COURT FILE NO.: CR-19-00001471-0000

DATE: 2021 06 30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

Adam Bernstein, for the Crown

MALCOLM MARTIN

Christian Levien, for Malcolm Martin

HEARD: February 19, 2021

REASONS FOR SENTENCE

BARNES J.

INTRODUCTION

[1] On March 9th, 2020, Mr. Malcolm Martin was convicted after a judge alone trial, of one count of aggravated assault contrary to section 268 of the Criminal Code of Canada, R.S.C., 1985, c. C-46.

[2] Mr. Martin is an African Canadian. “Black” and “African Canadian” are used interchangeably in these reasons. African Canadians are over incarcerated in the Criminal Justice System. Therefore, information on the unique systemic or background factors which may have played a role in bringing him to the court was requested. This is called an Impact of Race and Culture Assessment (IRCA)[1]. A presentence report was ordered.

[3] Post conviction, there were court appearances on September 14, 2020, December 4, 2020 and February 19, 2021, all in the hopes that an IRCA would be prepared. The cost was not covered by legal aid and Mr. Martin did not have the resources to pay for an IRCA report. Left with no options, he submitted information in lieu of an IRCA, which I find to be inadequate.

[4] Submissions on sentence took place on February 19, 2021. Sentencing scheduled for April 20, 2021 was adjourned to June 21, 2021, due to concerns about a COVID 19 outbreak in the correctional institution and from June 21 to June 23, 2021, because I was unavailable.

[5] Part XXIII of Criminal Code authorizes judges to order and consider unique systemic or background factors that may have played a role in bringing an offender to the court. Supreme Court jurisprudence on section 718.2(e) requires a sentencing judge to consider such information. For ease of reference, I shall refer to such unique systemic and background information as IRCA. I find that in the absence of an IRCA or IRCA-type information, I am unable to conclude that the sentence I shall impose on Mr. Martin is a fit sentence.

BACKGROUND FACTS

[6] In the late evening of July 14th, 2017, the victim and his friends went to a nightclub in the city of Brampton. They stayed in that nightclub until the early morning hours of the next day, July 15th, 2017. Mr. Martin and his friend, Mr. Thorpe, also went to the same establishment. The two sets of friends did not know each other.

[7] In the early morning hours of July 15th, 2017, the victim, Mr. Martin and Mr Thorpe engaged in a verbal confrontation. Either Mr. Martin or Mr Thorpe suddenly sucker punched the victim. The victim fell to the ground defenseless. Mr. Martin and Mr. Thorpe proceeded to stomp him with their feet. They only stopped this violent action after a female witness told them to stop. Both men then quickly left the scene in a white sedan. The female witness stayed with the victim until paramedics arrived. The victim was seriously injured. He suffered a split lip, fractured orbital bone, bleeding in his brain and injuries to his neck. He was hospitalized for four days.

POSITION OF THE PARTIES

[8] The Crown seeks a sentence of two to three years incarceration and a DNA order. The defence seeks a total sentence of 12 months. Counsel submits that Mr. Martin should receive 9 months credit for time he had spent on bail, under what counsel describes as onerous bail conditions. The defence requests that Mr Martin serve the balance of the proposed twelve-month sentence, which is in effect 90 days, intermittently. In the alternative, a conditional sentence is proposed.

THE STATUTORY FRAMEWORK

Objectives and Principles

[9] PART XXIII of the Criminal Code mandates the framework for determining the appropriate sentence. It identifies the purpose and principles of sentencing as denunciation; deterrence; separation from society as necessary[2]. The other principles are remedial in nature: rehabilitation; reparations for harm; responsibility and acknowledgment of harm inflicted[3]. Subject to an exception mandated by statute, no sentencing objective trumps the others. The sentencing judge must balance the sentencing objectives and principles to determine which objectives and principles warrant greater emphasis[4]. The principles and objectives are limited by the fundamental principle of proportionality, i.e. “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”[5].

Aggravating and Mitigating factors

[10] The statutory framework requires the court to reduce or increase a sentence to “account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”[6]. A non exhaustive list of aggravating and mitigating factors, as well as which sentencing principles and objectives should predominate in certain identified circumstances, is provided in PART XXIII[7] .

Remedial sections in conjunction with other sections in PART XXIII

[11] Parliament has created a statutory framework for sentencing designed to discourage and prevent criminal behavior.[8] The Criminal Code contains remedial sections[9] designed to reduce or eradicate unfairness and injustices in the way all offenders are sentenced. To achieve this objective, the remedial sections are considered together with the other sections of Part XXIII to prevent or remediate a circumstance that requires remediation for example, the over-incarceration of the offender.

[12] The remedial sections include the principle of Parity, which requires that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”[10] The Totality principle states that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.”[11] Restrictions on the use of imprisonment states that “an offender should not be deprived of liberty, if less restrictive sanctions maybe appropriate in the circumstances”[12]. Section 718.2 (e) is the next remedial section.

Section 718.2(e)

[13] Section 718.2(e) prescribes the principle of Restraint. The section requires that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.”[13]

[14] Section 718.2(e) prohibits the “overuse of imprisonment.” This circumstance occurs where there are other available sanctions that “are reasonable and consistent with the harm done to the victims or the community.”[14] In effect, for offenders caught by the web of over-incarceration, sentencing judges are required to consider systemic and background factors that may have played a role in bringing the offender before the court.[15]

[15] These factors include that systemic racism may have played a role in bringing the offender before the court, and in such a circumstance, may have a bearing on the extent of an offender’s culpability and shed light on the extent of the offender’s moral blameworthiness.[16]

[16] Section 718.2(e) applies to all offenders, with particular attention to the circumstances of Aboriginal offenders. The purpose of the section is to address the problem of the over-incarceration of the offender[17]. Therefore, Supreme Court of Canada jurisprudence on section 718.2(e) has high analogous significance to whether and how the impacts of systemic Anti-Black racism should be applied in sentencing African Canadian offenders.

[17] Section 723(2) authorizes the court to hear any relevant evidence submitted by the defence and the prosecution. Considering the foregoing, this includes information on “the systematic and background factors such as systemic racism, which may have played a role in bringing the offender before the court and which may have a bearing on the extent of an offender’s culpability and may shed light on the extent of the offender’s moral blameworthiness.”[18] An IRCA or other similarly constructed evidence provides this information. Section 723(3) is the authority for judges to order such evidence. Section 723(4) provides the authority to accept the evidence.

[18] Unless there is a waiver from the offender, the sentencing judge has a duty to receive and consider evidence on systemic and background factors that have brought the offender before the court[19]. This includes the duty to provide articulable reasons on how this information was considered, together with other provisions of Part XXIII, to achieve a sentence that is fit, considering the circumstances of the offence, offender, victims and the community.[20]

The Purpose

[19] The purpose of assessing systemic and background factors “is not [to provide] race-based discounts or [deny] responsibility. Rather it conceptualises the crime and recognizes that factors outside of the offender's control may affect their actions and moral culpability.”[21]

[20] The objective is not to “achieve a reduction or moderation or increase in sentence. Rather, the objective is to include a contemporary, more nuanced, and informed understanding of the impacts of systemic racism to achieve a fair, just and appropriate sentence, taking into account the principles of sentencing, the circumstances of the offender and the offence. Within this context, the effect of the impacts of systemic racism on sentencing is one of degree, the extent of which is determined after careful weighing by the sentencing judge. It follows, therefore that the closer the link between the deleterious impacts of systemic racism and the blameworthiness of the offender, the greater the degree of mitigation shall be[22].

The content of information on systemic and background factors

[21] IRAC or IRAC type evidence provides the sentencing judge with the evidence necessary to determine, along with other relevant Part XXIII evidence, a fit sentence. Such evidence includes:

a) Evidence of the impacts of systemic racism on people of African descent. This can provide context for the circumstances of the offender and the offence that may have brought the offender before the court.

b) Evidence of the impacts of systemic racism on the offender’s educational attainment, employment, family circumstance, social economic status, health status, treatment by law enforcement, etc.

c) Impacts of systemic racism on the offender’s criminal behavior.

d) Impacts of systemic racism on the offender’s behavior.

e) How systemic racism might inform the offender’s experience of the carceral state.

f) The circumstances of the offence and the offender determines which sentencing objectives are paramount: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43. Regardless of which sentencing objectives are paramount, rehabilitation remains an important sentencing objective: R. v. Briscoe, [2019] O.J. No. 2031, at para. 16. Within that context, information on how the impacts of systemic racism on the offender may be reduced to promote holistic rehabilitation is a relevant consideration.

g) Other relevant evidence.[23]

Analytical framework for systemic and background information

[22] The analytical framework applied is as follows:

a) Take judicial notice of systemic racism and its impacts on the offender.

b) Assess the connection between the historical impacts of systemic discrimination to the circumstances of the offender.

c) Assess the degree of mitigation in the circumstances of the offender and the offence.

d) Assess the impacts and reasonableness of available sanctions and rehabilitative opportunities.[24]

Judicial notice of anti-Black systemic racism

[23] The legal threshold for taking judicial notice of a fact are: 1) the fact must be so notorious or generally accepted such as not to be the subject of debate among reasonable people; or 2) the fact must be capable of immediate and accurate verification by resort to readily available sources of indisputable accuracy.[25] For social framework or context facts, the threshold for judicial notice is that the facts “would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used.”[26]

[24] After a plethora of reports on the African Canadian Experience in Canada; the impacts of systemic anti-Black racism[27]; academic literature[28]; and jurisprudence from all levels of court including the Supreme Court of Canada,[29] the legal threshold for taking judicial notice of anti-Black systemic racism in society, the criminal justice system, the carceral state and the deleterious impacts on African Canadians has been met and is not in dispute.

Systemic racism has deleterious impacts

[25] Systemic racism is defined as the “social production of racial inequality in decisions about people and in the treatment they receive.”[30] In addition to incarceration, the deleterious effects of systemic racism include the facts that “psychological injury… functions as stressors for the target of racism”; “microaggressions have powerful negative impacts on the mental health of Black people”; “inequities in access to and provision of mental health services have an adverse impact on the mental health of Black people and communities; “there is a link between racial discrimination and harassment, and post traumatic stress disorder”; racism limits access to social economic opportunity among Black people creating low socioeconomic status with corresponding poorer health out comes and that there are “disparities in the treatment of Black people in pretrial detention, sentencing and release conditions.”[31]

Over-incarceration

[26] It is naive to equate the historical reasons for the systemic racism of African Canadians to those of Aboriginal people. Failure to recognize the distinctions in their unique histories is misguided. Despite these significant differences, Aboriginal offenders are over-incarcerated in Canadian correctional institutions.[32]

[27] African Canadians are over-incarcerated in Canadian correctional institutions. I have previously referenced a few reports outlining the plethora of evidence in support of this statement. In addition, in 2016 the United Nations’ Working Group of Experts on People of African Descent expressed concern about the over-incarceration of African Canadians in the Criminal Justice System. In the 2016 -2017 Office of the Correctional Investigator (OCI) annual report, the OCI reported that although African Canadians represent only 3.5 percent of the population, they represented 8.5 percent of the total incarcerated population.[33] The Supreme Court of Canada and various trial and appellate courts have acknowledged the phenomenon of the over-incarceration of African Canadians.[34]

How Systemic Racism Contributes to Over Incarceration: Two Examples

[28] This quote from Ipeelee illustrates how racism is systemic. The quote also illustrates how systemic racism operates to produce the over-incarceration of the Aboriginal offender [the offender]:[35]

Socioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political, and economic aspects of our society place Aboriginal people [African Canadians] disproportionately within the ranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination. [Citations omitted.]

[29] Racism is one of the systemic and background factors responsible for the over-incarceration of African Canadians. This phenomenon is succinctly described as follows:

The prevalence of anti-Black racism is directly connected to the history of slavery and subjugation of people of African descent in Canada. One way in which anti Black racism continues to manifest in this country is through the over incarceration of Black Canadians. The incarceration rate of Black Canadians is 3 times the [Black Canadian] representation rate in society. This is not simply because Black people commit more crimes it is because of pervasive systemic anti-Black racism that permeates our institutions and social structures.[36]

[30] For all the foregoing reasons, I take judicial notice “that as a longstanding legacy of slavery, systemic racism continues to have a negative impact on the education, earning power, employed opportunities, medical and mental health, substance abuse and addiction, criminalization and incarceration of Black people in Canada. This fact provides important context for evaluating evidence in the assessment of the appropriate sentence for a Black offender”[37]

[31] Therefore, I must apply the analytical framework previously described, to IRAC or IRAC type information together with other relevant factors, to determine the fit sentence in this case.

ANALYSIS

[32] I now consider the aggravating and mitigating factors in this case. Of necessity, this process entails a consideration of the circumstances of the offence and the offender.

Mitigating factors

[33] Mr. Malcolm Martin is a young man. He 28 years old. He has four children. An adult child from a previous relationship and three your children with his current partner. Mr. Martin’s pre-sentence report is favourable. He has no criminal record. He has excellent family support. He has the support of his parents, siblings, spouse, and children. He is actively involved in the lives of his children, his partner and extended family. He has been gainfully employed with a moving company for three years. His employer describes him as a hard worker, reliable and trustworthy person.

[34] The victim was sucker punched. This punch sent him to the ground. I cannot determine if the punch was administered by Mr. Martin or his co-accused Mr. Thorpe. Mr. Martin has expressed remorse for his actions. He said he was drinking that night and he was upset at comments the victim made to his friend. He said he was sorry and should not have acted the way he did.

[35] Mr. Martin has been on bail for almost four years. The defence take the position that Mr. Martin was on bail for three years seven months four days and the Crown insists that he was out on bail for three years and three months. There is no dispute that he has spent a lengthy period on bail with no further criminal antecedents. Mr. Martin has been subject to these bail conditions:

1. Reside with your surety and abide by the rules of the surety’s home.

2. Do not contact or communicate in anyway, either directly or indirectly, by any physical, electronic or other means, with the following: Leronn Williams, Joseph Thorpe, Jamal Lewis, except through legal counsel.

3. Do not attend at 50 Kennedy Road South, Brampton, Ontario.

4. Do not process any weapons as defined by the Criminal Code (for example, but not restricted to a pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person.

5. Do not apply for an authorization, licence or registration certificate for any weapon defined by the Criminal Code.

[36] Mr. Malcolm Martin was not subject to a curfew as alleged by the defence. The bail conditions were not as onerous as asserted by the defence; however, the length of time on bail made the terms emotionally onerous, because he was unable to live with his partner and children for almost four years. He was required to reside with his surety whose residence could not accommodate the entire family. He was able to visit his partner and children.

[37] Mr. Martin’s efforts to obtain an IRAC and COVID pandemic contributed to the delay in sentencing post-conviction. The IRAC was ultimately not prepared due to no fault of Mr. Martin. Mr. Martin did not waive the introduction of IRAC evidence, instead he succumbed to the inevitable and instead put forward evidence in lieu of an IRAC.

[38] The evidence put forth was that he spent his formative years in the Weston and Finch area of Toronto, described by defence as a notoriously violent area, and at a young age, Mr. Martin’s parents moved him to Brampton to escape the violence.

[39] The paucity of systemic and background factor evidence, makes it difficult to assess how factors such as systemic racism, which may have played a role in bringing the offender before the court and which may have had a bearing on the extent of an offender’s culpability, may shed light on the extent of the offender’s moral blameworthiness. In effect, while I consider this factor to provide some degree of mitigation, this evidence is insufficient to enable me to apply the analytical framework previously described, and to properly assess and provide articulable reasons on the extent to which this is a systemic and background factor that assists in crafting a fit sentence for Mr. Martin.

[40] The presentence report is favourable. Overall, Mr. Martin’s prospects for employment are favourable.

Aggravating Factors

[41] The aggravating factors include Mr. Martin and Mr. Thorpe stomping the victim as he lay defenceless on the ground, only stopping when a witness yelled at them to stop. Mr. Martin and Mr. Thorpe fled the scene. The victim was attacked when he was defenceless. The victim suffered injuries as previously described. In his victim impact statement, the victim described ongoing pain and soreness and an inability to continue his work as a security technician in the manner prior to the assault. The victim has been placed on modified duties. He lost a chain, cellphone and wedding band. He lost important information that hampered and delayed his sponsorship of his wife and child to join him in Canada. He suffered and suffers economic hardship that negatively impacts his ability to provide for his wife and son.

[42] Simply put, Mr. Martin has been able to maintain job for almost four years. He deserves and shall receive credit for living a crime free life while on bail. This fact is considered in the context of another fact: the senseless actions of both he and Mr. Thorpe that have changed the life of the victim in a profoundly negative way. The victim continues to suffer.

Case law

[43] Both parties have submitted helpful case law in support of their respective positions. The range of sentence submitted by the parties for my consideration range in sentence from four months to five years. The analogous importance of these cases cannot be underestimated. However, sentencing is a discretionary and individualized process. The sentencing judge’s discretion is limited by general ranges of sentences that act as guidelines to ensure some consistency among the sentencing decisions. A sentencing decision is also limited by statute. Within this context, the appropriate sentence must be tailored to the circumstances of the offence and the offender.[38]

[44] Mr. Thorpe received a sentence of 13 months after pleading guilty following a preliminary inquiry. Mr. Thorpe had a criminal record. Mr. Martin does not. Mr. Martin’s decision to proceed to trial is a neutral factor. He is not penalized by his decision to proceed to trial. This is his right. However, he does not receive the benefit of a guilty plea, which spares the victim of the need to testify and saves the time and resources required to conduct a trial.

Defence Cases

[45] Mr. Martin seeks a sentence lower than his co -accused, Mr. Thorpe, who pled guilty. There are no exceptional circumstances to support such a sentence. None of the cases submitted by Mr. Martin involved a co-accused who pled guilty and received a sentence higher than what the co-principal was seeking after trial. In addition, the defence cases are distinguishable on several grounds. Some cases involved guilty pleas; an accused was sentenced as party, and not the principal; an accused who had suffered no lasting injuries; an accused who suffered from Attention Deficit Hyperactive Disorder; in one instance the victim recovered and had no lasting effects; in another case, the accused was involved in a consensual fight; and in two cases, there was an acknowledgment from the sentencing judge that the sentence imposed was either light or at the low end of the range.

[46] R. v. Berry.[39] Mr. Berry pushed to the victim to the ground and hit his head. He was convicted of aggravated assault after a judge alone trial. The victim suffered a catastrophic or near catastrophic injury: four skull fractures, broken bones in his ear, an accumulation of cerebral spinal fluid around the brain area, and bleeding from the nose. The victim spent a month in hospital undergoing numerous surgeries. He spent months in physiotherapy learning how to do simple tasks again, like walking and brushing his teeth.[40]

[47] The victim suffered financial loss, as he was unable to continue his employment. The injuries negatively impacted his relationship with his spouse and 4-month-old son. The victim’s parents were also adversely affected. His mother said her son “was not the same person”. Mr. Berry had no criminal record. He was gainfully employed.[41] Mr. Martin and Mr. Thorpe struck the victim, while he lay defenceless on the ground, with intent to injure him. Justice Morgan concluded that while Mr. Berry was responsible for the harm he caused, the harm he caused was unintended and this diminished his degree of moral blameworthiness. This is very different from what Mr. Martin did in this case. Justice Morgan sentenced Mr. Berry to four months and two years probation. Justice Morgan described this sentence as a light sentence.[42] This sentence is lower than that imposed on Mr. Thorpe, and there are no exceptional circumstances to justify such a sentence in this case.

[48] R. v. Broderick.[43] Mr. Broderick pled guilty to aggravated assault. The victim suffered a serious beating at the hands of Mr. Broderick. The victim lost consciousness. He underwent surgery and had metal pins set in his jaws to set broken bones. At the time of the sentencing, the victim could not afford to pay for the procedure to have the pins in his jaw removed. The pins remain in his jaw.

[49] Mr. Broderick had a significant criminal record. He received credit for his guilty plea. The victim recovered and had no lasting effects. Mr. Broderick received a global sentence of 12 months minus credit for pre-trial custody and 3 years probation.[44]

[50] R. v. Creighton.[45] Mr. Creighton and his co accused pled guilty to one count of aggravated assault and one count of assault. The attack was unprovoked and vicious. The sentencing Judge initially sentenced Mr. Creighton to 12 months custody and 12 months probation and remanded him into custody. Upon receiving confirmation that Mr. Creighton had received admission into an alcohol treatment program, the sentencing judge changed his remaining sentence into a conditional sentence. The Court of Appeal ruled that after imposing a custodial sentence, the sentencing judge did not have jurisdiction to impose a conditional sentence.

[51] The sentencing judge sentenced his co-accused to a nine-month conditional sentence. The Court of Appeal concluded that a conditional sentence was inconsistent with the sentencing principles of denunciation and deterrence and changed the conditional sentence to a custodial sentence. Alcohol was a factor in the offence. The Court of Appeal did not interfere with duration of the sentence imposed by the lower court.[46]

[52] R. v. Yarmoluk.[47] Mr. Yarmoluk was convicted after trial of aggravated assault contrary to s. 268. He kicked the victim in the knee, knocking him to the ground. Mr. Yarmoluk and two other men kicked and punched the victim as he lay on the ground. The victim suffered a laceration to his head that required five to six stitches; torn ACL in his left knee; a partial tear of the MCL in his left knee; a half disc that popped off his left knee; and three fractured bones in his right foot. Surgeries were required to correct the injuries. The victim’s ability to participate in his sporting activities was shattered.[48]

[53] Mr. Yarmoluk was a young man with no criminal record. He was enrolled in full time educational pursuits but did not complete them. He was employed in casual jobs. He had been diagnosed with Attention Deficit Hyperactive Disorder and was receiving treatment. He came from a supportive family. He was remorseful. Justice Akhtar imposed a 9-month sentence with 3 years probation and 150 hours community service. Justice Akhtar described the sentence as at the lower end of the range.[49]

[54] R. v. Tran.[50] Mr. Tran was found guilty by a jury of aggravated assault; possession of a weapon dangerous to the public peace; and committing an assault with a weapon. Mr. Tran was convicted as a party to the offence. The victim was badly cut and lost an eye. He was depressed. The victim was also unable to concentrate at work. Mr. Tran was employed as a welder. At one time, he victim accidentally caught his finger on a machine at work, cutting it off, because of his impaired vision and inability to concentrate. He was depressed and at some point, suicidal.

[55] No reference was made to whether Mr. Tran had a criminal record. Justice Grossi noted that a penitentiary sentence was warranted and appropriate for a principal offender. Justice Grossi sentenced Mr. Tran as a party to the offence. The sentence imposed was 12 months. Justice Grossi concluded that a conditional sentence would not satisfy the principles of deterrence and denunciation in this case.[51]

[56] R. v. Dubinsky.[52] Ms. Dubinsky was convicted of aggravated assault. She was involved in a consensual fight with the victim. She struck the victim multiple times with a beer bottle. The victim sustained serious and disabling injuries to her left hand. The injuries required surgery. The court acknowledged that Ms. Dubinsky suffered from post-traumatic stress disorder and suffered from mental health issues, however, the court noted that the trial judge had found that these conditions did not contribute to the offences in any way. The Ontario Court of Appeal did not interfere with a 12-month sentence imposed at trial.[53]

Crown’s cases

[57] The cases submitted by the Crown are more consistent with the gravity of the offence and the responsibility of the offender, as well as more consistent with the goals of denunciation and deterrence, which are paramount in this case. The cases provide a range of sentence 18 months to 5 years.

[58] R. v. Atkinson.[54] Mr. Atkinson was convicted after trial as a party to aggravated assault of the victim. Mr. Atkinson punched and hit the victim. Someone hit the victim with a pipe or bar while the victim lay defenceless on the ground. The victim suffered a permanent injury to his right eye. He required eye lens replacement surgery. He suffered fractures and loss of numerous teeth. This injury required surgery and the implantation of a partial plate in his mouth. He suffered scarring to the right side of his head. There was no definitive evidence that Mr. Atkinson hit the victim with a bat or pipe.[55]

[59] Mr. Atkinson was a youthful first offender, with no criminal record, was employed with a supportive family and community, and he had followed bail conditions with no incident over a four-year period. He was sentenced to two years less one day, two years probation and a $10,000 restitution order.

[60] R. v. Jefferies.[56] Mr. Jefferies pled guilty to one count of aggravated assault. He pushed the victim to the ground. While the victim lay defenceless on the ground, he kicked him in the head and ribs. The victim was unconscious. Mr. Jefferies fled the scene. The victim suffered a brain bleed, severe cuts to the face that required stitches to close. He was hospitalized in intensive care for several days. After his release, he was re-admitted to hospital and underwent neurosurgery because of bleeding on both sides of his brain.[57]

[61] The assault was unprovoked and brutal. Mr. Jefferies had a history of mental illness. He had no criminal record. He was relatively youthful, although not young. The sentencing judge accepted the joint submission of five years, and Mr. Jefferies was sentenced accordingly.[58]

[62] R. v. Poto.[59] Mr. Poto pled guilty to aggravated assault. He punched the victim to the side of the head, knocking him to the ground unconscious. Other members of his group continued to attack the victim in Mr. Poto’s presence. The victim suffered a fractured skull, major concussion, perforated ear drum, cuts in his mouth, facial lacerations and generalized bruising. Mr. Poto was 20 years old. He had a youth record. He was on bail for three months under strict house arrest conditions before breaching his bail. He had a supportive family. He had taken courses while in jail. Mr. Proto received credit for pretrial custody and was sentenced to a total of 30 months, 2 years probation, and a 10-year weapons prohibition.[60]

[63] R. v. Brethour.[61] Mr. Brethour was found guilty after a judge alone trial of one count of aggravated assault and two counts of failing to comply with an undertaking or condition. Mr. Brethour sucker-punched the victim. Subsequent blows delivered to the victim by either Mr. Brethour or his cousin caused serious injuries. Mr. Brethour and his cousin fled the scene. The victim suffered a brain hemorrhage that required surgery to save his life. He was left with a permanent disfiguring scar and continued to suffer from his injuries.[62]

[64] Mr. Brethour was a relatively youthful offender and had acquired no new charges in three years since his arrest. He had a prior record for related offences of violence and non-compliance with court orders. He suffered from alcohol abuse. He was disinterested in treatment.[63] Mr. Brethour was given a global sentence of three years minus credit for pretrial custody and six months concurrent for each of the weapons charges.[64] There was a weapons prohibition for 10 years and a DNA order.[65]

[65] R. v. Addley.[66] Mr. Addley was found guilty after trial of one count of aggravated assault. Mr. Addley struck the victim in the face with either his knee or his leg. Once the victim fell to the ground, he was kicked repeatedly by two of Mr. Addley’s companions. The victim sustained serious injuries. He broke numerous bones around his eye and eye socket and required surgery. The victim had metal plates holding part of his face in place. He could not continue his training as a welder. His life was changed drastically as a result of the assault.[67]

[66] Mr. Addley was 20 years old at the time of sentencing. He had a past youth record but had never been sentenced to a custodial term. He had considerable support of his family members. He was very compliant with the terms of his bail. He had past issues with alcohol and illicit drugs. He had suicidal thoughts and had attempted suicide on two previous occasion. Both parents had a substance abuse problem. He had difficulties pursuing his education.[68] Mr. Addley was sentenced to 18 months followed by 3 years probation.[69]

CONCLUSION

[67] This attack was unprovoked, violent and vicious. The victim continues to suffer from his injuries. Mr. Martin’s excellent prospects for rehabilitation and crime free record while on bail is not discounted; however, the paramount sentencing principle in this case is denunciation and deterrence.

[68] Upon considering all of the circumstances of Mr. Martin and the offence, which of necessity includes the aggravating and mitigating factors in this case, including the sentence received by his co principal after a guilty plea, I conclude that the appropriate sentence is one of two years in the penitentiary. Had the sentence qualified for consideration as a conditional sentence, such an order would have been inconsistent with the principles of denunciation and deterrence.

[69] Mr. Martin shall receive credit of three months for a lengthy crime-free and emotionally onerous time spent on bail. In effect, he shall serve an additional sentence of 21 months in custody. There will be a DNA order and a weapons prohibition for life.

[70] For reasons previously articulated, in the absence of an IRAC or IRAC type evidence, I cannot conclude that in all the circumstances of this offence and the offender, the sentence I have imposed is a fit sentence.

Justice K. Barnes

Released: June 30, 2021

COURT FILE NO.: CR-19-00001471-0000

DATE: 2021 06 30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

MALCOLM MARTIN

REASONS FOR SENTENCE

Barnes J.

Released: June 30, 2021

[1] Dugas M, “Committing to Justice: The Case for Impact of Race Cultural Assessments in Sentencing African Canadian Offenders” (2020) 43:1 Dal LJ 103, at p. 103 [Dugas, Committing to Justice].

[2] Section 718 (a) – (c).

[3] Section 718 (d) – (f); R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, 23CR (5th) 197, at paras. 33, 43; Interpretation Act, R.S.C. 1985, c. I-21, at s.12.

[4] R v Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.

[5] Section 718.1.

[6] Section 718.2(a).

[7] Section 718.2 (a); 718.01; 718.03; and 718.04.

[8] Sections 718 (a) – (c);718.01; 718.02; 718.03; 718.04; and 718.2(a).

[9] Sections 718 (d) – (f); 718.2(b)-(e).

[10] Section 718.2(b).

[11] Section 718.2(c).

[12] Section 718.2 (d).

[13] Section 718.2(e).

[14] Section 718.2 (e).

[15] Gladue, supra 3.; R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433.

[16] R v Ipeelee, supra note 15; Gladue, supra note 3.

[17] Ibid.

[18] Ibid

[19] Gladue, supra note 3 at paras. 46 and 57.

[20] Ibid.

[21] Dugas, Committing to Justice, supra note 1 at p.141.

[22] R. v. J.G., 2021 ONSC 1095, at para. 47.

[23] R. v. J.G., supra note 21 at para. 48; Dugas, Committing to Justice, supra note 1 at pp. 105 – 122.

[24] R. v. Jackson, 2018 ONSC 2527; R. v. Morris, 2018 ONSC 5186.

[25] R. v. Find, 2001 SCC 32, at para. 48.

[26] R. v. Spence, 2005 SCC 71, at para. 65.

[27] For example, Commissions of Inquiry: Federal: Judge Rosalie Silberman Abella, Commissioner, Report of the Commission on Equality in Employment (Ottawa: Minister of Supply and Services Canada, 1984).

Ontario: Margaret Gittens & David Cole, Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Publications Ontario, 1995); Justice D. Morand, The Royal Commission into Metropolitan Toronto Police Practices (for the Province of Ontario, 1976);The Regent Park Report (Toronto: Ontario Public Complaints Commission, 1985); Reva Gerstein, Policing in Ontario for the Eighties: Perceptions and Reflections: Report of the Task Force on the Racial and Ethnic Implications of Police Hiring, Training, Promotion and Career Development (Toronto: Ministry of the Solicitor General, 1980).

Nova Scotia: Black Learners Advisory Committee on Education, BLAC Report on Education: Redressing inequity – Empowering Black Learners (1994); Nova Scotia Advisory Group on Race Relations, Report of the Nova Scotia Advisory Group on Race Relations (1991).

Alberta: Alberta Human Rights Commissions, Your Voice: Advancing Human Rights in Alberta (December 2017); Alberta Human Rights Commission, AHRC’s Written Submission to Alberta Justice and Solicitor General’s Police Act Review: Recommendations for Potential Amendments to the Alberta Police Act and Police Services Regulation (January 2021).

[28] History of Racism (Monographs): Donald H.J. Clairmont & Dennis W. Magill, Africville Relocation Report (Halifax: Dalhousie University, 1971); Clairmont, Donald H.J. & Dennis W. Magill, Nova Scotian Blacks: A Historical and Structural Overview (Halifax: Dalhousie University, 1970); Harvey Amani Whitfield, North to Bondage: Loyalist Slavery in the Maritimes (Vancouver: University of British Columbia Press, 2016); Barrington Walker, ed, The African Canadian Legal Odyssey: Historical Essays (Toronto: University of Toronto Press, 2012).

Impact of Slavery, Systemic Racism: Erica J. Wilson et al, “Residual Effects of Slavery: What Clinicians Need to Know,” (2013) 35 Contemporary Family Therapy 14; Michelle Y. Williams, [“Restorative Justice: African Nova Scotian Restorative Justice: A Change Has Gotta Come,”](https://advance.lexis.com/document/?pdmfid=1505209&crid=d3b48d18-4534-44a7-86bb-113b6fe359dc&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials-ca%2Furn%3AcontentItem%3A62J4-6CM1-JPP5-24N4-00000-00&pdcontentcomponentid=281474&pdteaserkey=sr0&pdicsfeatureid=1517129&pditab=allpods&ecomp=1x-nk&earg=sr0&prid=33d15921-4ea5-49bf-8f0c-8e7e086cb700) (2013) 36 Dalhousie LJ 419; Carol A. Aylward, [“‘Take the Long Way Home’: R.D.S. V.R. The Journey,”](https://nextcanada.westlaw.com/Document/I8c521c11264211dbbab99dfb880c57ae/View/FullText.html?transitionType=UniqueDocItem&contextData=(sc.Search)&userEnteredCitation=47+U.N.B.+L.J.+249) (1998) 47 UNB LJ 249; Natasha L. Henry, “Black Enslavement in Canada,” Canadian Encyclopedia (9 June 2020), online: < [https://www.thecanadianencyclopedia.ca/en/article/black-enslavement](https://www.thecanadianencyclopedia.ca/en/article/black-enslavement); Dallas Mack, [“Systemic Racism and Sentencing,”](https://nextcanada.westlaw.com/Document/Iba6afdbb284d2457e0540010e03eefe0/View/FullText.html?transitionType=UniqueDocItem&contextData=(sc.Search)&userEnteredCitation=Mack+Crim+LB+2021-01#co_pp_sp_212509_2021-01) Bulletin, Mack Crim LB 2021-01.

[29] R. v. Spence supra note 25; R. v. Jackson, supra note 23; R. v. Morris, supra note 23; R. v. Golden, 2001 SCC 83, at para. 83; R. v. Bonde, [2003] O.J. No. 534; R. v. J.G., supra note 21 at para. 41.

[30] Report of the Commission of Systemic Racism in the Ontario Criminal Justice System at p.39

[31] R. v. J.G., supra note 21 at paras. 27-38.

[32] Section 718.2(e); Gladue supra note 3 at para. 70; See also R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252, at para. 98.

[32] Gladue, supra note 3 at paras. 46 and 57.

[33] Dugas, Committing to Justice, supra note 1 at p. 107.

[34] R. v. Golden, supra note 28 at para. 83; R. v. Borde, 2011 ONCA 534, [2011] O.J. No. 3464 (Ont. C.A.), R. v. J.G., supra note 21, at para. 41.

[35] Ipeelee, supra note 15 at para. 67.

[36] Dugas, Committing to Justice, supra note 1 at pp. 106-107.

[37] R v J.G. 2021 ONSC 1095 at para. 41; R v Jackson, 2018 ONSC 2527

[38] R. v. Nasogaluak, supra note 4.

[39] 2015 ONSC 2560.

[40] Ibid, at para. 10.

[41] Ibid, at paras. 11 – 13.

[42] Ibid, at paras. 14, 30, 31, 35 and 39.

[43] [2016] O.J. No. 168.

[44] Ibid, at paras. 5-15.

[45] [1997] O.J. No. 2220.

[46] Ibid, at paras. 1-7.

[47] [2018] O.J. No. 1917.

[48] Ibid, at paras. 1 – 11.

[49] Ibid, at paras. 30 – 38.

[50] [2001] O.J. No. 5665.

[51] Ibid, at paras. 9-11 and 14-20.

[52] [2018] O.J. No. 3898.

[53] Ibid, at paras. 1 – 5.

[54] [2016] O.J. No. 7005.

[55] Ibid, at paras. 2, 3, 62 and 63.

[56] [2017] O.J. No. 6412.

[57] Ibid, at paras. 1- 10.

[58] Ibid, at paras. 11 and 18- 23.

[59] [2013] O.J. No. 3369.

[60] Ibid, at paras. 1 – 7.

[61] [2013] O.J. No. 766.

[62] Ibid, at para. 6.

[63] Ibid, at paras. 7-15.

[64] Ibid, at para. 28.

[65] Ibid.

[66] 2012 ONSC 137, [2012] O.J. No. 25.

[67] Ibid, at paras. 25-32.

[68] Ibid, at paras. 9-24.

[69] Ibid, at para. 54.