COURT FILE NO.: CR-17-50000736-0000 DATE: 20190130

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JULIUS STEPHENS

J. Laxer, for the Crown

C. Brunet, for Mr. Stephens

HEARD: January 8, 2019

s.a.Q. akhtar j.

Factual Background

[1] Julius Stephens was convicted, by a jury, of Aggravated Assault and acquitted of the accompanying count of Carrying a Concealed Weapon.

[2] On 9 July 2016 Mr. Stephens was drinking at the Red Room Bar situated at Jane Street and Lawrence Avenue in Toronto. He became involved in a dispute with the bar manager after she noticed him leaning on her car and consuming alcohol on the street outside the bar. Mr. Stephens moved away from the car and ceased drinking. Shortly afterwards, he was approached by Kervin Joseph, another bar patron, who lectured him on the possibility of damaging other people’s cars when sitting on them. Harsh words were exchanged before Mr. Joseph went back inside the bar.

[3] Moments later, Mr. Joseph returned and, without warning, threw a drink into Mr. Stephens’ face before punching Mr. Stephens several times around the head.

[4] A camera situated outside the bar recorded what happened next: Mr. Stephens, stunned from the attack, turned away from Mr. Joseph and appeared to reach into his pocket. He turned back to face Mr. Joseph who testified that he saw Mr. Stephens holding a knife approximately 7 to 8 inches long with a 3 to 4 inch blade.

[5] Mr. Joseph fled the scene and was pursued by Mr. Stephens into a nearby parking lot. Mr. Joseph testified that he fell to the ground after Mr. Stephens stabbed him in the back. Mr. Stephens then climbed on top of him. As Mr. Stephens repeatedly swung the knife towards him in a stabbing motion, Mr. Joseph raised his arms to block the attack. As a result, he received wounds to his forearms. As others arrived on scene to assist Mr. Joseph, Mr. Stephens was also attacked and left the scene, taking the knife with him.

[6] Mr. Joseph was treated for knife wounds on his forearms measuring 6 and 10 centimetres in length. He was also treated for a puncture wound in his back which was approximately 15 cm in length and 5 centimetres in depth. Doctors found that Mr. Joseph’s liver was lacerated by the knife wound. Mr. Joseph was kept in hospital for surgery and monitoring.

Positions of the Parties

[7] Mr. Laxer for the Crown submits that Mr. Stephens should serve a minimum prison term of 3.5 years. He also asks that Mr. Stephens provide a DNA sample and be subject to a lifetime weapons prohibition order under s. 109 of the Criminal Code.

[8] Ms. Brunet, on behalf of Mr. Stephens, does not oppose the requested ancillary orders. However, she argues that the appropriate sentence in this case should be 6 months less 1 day. She also asks that in order to reach that total, Mr. Stephens’ immigration status should be taken into account and that the court should take judicial notice of the conditions at the Toronto South Detention Centre to further reduce Mr. Stephens’ prospective sentence.

Dispute on the Factual Position

[9] The factual background to the offence is the matter of some dispute: Mr. Stephens’ acquittal on the Carry Concealed Weapon charge leads Ms. Brunet to mount a challenge to any factual finding that the knife used to stab Mr. Joseph belonged to Mr. Stephens. Ms. Brunet argues that the jury’s verdict means that they found that Mr. Joseph was carrying the knife and not Mr. Stephens, which Mr. Stephens claimed in his trial testimony.

[10] On the other hand, Mr. Laxer, for the Crown, submits, as he did before the jury, that the knife was clearly Mr. Stephens’ and that the acquittal on the Carry Concealed Weapon count in the indictment is not inconsistent with that finding of fact.

[11] I cannot agree with Ms. Brunet’s interpretation that the acquittal must be treated as a jury finding that Mr. Stephens was not in possession of the knife when he turned and ran towards Mr. Joseph.

[12] The offence of Carry Concealed Weapon carries with it a number of constituent elements. The Crown had to prove, beyond a reasonable doubt, that Mr. Stephens was (a) carrying the knife as a weapon; (b) concealed it as a weapon; and (c) intended to conceal it. The jury could have had a reasonable doubt about any one of these elements in order to acquit. For example, the jury might have concluded that Mr. Stephens was not carrying the knife as a weapon but simply used it as such after Mr. Joseph attacked him. Alternatively, they might have had a reasonable doubt as to whether Mr. Stephens intended to conceal the knife.

[13] However, it is not the sentencing judge’s job to try and guess the factual foundation of a jury verdict. In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 17-18, the court set out the manner in which a sentencing judge must approach the determination of facts in a jury trial:

Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict": R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, p. 523. 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 as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).

Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

[14] In light of the dispute between the parties, I will briefly re-assess the evidence about the knife’s ownership.

Who Did the Knife Belong To?

[15] At trial, no witness, other than Mr. Joseph testified to seeing a knife in Mr. Stephens’ hands. It is also clear from the evidence that this was a fast moving incident lasting a short period of time.

[16] The events were captured, in part, on a video camera stationed outside the Red Room bar. What is clear is that Mr. Joseph, without provocation, attacked Mr. Stephens, first by throwing a drink in his face, and then punching him several times around the head. Mr. Joseph did not use any weapons or draw a knife.

[17] In the video, Mr. Stephens turns towards the camera and reaches for his pocket. At this point, he momentarily moves off-screen thereby resulting in his hand and pocket becoming hidden from view. Mr. Stephens turns and runs towards Mr. Joseph who immediately rushes away from the oncoming Mr. Stephens, whose arm is raised.

[18] The first question to be asked is why does Mr. Joseph, in clear ascendancy in the fight, choose to flee as soon as Mr. Stephens turns to face him? Mr. Joseph testified it was because he saw a knife in Mr. Stephens’ hand. Mr. Stephens gave evidence that at the exact moment he turned, someone shouted words to the effect of “he’s got a gun”. The inference that Mr. Stephens sought to advance was that this utterance scared Mr. Joseph into taking off.

[19] However, as Mr. Laxer pointed out in his submissions to the jury, if that were the case, it would have been reasonable for others at the scene to react to that same warning. Yet, the video shows no one, except for Mr. Joseph, reacting. It is also clear that Mr. Joseph does so fearfully.

[20] The next question is: if the knife was in Mr. Joseph’s possession why did he need to run away? In other words, why would the person armed with a weapon retreat from the person who was defenceless? If the knife belonged to Mr. Joseph, it would have made far more sense for him to simply stand his ground, draw his knife, and continue his assault on Mr. Stephens. Yet he did the exact opposite.

[21] Then there are the rips in the back of Mr. Joseph’s shirt which are consistent with his evidence that Mr. Stephens slashed at him as he ran away.

[22] Based on these facts, I am satisfied beyond a reasonable doubt that the knife belonged to Mr. Stephens and he drew it from his front pocket after Mr. Joseph punched him.

Personal Circumstances

[23] Mr. Stephens is now 24 years old. He was born in St. Vincent and immigrated to Canada in 2011, at 17, on a 6 month visa which was never renewed. He is currently on hold by the immigration authorities awaiting deportation.

[24] In St. Vincent, he resided with three siblings and his mother who worked several jobs to provide income for the family. Mr. Stephens’ father was absent for most of his childhood as he had a second family with whom he emigrated to this country in 2000. Upon arrival in Canada, Mr. Stephens and his siblings lived with his father and stepmother for approximately 18 months, before moving out to share an apartment with a friend.

[25] Mr. Stephens attended High School in Toronto for 1.5 years, currently holding 13 High School credits. The pre-sentence report indicates that Mr. Stephens has been working since he was 11 years of age, something that is a common occurrence in St. Vincent.

[26] Since coming to Canada, Mr. Stephens has worked in areas of construction, roofing, and tree service. According to the pre-sentence report, his longest term of employment was approximately 7 months.

[27] Mr. Stephens has 2 convictions on his record. On 17 August 2015 he was convicted on one charge of Using a Forged Document and two charges of Possession of Counterfeit Mark for which he received 1 day in addition to 26 days pre-sentence custody and 15 months of probation. His second conviction, for Assault Causing Bodily Harm, was imposed on 29 November 2016. He received 17 days imprisonment in addition to credit for the equivalent of 162 days custody.

[28] Although the Assault Causing Bodily Harm conviction occurred after 9 July 2016 Mr. Stephens committed the offence before that date. It is not disputed that Mr. Stephens was on bail when he committed the Aggravated Assault on Mr. Joseph.

Aggravating and Mitigating Features

[29] There are both aggravating and mitigating features in this case.

[30] In committing the Aggravated Assault, Mr. Stephens used a knife and, according to witnesses at trial, swung it freely at Mr. Joseph when they were on the ground. It goes without saying that Mr. Stephens’ attack on Mr. Joseph could have had far more catastrophic consequences had Mr. Joseph not successfully blocked the attack with his arms.

[31] It is also noted that the injuries were serious: the knife penetrated Mr. Joseph’s liver and he had to spend time in hospital to recover.

[32] Mr. Stephens, at the time of the offence, had a criminal record for Using a Forged Document and Possession of Counterfeit Mark. More significantly, at the time of the offence he was on bail for the offence of Assault Causing Bodily Harm, of which he was later convicted.

[33] In mitigation, prior to this offence, Mr. Stephens had no criminal convictions for Assault. Although I accept the fact that there is caselaw that might warrant treating Mr. Stephens’ 2016 assault as a prior conviction (see for example, R. v. Andrade, 2010 NBCA 62, 363 N.B.R. (2d) 159), I am prepared to find that this conviction does not operate to impact the sentence in this case.

[34] The most significant mitigation, however, is the fact that Mr. Joseph was the aggressor in this case, throwing a drink in Mr. Stephens’ face and punching him around the head in an unprovoked attack. There is no doubt that in the absence of these actions, Mr. Stephens would not have attacked Mr. Joseph.

[35] I also note, however, that unprovoked as it was, Mr. Joseph used no weapons and only punched Mr. Stephens with his bare fists.

The Appropriate Sentence

[36] In R. v. Tourville, 2011 ONSC 1677, Code J. identified three sets of ranges for cases of Aggravated Assault. The lower end of cases contained circumstances similar to those in R. v. Peters, 2010 ONCA 30, 250 C.C.C. (3d) 277, where an offender with an aboriginal background and no record received a suspended sentence on a plea of guilt for an Assault arising out of a bar room brawl. There, the offender’s circumstances, set out in the related Gladue report disclosed a very disturbing upbringing leading to alcoholism and substance abuse.

[37] In the mid-range sentencing cases, those between 18 months and 2 years less 1 day, the courts dealt with first time offenders engaged in fights where the evidence suggested a consent altercation but the accused subsequently engaged in excessive force: R. v. Chickekoo, 2008 ONCA 488; R. v. Morerira, 2006 9709 (ON SC), [2006] O.J. No. 1248 (S.C.); and R. v. Basilio (2003), 2003 15531 (ON CA), 175 C.C.C. (3d) 440 (Ont. C.A.).

[38] The higher range sentences, of 4 to 6 years, seem reserved for those with prior records or “unprovoked”, “premeditated” assaults: R. v. Scott (2002), 2002 41668 (ON CA), 157 O.A.C. 246 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson (2005), 2005 23678 (ON CA), 199 C.C.C. (3d) 165 (Ont. C.A.); and R. v. Pakul, 2008 ONCA 230.

[39] There are additional cases which demonstrate the wide range of factual scenarios for this type of offence. For example, in R. v. Kouroupis, 1988 CarswellOnt 32, Corbett J. imposed a sentence of 3 years of imprisonment. The offender stabbed the complainant 7 times after the complainant hit him with his fist. The complainant’s injuries were not life-threatening and the offender was a chronic drug user who had never sought treatment, had a lengthy criminal record for property offences, and did not express sincere remorse for the Aggravated Assault.

[40] In R. v. Power, 2018 ONSC 598, Dambrot J. sentenced the offender to 5 years of imprisonment less pre-sentence custody, citing Code J.’s analysis in Tourville as informative. The offender stabbed the complainant in the back in an apartment hallway in an attack that was unprovoked and without elements of self-defence. At the time of the assault the offender was bound by a probation order to keep the peace and be of good behaviour. He also had a lengthy criminal record involving convictions for Assault, Possession for the Purpose, and failing to comply with a recognizance. Dambrot J. stated that in these circumstances he would normally impose a 7 year imprisonment sentence, but due to the offender’s aboriginal heritage, his troubled childhood, and his potential rehabilitative prospects, 5 years was a more appropriate sentence.

[41] In making her argument for a reduced 6 month sentence, Ms. Brunet relies upon cases such as R. v. Iahtail, [2002] O.J. No. 1146 (S.C.); R. v. Farah, [2006] O.J. No. 4369 (S.C.); R. v. Wan, [2012] O.J. No. 6542 (S.C.); R. v. Fiannaca, 2010 ONCJ 364; and R. v. Almotairi, 2013 BCSC 2132.

[42] I find these to be of little assistance. Wan, Fiannaca, and Farah were all guilty pleas where the offenders expressed remorse and were accordingly entitled to a substantial discount in sentence. Iahtail and Finannaca were not only guilty pleas but also concerned aboriginal offenders subject to the provisions set out in R. v. Gladue, [1991] 1 S.C.R. 688. I find Almotairi to be a case that is well outside the range set by the appellate courts in Ontario. I also note that the offender in that case had no criminal record and had not committed the offence whilst on bail. He also had very strong rehabilitative prospects, and expressed remorse for the offence.

[43] I also reject Ms. Brunet’s argument that immigration consequences act as a factor to reduce Mr. Stephens’ sentence. Ms. Brunet explained that a sentence below the 6 month mark would permit Mr. Stephens to appeal his deportation order and that this should be taken into account to reduce the sentence accordingly.

[44] In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, the Supreme Court of Canada acknowledged that it was open to a judge to consider the sentencing consequences on Mr. Stephens’ immigration status. However, the court emphasized, at para. 14, “that the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender”. At para. 16, the court added:

These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.

[45] This was a serious set of events. Whilst the event was provoked, Mr. Stephens’ reaction was not only excessive but potentially catastrophic. The use of the knife to exact retribution for the punches Mr. Joseph threw might well have resulted in a far more serious injury or even Mr. Joseph’s death. Mr. Stephens was also on bail for the same type of offence. A sentence reduced below the 6 month mark is beyond the orbit of reality and grossly disproportionate.

[46] In my view, the appropriate sentence in this case is 3 years of imprisonment. From that total, I deduct 573 days of pre-sentence custody at a rate of 1.5:1 pursuant to s. 719(3.1) of the Criminal Code which results in a total amount of 2 years and 4 months credit, leaving a total of 8 months remaining to be served of the 3 year sentence.

[47] Ms. Brunet also asks that Mr. Stephens be given additional credit due to the harsh conditions prevailing at the Toronto South Detention Centre where Mr. Stephens was housed during his stay in custody, pursuant to R. v. Duncan, 2016 ONCA 754, at para. 6. Although no evidence of these conditions was presented to the court, Ms. Brunet says that the court can take judicial notice of this fact to apply the enhanced credit.

[48] I decline to do so. Even if I was prepared to assume the severity of the conditions at the Toronto South, Mr. Stephens would also have to demonstrate how those conditions sufficiently impacted upon him to warrant additional credit: R. v. Deiaco, 2019 ONCA 12, at para. 4; R. v. Ledinek, 2018 ONCA 1017, at paras. 11-13. As I have already noted, no evidence was provided to this court on these matters.

[49] Mr. Stephens is therefore sentenced to 3 years imprisonment less 2 years 4 months pre-sentence credit. He will provide a DNA sample and be prohibited from the possession of any weapons for life pursuant to s. 109 of the Criminal Code.

S.A.Q. Akhtar J.

Released: 30 January 2019

COURT FILE NO.: CR-17-50000736-0000 DATE: 20190130

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JULIUS STEPHENS

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.