COURT FILE NO.: CR-17-522-00AP

DATE: 2019 02 01

CORRECTED: 2019 02 15

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

STEPHANIE TURNER, for the Respondent/Crown

Respondent

• and -

RADU EPURE

JAMES LOCKYER, for the Appellant

Appellant

HEARD: January 17, 2019, at Guelph

REASONS FOR JUDGMENT

[On appeal from the sentence imposed by the Honourable P. Hardman, dated August 25, 2017]

Correction Notice

February 15, 2019: Paragraph [40] has been amended, with the agreement of counsel to include a reporting condition on the probation, to add “Report as required by the probation office and continue to see Dr. Bhattacharya” After the first sentence.

DURNO, J.

1The appellant was convicted of assault causing bodily harm and assault. The trial judge imposed a 12 month conditional sentence followed by 12 months probation concurrent on both counts. Mr. Epure appealed the convictions and sentences. I allowed his conviction appeal in regards to the assault and dismissed his appeal of the assault causing bodily harm conviction: 2018 ONSC 4747. The Crown has since withdrawn the assault charge.

2The appellant appeals the sentence on the assault causing bodily harm charge seeking an absolute or conditional discharge. The Crown submits the conditional sentence should remain.

3Given that the appellant is now facing one and not two counts, counsel agree that the usual deference afforded trial judges’ sentencing decisions does not apply: R. v. M.R., 2017 ONCA 985.

4A detailed review of the evidence can be found in the Summary Conviction Appeal judgment and need not be repeated here. In summary, after a night of drinking in downtown Guelph, University of Guelph students took buses back to the campus. Once there, an altercation started on the bus platform between the appellant’s friends and Brett Nicholson and Rachel Figueira. Portions of the altercation were captured on the video cameras in the buses.

5While the appellant was with Ms. Figueira, she started a physical altercation with him. Nicholson is seen leaving the bus and quickly going towards the back of the bus, away from the appellant and Figueira. Near the back door, Nicholson is punched once and goes down, apparently unconscious. Several men continue to assault him. Between the videotapes and witnesses’ evidence, it is apparent that the appellant went over to where Nicholson was on the ground. One witness said he kneed Nicholson in the chest and punched him many times for two to three minutes. This evidence conflicted with the videotaped evidence that showed the entire incident from when Ms. Figueira struck the appellant to when Nicholson was lying on the ground after being assisted was 13 seconds.

6Another witness said the appellant joined the others “for a few seconds” with all kicking Nicholson and the appellant kneeing him.

7The SCA judgment summarizes the trial judge’s findings in relation to the assault causing bodily harm as follows:

[55] The trial judge turned next to the issue of "assault causing bodily harm," addressing the appellant's argument that if he assaulted Nicholson it was after he was injured and beaten unconscious by others. There was no evidence that his blows caused any injuries. In these circumstances, the appellant should be convicted of assault and was not a party to the assault causing bodily harm.

Her Honour noted:

Where two or more people are involved in an assault causing bodily harm, the court does not need to determine which of the perpetrators struck the damaging blows. Certainly, the accused was aware that an assault was taking place at the time he joined in. It also appeared obvious to everyone that the victim of the beating was unable to protect himself and injured already.

[56] After referencing R. v. L.P., [2003] O.J. No. 251, (C.A.); R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506; R. v. Meiler, 1999 CanLII 3728 (ON CA), [1999] O.J. No. 1506; R. v. Saraj, 2012 ONSC 253; and R. v. Vang (1999), 1999 CanLII 2310 (ON CA), 118 O.A.C. 75, the trial judge found the appellant:

... certainly joined the assault. There was no time gap as the others were still kicking the victim. He should have known that kneeing or otherwise being involved with the victim could cause bodily harm.

[57] It was not necessary to assign individual blows to Nicholson’s various injuries. Any differences in participation were for sentencing.

8In upholding the conviction, I concluded:

[124] While not framed as such, the argument here is that Her Honour's finding that the appellant was engaged in a common unlawful conduct was unreasonable. It was not. There was ample evidence that any gap was so brief that it was the same series of events. There were only 13 seconds from Figueira's first physical contact with the appellant and the group of people going by Nicholson on the ground. The video shows no confrontations involving him thereafter.

[125] The witnesses said the appellant joined the others in assaulting Nicholson at the same time or that the others "had to step back" and continued to yell during the appellant's assault. Either provides an ample basis upon which to conclude that the appellant's assault on Nicholson was part of the same assault or series of events during which the injuries were caused.

9While the appellant’s actions merited the finding that he was a party to the offence, there is no dispute that the Crown cannot establish beyond a reasonable doubt that he caused any of the injuries to Brett Nicholson. He joined in the assault of Nicholson after he had already been knocked out, physically assaulting him by kneeing or kicking him somewhere on his body. That is the factual basis upon which the sentence is imposed.

10Nicholson suffered a concussion, swollen eye, multiple scratches to his head and arms and a split lip requiring five stitches. He had no memory of the assault.

11The appellant is 26 years old. He was born in Romania and immigrated to Canada with his parents in 2002 when he was ten years old. As a child he was bullied in Romania and after moving to Canada. He was diagnosed with Attention Deficit Disorder in his last year at high school and suffers from anxiety, panic attacks and depression. He held a series of jobs before enrolling at the University of Guelph Criminal Justice and Public Policy Program where he was on the Dean’s List.

12When sentenced in August, 2017, he was on medical leave as a result of his depression, anxiety and panic attacks. While he had done very well, in the year the incident occurred, as Mr. Lockyer put it in his factum, “his success plummeted.” While he had previously had mental health issues they returned in the fall of 2013. Seeking help through the university health network did not solve the problems.

13The appellant had started seeing a psychiatrist a few months before his sentencing. Dr. Bhattacharya recommended anger management counseling. In a November, 2018 letter for the sentence appeal the doctor noted the appellant was taking intensive psychotherapy sessions for his anxiety, depression and attention deficit disorder. Initially, there was a mild paranoid component to his mental state because of the trauma from his arrest and anxiety about the legal issues he was facing. It could be a mild form of Post-Traumatic Stress Disorder. He was working very hard on his issues and had improved tremendously. The appellant is on three medications with regards to his attention deficit disorder, anxiety and depression. He was hospitalized in 2015 and 2017 as a result of his mental health problems.

14The appellant graduated with an Honours Bachelor Degree in February, 2018 but has not worked since that time given the uncertainty about his future. An impressive character reference letter from one his professors was included in the material filed on the appeal. Since the conviction, he obtained an interview with an insurance company but when a criminal record check was required, the company never contacted him again.

15There are aggravating factors. First, the injuries suffered by Nicholson are aggravating. This is so for the appellant notwithstanding that he was a party to the offence.

16Second, that Nicholson was unconscious on the ground when the appellant joined is aggravating. He was vulnerable and defenseless.

17Third, multiple young men were involved in the assault on Nicholson.

18Fourth, Nicholson’s Victim Impact Statement outlines the significant impact the offence had on him.

19There are also mitigating factors. First, the appellant was a young first offender, 22 at the time and now 26.

20Second, he has been on bail for over four years without further incidents with police. During that time he has completed his university degree.

21Third, he is genuinely remorseful.

22Fourth, there is the psychiatric evidence. While it is not submitted that there is link between the appellant’s mental health issues and his offending, there is evidence the impact from his arrest and uncertainty with his future resulted in mild paranoia that could have been a mild form of Post-Traumatic Stress Disorder. I appreciate that most accused persons are anxious and stressed as a result of their arrest and pending trial. The expert evidence takes the impact on this offender somewhat higher.

23There are other factors that are not mitigating. That the offender and everyone else involved was intoxicated is not generally mitigating: R. v. Dunn, [2002] O.J. No. 864 (C.A.). That the offender did not initiate the physical confrontation is not mitigating. It is the absence of a potentially aggravating consideration.

Should there be a discharge?

Discharges

24Section 730(1) of the Criminal Code provides:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it

(1) considers it to be in the best interests of the accused and

(2) not contrary to the public interest,

instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

25In terms of the first criteria, it presupposes that specific deterrence is not a relevant consideration, except to the extent required in a probation order, nor is the offender’s rehabilitation through correctional or treatment centres required, except to the same extent. The offender is normally a person of good character, without previous conviction and it is not necessary to enter a conviction to deter him or her from future offences or to rehabilitate them. While not essential, that the entry of a conviction may have significant adverse repercussions is a further relevant factor: R. v. Sanchez-Pino (1973), 13 C.C.C. (2d) 53 (Ont.C.A.); R. v. Fallofield (1973), 1973 CanLII 1412 (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.); R. v. Myers (1997), 1977 CanLII 1959 (ON CA), 37 C.C.C. (2d) 182 (Ont.C.A.)

26As regards the second criteria, the public interest factor, while the concern for general deterrence must be given due consideration, that does not preclude the judicious use of the provision: Fallofield, at para. 21(6). However, if there is a necessity for a sentence that will deter others, it is factor telling against a discharge: R. v. Lu, 2013 ONCA 324.

27In Sanchez-Pino, the Court of Appeal held:

18 Obviously the section is not confined to "simple cases of possession of marijuana". It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.

28In R. v. Hayes, [1999] O.J. No. 938 (S.C.J.), Hill J. provided the following helpful comments on discharges. Discharges are not restricted to trivial matters. Where an offender has acted out-of-character, perhaps in the context of unusual pressure or stress, a discharge may be fit. Where a criminal record will have a tendency to interfere with employment or perhaps important travel, a discharge may be given serious consideration. A suspended sentence is not necessarily a greater deterrent than a discharge.

29The appellant seeks an absolute or conditional discharge. He relies upon the Court of Appeal judgments in R. v. MacDonald, 2013 ONCA 295 where the Court imposed a discharge taking into consideration that a conviction would put a roadblock in the way of the appellant’s professional career and R. v. M.R., 2017 ONCA 2017, where the Court imposed a conditional discharge taking into consideration the time the appellant spent on probation pending appeal.

30He also relies upon the following authorities in regards to the impact of a conviction on an offender’s future: R. v. Myers, 1977 CarswellOnt 1230 (Ont.C.A.); R. v. Adamson, 2017 ONCJ 174.

31Finally, he relies upon the following assault and assault bodily harm cases where discharges were imposed: R. v. Tran, [2015] O.J. No. 7144 (C.J.); R. v. Angelov, 2013 O.J. No. 1101 (C.J.); R. v. Adamson, 2017 ONCJ 174; R. v. Cruz, 2018 ONCJ 8; R. v. Fensom, 2016 ONSC 4709; R. v. Fantinato, 2018 ONCJ 710; R. v. McGee, 2011 ONSC 1195; R. v. Peterson, 2018 ONSC 1373; R. v. Sweeney, 2000 CarswellOnt 5276; R. v. Aidaruse, 2012 ONCJ 415; R. v. Juezo-Contreras, 2018 ONCJ 63.

32The Crown opposes a discharge, conceding that it would be in the offender’s best interest but contending that a discharge fails on the public interest branch. Ms. Turner stresses the need to send a message to like-minded people.

33With regards to the first branch, the appellant has no record and no further involvement with the criminal justice system. He has been working towards a career in law enforcement or as a lawyer from which I infer a conviction could have a significant impact. It has already impacted on his employment prospects.

34The appellant has satisfied me that it is in his best interest to obtain a discharge whether I consider his future plans or not.

35I agree with the Crown that a sentence for an assault causing bodily harm of this nature requires that a message be sent. But jail, whether community-based or in custody, is not the only way to send a message. Otherwise, there would be no general deterrence element to most sentences. As with any area of criminal law that takes into account the public interest, the member of the public considering a sentence must be reasonable, dispassionate and properly informed: R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 13. Not one who simply looks at the facts of the case. The observer must be one who knows the details of the offence, the offender and takes into account the needs of the community: R. v. Jacko (2010), 2010 ONCA 452, 101 O.R. (3d) 1 (C.A.).

36Here, the appellant had no previous involvement with the police. He was arrested, went through the identification procedures upon arrest, was released on bail after one day in custody and remained on bail to today’s date, over 51 months later. During that time, he has not been involved in any way with the criminal justice system. He has completed his degree.

37For 18 months he stood convicted of assaulting a young woman, a fellow University of Guelph student. That conviction has been quashed. He has undergone psychiatric counseling to address outstanding issues. The effect of his arrest and anxiety pending trial led to psychiatric intervention that has continued for 18 months. He remains unable to work as a result of his mental health conditions. His family have had legal fees to pay. The significant impact on the appellant and his family were outlined in the appellant’s affidavits and his father’s letter filed on the appeal.

38A discharge in these circumstances would be very rare upon arrest and summary conviction trial held within the constitutional timelines, 18 months. However, not only do I have to take into account what has transpired since the incident, but the informed member of the public would as well. While it is a very close call, based on all the circumstances and the case law filed, I am persuaded that in these particular circumstances, a conditional discharge is not contrary to the public interest. An absolute discharge would not satisfy the criteria on these facts.

39While the trial judge convicted the appellant, there is no prohibition against imposing a discharge in these circumstances: R. v. Groot (2000), 2000 CanLII 1074 (ON CA), 143 C.C.C. (3d) 576 (Ont.C.A.).

Conclusion

40The appellant is sentenced to a conditional discharge and 15 months probation on the statutory terms as well as having no contact directly or indirectly with Brett Nicholson. Report as required by the probation office and continue to see Dr. Bhattacharya. He is continue to attend Dr. Bhattacharya until such time as the doctor or his designate provides written confirmation that no further counseling is required, take counseling for anger management unless written confirmation is provided to the probation officer that he has already completed an anger management course. Finally, he is to perform 75 hours of community service within the first 12 months. There will be a DNA order and s. 110 weapons prohibition for 5 years.

41The appellant is ordered to contact the probation office that was to supervise his conditional sentence within 10 days of this judgment so that a probation officer can be assigned.

42There will be a DNA order and a s. 110 weapons prohibition for 5 years.