COURT FILE NO.: CR-20-154

DATE: 2022-11-29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

SHAMAR BOWEN SOARES Defendant

Counsel: George Hendry, for the Crown Tamar Bitton, for the Defendant

HEARD: June 3 and Aug 12, 2022

SENTENCING REASONS

VALLEE J.

Overview

[1] Mr. Bowen Soares was charged with a number of offences, including assault and assault with a weapon regarding two different victims. Part way through the trial, convictions on those two offences were invited. He was found not guilty of the other offences.

The Facts

Circumstances of the offence

[2] Mr. Bowen Soares was a drug dealer. He assaulted a woman, AS, who was an addict. He was her primary supplier and used her residence to operate his business. In the early morning hours of the offence, AS stole drugs from him while he was sleeping and ran away. He caught up to her on a public street and beat her severely. He took some of her clothes, reasoning that if he could not have what was his, she was not going to have what was hers. He left her there with no concern about her injuries. The assault was degrading.

[3] Mr. Bowen Soares assaulted another woman, JW, with a weapon. JW was also a drug addict. He was her primary supplier. They were in a domestic relationship. JW stated that when Mr. Bowen Soares drank, which was often, he became angry and physically abusive. One evening, after consuming alcohol, he was very angry and hit her over the head with a Hennessey bottle. This caused a significant welt. This assault was also degrading. Other people witnessed it.

Circumstances of the offender

[4] Mr. Bowen Soares is 30 years old. He graduated from high school. He was working at a factory when he began selling drugs. His first conviction was in 2019 when he was 27. He has been living at home with his brothers and sisters while on bail. He has a three-year-old son and has parenting time with him every weekend. In July and August, Mr. Bowen Soares had summer parenting time with him for 3 weeks.

Legal Parameters

[5] Section 266(a) of the Criminal Code, R.S.C., 1985, c. C-46, states that everyone who commits assault is liable to imprisonment for a term not exceeding five years. Section 267(a) states that everyone who, in committing an assault uses a weapon, is liable to imprisonment for a term not exceeding 10 years.

Overlapping Time in Custody

[6] Mr. Bowen Soares was already on house arrest relating to federal charges when he was arrested on these charges on May 19, 2019. He began serving the federal sentence on October 11, 2019. For that sentence, he received pre-trial credit of 17 months. That sentence expired on July 27, 2020, on which, coincidentally, he was released on bail for these charges. The Crown and defence agree that the overlap of custodial time is from October 11, 2019, to July 27, 2020 - 291 days, or 9 months and 17 days.

Position of the Crown

[7] The Crown states that an appropriate combined sentence for Mr. Bowen Soares is two years less any appropriate credit. Both AS and JW were vulnerable people. They were female drug addicts. There was a lengthy pattern of abuse regarding both of them. According to s. 718.04, in these circumstances, the court shall give primary consideration to the objectives of denunciation and deterrence. According to s. 718.2(a)(ii), the fact that Mr. Bowen Soares assaulted JW, an intimate partner, is an aggravating factor.

[8] The Crown relies on R. v. Smith, (2011) 2011 ONCA 564, O.J. No. 3832 (ONCA) in which the court stated, at para. 86, that a sentence of one to two years will generally be appropriate for a conviction for common assault committed against a spouse or domestic partner in the context of a lengthy pattern of domestic abuse.

[9] The Crown relies on R. v. Boucher, 2004 C.C.C. 186 (Ont. C.A.) in which the court stated that denunciation and deterrence are of paramount significance.

[10] The Crown states that a probation term of three years is appropriate, given the seriousness of the offences. Mr. Bowen Soares must report to his probation officer as required. He shall not have any communication with any of the trial witnesses and shall stay 500 meters away from their known places of residence. He shall participate in counselling with an emphasis on domestic violence and alcohol consumption as directed by his probation officer. He shall be prohibited from owning weapons for 10 years. He shall provide a DNA sample.

[11] Mr. Bowen Soares should not receive any pre-trial custody credit for the five-month period from May 19, 2019, to October 11, 2019, because when he was sentenced for the federal offences, he was given a credit for 17 months of pre-trial custody. The five-month period was part of the 17-month credit that he has already received.

[12] The Crown relies on R. v. Ceasor, 2021 ONCA 54. In para. 8, the court stated that to give credit for time spent serving a sentence for another offence would distort the sentencing regime. For this reason, the Crown states that Mr. Bowen Soares is not entitled to any credit for the period October 11, 2017, to July 27, 2020.

[13] The Crown states that Mr. Bowen Soares has been under strict house arrest conditions since his release on July 27, 2020. Up to August 12, 2022, the date of submissions, it was 2 years 17 days/747 days. The Crown submits that in accordance with R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555 (ONCA), stringent bail conditions, especially house arrest, must be taken into account as a relevant mitigating circumstance. Downes notes that like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest. The court must consider the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; and the ability of the offender to carry on normal relationship, employment and activity. In R. v. G.C., [2010] O.J. No. 3240, the court stated that the onus is on the offender to put forward the hardship. The offender should supply the judge with information as to the impact of the conditions. In R. v. Place, 2020 ONCA 546, [2020] O.J. No. 3685 (ONCA), the court stated that the determination of enhanced credit for strict bail conditions, if any, is within the trial judge’s discretion.

[14] The Crown states that Mr. Bowen Soares’ bail was varied on September 12, 2021, to permit an exception for employment. This eased the stringency of the conditions. From that date, 337 days/11 months and 3 days have passed up to the August 12, 2022 submissions.

[15] The Crown notes that Mr. Bowen Soares is a youthful adult. He has a limited, serious criminal record. He has some family support.

Position of the Defence

[16] The defence agrees with the ancillary orders that the Crown requests. The defence states that for simple assault with no related history, the vast majority of sentences are just probation.

[17] The defence states that Mr. Bowen Soares should receive pre-trial custody credit for May 19, 2019, to October 11, 2019. This is just short of five months. A credit of 1.5:1 should be applied, which is approximately 7.5 months.

[18] The defence states that Mr. Bowen Soares should receive a credit of 1:1 for October 11, 2019, to July 27, 2020, when he was released on bail. This includes the time that he spent serving his federal sentence.

[19] After he was released, he was on exceptionally stringent bail conditions for over two years. He wore an ankle monitoring device. He had to remain in the house or in the front or rear yards with his surety. He could not leave the property with his surety, except for medical emergencies, meetings with his lawyer and court attendances. His surety had to be with him for the latter two. He could not even go for a walk off the property with his surety. Seven months later, on February 11, 2021, the bail terms were varied but only to allow him to go to the bank with his surety. After another seven months, on September 12, 2021, the terms were further varied to make an exception for employment. He complied with the terms. The bail conditions are similar to a two-year conditional sentence.

[20] In para. 13 of R. v. Schlaepfer, 2022 ONCA 566, the court stated that time spent under stringent bail conditions must be taken into account as a relevant mitigating circumstance on sentencing. Adopting a rigid formula is not appropriate because of the wide variation in bail conditions. The defence states that the relevant inquiry is whether the bail conditions were punitive enough to be akin to punishment, thereby warranting mitigation. For the time spent on stringent bail conditions, Mr. Bowen Soares should be allowed a 1:3 credit - for every three days he should receive a one-day credit. When all of the credits are applied, the sentence ought to be one day and a short period of probation.

[21] The defence states that Mr. Bowen Soares took responsibility when he testified that he was dealing drugs. He acknowledged the two assaults which showed insight. He has a limited criminal record with no history of violence. His first conviction was just three years ago in 2019. He has a three-year old child who he co-parents. His compliance with the bail conditions shows that he is rehabilitated. Mr. Bowen Soares can be a productive, contributing member of society. He is a member of a vulnerable sector because he is black. This sector is overrepresented in prisons. Sending him back to custody would eliminate all of the progress that he has made.

Mitigating Factors

[22] Mr. Bowen Soares’ exceptionally stringent bail terms set out above are a mitigating factor. They became somewhat less onerous when they were varied to permit employment. He is a youthful adult with a limited serious criminal record. He has some community support.

Aggravating Factors

[23] Mr. Bowen Soares assaulted AS in a public place. It was particularly brutal and degrading. He took some of her clothing and left her with no regard for her injuries. Mr. Bowen Soares assaulted JW with a weapon while they were in a domestic relationship.

Principles of Sentencing

[24] Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that the sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

[25] Section 718.04 states that when an offence involves a vulnerable person, the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

[26] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 42, LeBel J., for the Court, held that the principle of proportionality:

…requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused (R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, at pp.533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicial and social censure (J.V. Roberts and D.P. Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p.10). Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

Pre-trial Custody Credit Regarding Overlap

[27] In R. v. Wilson, 2008 ONCA 510, the court considered a sentence for robbery offences in relation to time that the accused spent serving a sentence for an unrelated offence – importing cocaine. The trial judge did not take into account part of the accused’s incarceration attributable to the importing charge when fixing the length of his pre-sentence custody on the robbery charges. After sentencing on the robbery charges, the accused’s conviction on the importing offence was quashed. The accused appealed his robbery sentence on the basis that he should be given pre-trial custody credit for the time he served on the importing charge. In para. 42, the court stated,

The time the appellant spent serving his sentence for importing was not in any sense part of the “punishment” for the robbery offences: that sentence was for the importing offence. To now give the accused credit for time spent serving a sentence for another offence would distort the sentencing regime.

[28] I agree with the Crown that no pre-trial custody credit for the period May 19, 2019, to October 11, 2019, is appropriate. This time has already been credited to Mr. Bowen Soares in his sentence for the federal matters which began on October 11, 2019. In addition, no credit is appropriate for the period October 11, 2019, to July 27, 2020, when he was serving the federal sentence. In following the reasoning in Wilson, any credit given for this period would distort the sentencing regime.

Downes Credit

[29] Regarding a credit for stringent bail conditions, in para. 27, of Downes, the court stated,

…even the most stringent bail conditions, including house arrest, tend to allow the offender the opportunity to work, attend school, attend medical appointments, conduct religious worship and address personal needs. The rehabilitative and treatment options that are often denied an accused in pre-trial custody are usually available, even to an accused on house arrest.

[30] In para. 43, the court noted that Mr. Downes “was allowed to leave the house only with his surety and even the normal exceptions that usually attend house arrest were missing”. In these circumstances, the court allowed a five-month credit for the eighteen months that Mr. Downes spent on bail under house arrest conditions, a bit less than 1:3.

[31] The Crown conceded that Mr. Bowen Soares bail terms were stringent for the first year. In my view, exceptionally stringent is a better description. They were more stringent than Mr. Downes conditions. Mr. Bowen Soares could not leave his surety’s house without the surety. He had to stay on the property which meant that he could not even go for a walk with his surety. He could not obtain employment. There is no doubt that this created a significant hardship. It was a form of punishment although different from incarceration. The variation on February 7, 2021, to permit attendance at a bank did not do much to relieve the hardship. The highly restrictive house arrest terms remained in effect for 412 days, over 13 months, which I will call period one. The variation on September 12, 2021, to permit employment was significant. Mr. Bowen Soares worked as a construction labourer in different locations. The variation lessened the hardship; however, he continued to be restricted to his surety’s house outside of work hours, except for trips to the bank. This restriction continues up until today. I will call this period two.

[32] The defence stated that Mr. Bowen Soares should be allowed a 1:3 credit for the highly stringent house arrest. The Crown did not contest the ratio. For period one, July 27, 2020, to September 12, 2021, 412 days, a credit of one day for every three days on highly stringent bail is appropriate to recognize the hardship, resulting in a credit of 138 days (413 divided by 3 = 137.6 days). For the period of September 13, 2021, to the sentencing date, November 25, 2022, 439 days, during which Mr. Bowen Soares has been permitted to attend employment, a credit of one day for every four days is appropriate to recognize the somewhat eased hardship, resulting in a credit of 109.75 days (439 divided by 4 = 109.75 days). The total Downes credit is 247.35 rounded to 247 days (137.6 + 109.75).

Disposition

[33] I have taken into account the fact that Mr. Bowen Soares has a limited criminal record and no convictions for violent offences. I must impose a sentence that has the effect of denunciation and general deterrence and is proportional.

[34] Mr. Bowen Soares is sentenced to a period of incarceration of eight months for assault of A.S., eight months for the assault of J.W., and one year and five months for assault of J.W. with a weapon, all to be served concurrently. This equates to 517 days. After applying the Downes credit of 247 days, he will serve 270 days, being 8 months and 26 days. He shall be subject to a probation term of three years. He must report to his probation officer as required.

[35] The ancillary orders requested by the Crown and consented to by the defence shall be made. Specifically, after his release, he shall not have any communication with any of the trial witnesses, being AS, SS, JW, Cassandra Diamond, Jennifer Jackson, Kathryn Kilpatrick and Travis Vanderkooy. He shall stay 500 meters away from their known places of residence. He shall participate in counselling with an emphasis on domestic violence and alcohol consumption as directed by his probation officer. He is prohibited from owning any weapons for 10 years. He shall provide a DNA sample.

Justice M.E. Vallee

Released: November 29, 2022

NOTE: This written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.