Court File and Parties

COURT FILE NO.: CR-20-40000061-0000 DATE: 20220517

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANTHONY BLACK

Counsel: Paul Alexander, for the Crown Jordan Weisz, for Mr. Black

HEARD: March 25, 2022

Reasons for Judgment on Sentence

R.F. GOLDSTEIN J.

[1] On March 25, 2022 Anthony Black pleaded guilty to one count of aggravated assault. I suspended the passing of sentence in light of time served. Mr. Black served 973 days in custody. Applying credit pursuant to s. 719 (3) of the Criminal Code, that is the equivalent of 1,459.5 days at a ratio of 1.5:1: R. v. Summers, 2014 SCC 26, [2014] 1 SCR 575. Even without the application of credit for harsh conditions that works out to just over 48 months, or four years. At the time I indicated that my reasons would follow. These are my reasons.

[2] On March 10, 2018, Mr. Black went to 775 Steeles Avenue West. That is an apartment building. Mr. Black’s father lives there. He knocked on the door of Sergey Sitenko. Mr. Sitenko was the building superintendent. The two were known to each other and had had conflict. At 6:30 am Mr. Black knocked on Mr. Sitenko’s door. Mr. Sitenko answered. Mr. Black then chased Mr. Sitenko with a knife into the apartment. Mr. Black slashed at Mr. Sitenko, injuring him. Mr. Sitenko’s wife yelled, and Mr. Black then fled the scene. She called 911. The police investigated. They arrested Mr. Black some months later. Mr. Sitenko’s tendons in his hands were cut and he required plastic surgery. Crown counsel has informed me that Mr. Sitenko and his wife did not wish to provide victim impact statements.

[3] At the time of sentencing, Mr. Black was 36 years old. He was living with his sister, but did visit his father occasionally at the Steeles Avenue West address. He was born in Jamaica. He was raised by his mother and maternal grandmother. He came to Canada in 2003 and lived with his father and stepmother from age 15. He did graduate from high school and has worked, but unfortunately Mr. Black has also been diagnosed with a major mental illness, schizophrenia. He is currently taking Seroquel. When I look at his criminal record, which dates from 2008 and includes convictions for some very serious offences it seems to indicate mental health and /or substance abuse problems. Mr. Black has been convicted of sexual assault twice, forcible confinement, unlawfully in a dwelling house, and assault causing bodily harm. He has numerous convictions for drug offences. He also has multiple “administration of justice” offences, such as fail to appear, fail to comply with probation, and fail to comply with recognizance: ten, in fact.

[4] According to Mr. Weisz, Mr. Black went to the building on the day of the assault because he had just received word that his mother died. He wanted to see his father, who goes to work early. There was some kind of encounter between the victim and Mr. Black (it is not clear what) prior to the assault. He was arrested some six months later on a drug charge. Apparently he was seriously injured during the arrest. He sustained two orbital bone fractures, although I have no further details. His orbital bone was again broken in a fight while h was in jail. That has since affected his vision, and he will likely need surgery. He needs to wear sunglasses at all times to protect his eyes.

[5] I will deal with the aggravating and mitigating factors. The aggravating factors are obvious. Mr. Black attacked a man in his own home with a knife. He actually chased the victim into the victim’s apartment. It seems to me that it was an unprovoked assault. I am aware that the two men had a history of some kind. I am also aware that the police became involved at some point. No history justifies a surprise attack with a knife in a home at 6:30 in the morning. The other aggravating factor is Mr. Black’s extensive criminal record, which includes other convictions for crimes of violence.

[6] The most important mitigating factor is that Mr. Black pleaded guilty. Pleading guilty is a message to the community that an offender takes responsibility for his actions. It is an acknowledgement that hopefully also allows the victim to heal. Although it can mean that an offender is simply bowing to the inevitable in a strong Crown case (and often that is exactly what it means) it can also mean that an offender is open to rehabilitation. I am hopeful that is the case here.

[7] Among the mitigating factors is the fact that Mr. Black has been unable to have much contact with his social worker. He has a social worker assigned from a Toronto social services agency called HOPE. It has been very difficult for Mr. Black to have visits with that social worker due to COVID. This of course, is nobody’s fault. It obviously impairs his ability to at least try and rehabilitate himself.

[8] Another mitigating factor is that Mr. Black does have support. He is close with his father and his sister. His father attended the sentencing proceedings to support him. I am aware that his sister has been a surety. During COVID it has been difficult for his family members to visit him or even talk to him on the phone.

[9] There is a joint submission that Mr. Black should receive a sentence of four years. A court should accept a joint submission except where the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest: R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204. There is no doubt that a sentence of four years is well within the range. I accept the joint submission. The sentence reflects the principles of denunciation and deterrence, which are important in cases of aggravated assault, as well as the principle of rehabilitation.

[10] The four-year sentence reflects harsh conditions of custody that Mr. Black has dealt with – lockdowns and the pandemic. Mr. Black has been locked down for 522 full or partial days during his time in custody. He has also been in custody during the entirety of the pandemic. We do have some of the records. The Court of Appeal was clear in R. v. Bristol, 2021 ONCA 599 that some impact is self-evident. The Court stated at para. 11:

Lockdowns involve lack of showers and loss of physical activity. They also mean that prisoners are restricted to their cells for long periods of time. Individual evidence is not required to establish those basic effects which go beyond the difficult and restrictive circumstances offenders often encounter during pretrial custody and which are accounted for by the Summers credit.

[11] It is my understanding that Mr. Black may well face sentence for other charges. There is some controversy about how to deal with harsh conditions of custody while facing the current charge in light of a potential future sentence. The message of R. v. Marshall, 2021 ONCA 433 is that credit beyond what is accounted for by R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 (which is typically referred to as Duncan credit: R. v. Duncan, 2016 ONCA 754) factors into the overall fitness of the sentence, rather than is the subject of a mathematical calculation – not always, and certainly not under all circumstances, but in most cases. This case illustrates the wisdom of that proposition. Just as Duncan credit ought not to be used to make an otherwise fit sentence unfit, where a person, like Mr. Black, has been in custody on multiple charges over a lengthy period of time, a sentencing judge should not be precluded from considering harsh conditions of custody over the entirety of the pre-sentence custody, even where some of that time in custody has already been allocated in another case. Again, the point is a fit sentence. There may be instances – such as in this case – where there is no explicit calculation of Duncan credit. I am aware that a future sentencing judge may well deal with time that Mr. Black will spend in custody on other charges. Again, the point is a fit sentence. It may be that a lengthy period of time in pre-sentence custody – in a remand centre, not in a proper provincial jail or penitentiary – prevents an offender from accessing programming, or exacerbates existing mental or physical health issues. As a sentencing judge on these charges, I don’t believe I can tie the hands of a future sentencing judge. Another judge may want to consider that issue, even if it means examining some of the custodial attributable to these charges. I am emphatically not saying that in every case where an accused person is detained on multiple charges and sentenced on one set that a second sentencing judge should always take the totality of pre-sentence custody into account. What I am saying is that I disagree with the notion that such custody can never be taken into account at a subsequent sentencing. To put it colloquially, I do not view it as “double dipping”. That would simply be unfair where pre-sentence custody has a particularly onerous impact on an offender. It may be, for example, that there is evidence that the impact on physical or mental health has worsened in the case of a particular offender over time. It is within a sentencing judge’s discretion to consider it – or not – even where an earlier judge has also considered it. There is no blanket rule to the contrary. This notion is not a radical one – sentencing is an individualized process; the process includes considering the effect of pre-sentence custody on the offender; and the process also includes considering the principle of totality where multiple sentences are imposed. Cases of this nature will be rare.

[12] I will suspend the passing of sentence in light of four years of pre-sentence custody, and put Mr. Black on probation for three years. The terms are:

• He will have no contact, directly or indirectly, with Sergey Sitenko, Yeleno Sitenko, and Alexandre Gorchkov and he is not to be within 200m of any place that he knows they live, work, or go to school;
• He will participate in counselling programs as directed by his probation officer and sign any necessary releases;
• He will report to a probation officer within 2 working days of release from custody and thereafter as required;
• If he is removed from Canada, or leaves Canada, and returns, he is to report to a probation officer within 72 hours of his return.

Released: May 17, 2022

COURT FILE NO.: CR-20-40000061-0000 DATE: 20220517

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANTHONY BLACK

REASONS FOR JUDGMENT ON SENTENCE

R.F. Goldstein J.