assault and assault with a weapon on Garthmore Stephens, also known as Foot, and possession of a weapon for a dangerous purpose.

[2] The jury rendered the following verdicts:

• guilty of aggravated assault on Tall P;

• guilty of assault with a weapon on Tall P;

• not guilty of aggravated assault on Foot;

• not guilty of assault with a weapon on Foot;

• guilty of possession of a weapon for a dangerous purpose.

Circumstances Surrounding the Offences

[3] The police unsuccessfully attempted to contact Tall P and Foot so that they could be served with subpoenas to attend the preliminary inquiry as witnesses. The police continued their search for the two men in preparation for the trial, but were unable to locate them.

[4] The jury heard the evidence of Tequan Campbell and the accused. Three surveillance videos depicting the events from different perspectives were also introduced into evidence.

[5] On April 17, 2016, Tequan Campbell was working as a security guard in the bar at the African Caribbean Restaurant, known as Africa House, located in a strip mall at 2111 Jane Street in Toronto. The accused and Tall P became involved in a dispute as they left the bar. The accused retrieved a machete from a van parked in a parking lot close to the entrance to the bar. He headed in the direction of Tall P with the machete in his hand. He was intercepted by a man described at trial as “the dreadlocks guy.”

[6] The accused calmed down and put the machete into the van. He walked towards Tall P, waved his hands in the air and returned to the van.

[7] Shortly thereafter, the accused heard a voice that he recognized as Kristian Gatto say that he had been stabbed. Then the accused saw Tall P running towards him with a machete and a knife. Tall P swung at the accused with the machete, which hit the door of the van and dropped to the ground. The accused reached for the sledge hammer inside the van. Tall P swung the knife at the accused which grazed him in the back. The accused swung the hammer at Tall P and it dropped to the ground.

[8] The accused picked up the machete and started to chase Tall P who was running towards the door to the bar. At the door, the accused slashed Tall P on his hand with the machete.

[9] Tall P opened the door and went inside the bar. Seconds later, the accused entered the bar with the machete in his hand. Almost immediately, the accused left the bar and walked towards the van. Then Tall P left the bar, picked up a knife from the sidewalk outside the door to the bar and headed towards Lucky’s bar located a few doors away in the strip mall.

[10] The accused followed Tall P towards Lucky’s where he saw three men with knives, including Foot, approaching him. In the melee that followed, Foot received a chop wound to the back of his head by the accused.

[11] Before trial, the defence brought an application to have the defence of self-defence put to the jury.

[12] In my reasons, I found that the fight in the parking lot between Tall P and the accused was almost consensual. When Tall P swung the machete at the accused, he ducked and the machete hit the van and dropped to the ground. The accused had the opportunity to leave and did not do so. Instead, he swung the hammer at Tall P, picked up the machete and started chasing Tall P who was running away from him. By that time, the threat was over. When the accused caught up to Tall P at the door to the bar, he slashed Tall P’s hand before he could open the door.

[13] I concluded that even assuming that the requirements of reasonable belief and defensive purpose had been met, the responsive acts committed by the accused were not objectively reasonable in the circumstances and the defence of self-defence lacked an evidential foundation and air of reality.

[14] The evidence at trial was that Tall P, Foot and Mr. Gatto were treated for their injuries at the hospital. Tall P required surgery to repair the muscles, tendons and nerves in his hand and was deemed to require plastic surgery to repair the hand completely. Foot’s injury to his head required three staples to close the wound. Mr. Gatto received a wound to his upper abdomen.

[15] Shortly after the events, the police located the van in a parking lot of an apartment building and spoke to the mother of the registered owner. The accused was arrested on scene and was found to be in possession of keys to the van. Inside the van, the police found a machete and sledge hammer.

The Accused

[16] The accused is thirty-three years old. He completed high school in St. Lucia and worked as a drywall installer. When two of his brothers were murdered, he and his common law spouse came to Canada in 2010. He is a convention refugee. He works off and on in the construction trade and is the sole provider for his two young sons.

[17] The accused has a criminal record for failing to comply with his recognizance in 2012 and failing to comply with his recognizance and escape lawful custody in 2013.

The Position of the Parties

[18] The Crown seeks a four year penitentiary sentence, giving credit for time served in pre-sentence custody at the rate of one and one half days for each day served. The Crown’s position is that if the court concludes that a reformatory sentence is appropriate, there should be a three year period of probation. Defence counsel submits that an appropriate sentence is eighteen months’ imprisonment and a two year period of probation.

[19] The position of the Crown is that there are four aggravating factors:

• First, the accused was the aggressor. He brandished the machete at Tall P and had to be restrained by the dreadlocks guy. Tall P was not acting aggressively until Mr. Gatto confronted him, and then Tall P approached the accused with a machete and a knife. When the accused picked up the machete that had fallen to the ground and started chasing Tall P with it, he was running away from the accused.

• Second, the injury to Foot’s head was serious. The accused testified that when the men were approaching him near Lucky’s, he swung the machete but did not mean to strike anyone in particular. The final question from the jury shortly before they reached their verdict was, “For charge #1 [aggravated assault to Foot], are we to consider whether the intention was to apply force to anyone or to apply force to a particular person?” Following a discussion with counsel, both agreed that in this case, the intent had to be directed at Foot and the jury was so advised. The Crown asserts that the jury obviously concluded that there was no intention to apply force to Foot. However, the other elements of the offence were made out because the accused admitted that his machete injured Foot.

• Third, the Crown suggests that it is apparent from the video evidence that as the accused approached the door to the bar, he was aiming at Tall P’s head with the machete and that it was only when Tall P used his hand to block the slash to his head that his hand was seriously and permanently injured.

• Fourth, the accused was driving in a vehicle, knowing that there was a machete inside.

[20] The position of the defence is that there is no dispute that the accused attacked Tall P. However, at various points, Tall P was the aggressor and his role in the fight should be considered. It is submitted that after the accused first approached Tall P with the machete and was restrained, he calmed down and put the machete back in the van. Minutes later, the video surveillance shows Tall P pushing a knife into Mr. Gatto’s abdomen before Tall P attacked the accused.

[21] The defence asserts that the injury to Foot is not relevant. The jury found the accused not guilty of the charges involving Foot and he should not be sentenced for crimes that he did not commit. Further, it is asserted that there is no evidence that the accused was aiming at Tall P’s head before his hand was slashed and no evidentiary foundation for the argument that Tall P’s injury is permanent.

[22] Finally, the defence submits that driving in a vehicle with a machete is not an aggravating factor because the vehicle belonged to someone else.

Analysis

[23] I accept that the aggravating factors in this case are that the accused was the aggressor, the injury to Tall P was serious, and the accused was driving in a vehicle knowing that there was a machete inside.

[24] The accused was the initial aggressor and had to be restrained. Although Tequan Campbell testified that he saw a machete in Mr. Gatto’s waistband when Tall P and Mr. Gatto were confronting one another, I am unable to conclude from the quality of the video evidence that there was a machete in his waistband at the time. Moreover, Mr. Campbell was not certain if it was the same machete that the accused had brandished earlier.

[25] Although Tall P injured Mr. Gatto and attacked the accused, this, as defence counsel submitted, provided no justification for the accused inflicting the slash wound to Tall P.

[26] From the video evidence, I am not able to find that the accused was aiming at Tall P’s head before slashing his hand. Although there is no evidential foundation to suggest that the injury to Tall P is permanent, I find that he sustained a serious injury to his hand, requiring surgery to repair the muscles, tendons and nerves.

[27] It is irrelevant that the machete was in the van belonging to someone else. The accused knew that it was there; he retrieved it from the van; and he was found in possession of keys to the van shortly after the events.

[28] The jury found the accused not guilty of the assaults on Foot. In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 15, the Supreme Court of Canada held that the appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction.

[29] At para. 17 in Ferguson, the court stated:

The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept any fact as evidence consistent only with a verdict rejected by the jury: Brown, [1991] 2 S.C.R. 518; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).

[30] Therefore, I do not rely on the facts or the evidence relating to the charges involving Foot which were rejected by the jury.

[31] In cases of aggravated assault, denunciation and deterrence are the primary sentencing principles. Those who arm themselves with weapons, like the accused, and use them to cause grievous bodily harm must be deterred.

[32] The accused’s criminal record is unrelated and dated.

[33] Among the cases relied upon by the defence in support of a reformatory sentence are the following:

In R. v. Moreira, [2006] O.J. No. 1248 (S.C.), the court sentenced the 19-year-old offender to 21 months’ imprisonment plus three years’ probation following a stab wound to the victim’s forearm. The offender had the support of his family.

In R. v. Tourville, 2011 ONSC 1677, the 28-year-old offender of Aboriginal heritage was sentenced to 21 months’ imprisonment plus two years’ probation. The fight was consensual until the accused stabbed the victim who received serious injuries to his face and arms. The court found that both sides were responsible for escalating the dispute. The offender came from a difficult background. He had strong parental support and significant rehabilitative potential.

In R. v. Tourville, at paras. 27 to 30, the court held that cases involving aggravated assault disclose a wide range of sentences. In the mid-range are those where high reformatory sentences have been imposed between eighteen months and two years less a day. They generally involve first time offenders and generally contain some elements suggestive of consensual fights but where the accused has resorted to excessive force.

At the high end of the range are cases where four to six years’ imprisonment have been imposed. Those cases 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.

In R. v. Charles, 2011 ONSC 3034, the 34-year-old offender was sentenced to 18 months’ imprisonment plus two years’ probation. The victim sustained a violent and unexpected stab wound to his abdomen. The accused was a first time offender and skilled worker with a supportive family and positive connections in the community.

In R. v. Gajraj, 2013 ONSC 1401, the 20-year-old offender was sentenced to two years less a day plus two years’ probation. The victim received a cut to his hand and a stab wound to his abdomen. Aggravating factors included the use of a weapon in a consensual fight and the severity of the wounds. Mitigating factors included the offender’s youth, lack of a criminal record, supportive family and prior conduct as a productive worker and family member.

In R. v. Clarke, 2014 ONSC 5346, the court sentenced the 28-year-old offender to 19.5 months’ imprisonment plus two years’ probation. The victim was stabbed in the forehead, arm and stomach. Racially-based insults were directed at the offender by the victim. Mitigating circumstances included positive prospects for a future career and rehabilitation for essentially a first time offender.

Disposition

[34] Taking into consideration the aggravating factors together with the principles of sentencing set out in s. 718 of the Criminal Code, I am of the opinion that a fit and proper sentence for aggravated assault in this case is two years less a day. I award the accused 1.5 days of credit for 292 days spent in custody. Therefore, the accused shall serve a further nine and one-half months in custody.

[35] The finding of guilt in relation to the offence of assault with a weapon shall be stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729: R. v. Basilio (2003), 169 O.A.C. 330, 175 C.C.C. (3d) 440.

[36] For the charge of possession of a weapon for a dangerous purpose, the accused is sentenced to eight months’ imprisonment to be served concurrently to the sentence for aggravated assault.

[37] Upon his release from custody, the accused shall be subject to an order of probation for two years with the following conditions:

1. Keep the peace and be of good behavior;

2. Appear before court when required to do so by the court and notify the court or probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

3. Report to a probation officer within 24 hours of his release and thereafter as required by the probation officer and in the manner directed by the probation officer;

4. Refrain from communicating directly or indirectly with Paul Campbell, Garthmore Stephens and Tequan Campbell;

5. Refrain from attending within 200 metres of Paul Campbell, Garthmore Stephens and Tequan Campbell or at any place known to be their residence or place of employment;

6. Refrain from attending within 100 metres of 2111 Jane Street; and

7. Not to be in possession of any weapons as defined by the Criminal Code.

[38] Pursuant to s. 109 of the Criminal Code, the accused is prohibited for the next ten years from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive device.

[39] Pursuant to s. 487.051(1) of the Criminal Code, the accused is ordered to provide samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis.

Dunnet J.

Released: May 14, 2018

COURT FILE NO.: CR-17-40000530-0000

DATE: 20180514

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TOLA DIRK PAUL

Accused

REASONS FOR sentence

Dunnet J.

Released: May 14, 2018