R. v Aragon, 2023 ONSC 1943

Court File and Parties

Court File No.: CR-12-2582 Date: 2023-03-24 Ontario Superior Court of Justice

Between: His Majesty The King And: Pierre Aragon

Counsel: Lisa Wannamaker, for the Crown Dirk Derstine and Laura Remigio, for Pierre Aragon

Heard: March 23, 2023

Before: J. Speyer J.

Reasons for Sentence

1In July of 2012, Fernando Fernandes, known to be associated with the Loners Motorcycle Club, was badly injured after being beaten by Pierre Aragon and others near the intersection of Park and Perry Streets in Peterborough. Mr. Aragon used a baseball bat to beat Mr. Fernandes. Pierre Aragon was convicted in connection with the beating of aggravated assault, assault with a weapon, possessing a weapon for the purpose of committing an offence, and uttering a threat to cause bodily harm. Counts 2 and 3 were stayed. A sentence was imposed on Count 4, which was not a charge in relation to which an indeterminate sentence could be imposed. Mr. Aragon was sentenced as a dangerous offender to an indeterminate sentence for the aggravated assault.

2On March 24, 2022, the Ontario Court of Appeal allowed Mr. Aragon’s appeal against his sentence, set aside the sentence, and ordered that Mr. Aragon’s sentencing and the Crown dangerous offender application be reheard before a new judge.

3The hearing initially proceeded before me as a contested dangerous offender application. However, counsel appeared before me on March 17, 2023 and jointly submitted that the criteria for finding Mr. Aragon to be a dangerous offender did not exist, and that I should impose a finite sentence, to be followed by a long-term supervision order for a period of 10 years.

4These reasons explain why I accept the joint submission, and how I resolve the single issue that remained in dispute, which is the duration of the custodial sentence to be imposed on Mr. Aragon.

5The joint position presented by counsel is most reasonable and recognizes that circumstances have changed since the evidence and submissions in the first dangerous offender hearing concluded more than six years ago.

6After I released my decision regarding the facts of the offences, but before the sentencing hearing began, counsel arranged to appear before me because they had re-evaluated their positions after the court-ordered forensic psychiatric assessment of Mr. Aragon was completed by Dr. Gray on November 21, 2022. Dr. Gray was requested to complete a 60-day assessment of Mr. Aragon pursuant to section 752.1 of the Criminal Code . Dr. Gray is the clinical director of the Brockville Forensic Treatment Unit, a staff psychiatrist at the St. Lawrence Valley Correctional Institute, and an assistant professor in the department of psychiatry at the University of Ottawa.

7Dr. Gray’s conclusions in 2022 are different than those reached by other psychiatrists and psychologists who assessed Mr. Aragon in the past. That does not mean that the earlier assessments were wrong. It means that time has passed and circumstances have changed. Mr. Aragon has spent a long time in prison since his arrest in 2012. He has participated in Correctional Services of Canada programs that are directed to addressing his risk factors and is noted to have participated well and put a sustained effort into the programs, resulting in some clinical gains. While he still needs further treatment, there has been a change in his attitudes and behaviour, which suggests that his risk factors are amenable to treatment interventions and are not fixed. Further, Mr. Aragon is now 41 years old. According to Dr. Gray, violent offenders’ risk begins to decrease as they age into their 40’s and 50’s. Dr. Gray concluded that “overall, it is difficult to see Mr. Aragon’s risk of violence as currently very high and inflexible to change both through aging and treatment interventions. There is strong evidence his risk has decreased over the course of his current incarceration and may decrease further with other interventions”. None-the-less, his risk to re-offend violently remains high, in the absence of targeted and significant controls.

8Dr. Gray is also of the opinion that “there is a good prospect for management of Mr. Aragon’s risk of violence in the community” if his recommendations for such release are implemented. Mr. Aragon has strong support from his current wife, who has no criminal record or substance abuse history. If Mr. Aragon’s specific and well-identified risk factors are accounted for and controlled in the community, and his access to the community is increased gradually to test his new coping skills and the apparent mediating effects of aging in a stepwise manner, according to Dr. Gray his risk may be effectively managed.

9Having regard to Dr. Gray’s opinion, which has not been challenged by either party, and the evidence that has been placed before me during the fact-finding hearing and the bail hearing that I have conducted, it is plain to me that the joint position presented by experienced Crown and defence counsel who are very familiar with this case is reasonable and supported by the evidence.

10I am satisfied that it would be appropriate to impose a sentence of two years or more for the offence for which Mr. Aragon was convicted, and that there is a substantial risk that he will reoffend, and that there is reasonable possibility of eventual control of the risk in the community. All the criteria for a finding that Mr. Aragon is a long-term offender have been met, and I find him to be long-term offender.

11Crown and defence counsel do not agree about the duration of the sentence of imprisonment to be imposed. They agree that there needs to be a further 30 days of imprisonment from today’s date because that is necessary for the custodial authorities to arrange for an appropriate community placement for Mr. Aragon and to structure the conditions of the long-term supervision order. They agree that any reasonable sentence I may impose will have been served because of the time Mr. Aragon has spent in custody since his arrest. They disagree about the duration of a fit and proper sentence for the crime Mr. Aragon committed.

12It is the position of the Crown that Mr. Aragon should be sentenced to a period of 8 years plus 30 days. The Crown submits that an 8-year sentence is proportionate to the gravity of the offence, the antecedents of Mr. Aragon, and his moral blameworthiness.

13It is the position of the defence that Mr. Aragon should be sentenced to 2 to 4 years imprisonment. The defence points to the sentences imposed on Mr. Coppins, Mr. Graham and Mr. Gardiner for their participation in the assault on Mr. Fernandes, which ranged from 5 to 14 months. The defence submits that the principle of parity demands a sentence in the range suggested.

14In order to impose an appropriate sentence, I will briefly review the facts of the offence, the antecedents of Mr. Aragon, and examine the impact of the parity principle.

The facts of the offences

15The attack on Mr. Fernandes occurred at the corner of Perry and Park Streets in Peterborough. There was a house on the southeast corner of that intersection, at 285 Perry Street. That house was used as a clubhouse by Mr. Aragon and his associates. It was surrounded by a tall fence that bordered both Perry and Park Streets. A large gate opened onto Perry Street.

16The victim, Mr. Fernandes, was a long-time member of the Woodbridge chapter of the Loners motorcycle club. Mr. Fernandes knew members of the Peterborough Loners and visited the Peterborough clubhouse. At the time of the incident, the house at 285 Perry Street was frequented by a group of former Loners associated with Robert Pammett, who was at one time the leader of the Loners in Peterborough.

17Pierre Aragon and the others who perpetrated the attack on Mr. Fernandes were members of the group that had broken away from the Loners.

18On the night of July 21 and early morning hours of July 22, 2012, Mr. Fernandes was in Peterborough. Mr. Fernandes has no memory about what happened to him on the street, apart from hearing a sound that he described as "a ding". He knew that he ended up at the Peterborough hospital. He did not know who caused his injuries.

19Mr. Fernandes sustained significant injuries: a displaced elbow, cuts to his head that required 60 stitches to close, and cuts on his left leg.

20The police received a 911 call from Mr. Aragon's cell phone. It appears to have been a pocket call. The call was recorded. Police were dispatched to the scene.

21Constables Cox and Jileson arrived at the corner of Park and Perry Street. They saw Fernando Fernandes lying on the road at the side of the curb. Two men stood over him - one at his head and one at his feet. Shane Gardiner was standing at Mr. Fernandes' head, leaning over, looking down at Mr. Fernandes and talking to him. Mr. Gardiner did not have a bat or any other weapon. Mr. Aragon was standing at Mr. Fernandes' feet, holding a baseball bat in his hand. He held it about halfway up the bat and pointed it at Mr. Fernandes.

22The men became aware of the presence of the police officers. Mr. Gardiner ran southbound on Park Street and Constable Cox pursued him. After a short chase, Mr. Gardiner, gave up.

23Mr. Fernandes was transported to hospital by ambulance. At hospital he was treated for multiple bruises and scalp lacerations. He had a bruise on the lower back part of his skull, and his left elbow was displaced and fractured. He underwent surgery for his left elbow, which included the insertion of plates, screws and staples.

24During the fact-finding phase of this proceeding, I found that the following events occurred in front of 285 Perry Street the early morning hours of July 22, 2012, the clubhouse used by Mr. Aragon and his associates.

1. At 1:14 a.m., the gate opened, and Gary Coppins and a woman stepped out.
2. At 1:14 a.m., Pierre Aragon and Shane Gardiner stepped out of the gate. Mr. Aragon held a baseball bat that he swung about from time to time. At 1:16 a.m., they were joined by Mr. Coppins. They stood about and appeared to be talking. All but Mr. Aragon appeared to be smoking. Mr. Gardiner and Mr. Coppins also had bats. Ms. Cherie Pammett also joined the group.
3. At 1:23 a.m., Mr. Aragon and Mr. Coppins walked in the direction of the intersection of Perry and Park streets. Mr. Aragon was swinging a baseball bat as he walked.
4. At 1:24 a.m., Ms. Pammett walked towards the corner.
5. At 1:27:21 a.m., the 911 pocket call commenced. Between that time, and when Mr. Aragon returned to the gate of the house at 1:29 a.m., the sounds of moaning and grunting such as might occur when physical effort is expended were recorded. Mr. Aragon’s threat to break Mr. Fernandes’ knees is heard on the recording. A female voice is heard saying “enough baby”.
6. At 1:27:45 a.m., Mr. Coppins ran back into the clubhouse.
7. At 1:28 a.m., Mr. Graham ran back from the corner to the gate and threw a bat over the fence.
8. At 1:29 a.m., Mr. Aragon ran back to the gate. He did not have a bat in his hands, having left his bat in the area were Mr. Fernandes laid. He yelled “open the gate” and was let in.
9. At 1:47 a.m., Mr. Gardiner returned to the gate in the custody of officers Cox and Jilesen.

25As to the contested facts relied on by the Crown as aggravating, I made the following findings:

1. The assault on Mr. Fernandes, including Mr. Aragon's participation in that assault, was motivated by gang animus.
2. The jury found that Mr. Aragon uttered the threat to break Mr. Fernandes' knees. I did not find beyond a reasonable doubt that Mr. Aragon uttered any specific words beyond that. I found that Mr. Aragon and Mr. Gardiner participated in a joint venture in relation to their actions towards Mr. Fernandes. Just as the blow of one is the blow of all in such a case, the words of one are similarly the words of all.
3. I was unable to conclude beyond a reasonable doubt how many blows were struck by Mr. Aragon, and whether any of his blows struck Mr. Fernandes' head. I was satisfied beyond a reasonable doubt that Mr. Aragon struck Mr. Fernandes with a baseball bat a substantial number of times, though I was unable to correlate those blows to any particular injuries. I was satisfied that the assault of Mr. Fernandes was a joint venture between Mr. Aragon and his associates. If Mr. Fernandes was struck with a baseball bat or bats before he was struck by Mr. Aragon, then Mr. Aragon struck an already injured man. If this occurred, Mr. Aragon's moral responsibility for what happened was no less than if he had struck all the blows. I was satisfied beyond a reasonable doubt that the assault on Mr. Fernandes was a joint venture, and that therefore, the blows of any of the assailants were also the blows of Mr. Aragon.

The antecedents of Mr. Aragon

26Mr. Aragon has a lengthy criminal record for offences of violence and breaches of court orders. From 1997 until 2012, when he committed the offences that are the subject of this hearing, Mr. Aragon was convicted of eight offences of violence, and two offences related to the possession of a firearm. He was on probation continuously between 1997 and 2008, when he was sentenced in relation to a very serious offence, except for a period of about six months.

27As a youth, Mr. Aragon was found guilty of offences of dishonesty, fail to comply with a disposition, fail to appear for court, dangerous driving, assault with a weapon, and uttering threats. Mr. Aragon’s father was the victim of an assault with a weapon and uttering threats, arising from two separate incidents.

28Mr. Aragon’s criminal record as an adult is largely related to his association with outlaw motorcycle clubs: the Bandidos and the Loners. Mr. Aragon’s association with gangs is long-standing. As a youth, he was associated with the National Latinos. He became a member of the Latinos as a young teenager and in his late teens he became a prospect for the Bandidos Motorcycle Club. He became a full member of the Bandidos. After eight members of the Bandidos were killed in 2006 by other members of the club, Mr. Aragon attempted to gain control of the remaining Canadian Bandidos. He was not successful as he was soon arrested in relation to the 2006 murder of a man that resulted in Mr. Aragon’s 2008 conviction for aggravated assault.

29In 2000, Mr. Aragon was convicted of assault causing bodily harm. While on bail, Mr. Aragon was drinking with friends in a park when they came upon the victim, who was a Crown witness in relation to charges against Mr. Aragon’s friend. Mr. Aragon struck the victim about 25 times to the head and face, causing him to lose consciousness. The victim sustained a broken nose and other injuries. Mr. Aragon was sentenced to 3 months in addition to 50 days pre-sentence custody.

30Also in 2000, Mr. Aragon was convicted of another assault. Together with several other males, Mr. Aragon approached the victim and his friends on the street and asked what gang they were with. They said: “none.” Mr. Aragon punched the victim in the head and stole his puppy. Mr. Aragon received a suspended sentence after serving 42 days in pre-sentence custody.

31In 2002, during the execution of a search warrant at the Bandidos motorcycle clubhouse in York Region, the police seized a sawed-off loaded shotgun from a closet. Mr. Aragon was convicted of possession of those items while subject to a prohibition order, and careless use of the items. Mr. Aragon was sentenced to 3 months custody in addition to 45 days pre-sentence custody.

32In 2003, Mr. Aragon was convicted of assault and assault causing bodily harm, relating to two separate offences committed while he was in custody. He assaulted an inmate at the Central North Correctional Centre by twisting his arm and hitting his head off the wall. He assaulted another inmate in the context of a dispute about a debt involving the victim and another inmate. The victim was struck in the head and face, and hit against a table. He suffered a black eye, blurred vision, a broken nose, cracked ribs and a gash to his head that required nine staples to treat. Mr. Aragon was sentenced to 45 days jail in addition to 100 days of pre-sentence custody.

33In 2005, Mr. Aragon was convicted of impaired operation of a motorcycle, and assault. He assaulted a bouncer who would not allow him into a bar when he was intoxicated and drove his motorcycle while impaired. When arrested, he kicked out the window of the police cruiser. His vest identified him as a member of the “Bandidos Canada” motorcycle club. He received a fine after serving 4 days of pre-sentence custody.

34In 2008, after spending 567 days in pre-sentence custody, Mr. Aragon was convicted of aggravated assault. He was sentenced to an additional three years and eleven months in jail. This was a most serious offence. The victim died. Mr. Aragon and his associates had agreed to “get” the victim. They lured him to a house and ambushed him there. They beat him. A bottle was smashed over the victim’s head, and he managed to get hold of the bottle. He cut Mr. Aragon’s chest and forearm with the broken bottle. Mr. Aragon left and went to the hospital to obtain treatment for his injury. While Mr. Aragon was absent, the victim died as a result of his injuries and a gag that was applied to his mouth. The others then present attempted to dispose of the victim’s body by burning it in a remote area. Mr. Aragon returned to that area the next day to continue the burning of the remains, but he was not able to do that because the remains had been discovered and police were present. Having regard to the pre-sentence custody, Mr Aragon served a sentence of five and a half years for this aggravated assault.

35Mr. Aragon was released from the penitentiary on the warrant expiry date for his 2008 conviction, on December 6, 2011. He was held until his warrant expiry date, rather than being released after serving two thirds of his sentence, because the parole board was of the view that he was likely to commit an offence causing death or serious harm to another person before the expiration of the sentence.

36Mr. Aragon was at large in the community for only about seven months before he committed the offences against Mr. Fernandes. Only seven months after spending five and a half years in jail for participating in the beating of a man, he beat Mr. Fernandes with a baseball bat in concert with others.

37Mr. Aragon has a history of alcohol and cocaine abuse. His use of alcohol and drugs appears to have coincided with his violent behaviours.

The Impact of the parity principle

38I begin by noting that the SCC in R. v. Parranto, 2021 SCC 46, at para. 10, explained that

The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading “Fundamental principle” (s. 718.1). Accordingly, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (R. v. Friesen, 2020 SCC 9, at para. 30). The principles of parity and individualization, while important, are secondary principles.

39In Parranto, at para. 12, the SCC affirmed its earlier statement in R. v. Lacasse, at para. 53:

Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances.

40Mr. Coppins, Mr. Graham and Mr. Gardiner received sentences which ranged from 5 to 14 months for their participation in the assault on Mr. Fernandes. I do not consider the sentences imposed upon them to be useful comparators to the sentence to be imposed on Mr. Aragon. Their sentences were imposed following guilty pleas based on agreed statements of facts. The agreed facts on which their sentences were based did not involve an admission that they struck Mr. Fernandes. Both Coppins and Gardiner agreed that they were on the scene to encourage their associates and to prevent outside interference. Mr. Graham had a very limited record. Mr. Gardiner and Mr. Coppins had very significant records which included convictions for offences of violence, but neither had been recently released after serving five and a half years in jail for an aggravated assault committed in concert with others. Therefore, the facts for which Mr. Coppins, Mr. Graham and Mr. Gardiner were sentenced were not similar to the offence for which Mr. Aragon is being sentenced, and their personal circumstances are also markedly different from those of Mr. Aragon.

41I do not know what material was made available to the courts that sentenced Mr. Coppins, Mr. Graham and Mr. Gardiner as to their circumstances, apart from their criminal records. In contrast, I have been provided with and have reviewed records that include expert assessments of Mr. Aragon and his risk for violent recidivism.

The sentence to be imposed

42A fair, fit and principled sentence for Mr. Aragon’s participation in the beating of Mr. Fernandes is a sentence of 7 years. That sentence is proportionate to the gravity of the offence and the degree of responsibility of Mr. Aragon.

43Mr. Aragon beat Mr. Fernandes with a baseball bat. He did not merely encourage the beating and prevent others from intervening. He actively inflicted extreme violence on a man that by the end of it all was lying helpless on the road. Mr. Aragon threatened to break Mr. Fernandes’ knees.

44Mr. Aragon has an extremely lengthy criminal record which includes numerous convictions for offences of violence for which he received significant sentences. Most notably, he was at large in the community for only 7 months after being released at warrant expiry for a five and a half year sentence he received for a brutal aggravated assault. Mr. Aragon’s moral culpability for the attack on Mr. Fernandes is exceptionally high because the victim of his earlier aggravated assault died. While Mr. Aragon left the scene of that attack because he was injured, he was willing to continue his brutality towards the victim of his earlier aggravated assault by assisting with the burning of the victim’s remains. I am not sentencing Mr. Aragon for that earlier offence, for which he has served his sentence. I refer to the facts of that offence in some detail to explain why it is that I consider Mr. Aragon’s moral culpability for the aggravated assault of Mr. Fernandes to be so very high. Mr. Aragon was well aware that a vicious attack using weapons on a man could cause death. He was well aware that the consequences for him of participation in such an offence could attract a very lengthy sentence. Yet he chose to participate in such an attack.

45A proportionate sentence for Mr. Aragon’s deliberate infliction of injury and pain to Mr. Fernandes, using a weapon, in concert with others, to settle some kind of gang-related grudge must be significant, and must seek to achieve specific deterrence that his earlier aggravated assault sentence did not achieve. A significant sentence is required to denounce Mr. Aragon’s conduct and his readiness to resort to violence. Protection of the public and general deterrence also demand a significant sentence.

46There is a complete absence of mitigating factors that would cause a reduction in an otherwise appropriate sentence.

47The custodial portion of the sentence to be imposed is a sentence of 7 years, for which Mr. Aragon will be given credit for 7 years, or 2,555 days, pre-sentence custody, plus an additional 30 days.

48Upon his release from custody, Mr. Aragon will be subject to a long-term supervision order for a period of 10 years. I commend to the authorities who will impose the conditions of that order, the report of Dr. Gray, and in particular the recommendations at pages 39 and 40 of his report. The report of Dr. Gray is to be provided forthwith to the Correctional Service of Canada and the Parole Board of Canada.

49It is also ordered that Mr. Aragon provide a sample of his DNA, and that he be subject to a section 109 order for life.

The Honourable Madam Justice J. Speyer