COURT FILE NO.: CR-19-15174
DATE: 20201118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER BAKER
Defendant
K. Alderton, for the Crown
M. Morse, for the Defendant
HEARD: October 22, 2020
J. speyer J.
REASONS FOR SENTENCE
Overview
[1] Christopher Baker was convicted on September 8, 2020, following his trial before me, of one count of possession of a weapon for a purpose dangerous to the public peace and one count of breach recognizance. He was acquitted of charges of aggravated assault and assault with a weapon.
The Facts
i. The circumstances of the offences
[2] On July 10, 2018, Mr. Baker stabbed David Franklin twice in the abdomen with a switchblade he carried in his pocket. While I had a reasonable doubt that Mr. Baker acted in self-defence, I had no doubt that a switchblade, such as that described by Mr. Baker in his evidence, is a prohibited weapon as defined by s. 84(1) of the Criminal Code, and that Mr. Baker was subject to a recognizance that prohibited him from possessing weapons.
[3] Mr. Baker took possession of the switchblade when he put it in his pocket the morning of July 10, 2018. According to his evidence, he carried the knife for protection. I found that he had no reasonable basis to believe that he faced any danger on his daily trip to the Ontario Addiction Treatment Centre, where he had been attending for months.
[4] The danger to public safety created by Mr. Baker’s decision to arm himself with a knife that he could quickly render lethal with minimal application of force or manipulation of the knife when he left his home the morning of July 10, 2018 was realized in this case. His decision to arm himself with that prohibited weapon created the danger that he would use the knife, and increased the risk that he would cause bodily harm or even death to others in the event that he became involved in a physical confrontation. As I noted in my reasons for conviction, had Mr. Baker not stabbed Mr. Franklin, Mr. Franklin would have let Mr. Baker go, or held him until the police arrived. As things unfolded, Mr. Baker was able to elude Mr. Franklin’s grasp even though Mr. Franklin did not know that he had been stabbed. Had Mr. Baker not armed himself with the knife, Mr. Franklin would not have been stabbed by Mr. Baker in self-defence, and Mr. Baker would have escaped Mr. Franklin’s grasp.
[5] The switchblade is a prohibited weapon for a reason. It is inherently dangerous. It is easy to conceal. It emboldens a person who has it to act in fashion that is likely to provoke a response, secure in the knowledge that the holder of the knife can very quickly produce it and use it, as Mr. Baker in fact did in this case.
[6] Mr. Baker started the confrontation with Mr. Franklin. He behaved aggressively and obnoxiously towards Mr. Franklin’s wife. And when Mr. Franklin tried to move Mr. Baker away from his wife, Mr. Baker escalated the confrontation by pushing Mr. Franklin off the curb. Mr. Baker had several opportunities to prevent or de-escalate the incident before Mr. Franklin pinned him against the garbage can. Mr. Baker created the situation of danger that caused him to use the dangerous knife he chose to carry to stab Mr. Franklin. This would not have happened but for Mr. Baker’s decision to arm himself with the switchblade.
[7] Moreover, when Mr. Baker chose to arm himself with the knife, he was subject to a recognizance of bail which contained a condition that he not possess any weapon as defined by the Criminal Code, which included the switchblade.
ii. The circumstances of the offender
[8] Mr. Baker was 24 years old at the time of the offences and is now 26 years old.
[9] At the time of the offences for which he is being sentenced, Mr. Baker had a significant criminal record, although at that time he had not yet been convicted of any violent offence. His record began when he was a youth and includes four separate convictions for trafficking or possessing drugs for the purpose of trafficking. In addition, he had been convicted of possession of a weapon, obstructing a peace officer, and failing to comply with a recognizance.
[10] Mr. Baker had an unremarkable childhood. He lived with both parents, except during a period when his father and mother lived separately. Until grade nine he was a good student who did not have problems academically. According to his mother, he became involved with the wrong crowd in grade nine. He was expelled for truancy after he completed grade 10. After that, he attended alternative schooling, and he is within three credits of completing his GED. He has had occasional employment and currently lives with his parents.
[11] By the time he was 19 years old, Mr. Baker was drinking heavily. He also started using cocaine at that time. He was selling drugs too. According to Mr. Baker, his whole life was then dedicated to getting and consuming drugs.
[12] In 2013, Mr. Baker was the victim of a serious assault. He was stabbed several times and beaten. His lung was punctured. Mr. Baker also sustained psychological injuries as a result of this incident. He has been diagnosed with PTSD, Anxiety, Depression and Agoraphobia as a result of the trauma he suffered during this incident. He has been under the care of mental health professionals since 2013.
[13] Mr. Baker was in a car accident in 2015 and sustained an injury to his back. He was prescribed opiates, and within a year began to acquire them on the street. He was in another car accident two years later which aggravated his earlier injuries in addition to fracturing his wrist.
[14] In 2018 and 2019, Mr. Baker attended a substance abuse program, which he says really helped him. He stopped drinking when he was 24 years old. He began a methadone program to address his opioid addiction and is still on that program on a low dose. His parents observe that while his life used to be “all chaos”, he is stable now, is taking control of his life, and is not negatively influenced by drugs or other people.
[15] Mr. Baker has been on probation in relation to charges of which he was convicted since his arrest on these charges and has complied with the terms of those probation orders. He is amenable to further counselling.
[16] Mr. Baker’s parents are very supportive of him. They were his sureties while these charges were pending. They attended every day of the trial. The pre-sentence report states that he expresses gratitude for their support.
The Positions of the parties
[17] Counsel for Mr. Baker recognizes that a sentence of imprisonment is required in this case. He submits that a sentence in the range of six to 12 months would be appropriate, subject to reduction to reflect time spent in custody before his release on bail, and the onerous conditions to which Mr. Baker has been subject after his release on bail. Counsel for Mr. Baker submitted that credit in the range of four to six months would be appropriate. Mr. Baker testified about the impact that the restrictive bail conditions had on him.
[18] The Crown submits that an appropriate sentence in this case is a sentence in the range of 18 months imprisonment followed by probation for a period of two years. The Crown also seeks a weapons prohibition and a DNA order.
The Applicable Sentencing Principles
a) General Principles
[19] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. To that end, sanctions for criminal behaviour can denounce criminal conduct, deter it both by deterring the particular offender before the court, and by generally deterring others who might choose to do the same thing, separate the offender from society where necessary, foster rehabilitation and promote a sense of responsibility in offenders.
[20] The over-arching principle of sentencing commands that the sentence imposed be proportionate to the seriousness of the offence and the degree of responsibility, or blameworthiness, of the offender.
[21] Sentencing is an individualized process.
b) Specific principles that apply to this case
i. The general range of sentence
[22] A person convicted of possession of a weapon for a dangerous purpose, where the prosecution proceeds by indictment, is liable to a term of imprisonment not exceeding 10 years. A person convicted of breaching a recognizance, where the prosecution proceeds by indictment, is liable to a term of imprisonment not exceeding two years. There are no mandatory minimum sentences for these offences.
[23] While every case is different, an examination of similar cases can be of assistance in determining the appropriate sentence in a particular case. Indeed, the principle of parity requires that similar sentences be imposed on similar offenders who commit similar offences.
[24] While I have reviewed the cases provided to me by counsel, I will refer to only one, because it is similar in many respects to Mr. Baker’s case, and because it is a decision of the Ontario Court of Appeal. In R. v. Echegoyen (2001), 2001 CanLII 24045 (ON CA), 143 O.A.C. 147, the Court of Appeal considered the case of a man who, while carrying a knife, became involved in a confrontation with another person and stabbed that person in self-defence. That man was acquitted of assault-related offences but convicted of possession of a weapon for a dangerous purpose. The Court of Appeal described the sentence imposed by the trial judge of six months imprisonment, followed by two years probation, as “appropriate”. The accused in that case was very young – 18 years old – and had no criminal record.
ii. Enhanced credit for onerous conditions of pre-trial release
[25] Counsel, both defence and Crown, made submissions about the proper impact on the sentence to be imposed today of the onerous bail conditions to which Mr. Baker has been subject. In the course of making his submissions, counsel for Mr. Baker flagged for me an entry on Mr. Baker’s criminal record on August 4, 2020, when he was sentenced to 90 days intermittent, and given credit for the equivalent of 6 months and 14 days pre-sentence custody. Counsel noted that given his understanding of Mr. Baker’s situation, he could not explain when he had spent that amount of time in pre-sentence custody.
[26] To clarify this issue, I requested the recording of Mr. Baker’s August 4, 2020 court appearance in Oshawa. In short order, court staff provided me with the written reasons for sentence of Boswell J. of that date. Boswell J., on that date, credited Mr. Baker with six months to reflect onerous bail conditions to which he was subject between when he was released on bail in relation to the charges before this court, and August 4, 2020. Boswell J. also credited Mr. Baker with the time that he spent in custody before being released on bail. Thus, my assessment of Mr. Baker’s entitlement to credit for onerous bail conditions is concerned only with any time that Mr. Baker has spent on house arrest while on bail since he was sentenced by Boswell J. It is necessary to deduct from that time any days when Mr. Baker was serving the 90-day intermittent sentence imposed by Boswell J.
[27] Between August 4, 2020 and today’s date, 106 days have passed. Mr. Baker was serving the intermittent sentence imposed on August 4, 2020 from Fridays at 6:00 p.m. to Mondays at 6:00 a.m. For each extended weekend thus served, he is credited with four full days towards his intermittent sentence. Since August 4, 2020, he has served that sentence, on 59 days. Also, he was returned to custody in relation to a matter that does not concern me today, but which does affect the calculation of how long he has spent on bail subject to onerous conditions. By my calculation, he has spent 44 days subject to strict bail conditions for which he has not been previously credited.
[28] Mr. Baker testified about the impact on him, and on his family, of the house arrest bail to which he has been subject. He said that it has been hard on him and has created a lot of work for his parents. He does not have friends or any social life and has not made any progress with his life. He did acknowledge in cross-examination that house arrest subject to the supervision by his parents has helped him to stay off drugs and that he feels that he has recovered a lot. I conclude that while the restrictions on his liberty may have been hard, they may also have been beneficial to Mr. Baker.
[29] A trial judge has discretion to credit an offender who has been subject to stringent bail conditions with a sentence reduction to reflect the impact of those conditions on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 OR (3d) 321, 208 OAC 324, 37 CR (6th) 46.
[30] In my view, a credit of 10 days is appropriate in the circumstances of this case.
iii. Taking into account facts of uncharged offences
[31] In this case, the facts that have been proven beyond a reasonable doubt also prove Mr. Baker’s guilt of uncharged offences: possession of a prohibited weapon, breaching a s. 110 order that prohibited him from possessing any prohibited weapon, and carrying a concealed weapon. Section 725(1)(c) of the Criminal Code permits a judge determining a sentence to consider any facts that form part of the circumstances of the offence that could constitute the basis for a separate charge. When resort is had to this provision, the court must endorse on the indictment that this has occurred, and no further proceedings may be taken against the offender with respect to any offence disclosed by those facts unless the underlying conviction is set aside or quashed on appeal.
[32] The application of s. 725(1)(c) is subject to three safeguards: 1) the facts must be proved beyond a reasonable doubt; 2) the uncharged offences must be related to the offence of which the offender has been convicted; and, 3) the facts must be such that they could constitute the basis for a separate charge. See: R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762; R. v. Shin, 2015 ONCA 189, at paras. 87-93.
[33] I am satisfied that all three safeguards have been met in this case. It has been proven beyond a reasonable doubt that Mr. Baker carried a concealed prohibited weapon. Indeed, he admitted the facts necessary to reach this conclusion in his evidence. The criminal record set out in the pre-sentence report has been acknowledged by the defence to be accurate, and it discloses the existence of the s. 110 order to which Mr. Baker was subject at the time of the offence. Therefore, I can and will take into account as aggravating factors in this case the facts that could form the basis for the three separate charges that I have previously described.
Conclusion
[34] In determining a fit sentence, I have considered the mitigating factors in this case. These include the fact that Mr. Baker has family and other supports in the community, and that therefore the prospect that he can choose rehabilitation and live a productive life in the community when he is eventually released, if he chooses to take that path, is enhanced. He also has insight into his mental health challenges and has a plan to address those. His mental health challenges, particularly his PTSD and agoraphobia, contributed to his decision to carry a knife. He has demonstrated that he can comply with court orders, having respected such orders since his release from custody after his arrest in relation to the charges before the court.
[35] I also take into account the following aggravating factors in relation to the weapons dangerous charge:
a. Mr. Baker possessed a weapon when he was prohibited by court order from doing so. He was prohibited by the s. 110 order. I will deal with the fact that he breached his recognizance by possessing that weapon by imposing a separate sentence for that offence, and therefore do not take that into consideration as an aggravating factor on the weapons dangerous charge;
b. Mr. Baker selected a weapon that could be easily concealed on his person and then carried the weapon concealed on his person;
c. Mr. Baker’s weapon was a switchblade, which is a prohibited weapon, which can have no lawful purpose, and is designed to be easily concealed and produced, ready to cause injury or death, in seconds;
d. Mr. Baker had a significant criminal record when he committed the offences for which he is being sentenced;
e. Mr. Baker initiated the confrontation with Mr. Franklin and his wife, and thus elevated the risk that he would resort to using the weapon he carried; and,
f. Mr. Baker testified that in his view it was still appropriate for him to carry a knife to protect himself. This shows that he still lacks insight into the dangerous nature of his behavior and heightens the need for specific deterrence in this case.
[36] Taking all these factors and principles into account, I conclude that a fit sentence is nine months imprisonment for the offence of possessing a weapon for a purpose dangerous to the public peace, and 30 days imprisonment for the charge of breaching his recognizance, to be served consecutively. The sentence of 30 days will be reduced by 10 days to reflect the onerous bail conditions, leaving the sentence to be served as nine months and 20 days.
[37] The sentence of imprisonment will be followed by a period of probation for two years. The conditions of probation will be as follows:
Report to a probation officer within 48 hours of your release from custody, and thereafter, for the first six months, every two weeks on a date and in a manner to be arranged with your probation officer. Thereafter, you are to report to your probation officer as directed by your probation officer.
Reside at an address approved by your probation officer.
Attend for assessment, treatment and counselling for drug addiction as recommended by your probation officer and sign such releases as may be required by your probation officer to permit the probation officer to monitor compliance with this condition.
Seek and maintain gainful employment or upgrade your education.
Do not possess or consume any non-medically prescribed drugs.
Do not communicate directly or indirectly with David Franklin or Sharon Franklin or attend within 100 metres of any place known by you to be their place of residence, employment, schooling or worship.
[38] A s. 109 order is, in my view, mandatory in this case as Mr. Baker has been convicted of an offence that involves a prohibited weapon and, at the time of the offence, he was prohibited by an order made under the Criminal Code from possessing such thing and this case is therefore governed by s. 109(1)(d), and I impose an order prohibiting possession of firearms and other items specified in the order for life.
[39] The charge of possession of a weapon for a dangerous purpose is a secondary designated offence, pursuant to the DNA databank provisions of the Criminal Code. I conclude that the slight intrusion on the bodily integrity of Mr. Baker involved in providing a sample is outweighed by the public interest in obtaining the sample and make an order that he provide a sample of his DNA.
Justice J. Speyer
Released: November 18, 2020
COURT FILE NO.: CR-19-15174
DATE: 202011XX
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER BAKER
REASONS FOR SENTENCE
Justice J. Speyer
Released: November 18, 2020