circumstances of the offences

[1] Mr. Taibinger, travelling on an ATV, trespassed on Mr. Heulchan’s property. He was confronted by Mr. Heulchan. In what can only be described as a sneak, cowardly attack he drove his ATV into Mr. Heulchan, which caused him to fall back and the ATV to stall.

[2] Mr. Heulchan then stood up and Mr. Taibinger ran the ATV into him again. Mr. Heulchan felt himself sliding down under the front of the ATV. The ATV had little clearance so that he believed that he would be killed if it ran over him. To save himself, Mr. Heulchan grabbed the handlebar and pulled on it which caused the ATV to flip.

[3] Mr. Taibinger was able to right the ATV. As Mr. Heulchan was getting up Mr. Taibinger drove at him “full throttle” and Mr. Heulchan had to wrap his arms around the front of the ATV and hang on to avoid being trampled underneath. Mr. Taibinger then tried to drive off and was kicking at Mr. Heulchan. There was then a struggle in which Mr. Heulchan kept reaching up and hitting the kill switch which turned the ATV off and Mr. Taibinger restarting it to continue dragging Mr. Heulchan around the property. Mr. Taibinger was in the driver’s position on the ATV and was kicking Mr. Heulchan in the face and torso to try to dislodge him from the front of the ATV. Mr. Taibinger dragged Mr. Heulchan around in circles.

[4] At some point the ATV broke down. Mr. Taibinger then walked away. Soon after this Mr. Heulchan collapsed. The next thing he knew he was being attended by emergency personnel.

[5] As a result of the injuries suffered by Mr. Huelchan on September 9, 2015, he has not been able to return to work. He described himself as having suffered a brain injury which affects his memory and ability to organize information. He cannot multitask. He has difficulty focusing his eyes. If he is working on something he needs a lot of breaks. He can no longer drive a car. His victim impact statement provides additional detail as to his injuries.

[6] Mr. Taibinger was convicted of the following:

Count 1 – aggravated assault contrary to s.268 of the Criminal Code,

Count 2 – dangerous operation of a motor vehicle causing bodily harm contrary to s.249(3) of the Criminal Code,

Count 3 – having in his possession a 2009 Suzuki ATV knowing that it had been obtained by the commission of an offence contrary to s.354(1)(a) of the Criminal Code,

Count 4 – in committing an assault use a weapon, being the ATV, contrary to s.267(1) of the Criminal Code,

Count 5 – operation of the ATV while disqualified from doing so contrary to s.259(4) of the Criminal Code.

Count 6 – break and enter a shed at 2049 Concession 4, Teeswater (the Balser property), with the intent to commit an indictable offence, contrary to s.348(1)(a) of the Criminal Code.

Count 8 – steal an iPad the property of Joanne Howe contrary to s.334(b) of the Criminal Code. The iPad was the property of her daughter Maia Turland.

Count 9 – steal an Acer laptop the property of Joanne Howe contrary to s.334(b) of the Criminal Code. The laptop was the property of her daughter Maia Turland.

VICTIM IMPACT

[7] Mr. and Mrs. Heulchan submitted a joint victim impact statement. It is informative, concise and eloquent. I, therefore, reproduce it as follows:

Impact Statement: Darren and Michelle Heuchan May, 2021

Since the assault on September 9th, 2015, life has changed dramatically for Darren, me, and our family. The attack on Darren has resulted in constant anxiety for the entire family. Although Darren looks the same, his thinking and abilities are so different. Every day there is another hurdle to navigate, whether it is attending constant medical appointments, therapy sessions, and counseling, dealing with his confusion, memory loss and most of all coming to terms with the limitation that we now must adjust to.

Darren has lost his independence and his sense of self, as he no longer has the capabilities that he had prior to the assault. Darren cannot be licensed to drive or is capable of employment. Household safety precautions are now in place, such as water faucets that turn off automatically and a stove guard. A security system helps Darren deal with some of his anxieties.

Darren had to accept that he would have to take large amount of medications, to help keep his symptoms under control, especially the migraines. Our home is no longer a home, with all the specialized workers that need to be a part of our lives to help us with challenging issues and health problems. We run to so many assessments, examinations, specialists and medical procedures that we have a hard time even enjoying our home.

Darren’s pride is affected as he can no longer give accurate directions or phone numbers, or when he needs help to find misplaced items, and cuing to remember to take his medication or stop doing a job in order to eat. Getting his left mixed up with right has almost caused accidents.

The most devastating part of all of this is the loss of a competent, capable life partner who I love. I am now the comforter, the caregiver, the financial manager, the chauffeur, the organizer, and Darren’s interpreter for appointments and social gatherings. It became impossible for me to continue with employment outside the home. In all of this, there is a deep feeling of overwhelming loss for both of us. We lost something special in our relationship, the companionship when responsibilities are shared and issues are sorted out through discussion and communication. A brain injury is like riding an emotional roller coaster of highs, lows, confusion, and impulsivity. Sometimes sense of reason is right out the window making life difficult.

Household tasks that were so simple for Darren before this incident has become exhausting and frustrating for both of us. Darren often must find a quiet place to rest his brain, therefore, missing family time together.

The assault has not only caused brain damage but also a great deal of physical pain. Darren suffered damage to his eye causing the need to wear special glasses with prisms for balance. Darren also experiences hearing sensitivity and feels pressure in his head. He deals with debilitating migraine headaches and damage to his shoulder resulted in surgery. He even lost a tooth as a result of the attack.

Extra costs have come with all of Darren’s injuries: travelling back and forth to the stores getting the right parts, dealing with heating costs now that Darren can no longer run a wood stove or get our own wood. Taking care of our own property it is now left up to me or hiring someone which is another added expense and frustration. My own health issues have added an unforeseen cost due to Darren always throwing things at me which is exhausting. I may even have to consider respite to get some additional help.

I feel robbed and angry when I think of how our plans and future goals have been stolen away by this assault. Will Darren be able to handle the stress of a trip, a family visit, or the loud music of an event or a crowd of people? Since the assault, these things have led to serious headaches, withdrawal, tension, and confusion. Our family life and social life has sadly been affected as Darren is no longer comfortable in these situations. Losing contact with his co- workers and friends has left Darren empty.

It is important to understand that Darren is now diagnosed with a number of injuries: Mild traumatic brain injury (concussion), facial contusions, left zygoma fracture, chest contusion, thoracic spine contusion, left ankle sprain, post-concussion syndrome, chronic migraines, post-traumatic vestibulopathy, post-traumatic stress disorder, somatic symptom disorder (persistent, moderate), cognitive symptoms (secondary to non-CNS factors including pain/somatic symptoms, affective distress, sleep disturbance and fatigue) and adjustment disorder with mixed anxiety and depressed mood.

All of these medical conditions, as a result of that one incident, have changed the way we live each day. With Darren also being deemed Catastrophic, he will continue to have physical, cognitive and affective symptoms the rest of his life. With so many uncertainties we now face for the future, this is not the way both of us expected our retirement years to look like.

CIRCUMSTANCES OF THE OFFENDER

[8] Mr. Taibinger is now 46 years old. He has an extensive criminal record dating back to 2002 when he was 28 years old which includes:

a) 2002 – assault;

b) 2007 – break and enter and flight while pursued by police;

c) 2009 – theft, dangerous driving, possession of Schedule III substance;

d) 2012 – 14 counts relating to offences in South Bruce, Wellington, Perth County and Brampton, including theft, possession of stolen property, impersonation, possession of Schedule I substance, driving while disqualified; fail to attend court; and fail to comply with probation order.

e) 2016 – driving while disqualified and possession of property obtained by crime.

[9] Mr. Taibinger, in total, had 24 convictions over a 14-year period. These charges show a continuous disregard for the law. I do recognize, however, that the only crime of violence was assault in 2002. The 2012 convictions led to a sentence of approximately 14 months in jail.

[10] The pre-sentence report indicates that Mr. Taibinger’s father was an alcoholic who was physically abusive to Mr. Taibinger’s mother. His parents separated when he was 10 years old.

[11] Mr. Taibinger did not suffer any physical or sexual abuse. He did suffer the emotional abuse of being neglected by his father and witnessing him abuse his mother.

[12] Mr. Taibinger has had only one long term relationship, of 2 years, 25 years ago. He has no dependents. At 5 or 6 he was diagnosed as having ADHD and was prescribed Ritalin which he took until age 14. He left school at 15. The longest he has held a job is 2 years. In 2007 he began to use crystal methamphetamine. During his last period of community supervision, he was clean for 6 months. Later he was clean for 9 months. When interviewed for the April 30, 2021 pre-sentence report he had been clean for only a couple of weeks.

AGGRAVATING AND MITIGATING CIRCUMSTANCES

[13] The aggravating circumstances are as follows:

a) Mr. Taibinger trespassed on Mr. Heulchan’s property and assaulted him when he was simply working around his own home;

b) this was an unprovoked, sneaky and cowardly attack on a significantly older man;

c) this was a prolonged attack in which the victim was dragged around the field and kicked repeatedly;

d) the attack inflicted life altering injuries which have had devastating consequences for the victim and his family;

e) Mr. Taibinger’s extensive criminal record, although with one exception not offences involving assault, and;

f) Mr. Taibinger later boasted and laughed about attacking Mr. Heulchan.

[14] The mitigating circumstances are as follows:

a) Mr. Taibinger had what the PSR described as a dysfunctional and tragic upbringing. This no doubt caused or contributed to his addiction problems and criminality;

b) Mr. Taibinger has taken some steps to address his addiction problems; and,

c) Mr. Taibinger has strong family support.

POSITION OF THE CROWN

[15] Ms. Adair submitted that a custodial sentence of 5 – 6 years would be appropriate, with little to no credit for the conditions of his pre-trial release given that he was simply subject to a curfew. The Crown also sought ancillary orders as follows:

a) a s.109 weapons prohibition for life;

b) a 10-year driving prohibition;

c) a DNA order; and

d) a s.490.1 order for forfeiture of all property seized by the police.

POSITION OF THE DEFENCE

[16] Mr. Lord submitted that Mr. Taibinger should not be sentenced to a custodial sentence. He relied upon R. v. Sharma in which the Court of Appeal struck down s.742.1(c) which provided that a conditional sentence was not available for offences punishable by 14 years or life imprisonment.

[17] He submitted that Mr. Taibinger should be given a two year less a day sentence on his aggravated assault conviction, followed by three years of probation. Mr. Lord further submitted that Mr. Taibinger should receive a suspended sentence and probation on the other charges.

THE LAW

[18] In R. v. Tourville, 2011 ONSC 1677 Code J. provided a helpful summary of cases involving sentencing for aggravated assault, as follows:

[27] The parties have helpfully provided me with a large number of sentencing cases, dealing with the offence of aggravated assault. That offence, contrary to s. 268 of the Criminal Code, carries a maximum sentence of fourteen years imprisonment. The cases disclose a wide range of sentences. At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The “Gladue report” disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems. Some of these features are not dissimilar to the case at bar.

[28] In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, 2006 CanLII 9709 (ON SC), [2006] O.J. No. 1248 (S.C.J.); R. v. Basilio (2003), 2003 CanLII 15531 (ON CA), 175 C.C.C. (3d) 440 (Ont. C.A.).

[29] All three of the above cases were arguably worse offences or worse offenders than the case at bar. In Chickekoo, supra, the Aboriginal accused came from a similar background to Mr. Tourville but had a prior criminal record, including a conviction for assault. She caused “severe, life-threatening and permanently disfiguring” injuries to the head and face of the victim as a result of assaults with a broken beer bottle during a fight. In Moreira, supra, the accused was the aggressor who followed the victim on a public street in Toronto, provoking a consent fight. During the fight, the accused pulled out a knife and slashed the victim. He was in possession of the concealed knife for the dangerous purpose of using it in a fight and he was convicted of these further possessory offences, in addition to aggravated assault. He was a nineteen year old first offender at the time of the offences but had gone on to commit a number of further offences while on bail for which he received jail sentences. In Basilio, supra, as in Moreira, the accused was convicted of being in unlawful possession of a knife for a dangerous purpose, in addition to aggravated assault as a result of using the knife in a fight outside a bar. He stabbed the victim from behind, causing “life-threatening injuries” to the chest, diaphragm and liver. The accused did not retreat from the fight but swaggered about afterwards waving the knife. It should be noted that the Court of Appeal described the two years less a day sentence in Basilio as “lenient” and the eighteen month sentence in Chickekoo as “the lower end” of the appropriate range.

[30] At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson (2005), 2005 CanLII 23678 (ON CA), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A).

ANALYSIS

[19] I accept the analysis of Code J. in Tourville as helpful. I do not, however, regard it as establishing or suggesting rigid guidelines to be adhered to. Mr. Taibinger is clearly not in the mid-range described by Code J. He is a repeat offender and there is no suggestion that this was a provoked attack or consensual fight. I will review the cases Code J. cited at the high end of the range.

[20] In R. v. Scott, 2002 Canlii 41668 (C.A.) a fight broke out and the complainant was attacked with a broken beer bottle causing significant injury and permanent scarring. The Court of Appeal upheld a four-year sentence.

[21] In R. v. Vickerson 2005 Canlii 23678 (ON CA) the offender, to avenge a prior minor altercation involving his girlfriend, caught the two victims by surprise and hit them with a metal bar. The injuries were not life threatening but in the case of one victim the injuries were described as “permanent and significant”. The offender had a prior criminal record. The Court of Appeal upheld the six-year sentence.

[22] In R. v. Pakul, [2008] ONCA 230 (C.A.) the Court of Appeal in a very brief endorsement, dismissed a sentence appeal for an offence described as, “a vicious, unprovoked attack on a totally innocent victim. The victim suffered serious injuries and but for good luck might have been killed”. These quoted words apply equally to the assault on Mr. Heulchan. (I note that while Code J. refers to the sentence in Pakul as in the four to six-year range, however, the endorsement does not specify the sentence.)

[23] Mr. Taibinger’s attack was not premeditated in the sense he entered the property intending to injure Mr. Heulchan. It was premeditated to the extent he had several minutes to think and decided to run his ATV into Mr. Heulchan.

[24] The offences Mr. Taibinger committed, in light of the aggravating and mitigating circumstances which I have identified, are such that the appropriate sentence is in the 5 to 6-year range suggested by the Crown.

[25] While I consider all of the s.718 C.C. factors, denunciation and deterrence are of particular importance.

[26] Mr. Taibinger’s upbringing, which the PSR described as “dysfunctional” and tragic, has no doubt contributed to him having an addiction and his lengthy criminal record. There must, however, be a diminishing return to this being a mitigating factor on sentence. Having said that, addicts often relapse despite their best efforts.

[27] I sincerely hope that the significant period of incarceration required for this offence provides Mr. Taibinger the opportunity to receive counselling and take courses to allow him to return to society equipped to lead a productive, law-abiding life. He has strong family support which I have no doubt will assist him in achieving this goal.

[28] The five to six-year range suggested by the Crown is reasonable. I find the appropriate sentence for Mr. Taibinger is at the low end of this range taking into account his upbringing and his compliance with the conditions of his pretrial release.

SENTENCE IMPOSED

[29] Mr. Taibinger is, therefore, sentenced as follows:

Count 1 – aggravated assault. Five years.

Count 2 – dangerous operation of motor vehicle. Two years concurrent to Count 1.

Count 3 – possession of stolen property. Three months concurrent to Count 1.

Count 4 – assault using a weapon. Two years concurrent to Count 1.

Count 5 – operation of vehicle while disqualified. One year concurrent to Count 1.

Count 6 – break and enter. Six months concurrent to Count 1.

Count 8 – theft. Three months concurrent to Count 1.

Count 9 – theft. Three months concurrent to Count 1.

[30] Mr. Taibinger’s criminal record includes:

a) 2009 – dangerous operation

b) 2012 – drive while disqualified

c) 2016 – driving while disqualified

[31] I light of the further offences for which I have convicted Mr. Taibinger, the 10-year prohibition asked for by the Crown is appropriate. As such, pursuant to s.259 of the Criminal Code, as it applies to this 2015 offence, I order that Mr. Taibinger be prohibited from operating a motor vehicle on any street, roadway, highway or other public place, or from operating a vessel, an aircraft or railway equipment for a period of 10 years, plus the five year term of imprisonment that I impose.

[32] I also make the s.109 weapons prohibition for life, the DNA order and the forfeiture order as requested by the Crown.

Sproat J.

Released: June 9, 2021

COURT FILE NO.: CR-19-1036

DATE: 2021 06 09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

and -

Troy Taibinger

REASONS FOR SENTENCE

Sproat J.

Released: June 9, 2021

R. v. Taibinger, 2021 ONSC 4119

Case Summary

circumstances of the offences

VICTIM IMPACT

CIRCUMSTANCES OF THE OFFENDER

POSITION OF THE DEFENCE

THE LAW

ANALYSIS

SENTENCE IMPOSED

REASONS FOR SENTENCE

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 8

Legislation 8