OSHAWA COURT FILE NO.: CR-18-14756
DATE: 20200924
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL THERIAULT
Peter Scrutton and Linda Shin, for the Crown
Michael Lacy, Deepa Negandhi and Marcela Ahumada, for Michael Theriault
HEARD: September 14, 2020
RULING ON COMMUNITY IMPACT STATEMENT
DI LUCA J.:
[1] Michael Theriault’s sentencing hearing is scheduled for September 25, 2020. The Crown will be filing several victim statements as well as two community impact statements; one from the Black Action Defence Committee and one from the Canadian Association of Black Lawyers.
[2] The defence has raised concerns about the content of the community impact statement prepared by the Black Action Defence Committee. The defence argues that aspects of the statement exceed the permissible scope of a community impact statement as set out in section 722.2 of the Criminal Code. In terms of remedy, the defence does not seek that I find the statement to be inadmissible. Rather, the defence asks that I order redactions to the written statement that is to be presented orally during the sentencing hearing.
[3] The Crown agrees that some aspects of the statement fall outside the permissible scope of the Code provisions. However, the Crown argues that redaction is not required. Instead, the Crown submits that I should simply disabuse myself of the impermissible portions of the statement.
[4] Community impact statements are a relatively new feature of the sentencing process. They are intended to provide a mechanism for enhanced public participation in the criminal sentencing process. They also recognize that the impact of certain offences is often felt by the community where the offence occurs and not just the individual victims of the specific offence or offences. Within permissible confines, community impact statements provide the court with meaningful and helpful information to be considered in arriving at a fit sentence for a particular offence.
[5] The scope of the provisions warrants consideration.[^1] Section 722.2(1) of the Criminal Code provides:
Community impact statement
722.2 (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement made by an individual on a community’s behalf that was prepared in accordance with this section and filed with the court describing the harm or loss suffered by the community as the result of the commission of the offence and the impact of the offence on the community.
[6] In accordance with this section, the court shall consider a community impact statement that describes the harm or loss suffered by the community as a result of the commission of the offence and the impact of the offence on the community.
[7] The community impact statement must relate to the offence committed by the offender, see R. v. Ali, 2015 BCSC 2539 at paras. 23-24. As such, it is necessarily bound by the factual and legal determinations made by the court. Assertions of fact that fall outside or contrary to the findings made by the court are not properly admissible as part of a community impact statement, see R. v. Gabriel (1999), 1999 CanLII 15050 (ON SC), 137 C.C.C. (3d) 1 (Ont.S.C.J.) at para. 37.
[8] A community may be directly affected by a criminal offence where, for example, the community is itself the victim of the offence. A community may also be affected by the offence where the victim of the offence belongs to the community or where the community has a sufficient connection with the offence. In the context of community impact statements, the “harm or loss occasioned by the offence” and the “impact of the offence” on the community will often relate to the broader impacts that an offence has on a particular community. Of necessity, the harm, loss or impact of the offence may, at times, be described in terms that are not as directly or strictly related to the commission of the offence as might be the case where the actual or specific victim of the offence speaks of its impact.
[9] The impact of an offence within a community will often depend on context. At times, a community’s history and lived experience will provide valuable insight that serves to contextualize the harm, loss or impact of an offence, in a manner that might not be otherwise appreciable to a person who is not from the community.
[10] While this type of context is important, it must also be remembered that the accused is to be punished for the offence he has committed and not offences committed by others. A community impact statement is not a vehicle through which the crimes of others are to be visited upon the accused before the court.
[11] This is a point that is implicitly recognized by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 at para. 90, wherein the court notes that while the prevalence of a type of offence within a community is a factor to consider in balancing the various objectives of sentencing, consideration of this factor must not result in a demonstrably unfit sentence.
[12] A community impact statement, much like a victim impact statement, should refrain from making sentence recommendations; see R. v. Gabriel, supra, at para. 39.
[13] A community impact statement should also refrain from including comments that disparage the defendant or seek vengeance, see R. v. McDonough and McLatchey, 2016 CanLII 18369 (ON SC) at para. 30, R. v. Denny, 2016 NSSC 76 at para. 115, and R. v. B.P., 2015 NSPC 34.
[14] With these principles serving as a backdrop, I turn to the proposed community impact statement of the Black Action Defence Committee. I note that I have been provided with two versions. The second version was prompted by feedback and guidance appropriately given by Crown counsel.
[15] The seconded version, dated September 10, 2020, is the version that is proposed for admission. Defence counsel has provided a marked-up version that highlights the areas objected to. I will address each of the highlighted areas and then discuss remedy.
Page 1 – Comment Regarding Revised Version
[16] Included under the heading on the first page of the statement is a comment indicating that the community impact statement was revised to meet the objections of defence counsel and the applicable guidelines. It then indicates that the “true feelings” of the community are better reflected in the unedited or original version.
[17] In my view, this comment is objectionable. The Crown initially, and quite properly, raised concerns with the first version of the community impact statement. The changes were made in response to the Crown’s communication and not the defence objection. In any event, whether it was the Crown or the defence who objected, it is important to remember that there is nothing wrong or improper with either side raising a concern or objecting to the proposed admissibility of certain evidence. This is a feature of the adversarial system. Evidence is often edited, redacted and/or accorded no weight on the basis of procedural and substantive rules that govern the process.
Page 5 – Comments Regarding the Justice System’s Treatment of Mr. Miller
[18] The community impact statement indicates that members of the Black community who have followed the trial and the judgment have concerns with respect to how the justice system has treated Mr. Miller. The statement indicates that this case has contributed to the erosion of trust in law enforcement and the system of justice. The statement further notes the sentiment that this case has further demonstrated that the justice system is weighted against the Black community.
[19] These comments are objectionable as they do not speak to the impact of the offence on the community. By saying this, I want to be clear that I am not saying the concerns are not valid. Indeed, I accept that for some members of the community, they are valid. However, they simply do not assist me in determining the fit sentence.
Page 5 – Comments on the Range of Emotions Evoked
[20] This comment speaks to “unfathomable” emotions evoked in people of all backgrounds. It reports that members of the community have had nightmares after seeing photos of the injuries to Mr. Miller, and that Black youth are more than ever terrified of interacting with police. One reported comment suggests that “even gang-bangers are more trustworthy than police for Black people”.
[21] With the exception of the last comment, I do not find these comments to be objectionable. This case had almost unprecedented media and public attention. The images were graphic as was the narrative of events presented at trial. The range of emotions evoked are understandable and I will be mindful to consider them in context with the factual and legal findings I have made.
[22] In terms of the comment relating to gang-bangers, it is inflammatory and does not add to the clear sentiment of distrust of police within the Black community as expressed elsewhere in the statement.
Page 5/6 – Photos of Dafonte Miller
[23] The community impact statement contains a photo of Mr. Miller pre-injury and a photo of the injury to his eye. I see nothing objectionable with the photo of Mr. Miller taken pre-injury.
[24] In terms of the photo of the eye injury, I note it is already in evidence and as such its inclusion in the community impact statement is of no significant moment.
[25] In terms of the comment that photos illustrate the impact of the crime on the broader community, I note the following. First, I understand why the evocative photograph speaks to the impact of the crime on the community. Second, I assess the comment in view of my factual and legal findings. I was not satisfied beyond a reasonable doubt that the eye injury was caused unlawfully. My reasons for judgment explain why I reached this conclusion, and I will not repeat those reasons here other than to note that Mr. Theriault will be sentenced in accordance with my findings.
Page 7 – Emotional Impact and Page 10 – Fears for Security
[26] Included in these portions of the community impact statement are a number of unsourced comments from members of the community. These comments convey an obviously real and heart-felt despair over the impact of racism on the Black community. They relate in part to Dafonte Miller’s treatment by police and the justice system and also speak of other incidents which have fostered distrust in the police and in the justice system. The comments are also implicitly critical of the verdict.
[27] In my view, these comments, with two exceptions, supply context that assists me to understand the impact that an offence like this has on the Black community. This case does not sit as a singular instance of violence by a police officer against a young Black man. This case must be understood in context with the experiences of the Black community which has obviously long-suffered the consequences of racism. This does not mean that Michael Theriault is to be blamed for the sorry history of police interaction with members of the Black community, but it does help explain why this type of offence has such a significant impact on the community.
[28] One of the unsourced comments speaks of “the initial brutal beating that cost him [Mr. Miller] an eye”. This comment is objectionable as it does not accord with my factual findings.
[29] A further unsourced comment suggests a belief that the police “are paid assassins” of the Black community. While I understand the deeply held feelings by members of the Black community against the police, this comment is inflammatory and does not add anything useful to the other comments contained in the statement.
[30] To the extent that the comments also express explicit or implicit disagreement with the verdict, it is clear that a community impact statement is not intended as a mechanism for the community to voice its displeasure with the outcome of a particular trial. That said, I understand and respect why members of the community are deeply affected by the verdict and some do not agree with it.
[31] Lastly, in each of these sections, the writer questions why such conduct by law enforcement is so predominant. I find these comments to be unobjectionable. The comments are valid and, in context, serve to rhetorically emphasize the sentiments the community is feeling. However, I remind myself that my task is to find a fit sentence for the offence that Michael Theriault has been convicted of and not to impose a demonstrably unfit sentence based merely on the prevalence of this type of offence.
Page 10 – Conclusions
[32] In the conclusion of the statement, the writer states “Even if significant changes are made to policing and the criminal justice system, it will take generations and possibly centuries to heal, if at all possible”.
[33] This comment draws on the need for systemic change and states the obvious proposition that the trauma of racism and the possibility of healing will be generational in duration. In my view, the comment is not only unobjectionable, it is true. It provides context for assessing the impact that this offence had on the community.
Remedy
[34] Where a community impact statement does not comply with statutory and common law requirements, there are three possible remedies; the statement is excluded in its entirety, the statement is subject to redactions and then presented in redacted form, or the statement is not redacted but the court disregards the portions of the statement that are improper or irrelevant.[^2]
[35] The defence is not seeking exclusion of the community impact statement, though it submits that the proper remedy is redacting/editing the statement to remove the offending portions from both the written version and the version that is read in court at the sentencing hearing. The defence notes that when a community impact statement is read in open court, it forms part of the process which is governed by rules and practices aimed at ensuring fairness. To allow the impermissible portions of a statement to be read in court and form part of the public record raises an unfairness and potentially undermines the solemnity of the court process.
[36] The Crown submits the court can simply disregard the offending portions without engaging in the exercise of editing the statement. The Crown notes that this is routinely done, and judges are well accustomed to disabusing their minds of inadmissible evidence.
[37] In my view, two portions of the community impact statement warrant redaction. First, the preamble indicating the Black community’s views are better reflected in the original version should be redacted. It has no relevance to the process or the sentence that I must consider. Second, the comment relating to a belief that the “police are assassins” is inflammatory and unhelpful.
[38] I would otherwise not redact any other portions of the statement.
[39] To the extent that statement refers to other offences committed against the Black community and the systemic nature of racism, I will consider the context that those comments provide to assist me in assessing why this offence has had a significant impact on the Black community. I will, however, remain mindful that I am to sentence Mr. Theriault for the offence that he has committed and the context in which it was committed.
[40] To the extent that the statement does not accord with my factual and legal findings, I will disregard the offending portion and remain mindful that I must sentence Mr. Theriault in accordance with the factual and legal findings set out in my reasons for judgment.
[41] To the extent that portions of the statement impugn the verdict and the court process, I will disabuse myself of the comments. I decline to redact the comments as they are essentially intertwined in the narrative of the statement which speaks to both the impact of the offence and the impact of the process including the verdict.
Justice J. Di Luca
Released: September 24, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MICHAEL THERIAULT
RULING ON COMMUNITY IMPACT STATEMENT
Justice J. Di Luca
Released: September 24, 2020
[^1]: In this regard, the case law regarding victim impact statements provides significant guidance. [^2]: The latter remedy is codified in section 722(8) of the Code in relation to victim impact statements. I need not decide whether this section supplants the common law authority to exclude or redact a victim impact statement in the appropriate circumstances. While there is no equivalent section in the community impact statement, counsel agree that I have the common law authority to disregard or redact inadmissible portions of a community impact statement.