COURT FILE NO.: CR 17-617
DATE: 20190208
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHAQUILLE ALLEN
Ikdeep Singh, for the Crown
Ayderus Alawi, for the Defendant
HEARD: January 21, 2019
Tzimas J.
REASONS FOR SENTENCING
INTRODUCTION
[1] On December 12, 2015, Mr. Shaquille Allen was charged with aggravated assault against Mr. Andrew Elder, contrary to section 268(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-4. On November 16, 2018, Mr. Allen was found not guilty of aggravated assault but guilt of assault.
[2] My complete findings were outlined in my Reasons for Judgment, in R. v. Allen, 2018 ONSC 6828. I do not propose to repeat them in any detail other than to make reference to the key findings relevant to set the context for my conclusions on Mr. Allen’s sentencing.
[3] Sentencing submissions were made on January 21, 2019. In those submissions, the Crown proposed 30 days incarceration or alternatively, a 60 day conditional sentence with a number of conditions: house arrest during the 60 days with exceptions for employment, school, meetings with the parole officer, and other necessities of life, followed by two years probation, a no contact order with Mr. Andrew Elder and Mr. Michael Duncan, a s.110 order for a period of 5 years, and a DNA order. Defence counsel asked for a conditional discharge, a probation period of 2 months, and 50 hours of community service.
[4] The Court received a Pre-sentencing report for Mr. Allen which was by and large very positive.
[5] For the reasons that follow, I find it appropriate that Mr. Allen receive a conditional discharge, a probation period of 6 months, and 50 hours of community service. During the probation period he is to report to a Probation and Parole Officer (PPO), as suggested by the PPO, he shall attend and complete any assessment, counselling, or treatment as directed by the PPOA to address anger management or any other issues identified by the PPO, seek and maintain employment or educational upgrading to the best of his ability and provide proof to the PPO if requested by the PPO, and refrain from any contact, directly or indirectly with Andrew Elder and Michael Duncan.
FACTS OF THE OFFENCE
[6] Mr. Allen assaulted Mr. Andrew Elder in the early hours of December 12, 2015, at the Meadowvale Town Centre parking lot, in Mississauga, following a night out at the Fiction Nightclub in Toronto. Mr. Allen and Mr. Elder went with several other young adults to celebrate Michael Duncan’s birthday. On their return from Toronto, a disagreement developed over Michael Duncan’s missing cell phone and / or wallet. A brawl followed that included Mr. Allen, Mr. Duncan and Mr. Elder. There was no dispute that Mr. Allen threw the first punch at Mr. Elder and that initially Mr. Allen was on top of Mr. Elder. As the two rolled, they were pulled apart but then Mr. Elder came back at Mr. Allen and threw him on the ground so that Mr. Elder found himself on top of Mr. Allen.
[7] The fight between Mr. Elder, Mr. Allen and Mr. Duncan was caught on a closed circuit camera. Mr. Elder sustained a number of serious cuts to his back that required his hospitalization and over 30 staples. Mr. Elder agreed that a certain point in the video it was clear that it was Mr. Duncan who was beating him up. Mr. Elder also agreed that it was Mr. Duncan who smashed a bottle over Mr. Elder’s head.
[8] Although the Crown urged the court to conclude that it was Mr. Duncan who was the one to have inflicted the wounds to Mr. Elder’s back, using the shards of glass, in my review of the evidence, I found that scenario impossible given the undisputed evidence that Mr. Allen was on his own back and being held down by Mr. Elder. As he did that, Mr. Elder was bent over Mr. Allen, with his back exposed to the crowd of spectators and vulnerable to an attack. The video clearly showed somebody other than Mr. Allen attacking Mr. Elder. Although Mr. Allen threw the first punch, others, including Mr. Michael Duncan continued to fight, and that is when Mr. Elder was injured.
[9] Mr. Allen complicated matters when he told the police that he was the one to have injured Mr. Elder. Having regard for the impossibility of Mr. Allen’s original explanation of how Mr. Elder was injured, I accepted Mr. Allen’s explanation that he gave that original explanation at Michael Duncan’s behest but that he actually lied to the police.
CIRCUMSTANCES OF THE OFFENDER
[10] The court received a Pre-Sentencing Report dated January 15, 2019. Mr. Allen is 23 years old, lives with his mother, is in a relationship, and is the father of two young children, one who is two years old and another who is nine months old. He graduated from high school in 2013 with grades in the range of 65-70%. He did not pursue further education. His employment has been brief and has included work in warehouse settings, landscape labour, and assembly line work. He will continue to live with his mom until he can find stable employment.
[11] In 2018, Mr. Allen registered for a program with Safety One where he obtained a forklift operator training certificate. The certificate includes training in “GHS-WHMIS, Fall Protection, Warehouse Operations, Worker Awareness Health and Safety, and Propane Cylinder Handling and Exchange”. Mr. Allen is currently unemployed but is actively looking for employment.
[12] Mr. Allen also participated in a volunteer experience in 2018 for Black History Month and he has been doing ongoing volunteer work at the Dixie Bloor Neighborhood Centre.
[13] With respect to his background and upbringing, Mr. Allen explained that he is the youngest of five children. He was raised by both his parents until the age of nine. Thereafter, his father left the family and he was raised by his mother and older sisters. He reported that although he had not had any counselling history and no known mental health conditions, he did feel depressed from time to time, particularly as he searched for suitable employment opportunities.
[14] On the subject of the incident, Mr. Allen expressed his deep regret for his part in the incident and was prepared to take responsibility for his actions.
[15] Mr. Allen’s mother, his sister, and his godfather, all gave very supportive assessments of Mr. Allen. His mother said that he was an attentive young man who learned from the incident that is the subject of this sentencing. She explained that he has matured into a young man and very able and supportive parent. He cares for his young children and is a positive role model for his young nephews.
[16] One of Mr. Allen’s sisters commented very positively on her brother’s qualities and recognised his positive relationship with the mother of Mr. Allen’s two children. She described him as a loving father to his children and his partner. She did not believe that her brother had any mental health or addiction issues. She also acknowledged that Mr. Allen has separated himself from any negative peer influences.
[17] Mr. Allen’s partner and mother of his two children was also very supportive of Mr. Allen. She described Mr. Allen as a good parent. She also described their relationship as positive and said that he provided his financial support whenever he was working. In her view the incident before the court was an isolated incident and that she did not experience any domestic violence, anger management issues, or addiction related behaviours.
[18] Mr. Elder was offered the opportunity to submit a victim impact statement but refused to submit anything. He felt that the judicial system failed him by reducing the offence to simple assault.
POSITION of the PARTIES
a) The Crown
[19] The Crown proposed 30 days incarceration or alternatively, a 60 day conditional sentence with a number of conditions: house arrest during the 60 days with exceptions for employment, school, meetings with the parole officer, and other necessities of life, followed by two years probation, a no contact order with Mr. Andrew Elder and Mr. Michael Duncan, a s.110 order for a period of 5 years, and a DNA order.
[20] The Crown acknowledged the very positive PSR although he expressed some concern that the report did not address Mr. Allen’s anger issues. He also raised the concern that Mr. Allen appeared to have swapped his past alcohol use with marijuana. He suggested this behaviour may be suggestive of a need for counselling.
[21] Mr. Allen’s mitigation factors included, Mr. Allen’s otherwise clear record, his remorse and admission to his role in the incident, his compliance with the terms of his bail, his subsequent training to use a forklift and to upgrade his skills, his commitment to finding employment, his willingness to submit to counselling, the fact that he is the father of two very young children, and the universal support by his mother, his sisters and his partner. Counsel agreed that these were very significant considerations in the determination of an appropriate sentence.
[22] The single most significant aggravating factor rested with the fact that Mr. Allen was the one who threw the first punch, which resulted in the brawl. Counsel underscored the fact that Mr. Allen was angry and wanted to hurt Mr. Elder. Even with the finding of plain assault, counsel submitted that it was necessary to send the message that the behaviour that unfolded on the night of the incident cannot go unpunished. He further suggested that Mr. Allen should receive something more than Mr. Duncan, who received a conditional discharge for merely pushing Mr. Elder. If a push got a discharge, then something more substantial as an initiating punch should attract a more substantial sentence. Crown counsel filed a case brief with the court but did not take the court through any of the cases.
b) The Defence
[23] Defence counsel asked for a conditional discharge, a probation period of 2 months, and 50 hours of community service. He agreed with the mitigating factors outlined by the Crown. He did not dispute that Mr. Allen’s conduct was an aggravating factor but he cautioned that the mitigating factors outweighed the aggravating considerations. He also emphasized Mr. Allen’s remorse, his willingness to take responsibility for his own actions, but most importantly the positive way in which Mr. Allen had turned his life around. His distancing from the negative influences in his life, his efforts to upgrade his skills and his determination to find employment were significant indicators of his rehabilitation underway. A prison term or even a conditional sentence stood to undermine Mr. Allen’s positive progress. A criminal record would cause Mr. Allen a setback in his efforts to find employment.
ANALYSIS
[24] The task before me is to identify an appropriate sentence that will denounce Mr. Allen’s conduct, deter others from engaging in dangerous conduct such as the brawl that occurred in this case, promote the rehabilitation of Mr. Allen but also recognize the harm to Mr. Elder. The principles that govern sentencing are outlined in section 718 of the Criminal Code. They engage the common law objectives of sentencing that are: the denunciation of unlawful conduct, deterrence, both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation from harm done to victims or the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.
[25] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. Section 718.2 requires that a sentence be increased or decreased depending on the aggravating and mitigating circumstances of a particular case. That section also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, and that the offender not be deprived of liberty if less restrictive sanctions may be appropriate.
[26] In my review of the evidence and my findings, as much as Mr. Allen threw the first punch and Mr. Elder ultimately suffered very serious injuries, it was clear that Mr. Allen was not the one to stab Mr. Elder. After throwing that first punch, Mr. Allen spent most of the time on the ground, with Mr. Elder on top of him. This made it impossible for Mr. Allen to stab or otherwise hurt Mr. Elder.
[27] While Mr. Elder’s frustration with the outcome of the case may be understandable, there is no escaping the reality that somebody other than Mr. Allen was the one to stab Mr. Elder. Whether it was Mr. Duncan or somebody else who ultimately stabbed Mr. Elder in the back, even Mr. Elder agreed that it was Mr. Duncan who broke the bottle over Mr. Elder’s head. To sentence Mr. Allen for more than his share of responsibility for the incident, would be unfair.
[28] Insofar as both Crown and Defence counsel asked the court to be guided by the sentencing outcome of Michael Duncan’s guilty plea, this is a problem because the factual foundation to that guilty plea, as summarized by Crown counsel is completely unfounded. More particularly, the agreed facts that were put before the court at Mr. Duncan’s guilty plea said the following:
Mr. Duncan threw a punch at Mr. Elder and the two began to fight. Subsequently, Shaquille Allen, Shaquille, S-H-A-Q-U-I-L-L-E, Allen, A-L-L-E-N, entered the fight and broke a bottle over Mr. Elder’s head. Mr. Elder went to the ground. Shaquille Allen began to repeatedly stab Mr. Elder in the back with the broken bottle. Mr. Allen has subsequently been convicted of aggravated assault. (p.4 of guilty plea transcript).
[29] The most glaring error rests with the representation that Mr. Allen had been convicted of aggravated assault when in fact, as of January 27, 2017, when the guilty plea occurred, Mr. Allen had not yet had his trial. Moreover, the parties before me agreed that Mr. Duncan was the one to break the bottle over Mr. Elder’s head. The role-reversal in the actions of Messrs. Allen and Duncan simply do not line up with the video evidence before me that showed Mr. Allen initiating the brawl and then being held down by Mr. Elder while somebody else stabbed Mr. Elder.
[30] In light of these serious discrepancies, the outcome of Mr. Duncan’s guilty plea cannot be relied upon for parity purposes.
[31] Turning to Mr. Allen’s aggravating and mitigating factors, the aggravating factors consist of Mr. Allen’s conduct as well as his admission that he was dealing with anger management issues. The fact that Mr. Allen initiated the attack on Mr. Elder is significant. Mr. Allen’s admission that he was having anger issues is the other factor. Mr. Allen’s conduct was pronounced and deliberate. In many respects, everyone implicated was lucky that Mr. Elder’s injuries were not more severe. However, it would be wrong to sentence Mr. Allen for more than his share of responsibility.
[32] The punishment to Mr. Allen must be proportional to the level of his responsibility, see R v. Lacasse, [2015] SCC 64. I note in particular Gascon J’s observations: “The gravity of the offence and the moral blameworthiness of the offender are two separate factors, and the principle of proportionality requires that full consideration be given to each of them: Proulx, at para. 83. As s. 718.1 Cr. C. provides, “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” When I apply this to Mr. Allen’s conduct, I find that while he was responsible for the initiation of the brawl, others were responsible for the gravity of Mr. Elder’s injuries. Given the agreed facts that Mr. Duncan was the one who broke the bottle and stabbed Mr. Elder, it would be disproportionate to saddle Mr. Allen with the full responsibility for the outcome of the offence.
[33] In contrast to the aggravating factors, the mitigating factors are very significant and are suggestive of rehabilitation already underway. I find them to consist of the following factors:
a) Mr. Allen’s PSR is very positive;
b) Mr. Allen has a very supportive family;
c) Mr. Allen took responsibility for his actions and has shown remorse;
d) Mr. Allen had a clear record apart from this incident;
e) The description of Mr. Allen as somebody who has learned from the experience of the incident, who is mature and who is polite was consistent with his overall comportment at his trial and during his testimony;
f) Mr. Allen’s distancing from bad influences, his efforts to upgrade his skills and to find employment are all foundational to his rehabilitation efforts; and
g) Mr. Allen complied with all of the terms of his bail, in place since December 2015, which restricted his movements very substantially.
[34] While Mr. Allen’s conduct must be denounced and others must be deterred from conduct that have serious consequences, on the specific facts of this incident and having regard for Mr. Allen’s specific conduct and subsequent actions, I find it necessary to promote his continued rehabilitation and to keep him away from the potential of other negative influences.
[35] Having regard for the quality of Mr. Allen’s testimony, my findings concerning the incident, and Mr. Allen’s conduct since the incident, I am satisfied that Mr. Allen has appreciated the magnitude of his error on the night of December 12, 2015. The burden of uncertainty that he has had to live with in the period between the charges against him, his trial and then his sentencing has also served to underscore the jeopardy that Mr. Allen faced.
[36] Insofar as the Crown raised concerns about Mr. Allen’s anger issues or his resort to marijuana to self-medicate, those will not be addressed by either jail time or a criminal record; they can best be addressed by requiring Mr. Allen to obtain some counselling.
[37] Given the overall support from his family and Mr. Allen’s efforts to upgrade his skills and stabilize his life, to impose a jail term or even impose a conditional sentence, leaving him with a criminal record, would be to set Mr. Allen back. The best protection for society, in this instance, is to keep Mr. Allen on a rehabilitative path and to provide him with all the supports to succeed in his life and to be a father to the two young children in his life.
[38] These objectives can be accomplished by the conditions that I have attached to his conditional discharge.
CONCLUSION
[39] For all of these reasons, I conclude that it is appropriate that Mr. Allen receive a conditional discharge. The conditions to his discharge are as follows:
• a probation period of 6 months;
• 50 hours of community service.
• During the probation period he is to report to a Probation and Parole Officer (PPO), as suggested by the PPO;
• He shall attend and complete any assessment, counselling, or treatment as directed by the PPOA to address anger management or any other issues identified by the PPO;
• He will continue to seek and maintain employment or educational upgrading to the best of his ability and provide proof to the PPO if requested by the PPO;
• He shall refrain from any contact, directly or indirectly with Andrew Elder and Michael Duncan.
Tzimas J.
Released: February 8, 2019
COURT FILE NO.: CR 17-617
DATE: 20190208
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
SHAQUILLE ALLEN
REASONS FOR SENTENCING
TZIMAS J.
Released: February 8, 2019