Court File and Parties

Court File No.: 17-236 Date: 2019-03-29 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Dean Richer-Lebreton, Defendant

Counsel: Dennis Chronopoulos, for the Crown Uma Kancharla, for the Defendant

Heard: February 28, 2019

Reasons for sentence

Boswell J.

[1] Mr. Richer-Lebreton was convicted on August 30, 2018 of aggravated assault. There was a delay between conviction and sentencing as attempts were made, at the request of Mr. Richer-Lebreton, to determine his aboriginal status and to obtain a Gladue Report. After considerable investigation by Aboriginal Legal Services, it was concluded that they were unable to confirm Mr. Richer-Lebreton’s Indigenous ancestry.

[2] Sentencing submissions were finally received on February 28, 2019. The following are my reasons for the sentence imposed.

The Circumstances of the Offence

[3] The offence occurred at roughly 5 a.m. on December 6, 2016, but the story began the night before. Mr. Richer-Lebreton and his then girlfriend, Jennifer Brisebois, attended at the apartment of a friend, Michael Mugford, for the purpose of socializing. There were a number of other people at Mr. Mugford’s residence, including Mr. Robert Sheard-Bodine.

[4] Mr. Sheard-Bodine and Mr. Richer-Lebreton had been friends for a number of months. There was no history of animus between them. On the occasion in issue however, Mr. Sheard-Bodine expressed to Ms. Brisebois his romantic attraction to her. She relayed that information to Mr. Richer-Lebreton. Mr. Richer-Lebreton and Mr. Sheard-Bodine began to physically grapple with one another. I have not used the word “fight” because, though the evidence is not clear, it appears that at one point Mr. Richer-Lebreton simply had Mr. Sheard-Bodine in some sort of a hold. To get out of the hold Mr. Sheard-Bodine poked Mr. Richer-Lebreton in the eye.

[5] Mr. Richer-Lebreton subsequently left the get-together and headed to the local hospital to have his eye examined. In the meantime, Mr. Sheard-Bodine walked Ms. Brisebois back to her apartment. She shared the apartment with her mother and Mr. Richer-Lebreton. Mr. Sheard-Bodine ended up sleeping at her apartment, on her bed, with her, though they each said they were laying in opposite ends from one another.

[6] At roughly 5 a.m., Mr. Richer-Lebreton returned to the apartment from the hospital, to find Mr. Sheard-Bodine there, in bed with Ms. Brisebois. A physical altercation followed. Mr. Sheard-Bodine made his way towards the front door, where he was stabbed by Mr. Richer-Lebreton.

The Circumstances of the Offender

[7] Mr. Richer-Lebreton is 44 years old. He is apparently the father to six children, ranging in ages from 18 months to 22 years. He has had only minimal involvement in the lives of his children. He has never seen his youngest child, who was born subsequent to his arrest in this matter.

[8] Mr. Richer-Lebreton has an extensive criminal record which reaches back to 1991. He has, by my count, a total of 58 prior convictions. He has 15 convictions for uttering threats, criminal harassment and/or intimidation. He has 9 assault-related convictions, including two assaults with a weapon. He has one conviction for sexual assault and one for incest. He has two convictions for unlawful possession of weapons, one conviction for possession of a scheduled substance and nine convictions for property-related offences. He has an alarming 20 convictions for breach of recognizance or probation.

[9] There is a gap of just over four years in convictions between late 2006 and early 2011 and another gap of roughly four years between early 2011 and May 2015. A significant portion of the second gap, however, is explained by a 38 month custodial sentence imposed on Mr. Richer-Lebreton in January 2011. Mr. Richer-Lebreton’s record is otherwise largely uninterrupted over the past 28 years. His age and his persistent criminality suggest that he is an incorrigible recidivist.

[10] A pre-sentence report was prepared that does little to enhance Mr. Richer-Lebreton’s reputation. He refused to engage with the assessor in any meaningful way. For edification, the assessor is a probation officer who supervised Mr. Richer-Lebreton for some time prior to his arrest on the charge now before the court. She had him charged with failing to comply with his probation and he evidently has some hard feelings towards her.

[11] The assessor noted that Mr. Richer-Lebreton has been verbally threatening towards female parole and probation officers and had to be seen in the Ministry’s secure interview room.

[12] Mr. Richer-Lebreton self-reports that he suffers from mental health issues including bipolar disorder, post-traumatic stress disorder, attention deficit disorder, anxiety, depression and epilepsy. His lawyer listed a number of medications he takes on a daily basis, though I do not know what any given one of them does. Mr. Richer-Lebreton has received, and continues to receive, support from the Canadian Mental Health Association. He has been supported through the Ontario Disability Support Program since 2001.

[13] Mr. Richer-Lebreton has never accepted responsibility for the offence. He continues to blame the victim for stabbing himself, which is, of course, preposterous.

The Impact of the Offences

[14] As a result of the index offence, Mr. Sheard-Bodine suffered a serious stab wound, roughly four inches in length, to his abdomen. His intestines protruded from his abdomen. He required emergency, invasive surgery to repair the damage.

[15] Mr. Sheard-Bodine filed a Victim Impact Statement in which he indicated that he continues to suffer physically. He may require further surgery. He is unable to participate in physical activities like he once could. He has difficulty walking any significant distance. He has also suffered emotionally and has been unable to work since the offence occurred.

The Governing Principles

[16] The overarching principle of sentencing is set out in s. 718.1 of the Criminal Code: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[17] When assessing what a fit, just and proportionate sentence is in a given case, Parliament has directed sentencing judges to consider the objectives set out in s. 718 of the Code. Specifically, the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[18] Sentencing is, fundamentally, an individual exercise. Each sentence must be tailored to the particular circumstances of the offence and of the offender. Any aggravating and mitigating circumstances must be carefully examined.

[19] In each case, the weight to be put on the individual sentencing objectives varies depending on the facts and circumstances of the offence and of the offender.

The Legal Parameters

[20] Pursuant to s. 268(2) of the Criminal Code, the maximum sentence for aggravated assault is 14 years imprisonment. There is no minimum sentence applicable.

The Positions of the Parties

[21] The Crown seeks a sentence in the range of 6-8 years, together with an order that Mr. Richer-Lebreton provide a sample of his DNA, that he be subject to a weapons prohibition order for life and that he not have any direct or indirect contact with Mr. Sheard-Bodine during the custodial portion of his sentence.

[22] The Crown also seeks an order that Mr. Richer-Lebreton be denied enhanced credit for his 654 days of pre-sentence custody or, in the alternative, that he be required to serve one-half of his sentence before being eligible for parole, pursuant to s. 746.3(1) of the Criminal Code.

[23] In the Crown’s submission, it is fanciful to believe that Mr. Richer-Lebreton is capable of rehabilitation. His offences must be denounced in the clearest terms and he must be separated from society for a significant period of time. He is a significant threat to re-offend and shows no remorse for his actions in this instance.

[24] The index offence was committed while Mr. Richer-Lebreton was on a conditional sentence and while simultaneously subject to two probation orders. While in custody he assaulted and threatened two special constables and was convicted of those offences on August 1, 2018. He is not likely, the Crown contends, to be released early by the Parole Board and ought not to, in the circumstances, receive enhanced credit for his pre-sentence custody.

[25] The defence position is that a more appropriate sentence would be four years. The court is urged to consider the jump principle. Previously Mr. Richer-Lebreton’s lengthiest sentence has been 38 months. A sentence in the range sought by the Crown would be a substantial step up from that.

[26] Defence counsel argued that, while serious, the assault here consisted of one stab wound. It was not a sustained attack. Moreover, the court should consider that Mr.er-Lebreton was provoked. He returned to his apartment from the hospital to find Mr. Sheard-Bodine in bed with his pregnant girlfriend.

[27] While in custody Mr. Richer-Lebreton has completed numerous Bible study courses and a parenting course and has begun to reconnect with one or more of his children. He has stayed in touch with mental health professionals and wishes to continue with their support upon his release. His mental health issues and his Indigenous status are, in defence counsel’s submissions, factors to be taken into account by way of mitigation.

Discussion

[28] As I noted, proportionality is the fundamental principle that guides the court’s assessment of what is a fit and just sentence in any given circumstances. Proportionality engages two concepts: censure and restraint. As Lebel J. explained in R. v. Ipeelee, 2012 SCC 13, at para. 37:

Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system…Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[29] The concept of proportionality also engages the principle that like cases should be treated alike. Conversely, courts must recognize where there are material differences between different offenders and difference offences. Section 718(2)(b) Cr. C. specifically provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.

[30] The treating of like cases alike requires the court to consider any established ranges for sentences imposed on similar cases in similar circumstances in the past. Ranges are a helpful starting point, but they are only guidelines. Any given case may fall above, below or within an established range, based on the unique factors associated with that case. It must always be remembered that there is no one-size-fits all sentence for any offence. Sentencing remains an inherently individualized process: see R. v. Nasogaluak, 2010 SCC 6 and R. v. Nur, 2015 SCC 15.

[31] In R. v. Tourville, 2011 ONSC 1677 Code J. described sentencing ranges for aggravated assault as falling into three general tiers. At the low end are cases with exceptionally mitigating circumstances, where modest punishments are typically imposed. Mid-range cases, frequently involving consensual fights where excessive force is used, typically result in sentences in the upper reformatory range, roughly 18 months to 2 years less a day. At the high end are cases involving seriously aggravating circumstances, such as extreme violence, premeditation, an absence of provocation and/or where the offence has been committed by a violent recidivist. Upper end cases tend to attract more significant penitentiary sentences, in the four to six year range.

[32] The ranges described in Tourville are quite helpful, but again, I stress that they are only guidelines. Many cases can be identified where sentences have been imposed above or below the identified ranges. Where any particular case falls is largely a function of the aggravating and mitigating circumstances present in the case.

[33] The aggravating circumstances here include the following:

(a) The use of a weapon; (b) The attack on an unarmed man, who had otherwise been sleeping; (c) The severity of the injury caused; (d) The extensive criminal record of the offender, including many offences of violence; and, (e) The fact that the offences were committed at a time when Mr. Richer-Lebreton was serving a custodial sentence in the community and simultaneously subject to two probation orders.

[34] There are essentially no mitigating circumstances in my view, save for the fact that Mr. Richer-Lebreton found Mr. Sheard-Bodine in bed with his girlfriend, which was undoubtedly emotionally upsetting to him, as it may be to a good many people.

[35] I must address two issues raised by defence counsel by way of mitigation, both of which I find unpersuasive.

[36] First, Ms. Kancharla asked that I consider Mr. Richer-Lebreton’s mental health issues and their impact upon him.

[37] I accept that Mr. Richer-Lebreton suffers from mental health issues. I do not completely accept his self-diagnosis, but I do accept that he has mental health concerns that impact on his day-to-day functioning. I am unable to say, however, how those mental health problems are connected to the index offence. Whether the mental health of an offender reduces his or her moral blameworthiness and should thus be considered as a mitigating factor on sentence generally requires the offender to demonstrate a causal link between the illness and the offence: see R. v. Haly, 2012 ONSC 2302, at para. 34. No such link has been established here.

[38] Second, Ms. Kancharla asked that the court have regard to Mr. Richer-Lebreton’s Indigenous background and apply the principles enunciated by the Supreme Court in R. v. Gladue, [1999] 1 S.C.R. 688.

[39] Mr. Richer-Lebreton may have an Indigenous ancestry. I am not, however able to determine what that is, nor how it may have impacted on his life. I have no means of assessing how any systemic or background factors may have played a role in his lengthy history of criminality or to his commission of the index offence in particular.

[40] I recognize that I may take judicial notice of the broad systemic and background factors affecting Indigenous people generally and of the priority given in Indigenous cultures to a restorative approach to sentencing: Gladue, at para. 93.

[41] Having said that, I do not consider Mr. Richer-Lebreton to be a particularly reliable historian. His connection to the Indigenous community is quite tenuous. Moreover, given the violent nature of this attack and Mr. Richer-Lebreton’s extensive criminal antecedents, any mitigation on account of the principles enunciated in Gladue would be minimal at best.

[42] Crown and defence counsel each submitted a number of cases that they say reflect similar circumstances to those here. I do not intend to mention every one of them.

[43] Cases submitted by the Crown include the following:

(a) R. v. Power, 2018 ONSC 598, where the offender stabbed a neighbour two times at the door to his apartment. The Crown sought a sentence of 7-8 years. The offender was a recidivist and was on bail at the time of the attack. His mother was aboriginal, but his connection to the aboriginal community was described as “fragmented at best”. While Gladue factors were considered, they were of minimal impact. The offender had, however, taken some positive steps to improve himself. Dambrot J. imposed a five year sentence; (b) In R. v. Fulton, 2012 ONCA 781, the Ontario Court of Appeal upheld a 9 year sentence for aggravated assault on an offender who stabbed his ex-girlfriend multiple times with a scuba knife. After she escaped from him he barricaded himself inside her apartment and engaged in a 12 hour standoff with police. He had a record for violent offences and had caused life-threatening injuries to the victim. The Court of Appeal described the 9 year sentence as within the range for this type of aggravated assault; and, (c) In R. v. Khan, 1991 CarswellOnt 900, a female offender with significant mental health issues randomly slashed another female’s face as she entered a subway station. The trial judge imposed a ten year sentence, which was largely intended to separate the offender from society given her apparently dangerous mental health issues. The sentence was reduced to 8 years on appeal. The Court of Appeal expressed concerns that the 10 year sentence was not responsive to the offence, but was a somewhat misguided attempt to manage an arguably dangerous person.

[44] Cases submitted by the defence include:

(a) R. v. Hall, 2017 ONSC 3003, where an Indigenous offender was sentenced to 34 months for stabbing a friend after a house party. The victim was stabbed four times and kicked in the back. He suffered a collapsed lung. Gladue factors played a significant role in the sentence imposed; (b) In R. v. Stephens, 2019 ONSC 693, the offender and his victim became involved in an argument outside a bar in downtown Toronto. The victim was initially the aggressor. He threw a drink in the offender’s face and punched him several times about the head. In response the offender pulled a knife from his pocket. He stabbed the victim once in the back and swung at him a number of other times, causing defensive wounds on the victim’s arms. The offender was on bail in relation to a charge of assault causing bodily harm at the time of the offence. Akhtar J. imposed a sentence of three years, less a credit for pre-sentence custody. The fact that the victim was initially the aggressor played a significant role in the sentence imposed; and, (c) In R. v. Grayer, 2018 ONCJ 642, a young Indigenous offender received a suspended sentence and three years’ probation for an attack on a youth outside a Toronto-area mall. I find this case of little assistance, given that (i) it was a guilty plea; (ii) the offender’s actions were in response to the victim pulling a knife out of his pocket during an altercation; (iii) the offender did not have or use a weapon; and (iv) there was substantial information available to the court about the offender’s Indigenous background.

[45] The cases cited by counsel demonstrate a number of things. First, that aggravated assault is an offence that may be committed in a wide variety of ways. It is difficult, therefore, to pin down a precise applicable range. Second, as I noted earlier, the particular facts and circumstances of any given case are of utmost importance in fashioning a sentence proportionate to the gravity of the offence and the moral blameworthiness of the offender.

[46] In this instance, my view is that a fit and just sentence, in all the circumstances is six years of imprisonment. This was a very violent and high risk attack on an unarmed man who was heading out the door and away from a confrontation. Plunging a knife into another person’s abdomen is an inherently dangerous and reckless action. It demonstrates a complete disregard for the consequences of the act or for the life of the victim. In view of Mr. Richer-Lebreton’s extensive criminal antecedents, and the circumstances of this particular offence, a significant sentence is warranted.

[47] It is agreed that Mr. Richer-Lebreton has 654 days of pre-trial custody. He has been incarcerated in a remand facility awaiting sentencing for a period longer than that, but has used some of that time as credits in other matters.

[48] What is not agreed is whether Mr. Richer-Lebreton should receive an enhanced credit of 1.5 days for each day he has spent in pre-sentence custody.

[49] Section 719(3.1) of the Criminal Code provides for a cap on any credit to be given to an offender for pre-trial custody of 1.5 days per day served. Courts now routinely grant credit in accordance with that ratio.

[50] The enhanced credit is grounded in two factors. The first factor is a quantitative one. Its goal is to promote equality among offenders. Specifically, existing statutory rules for parole eligibility and early release do not take into account time spent in custody before sentencing. Enhanced credit for pre-trial custody is necessary to ensure that an offender who is released after serving two thirds of his sentence serves the same total amount of time in jail whether or not he was released on bail.

[51] The second factor is a qualitative one. It is intended to reflect the fact that conditions in remand centres, like the Central North Correctional Centre, tend to be harsher than corrections facilities.

[52] The Crown argues that Mr. Richer-Lebreton should not receive enhanced credit for his pre-sentence custody. The argument is based on the assertion that there is a strong likelihood that Mr. Richer-Lebreton will not be released on any form of statutory release, given the violent nature of this offence and his extensive criminal record.

[53] Enhanced credit for pre-sentence custody, while routine, is not automatic. In R. v. Summers, 2014 SCC 26, Justice Karakatsanis held as follows, at para. 79:

The onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his pre-sentence detention. Generally speaking, the fact that pre-sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit. Of course, the Crown may respond by challenging such an inference. There will be particularly dangerous offenders who have committed certain serious offences for whom early release and parole are simply not available. Similarly, if the accused's conduct in jail suggests that he is unlikely to be granted early release or parole, the judge may be justified in withholding enhanced credit. Extensive evidence will rarely be necessary. A practical approach is required that does not complicate or prolong the sentencing process.

[54] In assessing whether an offender is unlikely to be granted early release, the court must focus on the provisions of ss. 129 and 130 of the Corrections and Conditional Release Act, S.C. 1992, c. 20: see R. v. M.O., 2016 ONCA 236, at para. 30. Section 130(3)(a) provides that release may be denied to an offender where there is a determination that the offender is likely, if released, to commit an offence causing the death of or serious harm to another person before the expiration of the warrant of committal.

[55] The word “likely” is a synonym for “probably”. Before I reject Mr. Richer-Lebreton’s request for enhanced credit, I must be satisfied that he is the type of person caught by the language of s. 130(3)(a), namely one who will probably commit an offence causing the death of or serious harm to another person before the warrant has expired. The Crown points to the following evidence in support of such a finding:

(a) Mr. Richer-Lebreton’s extensive criminal record; (b) The violent nature of many of his prior convictions: 15 for threatening or intimidating behaviour and another 10 for assaults; (c) Mr. Richer-Lebreton’s lack of respect for court orders, evidenced by his 20 convictions for breaches of one type or another; (d) The assault and threatening of court officers during the course of his trial for the index offence; (e) The violent and dangerous nature of the attack on Mr. Sheard-Bodine; and (f) Mr. Richer-Lebreton’s absence of any remorse for his actions or even an acceptance of responsibility for them.

[56] It is difficult to predict what the Parole Board might do or not do. But from my current vantage point, I conclude that Mr. Richer-Lebreton is a dangerous person. He is an incorrigible recidivist who is not amenable to any form of supervision in the community. He has been and, in my view will continue to be, a menace to peaceful members of society. He is likely to return to criminality upon release and furthermore likely to cause serious harm to another person during the term of the warrant should he be released early.

[57] In the result, I am not satisfied that Mr. Richer-Lebreton should receive enhanced credit for his time in pre-sentence custody. In view of this conclusion I need not address the Crown’s alternate argument relating to parole ineligibility under s. 746.3(1) of the Criminal Code.

[58] I appreciate that I have not addressed whether there were harsh conditions as a part of Mr. Richer-Lebreton’s time at the Central North Correctional Centre and whether such conditions support some measure of enhanced credit. I do not have any evidence of those conditions, nor their effect upon him.

[59] In summary then, Mr. Richer-Lebreton is sentenced to six years in the penitentiary, less a credit of 654 days for pre-sentence custody, which I round off at 22 months. The net sentence is 4 years and 2 months.

Ancillary Orders

[60] I make the following ancillary orders, as requested by the Crown and not opposed:

(a) Mr. Richer-Lebreton shall be subject to a weapons prohibition order under s. 109 of the Criminal Code for life; (b) He shall provide a sample of his DNA; and, (c) He shall not have any direct or indirect contact with Mr. Sheard-Bodine during the custodial portion of his sentence.

Boswell J. Released: March 29, 2019