COURT FILE NO.: CR–19–3–580 DATE: 20201008

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MARK RILEY

S. Walker, for the Crown

K. Kaczmara, for Mark Riley

HEARD: August 21, 2020

REASONS FOR Sentence

P.J. Monahan J.

[1] Mark Riley was tried before a jury on a 10-count indictment, which included charges of trafficking in cocaine, possession of a loaded prohibited firearm, using a firearm while committing an indictable offence, using an imitation firearm while committing an indictable offence, and uttering threats.

[2] Mr. Riley was acquitted of the majority of the charges, including all of those offences identified above. He was convicted of the following three offenses: (i) being unlawfully in a dwelling house with intent to commit an indictable offence, contrary to s. 349 (1) of the Criminal Code: (ii) assault causing bodily harm, contrary to s. 267 (b) of the Criminal Code; and (iii) possession of marijuana for the purpose of trafficking, contrary to s. 5 (2) of the Controlled Drugs and Substances Act (the “CDSA”). He is before the court today for sentencing on these three convictions.

Circumstances of the Offenses

[3] The offences upon which Mr. Riley has been convicted related to events that occurred in the apartment of Christopher Salter, between February 1 and April 16, 2017.

[4] Mr. Salter, who is in his mid-40s, is partially disabled and uses a walker and a motorized scooter for mobility. He also suffers from chronic pain associated with an accident that occurred approximately 15 years ago. By his own admission he has used and abused prescription painkillers and has often used crack cocaine. In 2017 Mr. Salter was using crack cocaine approximately once a week.

[5] Mr. Salter testified that he met Mr. Riley in the fall 2016 through a drug dealer. Following the meeting, Mr. Salter stated that Mr. Riley began regularly selling him crack cocaine. Mr. Salter’s evidence was that initially he and Mr. Riley got along well but that this changed as a result of an altercation that occurred in late March 2017. On this occasion, Mr. Salter asked Mr. Riley, along with a number of Mr. Reilly’s friends, to leave his apartment. Mr. Salter testified that Mr. Riley refused, hit him over the head with pieces of a broom and kneed him in the chest. As a result of this attack, Mr. Salter went to hospital the next day and was diagnosed with bruised ribs. He felt pain and had trouble breathing for approximately the next week.

[6] Mr. Salter stated that on or about April 13, 2016, Mr. Riley and a number of his friends took over his apartment and began using it to sell cocaine and marijuana to their customers. Mr. Salter testified that he asked Mr. Riley and his friends to leave but that they refused to do so and continued to use his apartment to sell drugs for the next three days. At one point, Mr. Riley left the apartment for a few hours. When Mr. Riley returned, Mr. Salter refused to let him back in. Mr. Salter testified that Mr. Riley threatened him with a revolver, whereupon Mr. Salter allowed Mr. Riley back into the apartment. Mr. Salter’s evidence was that Mr. Riley later fired this revolver into a wall on the balcony of Mr. Salter’s apartment.

[7] Mr. Salter also testified that during the three days that Mr. Riley took over his apartment, he also threatened him with a BB gun and at one point shot the BB gun into the door to his bedroom.

[8] Mr. Riley was arrested in a police raid on the apartment on April 16, 2017. In his backpack police found marijuana as well as a BB gun. However, there was no revolver found in the apartment. There was also no evidence of any damage to the wall on the balcony or the door to the bedroom.

[9] In his evidence, Mr. Riley admitted trafficking in marijuana in Mr. Salter’s apartment on April 16, 2017. However, he denied having assaulted or threatened Mr. Salter. He also denied trafficking in crack cocaine, claiming that another individual, Loxley Johnson, had been using Mr. Salter’s apartment to sell crack cocaine. Mr. Riley claimed that the BB gun found in his backpack belonged to one of his friends, and he denied having possessed or used a revolver.

[10] The jury convicted Mr. Riley of assault causing bodily harm in connection with the March 24, 2017 assault described by Mr. Salter. They also convicted Mr. Riley of being unlawfully in Mr. Salter’s apartment on or about April 16, 2017 and having trafficked in marijuana while there. However, they acquitted Mr. Riley of having trafficked in crack cocaine. They also acquitted him of the charges in connection with the incidents which were alleged to have occurred over the three days leading up to April 16, 2017. This included the alleged use of a revolver and uttering threats in order to force Mr. Salter to allow Mr. Riley back into the apartment, as well as the alleged use of the BB gun to threaten Mr. Salter.

Circumstances of Mr. Riley

[11] The Court has had the benefit of two presentence reports (PSRs), the first prepared by the Probation and Parole Office and the second by Talena Jackson-Martineau, MSW, of the Sentencing and Parole Project (SPP). The SPP is a nonprofit organization that prepares enhanced presentence reports for Black people marginalized by poverty and racial inequality. Both reports describe Mr. Riley’s personal circumstances and have been very helpful to the Court in understanding the various factors which have contributed to his trajectory into the criminal justice system. Mr. Riley has also provided the court with documentation from family and others speaking to his current situation, his desire to further his education, and his recent employment.

[12] Mr. Riley was born on February 10, 1999 and identifies as a Black male, Canadian, of Jamaican descent. His parents separated when he was two or three years old and, at age 5, Mr. Riley was taken into care by the Children’s Aid Society. The exact circumstances which led to CAS involvement are unclear. Mr. Riley remained in CAS care for approximately two years.

[13] When Mr. Riley was returned to his mother’s care, she had a new life partner. Mr. Riley reports that he subsequently had a great deal of conflict with his stepfather. When he was a teenager, a dispute with his stepfather led to him being arrested by police. Mr. Riley subsequently moved to live with his biological father, where he still resides. However, his housing situation has been and remains unstable. At the time of the offenses in April 2017 he was living with his father and brother at a shelter. He and his father currently live in a motel, although they have been seeking more permanent housing and have completed a social housing application form.

[14] Mr. Riley grew up in a high crime neighbourhood in Scarborough. He indicates that he was traumatized by the shooting death of his stepbrother, with whom he had a very close relationship.

[15] When Mr. Riley was in grade 10, he was involved in a fight at school which resulted in an October 2015 youth conviction for assault causing bodily harm and his expulsion from school for fighting. Mr. Riley subsequently completed grades 10 and grade 11 at different schools. Mr. Riley has plans to complete high school and to enroll in an apprentice program for stone masonry.

[16] In 2017, Mr. Riley secured part-time employment in a restaurant as kitchen help, washing dishes and cooking. A letter from his supervisor at the restaurant describes him as a “hard-working, goal-oriented individual who performs above average, and has proven to be an asset.” His supervisor also describes him as having a pleasant disposition and as being trustworthy, noting that Mr. Riley provides advice to other employees and is willing to listen.

[17] In April 2020, Mr. Riley was hired full time by People Store Staffing Solutions and is currently working as a Warehouse Associate – Inventory Control. A letter from his current employer reports that he is reliable and hard-working, and a great asset for his employer.

[18] Mr. Riley also provided letters of support from both his parents. His mother described Mark as having changed since 2016. She reports that he is very sorry for his actions and has learned from his mistakes. A letter from Mr. Riley’s father states that he has witnessed Mark transform into a mature, caring and dependable adult. His father reports that Mark has learned to make better life choices in all aspects of his life. His father has had several conversations with his son about life goals and he realizes how focused and determined Mark is to progress in life. Mark has expressed remorse over past decisions and has a strong desire to succeed in achieving his goals.

[19] Mr. Riley also provided a letter of support from the manager of a hair salon where he has been volunteering. The manager reports that she has noticed a drastic change in Mr. Riley’s behaviour over the past couple of years. She is happy to say that Mark’s mindset and behaviour today, compared to when he first started volunteering, has taken a major step towards the mature side. He seems more focused on establishing himself and achieving his goals.

[20] At the conclusion of the sentencing hearing, Mr. Riley addressed the court. He expressed remorse for his past choices and apologized for the harm caused to Mr. Salter. He indicated his firm intention to make better choices in the future.

Victim Impact Statement

[21] Mr. Salter provided a VIS in which he indicated that this incident has had a significant long-term impact on his mental health. Since this incident he has never felt safe in his apartment. Every time there is a knock at his door, he gets anxious and worried. He has also suffered major depression and anxiety and feels helpless, weak and alone. He feels miserable and worthless and there were times when he spends hours planning how to save himself if something like this were to happen again. His home is where he is supposed to feel safe but he is restless and disturbed, nervous at every sound. He does not trust anyone now and wonders if others will hurt him knowing physically he cannot fight back.

Positions of the Parties

[22] I would note that the Crown’s position evolved over the course of the sentencing hearing. The Crown’s initial position was that a global 9-month conditional sentence would be appropriate. However, in the course of sentencing submissions, Mr. Walker observed that it would appear that a conditional sentence is not available for the offence of assault causing bodily harm or for being unlawfully in a dwelling house.

[23] The recent Court of Appeal decision in R. v. Sharma ruled that certain provisions in s. 742.1 of the Criminal Code, which deny the availability of conditional sentences, are unconstitutional.[^1] However the declaration of unconstitutionality in Sharma did not apply to s. 742.1 (e) (i) (which removes the availability of a conditional sentence for assault causing bodily harm), or s. 742.1 (f) (x), (which removes the availability of a conditional sentence for being unlawfully in a dwelling-house). Mr. Riley has not challenged the constitutional validity of either of these subsections in s. 742.1, with the result that he cannot receive a conditional sentence for either of these particular offenses.

[24] On the assumption that a conditional sentence is not available for the offenses of assault causing bodily harm and being unlawfully in a dwelling-house, Mr. Walker concedes that a custodial sentence for Mr. Riley would not be appropriate. Therefore, in the alternative, and taking into account the 11 days that Mr. Riley has spent in pre-trial custody and the substantial period on house-arrest bail, the Crown ultimately proposed a suspended sentence with two-years’ probation.

[25] Mr. Kaczmara on behalf of Mr. Riley proposes a conditional discharge.

[26] In making this submission, Mr. Kaczmara notes that the determination of a just and appropriate sentence is a highly individualized exercise. Mr. Riley is young, currently 21 years old and just 18 at the time of the offenses in question. He is a first-time adult offender who has excellent prospects for rehabilitation, with a very supportive family. He has found full-time employment while on bail and expressed remorse for his offenses. As a Black man of Jamaican descent, he has suffered numerous overlapping disadvantages which have contributed to his difficulties with the criminal justice system. Even a suspended sentence would result in a criminal conviction, which would likely negatively impact Mr. Riley’s future employment prospects.

[27] Mr. Kaczmara points out that there are instances where an individual found guilty of assault causing bodily harm received a conditional discharge. Mr. Riley also spent 11 days in pretrial custody and was on house-arrest bail for approximately 13.5 months.

[28] Taking all these factors into account, Mr. Kaczmara proposes that a conditional discharge is a just and appropriate sentence for Mr. Riley.

Applicable Sentencing Principles

[29] The purpose and principles of sentencing are set out in s. 718 of the Criminal Code. Parliament has mandated that the fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society. Trial judges are required to impose a just sanction that furthers one or more of the following six objectives:

i. to denounce unlawful conduct; ii. to deter the offender and others from committing offences; iii. to separate offenders from society, where necessary; iv. to assist in the rehabilitation of offenders; v. to provide reparations for harm done to victims or the community; and vi. to promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.

[30] A fundamental principle of sentencing is proportionality, namely, that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Further, a court that imposes a sentence shall also take into consideration the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances; the principle that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and the principle that courts should exercise restraint in imposing imprisonment.

Aggravating and Mitigating Factors

a. Aggravating Factors

[31] While Mr. Riley was acquitted of the most serious charges in the Indictment, the offenses for which he was convicted are nevertheless serious. In particular, Mr. Riley assaulted Mr. Salter in the latter’s apartment, causing him significant bodily injury. He also used Mr. Salter’s apartment to traffick in marijuana without Mr. Salter’s permission. As Mr. Salter’s VIS indicates, these incidents have had long-term, significant negative impacts on Mr. Salter.

[32] I also note that Mr. Riley has a youth conviction for assault causing bodily harm.

[33] The Crown invites me to make a factual finding that Mr. Riley was unlawfully in Mr. Salter’s apartment not only on April 16, 2017 (i.e. the date of his arrest) but for the three preceding days as well. The Crown argues that the jury’s verdict was ambiguous on this issue and thus it is open to me to find that Mr. Riley was unlawfully in Mr. Salter’s apartment in the days preceding April 16, 2017 with the intention of committing an indictable offence.[^2]

[34] I would decline to make such a factual finding since, in my view, this would be inconsistent with the jury verdict acquitting Mr. Riley of the various offences he is alleged to have committed on the three days prior to April 16, 2017. This included the charge of possessing a weapon (the BB gun) for the purpose of committing an offence; the charge of being in possession of a firearm (a revolver) while committing an indictable offence; the charge of uttering a threat to cause death or bodily harm; and the offence of trafficking in cocaine. I note that Mr. Riley denied having been in Mr. Salter’s apartment in the days preceding April 16, 2017.

[35] The offence of being unlawfully in a dwelling-house requires proof that Mr. Riley was unlawfully present in Mr. Salter’s apartment with the intention of committing an indictable offence. The jury having acquitted Mr. Riley of the offenses that he was alleged to have committed in the days preceding April 16, 2017, in my view it would be inconsistent with that verdict to now find that Mr. Riley nevertheless had an intention to commit those offenses on the days in question.

[36] It is clear that the sentencing judge is bound by the express and implied factual implications of the jury’s verdict. I therefore find it is not open to me to make a finding that Mr. Riley was unlawfully in Mr. Salter’s apartment for the purpose of committing an indictable offence in the days leading up to April 16, 2017.

b. Mitigating Factors

[37] There are a number of significant mitigating circumstances in relation to Mr. Riley:

i. Mr. Riley is just 21 years old and had just turned 18 at the time of the offenses; ii. he has strong prospects for rehabilitation. In the past three years he has taken steps to complete his high school education and he has secured full-time employment in a responsible position. His employer reports that he is a hard-working, responsible and trustworthy individual; iii. Mr. Riley he has not had any further involvement in the criminal justice system since 2017; iv. both of Mr. Riley’s parent are supportive and report having seen a change in his attitude and behaviour over the last three years.

Analysis

[38] Given the evolution in the Crown’s position as described above, the issue is whether Mr. Riley should receive a conditional discharge, or a suspended sentence with a period of probation, for some or all of the offenses with which he has been convicted. A conditional discharge is available if it is in the best interests of the accused and not contrary to the public interest.[^3]

[39] In my view, a conditional discharge would be appropriate for the offence of possession of marijuana for the purpose of trafficking. Mr. Riley was in possession of approximately 42 grams of marijuana. Since the enactment of the Cannabis Act in 2018, it is lawful to possess up to 30 grams of marijuana, and to distribute up to 30 grams of marijuana to other persons.[^4] Given the significant loosening of the prohibitions on the possession and distribution of marijuana, as well as the small amount possessed by Mr. Riley, it would not be contrary to the public interest to impose a conditional discharge for this offence.

[40] More difficult is the question of whether a conditional discharge is appropriate in relation to the offenses of assault causing bodily harm, and for being unlawfully in a dwelling-house.

[41] I accept that a conditional discharge would be in Mr. Riley’s best interests. However, as the Court of Appeal stated in R. v. Wood,[^5] and affirmed more recently in R. v. Huh,[^6] in cases of violence causing injury “the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused.”

[42] Mr. Kaczmara has provided the court with cases in which a conditional discharge has been imposed in cases of assault causing bodily harm. However, as the Crown rightly points out, the circumstances in these cases were quite different from the offenses committed by Mr. Riley.

[43] For example, in R. v. Fensom, the accused was a bouncer at a bar who used more force than was necessary in order to eject an intoxicated patron who had refused to leave the bar. In finding that a conditional discharge was appropriate, Quigley J. noted that the accused had been provoked by the intoxicated patron, and the excessive use of force “appears to have been a momentary lapse, almost an automatic response.”[^7] Similarly, in R. v. Wiltshire, the accused had observed his wife and her new partner watching an erotic movie on TV in the presence of the accused’s 15-month-old son. This had caused the accused to punch the wife’s new partner in the face, an action the sentencing judge described as a “momentary loss of control brought about by emotional sentiments in an unusual set of circumstances”.[^8] In R v. Adamson, the accused had gotten into a fight at a bar and thrown a beer bottle at the complainant, which struck him in the head. In imposing a conditional discharge, West J. noted that the altercation had resulted from an argument between two patrons at a bar who had both been drinking, and the accused had successfully completed a treatment program to deal with her alcohol and drug abuse problems.[^9]

[44] It is evident that the circumstances in the present case are quite different. Here, Mr. Riley’s assault upon Mr. Salter was neither due to a momentary lapse in judgement, nor was it provoked. Rather, it resulted from Mr. Salter simply asking Mr. Riley and his friends to leave his apartment. Moreover Mr. Salter is a vulnerable person, who was partially disabled and used a walker and a motorized scooter for mobility. While Mr. Salter’s physical injuries were not permanent, I accept his statements in his VIS that he continues to suffer significant psychological harm. I also note that Mr. Riley has a previous conviction for assault causing bodily harm, albeit when he was a youth.

[45] As for the offence of being unlawfully in a dwelling-house, Mr. Riley acknowledged in his evidence that on April 16, 2017 he was present in Mr. Salter’s apartment for 5 or 6 hours. The jury found that he was there without Mr. Salter’s permission, with the intention of committing an indictable offence. Being unlawfully in a dwelling-house is a serious crime which involves a violation of the sanctity of a personal residence, made all the more serious when the victim is present.[^10]

[46] I accept Mr. Kaczmara’s submission that, in assessing Mr. Riley’s moral culpability for these offenses, it is important to take into account the many overlapping disadvantages he has suffered as a Black man growing up in Toronto. At the same time, Mr. Kaczmara does not advance a “determinist” theory of crime, which in any event has been rejected by the Court of Appeal,[^11] and acknowledges that Mr. Riley made voluntary choices when he committed these offenses.

[47] Mr. Kaczmara also argues that a suspended sentence will result in a criminal conviction which may impact on Mr. Riley’s employment prospects. Yet Mr. Riley’s current employer is obviously aware of this proceeding and there is no indication that a conviction will jeopardize his current employment. There is no other evidence which would enable me to assess the extent to which Mr. Riley’s future employment prospects might potentially be jeopardized by a suspended sentence as opposed to a conditional discharge.

[48] I also take account of the fact that Mr. Riley’s 11 days in pre-trial custody would entitle him to a credit of 15 days, and his 13.5 months under house arrest bail would have entitled him to a credit in the range of three to three-and-a-half months. This would amount to a total custodial credit approaching 4 months.

[49] On the basis of all of these circumstances, I conclude that a conditional discharge would not be proportionate to the gravity of the offenses committed by Mr. Riley, and would be contrary to the public interest.

[50] I therefore conclude as follows:

a. I grant Mr. Riley a conditional discharge for the offence of possession of marijuana for the purpose of trafficking; and b. I suspend the sentences for the offenses of assault causing bodily harm and for being unlawfully in a dwelling-house, and impose a two-year period of probation, with the following conditions: i. keep the peace and be of good behaviour; ii. abstain from communicating directly or indirectly with Christopher Salter, and refrain from being within 100 metres of where Mr. Salter resides, or is known to Mr. Riley to be; iii. appear before the court when required to do so by the court; iv. report to a probation officer within 2 working days of the making of this order, and thereafter as required by his probation officer; v. notify his probation officer in advance of any change of name or address, and promptly notify the probation officer of any change of employment; and vi. participate in counselling as directed by his probation officer, and provide any consent necessary to permit records relating to his participation in such counselling to be shared with his probation officer.

[51] Assault causing bodily harm is a “primary designated offence” under s. 487.04. I therefore order that Mr. Riley provide bodily substances reasonably required for the purpose of forensic DNA analysis, in accordance with s. 487.051, within two business days of today, or otherwise as directed by his probation officer.

[52] I further order, pursuant to s. 109 (1) (a) and (2), that Mr. Riley not possess: (i) any firearm, other than a prohibited firearm or restricted firearm, or any crossbow, restricted weapon, ammunition and explosive substance, for a period of 10 years; and (ii) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition, for life.

P. J. Monahan J.

Released: October 8, 2020

COURT FILE NO.: CR–19–3–580 DATE: 20201008

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MARK RILEY

REASONS FOR SENTENCE

P.J. Monahan, J.

Released: October 8, 2020

[^1]: R. v. Sharma, 2020 ONCA 478 ("Sharma"). [^2]: R. v. Ferguson, 2008 SCC 6 holding that, where the factual implications of a jury verdict are ambiguous, the sentencing judge should come to his or her own independent determination of the relevant facts. [^3]: See Criminal Code, s. 730 (1). [^4]: See Cannabis Act, SC 2018, c. 16, ss. 8-9. [^5]: 1975 CanLII 1410 (ON CA), [1975] O.J. No. 290, 24 CCC (2nd) 79 (OCA). [^6]: 2015 ONCA 356, at para 12. [^7]: R. v. Fensom, 2016 ONSC 4209, at para 12. [^8]: R. v. Wiltshire, [2004] OJ No. 4554 (SCJ), at para 23. [^9]: R. v. Adamson, 2017 ONCJ 174, at paras 41 to 42. [^10]: See R. v. Carvalho, 2006 CanLII 12959 (ON CA), [2006] O.J. No. 1626 (Ont. C. A.). [^11]: See R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252, at para 40.