R. v. Coltt Roberts

COURT FILE NO.: CR-16-30000636 DATE: 2018-07-27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Coltt Roberts

BEFORE: E.M. Morgan J.

COUNSEL: James Dunda, for the Crown Erec Rolfe, for the Defendant

HEARD: July 26, 2018

SENTENCING JUDGMENT

I. Background to sentencing

[1] On March 16, 2017, following a trial before me sitting as judge alone, Coltt Roberts was convicted of aggravated assault and breach of two probation orders. The charges related to an incident that occurred on June 20, 2016, in which Mark Irwin was grievously injured.

[2] Mr. Irwin was visiting a friend, Odetta McKenzie, at the time of the assault. Mr. Roberts is the father of Ms. McKenzie’s young son. The day of the incident was Father’s Day, and Mr. Roberts had spent time that day going on an outing with Ms. McKenzie and their mutual son. At trial the Crown played surveillance camera footage showing that Mr. Roberts came back that evening, peered through the keyhole of Ms. McKenzie’s apartment, and then shortly thereafter entered the first floor apartment, presumably by means of the balcony. The assault took place in Ms. McKenzie’s living room.

[3] This is not Mr. Roberts’ first conviction. He has some three dozen convictions on his record, almost half of which reflect incidents in which there was either violence or threatened violence against someone. Given this record, the Crown seeks a sentence at the very high end of the scale for a crime of this nature – 8 to 10 years, minus some credit for time served.

[4] The defence concedes that Mr. Roberts has a lengthy list of criminal antecedents, but submits that the Crown’s position is excessive. Defence counsel proposes a sentence in the 4 to 6 year range, minus credit for time served. The defence also seeks enhanced credit based on the harsh conditions of Mr. Roberts’ pre-trial and pre-sentencing detention.

II. Victim impact

[5] Victim impact statements were provided to the Crown by Mr. Irwin and his sister, Marcia Hale. Since Mr. Irwin testified at trial, I am familiar with the physical injuries he has suffered. He had a bad head injury, which has affected his balance, his speech, his overall strength and, most particularly, his emotional state. Mr. Irwin’s hospital records show that when he was first admitted immediately after the incident, his injuries were very severe, possibly even life threatening. He had to be intubated to keep breathing and was fed through a tube in his nasal passage.

[6] Fortunately for Mr. Irwin, he has had excellent medical care and has made quite a good recovery. Although he has not regained enough strength and balance to return to his previous job as a drywall installer, he is up and about and functional. He was coherent, if a bit weak, when he testified at trial, and showed little sign of confusion or cognitive impairment. He did, however, display a nervousness or insecurity and, indeed, in his victim impact statement he describe himself as a person who has lost his sense of purpose and self-confidence. He says that where he was formerly self-sufficient now he is needy, where he was formerly gregarious now he is withdrawn, and where he formerly took care of his family now they take care of him.

[7] In particular, Mr. Irwin and Ms. Hale both speak about the financial impact of Mr. Irwin’s injuries. He now lives with his sister and is financially dependent on her. In this regard, it is worth keeping in mind that the family of a victim of crime is often detrimentally impacted along with the direct victim: R v Pangan, 2014 ONCJ 237, at para 7. The financial strain described by Ms. Hale in her victim impact statement makes this point rather strongly.

[8] Mr. Irwin states that his disability payments have ended and he is still not in physical condition to work. He has children and grandchildren as well as elderly parents whom he used to help support but can no longer do so. Mr. Irwin makes clear in his victim impact statement that his financial plight has also impacted on his sense of self, and if anything this has exacerbated his desire to withdraw from social life. As he describes it, the injuries that he suffered in Ms. McKenzie’s living room on June 20, 2016 have changed his life in virtually every way.

III. Sentencing parameters

[9] In R v M (C), 1996 230 (SCC), [1996] 1 SCR 500, 566, Lamer CJC articulated the objectives of sentencing as follows:

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of the community.

[10] This balance of factors entails weighing the negative attributes of Mr. Roberts’ conduct against those aspects of his character and experiences that redound to his credit.

a) Aggravating factors

[11] First and foremost, the sentence must take into account the severity of the offense and, particularly, the severity of its impact on Mr. Irwin. Despite his remarkable recovery, it is clear that Mr. Irwin’s life will never be the same again. In any case, the Court of Appeal has indicated that a victim’s subsequent recovery does not counter the fact that they initially suffered a particularly grievous injury: R v Stubbs, 2013 ONCA 514, at para 149. Society has a justifiable need to mark its abhorrence of the kind of violence that led to his serious injury and deterioration of his lifestyle.

[12] There is also a deterrence interest in achieving the appropriate sentence in this case. Although this was not an instance of domestic violence in the sense that Mr. Roberts did not assault his domestic partner, it did take place in a domestic context. Mr. Irwin only came to Mr. Roberts’ attention because of the amount of time Mr. Irwin was spending with Ms. McKenzie. This included Mr. Irwin spending the evening of Father’s Day, 2016 with the mother of Mr. Robert’s child.

[13] Counsel for the Crown notes that Mr. Roberts has a history of violence in the domestic context. He has had serious relationships with four different women, and has convictions for domestic violence with respect to each of the four – including Ms. McKenzie, with respect to whom Mr. Roberts was under a probation order not to communicate with when the present incident occurred.

[14] Trotter J. (as he then was) observed in R v Chirimar, 2005 ONCJ 385, at para 1, that “[c]ases of domestic violence come before the courts in Canada with depressing regularity.” This context is now recognized as one of Canada’s most pressing social problems – one that needs to be addressed in the sentencing process. The Alberta Court of Appeal made this explicit in R v Brown, 1992 ABCA 132, at para 21, where it observed, “When a man assaults his wife or other female partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. It is an aggravating factor.”

[15] In terms of his personal background, the pre-sentence report indicates that Mr. Roberts grew up in a poor home, but that it was not an abusive one. He did not know his father, and his mother was a rather strict disciplinarian. Both of his siblings have respectable jobs and are productive citizens with no involvement in the criminal justice system. Mr. Roberts, on the other hand, started compiling his lengthy criminal record at a rather young age, and at the age of 29 now has 36 convictions. He has no substance abuse concerns, but he conceded to the author of the pre-sentence report that he has supported himself through criminal activity.

[16] I will pause here to take note of the comments of Mr. Roberts’ probation officer which are relayed to the court in the pre-sentence report. The probation officer has classified him as “Intensive”, which indicates that “he is deemed to be of imminent risk to public/victim…[and] high risk to reoffend.”

[17] Defence counsel points out that the probation officer’s comment amounts to a hearsay statement within a hearsay statement, and should be given little or no weight. While I agree that the comment is being relayed to the court second hand, it comes from the author of the pre-sentence report which is generally speaking a reliable source. Admittedly, I do not know precisely what the probation officer meant or how and why he came to that conclusion, but the mere expression of it in the pre-sentence report carries at least some minimal weight. One professional familiar with Mr. Roberts has sounded an alarm for specific deterrence.

b) Mitigating factors

[18] The pre-sentence report author observed that, “The offender was pleasant when interviewed for this report, and stated that he wanted to change.” Although Mr. Roberts has maintained his innocence in the present offence, he has indicated that he is sorry about Mr. Irwin’s injuries. I do not know whether he is cognizant that many of his anger issues appear to arise in the context of intimate partners, but the fact that he has expressed a desire to change indicates that he is aware that he has problems that need to be addressed.

[19] In terms of employment prospects, I have very little to go on. Mr. Roberts has expressed a desire to start up a consulting business helping other unemployed people with their job searches. As Crown counsel points out, this ambition is both ironic and unrealistic given that Mr. Roberts himself has never really held down a job.

[20] That said, Mr. Roberts was self-represented for a time during the course of this case, and in that capacity brought an application to re-open the trial after the verdict based on a number of different grounds. I did not grant the relief Mr. Roberts sought in that application, but I was impressed by his written and oral submissions. His written brief, done by hand while in jail, was coherent, well argued, and supported by case law that was cited correctly. It was the work of a person without a formal legal education, but with a very capable mind and strong work ethic when motivated. It gives me hope for Mr. Roberts’s future, assuming that he dedicates himself to turning his prospects around.

c) Harsh pre and post-trial detention

[21] Section 719(3) of the Criminal Code provides that I may take into account the time Mr. Roberts spent in custody by giving credit for time served on the basis of a 1:1 ratio. Section 719(3.1) authorizes me to give enhanced credit in a 1.5:1 ratio if the circumstances justify it.

[22] Mr. Roberts has spent a total of 728 days (2 years plus 8 days) in pre-sentence custody at the Toronto South Detention Centre (“TSDC”). Of those, 426 days were in segregation. That is by any measure an extraordinary amount of time in segregation.

i) Credit for time served

[23] As indicated, Mr. Roberts has spent just over 2 years in custody. He deserves some credit for this time. While he complains that the time he spent in segregation was unduly harsh and should come in for special consideration, as will be discussed below, he does not particularly complain about the time he spent as a remand inmate in general population at the TSDC.

[24] Defence counsel states that there were periodic lockdowns during Mr. Roberts’ time at TSDC. The evidence suggests that there may have been up to 35 partial or full lockdown days experienced by Mr. Roberts. That is an unfortunate aspect of a stay at TSDC, but there is no evidence that those lockdown periods had a particularly detrimental impact on Mr. Roberts. The treatment he received was the standard treatment. There was nothing out of the ordinary in the days of custodial time that he spent in general population.

[25] That said, all of the time that Mr. Roberts spent at TSDC was time spent in detention. It should be credited on a 1:1 basis pursuant to s. 719(3).

ii) Enhanced credit and the Duncan case

[26] The contentious issue in this case is with respect to the 426 days that Mr. Roberts spent in segregation. Counsel for the defence submits that this time should be credited at the very least at the 1.5:1 rate authorized by s. 719(3.1), and that, in fact, it deserves even more than that due to the harshness of the conditions which Mr. Roberts had to endure.

[27] In R v Duncan, 2016 ONCA 754, [2016] OJ No 5255, at para 6, the Court of Appeal stated that, “…particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.” Counsel for the defence urges me to do as the Court of Appeal said I may do – to take into account the lengthy segregation of Mr. Roberts as a mitigating factor and reduce his sentence accordingly.

[28] Counsel for the Crown submits that, in fact, the time spent by Mr. Roberts in segregation was at his own request. While the Crown does not oppose 1.5:1 as set out in the Criminal Code, it opposes anything beyond this statutorily designated amount of enhancement. Crown counsel points out that other cases have commented that even in very difficult conditions of detention it is still possible to take advantage of educational and other programing: see R v Deiaco, 2017 ONSC 3174, at para 60. He says that Mr. Roberts, however, chose not to do that by staying in segregation.

[29] It is the Crown’s view that since Mr. Roberts chose segregation of his on volition, he deserves no special consideration for having spent so much time there. Counsel for the Crown points to R v Jefferies, 2017 ONSC 6172, where the defendant chose segregation because he was schizophrenic. As a result, no enhanced credit was awarded by the court. He likewise relies on R v Georgiev, 2017 ONSC 1265, where the court refused to order enhanced credit where the defendant asked to be in segregation because he was beat up in general population.

[30] While a defendant’s free choice of segregation may weigh against any enhancement of credit for time served, the questions are whether the choice was truly free and whether the impact on the defendant was in any case adverse. Thus, for example, in Georgiev, at para 47, the Court did not say that there could be no enhanced credit for time spent in segregation during pre-trial detention. Rather, what the Court held was that enhanced credit would not be granted under the circumstances as “there was no evidence of any adverse effect on him flowing from the conditions of incarceration.” Crown counsel says that the same is true of Mr. Roberts.

[31] I cannot agree with the Crown here. The record before me contains the uncontroverted affidavit evidence of Mr. Roberts, who deposes as to the adverse impact that segregation had on his psychological well-being. He indicates that he withdrew into himself, turned highly anti-social, and became reluctant to go out into the general prison population. He says that be became extremely anxious at any interaction with other inmates. Finally, on April 24, 2018, Mr. Roberts was seen by a physician for depression and stress as a result of long term segregation, and was prescribed medication to address these effects. The next month, in May 2018, he was released from segregation.

[32] In a report by the Ontario Ombudsman entitled “Segregation: Not an Isolated Problem”, April 27, 2016, at para 40, the Ombudsman states that, “Segregation can have profoundly negative impacts on inmate health and welfare… In his three-year review of federal inmate suicides, the federal Correctional Investigator found that segregation is an independent risk variable for inmate suicide.” Likewise, the British Columbia Supreme Court in BCCLA v Canada, 2018 BCSC 62, [2018] BCJ No 53, at para 249, has observed that the effects of long term segregation often manifest as an intolerance of social interaction and that this kind of treatment ultimately harms a person’s ability to readjust to general population or to the community when released. At para 328, the BC court went on to state that segregation breaks down a person’s ability to interact with other human beings and risks mentally healthy inmates descending into mental illness while exacerbating the symptoms of those with pre-existing mental health issues.

[33] Similar observations have been made in Ontario. In R v Burton, 2018 ONCJ 153, [2018] OJ No 1250, at para 96, Green J. stated that, “There have now been numerous studies about the impact of long placements in segregation and new standards on how long an inmate may remain in segregation have been released in response to these studies.” This was confirmed by Associate Chief Justice Marrocco in CCLA v The Queen, 2017 ONSC 7491, at para 254, where he held that, “…the practice of keeping an inmate in administrative segregation for a prolonged period is harmful and offside responsible medical opinion.” With these findings now widely published, the court in Burton, supra, at para 96, went on to state, “I am satisfied that I can take judicial notice of the harm this would cause.”

[34] I agree with that approach. In the record there is ample evidence from Mr. Roberts that the long term confining of him in segregation had serious psychological consequences for him. But even if he had not deposed to that fact, it could today be taken as a matter of judicial notice. One does not need an affidavit to say that a gunshot to the arm hurts the arm; likewise, one does not need an affidavit to say that over a year in segregation, with almost no yard or other recreational time and simply sitting alone in a small cell for up to 23 hours a day, will turn a person into himself and create anxiety in dealing with others. Of course Mr. Roberts was adversely impacted by spending 426 days in segregation.

[35] As for the lengthy stint in segregation being a matter of choice, Mr. Roberts contests that. The evidence is clear that he did not at first request to into segregation; he was sent there as a disciplinary measure. The regulations under the Ministry of Correctional Services Act require 5-day and 3-day reviews of a person in segregation to determine if there are any problems and to consider whether segregation should continue for that person. Mr. Roberts deposes that the reviews were perfunctory and meaningless. He can recall that on occasion a person would shout at him from outside his cell door “Are you okay?”, or something to that effect, and Mr. Roberts would usually say “Yeh”. That was the extent of the reviews.

[36] In the Ombudsman’s report of April 27, 2016, at para 32, it is noted that, “…the periodic segregation review guaranteed by the Ministry’s regulation and policy are sometimes not completed, or are completed in a perfunctory and mechanical way.” From what I see in the record before me, that is an understatement. Defence counsel has put into the record a large number of review forms completed by staff at the TSDC. They all appear to be cut and paste jobs with no meaningful content.

[37] To give just one example, almost all of the 5-day reviews contain the same language in response to one of the questions supposedly put to Mr. Roberts: “Inmate was advised that they are placed in segregation for the admit reason of Own Request – Needs alone time- Stressed.” These 5-day review forms were filled out every week. Each form, however, has the same exact answer to that question, with the same poor grammar, the same typographical errors, the same spacing of dashes between the words. These forms repeat consistently from September 2017 to May 2018. It is obvious that the forms do not reflect the conducting of any real reviews.

[38] Mr. Roberts did concede that for a period of several months, while he was working on his application to reopen the trial, his stay in segregation provided him with one benefit: he could have unrestricted access to law books and to his own legal file. He explained that in general population he would barely get an hour a day at the library, and could not access, for example, a Criminal Code if it were being used by someone else. By contrast, in segregation he could bring the books and records that he needed to his cell and work on his submissions all day.

[39] In this way, Mr. Roberts did get some benefit out of part of the time spent in segregation. Nevertheless, the isolating effects of this experience ultimately took their toll no matter how many hours a day he spent looking through law books. Although it may have been helpful when he was writing his legal submissions for a couple of months in mid-2017, it was otherwise an experience that led to him needing the care of a physician and being prescribed medication for the adverse mental health symptoms he was experiencing.

[40] Other courts have previously held that even a genuine request to stay in segregation does not necessarily mitigate its harshness, and an in any case lead to enhanced credit: R v Oben, [2013] OJ No 1100, at para 42. Mr. Roberts’ case, where the review process was faulty and his ‘voluntariness’ was really a façade created by the perfunctory reviews he received, is all the more egregious.

[41] Segregation at a detention facility is not designed to be pleasant. It is the 5-day and 30-day periodic reviews that are supposed to regulate and temper the experience in order to keep this punitive form of incarceration to a necessary minimum. Not to put too fine a point on it, segregation is meant to be much like philosopher Thomas Hobbes described life in the state of nature: “nasty, brutish, and short”: Thomas Hobbes, Leviathan, pt. 1, ch. 13 (1651). Unfortunately, the pattern at the TSDC was to pay no attention at all to the periodic reviews, with the result that Mr. Roberts’ segregation was nasty, brutish, and quite long.

iii) Calculating the credit

[42] As indicated, Mr. Roberts spent a total of 426 days in segregation out of his 728 days in detention. Defence counsel seeks enhanced credit in the range of 2.5:1 in view of the harshness of this detention. While the case law does support reflecting harsh terms of detention as a mitigating and discretionary factor in further reducing the sentence, the case law does not support a precise mathematical calculation beyond that authorized under s. 719(3.1).

[43] Many of the reported cases to which defence counsel has referred me entail a consideration of circumstances where enhanced credit under s. 719(3.1) is at issue. In the leading case, the Supreme Court of Canada in R v Summers, 2014 SCC 26, [2014] 1 SCR 575 approved enhanced credit of 1.5:1 where the defendant spent 10.5 months in harsh pre-trial detention conditions, but not segregation.

[44] Typically, where credit is sought under the Duncan approach, courts start with the credit specifically authorized by the Criminal Code and consider whether the case warrants additional time due to its extraordinary circumstances. Thus, in R v Johnson, 2017 ONSC 3512, at para 68, the defendant received credit of 1.5:1 under s. 719(3.1) plus an extra 4 months reduction for having spent pre-trial detention in almost constant lockdown. Likewise, in R v Powell, 2017 ONSC 7437, at para 39, the defendant received 1.5:1 plus an extra 4 months for having spent over 1,000 days in extremely frequent lockdowns. In R v Kirkeby, 2018 ONCJ 216, at para 36, the defendant received credit of 1.5:1 plus an extra month for having spent much of his pre-trial detention in protective custody. At the high end, in R v Ward-Jackson, 2018 ONSC 178, Kelly J. allotted what she has called “Duncan credit” of 16 months in view of the defendant’s affidavit evidence relating the extremely detrimental mental health effects of more than a year’s worth of lockdown days.

[45] It is accepted that, “there is no mathematical formula that can be applied in these circumstances to conveniently calculate the appropriate credit for these types of harsh conditions of pre-sentence custody, which have had this type of negative impact upon an accused. Rather, the specific nature of the appropriate credit is left to the discretion of the sentencing court”: R v Tello, 2018 ONSC 2259, at para 80. Although defence counsel has used a numerical ratio in order to signal the appropriate level of extra credit that should apply to Mr. Roberts’ situation, I will refrain from using a mathematical approach.

[46] I am prepared to recognize that Mr. Roberts’ time spent in segregation was unduly harsh and had a sufficiently detrimental impact on his mental health that the Duncan case applies. Bad as constant lockdowns are in a detention facility, segregation is that much worse. A persistent pattern of lockdowns doubtless cause stresses among the prison population as they curtail recreational and educational time; they do not, however, typically cause the type of psychiatric ailments that the studies demonstrate and that Mr. Roberts himself has attested to.

[47] Based on the evidence before me, I am prepared to give Mr. Roberts a further credit in the range of 14 months (less 8 days for ease of calculation) given his lengthy and harsh experience of segregation at TSDC. This Duncan credit, to use Justice Kelly’s phrase, shall be added to the 2 years and 8 days of credit that Mr. Roberts deserves under s. 719(3).

d) Aggravated assault

[48] In R v Tourville, 2011 ONSC 1677, Code J. observed that the highest level of sentence for aggravated assault is for recidivists, those with a serious prior criminal record, and those who commit assault of an unprovoked and pre-meditated nature. Counsel for the Crown submits that Mr. Roberts fits all three of these categories.

[49] In R v Munro, 2003 4958 (ON CA), [2003] OJ No 512, the Ontario Court of Appeal fixed a sentence at 9 years where the defendant had committed an assault by knife slashing, which required hundreds of stitches to the victim’s face. The accused in Munro had a sad, difficult life with many prior convictions, and the trial judge found that there was little hope for rehabilitation. At para 72, the trial judge commented, “The serious nature of the assaults, their occurrence in the bedroom of the complainants’ home where the appellant was a guest, the degree and nature of the injuries suffered by the victims…the appellant’s lengthy criminal history and the fact that he was on parole when the offences were committed, amply justify the sentence as imposed.” Many of these features of the Munro offence are similar to those of the case at bar.

[50] In another case with similarities to that of Mr. Roberts, R v Sotera, [1987] OJ No 515 (Ont CA), the victim’s injuries were more severe than Mr. Irwin’s but the defendant conveyed a hope of rehabilitation. In fact, the defendant had begun taking steps in this direction by attending various programs, and he acknowledged the sources of his problems. Under those circumstances, the Court of Appeal imposed a 6-year sentence.

[51] In Tourville, Code J. described 6 years as being at the top end of sentencing for aggravated assault. As Munro and Sotera illustrate, however, it would seem that the cases fluctuate greatly, and that 6 years is more of a middle range among the reported cases.

[52] In fact, in R v Dunn, [1999] OJ No 4575, the court indicated that a severe beating warrants close to the maximum sentence and imposed 11.5 years. In R v Humphrey, [2008] OJ No 208, the victim suffered a similar type of injury as Mr. Irwin did. Unlike in the present case, however, the assault happened because the defendant went too far in self-defense. It was not unprovoked. Also, unlike the present case where Mr. Roberts was found standing over Mr. Irwin, in Humphrey the accused actively tried to render help to the victim. It was also found that there was a hope of rehabilitation. Despite a number of mitigating features, the Court imposed an 8-year prison term.

[53] On the other hand, as indicated above, Justice Code in Tourville, at para 30, suggested that a high range for serious offenders was 4 to 6 years. Crown counsel submits that the sentencing range in Tourville was lower than in other cases because it was one where the Gladue principles applied.

[54] In response to this, defence counsel points out that although Tourville itself was a Gladue case, the cases on which Code J. relied in coming to his decision were not, and that 4 to 6 years must be the high range for any aggravated assault charge. As an illustration, in R v BMB, [2005] OJ No 5173, the court dealt with a very serious assault in the domestic context and reasoned that general and specific deterrence and denunciation were its primary considerations. In that context the court sentenced the defendant to 6 years.

[55] And then there are cases put forward by defence counsel that are on the lower end of the scale. R v Jayne, [2004] OJ No 1505 was an aggravated assault, although the victim sustained far less serious injuries than did Mr. Irwin. Like Mr. Roberts, the defendant had a prior record of violent crimes, although not as extensive as Mr. Roberts’ record. The court imposed a prison term of 36 months.

[56] In R v Byce, [2007] OJ No 5859, the victim of an aggravated assault sustained serious injuries to his head and face, and was hospitalized and in need of surgery. A description of the injuries, however, reveals that they were not as serious nor as debilitating as Mr. Irwin’s injuries. The defendant had numerous prior convictions, for the most part for crimes of violence. The court sentenced him to 3 years. The same 3-year sentence was imposed in R v Brethour, [2013] OJ No 766, where the victim suffered a brain hemorrhage. Unlike Mr. Robert’s case, there was no domestic context to the assault and no indication of premeditation.

[57] In my view, the cases cited by defence counsel are a bit too low, while those relied on by the Crown are certainly too high. I am inclined to follow the example set by Code J. in Tourville, although I do concede the Crown’s point that a review of the cases indicates that 6 years is simply not the most severe punishment that courts have in fact imposed for aggravated assault. What Justice Code must be taken to mean is that 6 years is the highest custodial sentence that courts should impose absent more extraordinary circumstances, and especially in light of the Gladue principles at play in Tourville.

[58] Although Mr. Roberts’ offence was a violent one which impacted very severely on Mr. Irwin’s life, it was not in the category of a knife attack to the face like the cases found in the 8 to 11-year range. Since this is not a Gladue case, it should come in somewhere just above the highest end of the scale that Code J. identified in Tourville. I would place it at 6.5 years.

IV. Disposition

[59] In all the circumstances, for the aggravated assault I hereby sentence Mr. Roberts to 6 years and 6 months, less 3 years and 2 months of total credit deducted under a combination of s. 719(3) and the Duncan case. That makes for a total custodial sentence of 3 years and 4 months. The sentence for the breach of probation orders shall be 60 days each, to run concurrently with the sentence for the aggravated assault.

[60] Mr. Roberts will also be subject to the following ancillary orders:

a) an Order under s. 487.051(2) of the Criminal Code that Mr. Roberts provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database; and

b) an Order under s. 109 of the Criminal Code that Mr. Roberts be prohibited from possessing any weapons (as defined in that section) for life.

Morgan J.

Date: July 27, 2018