R. v. Kiser 2018 ONSC 3277

COURT FILE NO.: CR-17-00000032-00AP DATE: 2018-05-25

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Appellant

• and -

BRADLEY KISER Respondent

Counsel: Sean Doyle for the Appellant Mark M. Persaud for the Respondent

HEARD: March 12, 2018

REASONS FOR DECISION SUMMARY CONVICTION APPEAL

CORRICK J.

Introduction

1Following a trial before the Honourable Justice M. Hogan, the respondent, Mr. Kiser, was found guilty on January 10, 2017 of assault causing bodily harm. On March 13, 2017, the trial judge granted the respondent a conditional discharge and placed him on probation for one year. In addition to the statutory conditions, the probation order contained terms that the respondent attend and participate in counselling for anger management, refrain from contacting the complainant in the matter and refrain from attending the Labyrinth Lounge, where the offence occurred.

2The Attorney General of Ontario appeals against the sentence imposed on the respondent on the basis that it is manifestly unfit in the circumstances of the case.

The Offence

3The salient facts relevant to the sentence appeal are as follows. On November 12, 2015 at 1:00 a.m., the respondent and complainant were at a bar in Toronto. The respondent became angry after the complainant made a very vulgar comment to him in the presence of a female friend. The respondent invited the complainant to a physical fight, which the complainant declined.

4The respondent followed the complainant outside of the bar, when the complainant left to smoke a cigarette. Once outside, the respondent again challenged the complainant to a fight. The complainant again declined. Notwithstanding this, the respondent punched the complainant in the face about ten times. The complainant fell against some bicycles parked at a bicycle rack. The respondent continued to strike him in the chest and head.

5The owner of the bar, who witnessed the end of the assault, described the respondent holding the complainant over some bicycle racks by the scruff of his shirt with one hand, and striking the complainant in the face with his other hand.

6The complainant suffered numerous injuries. He had two broken orbital bones, a broken nose and a cracked rib. His nose had to be broken again and reset by a doctor. He required 14 stitches to close three cuts on his face. Capillaries in his eyes were broken, and he suffered from double vision for a time. He did not work for three weeks.

7At the time of the trial, the complainant had three scars on his face as a result of the stitches. In his victim impact statement presented at the time of sentencing, the complainant indicated that his eyes continued to bother him when he looked at a computer screen for too long, but this condition was improving.

The Offender

8At the time of sentencing, the respondent was a 35-year old first offender. A pre-sentence report prepared about him was positive. Numerous letters filed on his behalf spoke to his general character and the fact that this offence was out of character for the respondent. He completed a program in Construction Engineering Technology at George Brown College, and is employed as an Assistant Superintendent for a construction company. One of his former professors wrote a letter indicating that a criminal record will affect the respondent’s ability to be assigned as a manager of government construction projects.

9Following the conviction, the respondent wrote a letter of apology to the complainant and reimbursed him for his lost wages. The respondent also completed the first phase of a substance use treatment program at the Centre for Addiction and Mental Health.

10At the time of the offence in 2015, the respondent was suffering from depression and alcohol abuse stemming from physical injuries he had suffered in a car accident in 2011. Reports from doctors were filed before the sentencing judge outlining the physical and mental effects of his injuries and his ongoing pain.

Analysis

11At the sentencing hearing, the Crown sought a 90-day jail term. The defence argued for a conditional discharge.

12Counsel for the appellant and respondent agree that this court must show deference when reviewing the sentence imposed by the trial judge. An appellate judge may only intervene if the trial judge made an error in principle, failed to consider a relevant factor, overemphasized a factor, or imposed a sentence that was demonstrably unfit: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 90.

13Crown counsel submits that a conditional discharge in the circumstances of this case is manifestly unfit. In addition, he argues that the trial judge made a factual finding that was in error, and that she failed to give proper weight to general deterrence and denunciation.

14Defence counsel submits that the trial judge made no errors, accorded all of the sentencing principles their due weight, and in all of the circumstances of the case, imposed a fit sentence, albeit at the low end of the range. In addition, and importantly, this court owes deference to the sentence imposed by the trial judge, who conducted the trial and saw and heard the witnesses.

15Despite Mr. Persaud’s very able submissions, I am unable to agree with him.

16The trial judge erred in finding that the complainant had not suffered any long-lasting effects from the assault. He had three scars on his face from the stitches he required to close the cuts to his lip, above his eyebrow and on his forehead. In addition, the complainant indicated in his victim impact statement that his eyes continued to hurt when he looked at a computer screen too long, although that condition was improving. The trial judge was incorrect when she said that that the injuries had healed, and there did “not seem to be any long-lasting effects.”¹ Bearing facial scars from an assault is a long-lasting effect in my view. This error, standing alone, would not cause me to displace the deference owed to the sentence imposed by the trial judge.

17However, the trial judge also erred in placing insufficient weight on the sentencing principles of general deterrence and denunciation. The trial judge held that having to appear in a public courtroom, hire lawyers, and tell family and friends achieved the sentencing objective of denunciation. Respectfully, I do not agree. These circumstances are relevant to specific deterrence but do not denounce in any way the court’s and society’s disapproval of the respondent’s conduct. These consequences of being charged with a criminal offence are also insufficient to satisfy the objective of general deterrence, contrary to the trial judge’s finding.² This error is significant enough to displace the deference owed.

18Finally, I accept the Crown’s submission that the granting of a conditional discharge in the circumstances of this case was a demonstrably unfit disposition. A conditional discharge is available if a sentencing judge considers it to be in the best interests of the accused and not contrary to the public interest.³ It is clear that a discharge in this case was in the best interest of the respondent. However, for the following reasons, the granting of a discharge in this case, was contrary to the public interest.

19It failed to reflect the severity of the injuries the respondent inflicted on the complainant, and the level of violence perpetrated by the respondent as described by the bar owner. A conditional discharge was disproportionate to the gravity of the offence.

20There is nothing in the circumstances of this case to warrant a departure from the general rule laid down by the Ontario Court of Appeal in R. v. Wood,⁴ and more recently adopted by the same court in R. v. Huh⁵: “in cases of violence resulting in injury the requirement of general deterrence to the public militates in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused.”

21For all of the above reasons, the sentence appeal is allowed. It now falls to this court to impose the appropriate sentence, based on current circumstances, rather than those extant at the time of sentencing.

22The respondent has successfully completed his one-year probation period. He complied with all of the conditions of his probation. Two and one-half years have elapsed since the commission of the offence, and the respondent continues to make progress in his rehabilitation. More than one year has elapsed since the respondent was sentenced.

23There are many mitigating circumstances in this case, personal to the situation of the respondent, which I have considered. He has taken responsibility for the offence and made reparations to the complainant. He appears to have developed an understanding of the negative effects his use of alcohol has had on him. I am satisfied that the respondent has been specifically deterred.

24However, the brutal nature of the assault, together with the injuries sustained by the complainant, call out for a sentence that meets the objectives of denunciation and general deterrence.

25Mr. Doyle, on behalf of the Crown, has fairly submitted that a conditional sentence would be appropriate in all of the circumstances, given the passage of time and the rehabilitative efforts undertaken by the respondent.

26I accept Mr. Doyle’s submission. Were it not for the passage of more than one year since the respondent was sentenced, and the fact that he has completed his probation successfully, I would have imposed a sentence of imprisonment, or at least more onerous conditions as part of a conditional sentence order.

Disposition

27I allow the appeal, set aside the sentence imposed by the sentencing judge, convict the respondent of assault causing bodily harm, and impose a three-month conditional sentence with the following conditions:

1. keep the peace and be of good behaviour;
2. appear before the court when required to do so;
3. report to a conditional sentence supervisor within 48 hours of receipt of this judgment, and thereafter as required by the supervisor;
4. remain within Ontario unless written permission to go outside of Ontario is obtained from the court or the supervisor;
5. notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;
6. abstain from communicating, directly or indirectly, with Justin Thompson Hertzog;
7. do not attend the Labyrinth Lounge located at 298 Brunswick Avenue, Toronto; and
8. remain in your residence or on the property of your residence daily between the hours of 11:00 p.m. and 6:00 a.m. except, a. for any medical emergencies involving you; b. for going directly to and from or being at your place of employment; or c. with the prior approval of the conditional sentence supervisor.

28In addition, I make a weapons prohibition order, pursuant to s. 110(1) of the Criminal Code for a period of four years, and a DNA order pursuant to s. 487.051 of the Criminal Code.

29I note that the sentencing judge also made a DNA order so it may not be necessary for the respondent to provide another sample of his bodily substances.

Corrick J.

Released: May 25, 2018

COURT FILE NO.: CR-17-00000032-00AP DATE: 2017-05-25

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and - BRADLEY KISER

REASONS FOR DECISION Corrick J.

Footnotes

1. 1Transcript, March 13, 2017, at p. 45
2. 2Transcript, March 13, 2017, at p. 42
3. 3s. 730, Criminal Code
4. 4(1975), 24 C.C.C. (2d) 79
5. 52015 ONCA 356, at para. 12