Court File and Parties

COURT FILE NO.: CR-21-70000135-0000 DATE: 20230120 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – RICARDO CHARLESTON

Counsel: Craig Brannagan, for the Crown Allen Lobel, for Ricardo Charleston

HEARD: August 20, 2021, April 8, April 13, December 14, 2022

R.F. GOLDSTEIN J.

1. Overview

[1] On August 21, 2021 Ricardo Charleston pleaded guilty to aggravated assault on Isheanesu Takawira. He also pleaded guilty to fail to comply with probation. He now comes before the court for sentencing.

2. The Facts

(a) Circumstances of the offence

[2] During the evening of November 19, 2019, Mr. Charleston was outside of Seaton House on George Street in downtown Toronto. Seaton House is a men’s homeless shelter. Most of what follows was captured on a surveillance video. At around 8:48 pm Mr. Charleston and a female engaged in an altercation. Another man, Abdullahi Ibrahim Abdullah, became involved as well. It is unclear what the altercation was about. Mr. Takawira approached the group. Mr. Abdullah appeared to raise his arm to Mr. Takawira and they appear to exchange words. Mr. Takawira then walked toward the entrance to Seaton House. Mr. Charleston then came up to Mr. Takawira from behind and stabbed him in the neck. Mr. Takawira began to bleed profusely. The surveillance video reveals a pool of blood on the ground. Mr. Charleston then walked away.

[3] Mr. Takawira was taken to the hospital. When he was released he gave the police a statement and reviewed a photo line-up but could not identify Mr. Charleston as the assailant. On December 16, 2019, Mr. Takawira was at Sound Times. Sound Times is a social services agency on Parliament Street in Toronto that assists people with mental health and addiction issues. Mr. Charleston was also at Sound Times. Mr. Charleston approached Mr. Takawira and identified himself as the person who had stabbed him. Mr. Charleston also apologized to him. Mr. Takawira spoke to a Sound Times employee, who called the police. Mr. Charleston was then arrested.

(b) Circumstances of the offender

[4] Mr. Charleston was born in 1977 in Toronto. I reviewed an enhanced pre-sentence report (“EPSR”) that was prepared by Jacquie Pemberton. Ms. Pemberton is a social worker with a master’s degree and an impressive list of credentials. I found the EPSR to be very helpful in evaluating Mr. Charleston’s background. It helped me to understand how he came to be in the situation that he finds himself.

[5] Mr. Charleston disclosed to Ms. Pemberton that he had been sexually abused as a very young boy. According to Ms. Pemberton, he did not disclose the sexual abuse to anyone. Mr. Charleston told her that the sexual abuse “threw him off track”. There is some suggestion that the sexual abuse may have contributed to his later challenges.

[6] Mr. Charleston reported as well that his father’s attitude was a problem growing up. His father was very strict. He used physical discipline. Mr. Charleston’s father agreed that he did use physical discipline but told Ms. Pemberton that it was completely normal for a child raised in Haiti. His mother, however, was very supportive and loving. Mr. Charleston’s siblings made similar comments about the family dynamics. Mr. Charleston’s family was solidly middle-class. His parents are professionals. His father taught in the Toronto Catholic School Board system for 33 years. His mother was employed as a nurse with the City of Toronto for 20 years. Their marriage broke up in 1999.

[7] Mr. Charleston’s relationship to education and employment has been problematic. He performed poorly in school. He quit in Grade 10, although there are indications that a brain injury may have affected his cognitive abilities and memory. That possibility has not been definitively explored and Ms. Pemberton has suggested that he be assessed.

[8] His limited employment experience has mostly been in temporary jobs. He has lived on and off at Seaton House and in other shelters for many years but has been kicked out from time to time due to inability to conform to the rules of the shelter. The truth is, as Ms. Pemberton noted in her report, Mr. Charleston does not have the skills or the experience at this time to maintain stable employment.

[9] One reason for Mr. Charleston’s limited employment experience has been his lengthy involvement with the criminal justice system. No doubt his involvement in the criminal justice system is related to his years-long abuse of alcohol. Ms. Wall indicated that her relationship with Mr. Charleston ended as a result of his alcohol abuse. It also resulted in visits from Children’s Aid Society.

[10] Mr. Charleston’s criminal record began in 1996. He has accumulated convictions with depressing regularity. Many of those convictions are of the petty variety that speak to the unceasing involvement with the criminal justice system that are generated by a combination of addiction and mental health issues, as identified by the Supreme Court of Canada in R. v. Zora, 2020 SCC 14. These offences include numerous convictions for fail to comply with bail orders and probation orders, theft under $5000, drug possession, drug trafficking, and mischief. Mr. Charleston also has numerous convictions for crimes of violence, including assault, assaulting a police officer, sexual assault, assault with a weapon, and possession of a weapon. More seriously, in 2000 Mr. Charleston was convicted of criminal negligence causing death, failure to stop at the scene of an accident, and impaired driving. He was sentenced to five years imprisonment. Unfortunately, he violated his statutory release and was re-incarcerated.

[11] Mr. Charleston began a relationship with Deandra Wall in 1992 or 1993. They have a daughter, Talia. Talia is now 18 years old. She attended the sentencing hearing remotely. The breakdown of their relationship appears to have been very destabilizing. When it ended, Mr. Charleston began living in the shelter system and spending time in carceral institutions. Despite this, Mr. Charleston has managed to maintain something of a relationship with Talia.

[12] Mr. Charleston has had the assistance of Ms. Krysten Howat, a social worker with Inner City Family Health Team. It is apparent that Ms. Howat has been of great assistance to Mr. Charleston, and has been available to assist the Court as well. Ms. Howat is one of those dedicated people in our city who labour on behalf of society’s most vulnerable people. Let me take this opportunity to express the Court’s appreciation to her on behalf of the community.

[13] Ms. Howat reported to Ms. Pemberton that poverty and violence are a consistent theme among vulnerable people like Mr. Charleston. Certainly, that is something that we see in the courts every day. Ms. Pemberton noted in the EPSR that research shows that racialized people have disproportionately higher levels of homelessness and precarious housing – and this has been true of Mr. Charleston. Mr. Charleston also reported many negative interactions with the police, again, something in common with many other racialized people.

[14] When I was initially preparing these reasons, and especially after reading the EPSR, it seemed that perhaps there was an opportunity to break the cycle of violence, poverty and alcoholism that has caused Mr. Charleston’s many encounters with the justice system. The EPSR should be used not only as a tool to assess individual offenders. It can also be used as a plan of action. The people who prepare these reports are experienced social workers who are well-qualified to make recommendations. A sentencing judge doesn’t have to follow them, but should look very carefully at those recommendations. Among Ms. Pemberton’s recommendations was that Mr. Charleston participate in a substance abuse program to address his long-term use of alcohol and drugs. As a result, I agreed to release Mr. Charleston on bail so that he could attend and complete a residential rehabilitation program.

[15] Unfortunately, the results were mixed.

[16] Ms. Howatt reported that upon release Mr. Charleston was doing well. He attended therapy regularly. She was able to monitor his progress while they waited for a spot in a residential treatment program. He did enter a residential treatment program and completed it. For that, he deserves credit. He was then transferred to a supportive housing unit run by the John Howard Society. Unfortunately, he was charged with assault while he resided there. He did not obtain bail on that charge, and his bail on the charges to which he pleaded guilty was revoked. Accordingly, he is now in custody and will go to trial on the new charged soon.

[17] It does bear noting that Mr. Charleston did complete the residential treatment program prior to finding himself back in custody.

(c) Impact on the victim

[18] Mr. Takawira was taken to St. Michael’s hospital as a “Tier 1 Trauma” patient. He had a 2.5 inch wound in his neck. He was hemorrhaging extensively and was in shock. He could not independently breathe and was intubated. He suffered massive blood loss and required 7 units of blood. The wound penetrated his pharynx and transected his left facial vein and artery. Doctors performed extensive surgery on him. His wounds were deep, significant, and life-threatening.

[19] Mr. Takawira filed a victim impact statement. He suffers from PTSD and has trauma as a result of the incident. He has taken to using alcohol. He is currently sober because he is in custody at the moment, or at least he was at the time the victim impact statement was taken. Mr. Takawira has had a physical impact. He was previously employed as an Uber Eats bicycle delivery person, but the injuries he sustained make it difficult to for him to ride his bicycle. The injury has obviously affected him financially. He continues to worry that Mr. Charleston will attack him again.

[20] Mr. Takawira himself has a criminal record. In 2021 he was convicted of multiple offences, including several involving assaults and breaches of court orders. Obviously those convictions occurred after the incident. Mr. Lobel also filed several Toronto Police occurrences involving Mr. Takawira. Those occurrences include alleged criminal acts of violence, theft, and breaches of court orders in 2019, 2020, and 2021. All but two of the occurrences antedate November 19, 2019.

[21] In my view, the fact that Mr. Takawira himself has a criminal past is not relevant to these sentencing proceedings. This was not a case of self-defence: R. v. Khill, 2020 ONCA 151; R. v. Scopiletti (1981), 34 O.R. (2d) 524, 63 C.C.C. (2d) 481 (C.A.).

[22] Whether or not Mr. Takawira is himself a criminal or has violent tendencies is not relevant. There is no indication that he attacked Mr. Charleston, or that he was even in a significant altercation with Mr. Charleston. The attack seems to have been unprovoked. In any event, Mr. Takawira is not diminished as a victim simply by reason of having a criminal record. All human life has value, and it is irrelevant in sentencing proceedings whether the victim is a street person with a criminal past or addiction issues or mental health issues.

3. Positions of the Crown and Defense

[23] Mr. Brannagan’s position is that Mr. Charleston should be sentenced to ten years on the aggravated assault, with credit for time served. He argues that this was a crime of extreme violence, aggravated by the fact that Mr. Charleston has a long history of committing crimes of violence. It is at the high end of the range because of the degree of Mr. Charleston’s morally blameworthy conduct. It is also at the high end of the range due to the objective gravity of the offence. This crime must therefore be properly denounced. As well, given Mr. Charleston’s antecedents, the public must be protected.

[24] Mr. Lobel’s position is that Mr. Charleston should receive a sentence of five years. The most important mitigating factor is that he apologized and has pleaded guilty. Mr. Charleston has made efforts towards rehabilitation. As well, he has accumulated a considerable period of time in custody. When all of his pre-sentence custody is calculated, Mr. Lobel argues, Mr. Charleston is in a time-served position.

4. Case Law

[25] In R. v. Tourville, 2011 ONSC 1677, my colleague Code J. canvassed the range of sentences for aggravated assault. The offender was convicted of aggravated assault arising from a bar fight. He was a 28 year old Indigenous first offender. Code J. found that the fight initially began as a consent fight but became an unlawful aggravated assault by the offender when he pulled out a knife and stabbed the victim. Code J. noted that the bottom end of the range would involve a suspended sentence and probation. He then found that mid-range cases are those where reformatory sentences of between 18 months and two years less a day have been imposed. As Code J. put it, “These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force.” Code J. then identified cases at the higher end of the range. He stated these are:

… cases where four to six years of imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence.

[26] That statement, of course, easily includes this case and this offender.

[27] Ultimately, Code J. sentenced Mr. Tourville to 21 months and two years probation. See also R. v. Seerattan, 2019 ONSC 4340, where Justice Code noted that the range could be up to 8 years.

[28] In R. v. Navarathinam, 2021 ONSC 4241, the offender was found guilty of aggravated assault, assault with a weapon (which was stayed on the basis of R. v. Kienapple (1974), 15 C.C.C. (2) 524 (S.C.C.)), and weapons dangerous after a judge-alone trial. He had assaulted the victim with a meat cleaver and caused wounds and lacerations to the victim’s face. The victim was completely vulnerable at the time. The offender had a relatively minor criminal record. He had experienced great hardship during the Sri Lankan civil war and entered Canada as a refugee. Unfortunately, he fell into alcohol addiction. G. Roberts J. canvassed a great many cases. She applied the range set out in Tourville and noted that the Court of Appeal had commented favourable on that range: R. v. Jones, 2013 ONCA 245; R. v. Pomanti, 2017 ONCA 48; R. v. Randhawa, 2020 ONCA 668. Roberts J. found that the nature of the offence put it at the high end of the range described in Tourville, but when she applied the mitigating factors she found that an appropriate sentence was four years.

[29] Mr. Brannagan relies on R. v. Munro, [2003] O.J. No. 512, 173 C.C.C. (3d) 281 (Ont.C.A.), the offender slashed both victims with an exacto knife. He then threatened one of them from jail. He was on parole. He had a long criminal record with 48 convictions. The Court of Appeal upheld a sentence of 8 years.

[30] Mr. Brannagan also relies on R. v. Carter, [2003] O.J. No. 1713, 174 O.A.C. 43 (Ont.C.A.) where the offender was sentenced to 10 years. The trial judge called the offence “unquestionably an example of the worst offence of its kind.” The offender had apparently tortured the victim with the intent of causing serious bodily harm that would remain for the rest of his life. The Court of Appeal upheld the 10 year sentence.

[31] In R. v. Humphrey, [2008] O.J. No. 208 (S.C.J.) the offender was charged with attempted murder. He argued self-defence. The trial judge, Spies J., rejected the defence but also found that the offender lacked the specific intent for murder. The offender and the victim had been using drugs together. The offender stabbed the victim multiple times and cut his throat with a knife he had been carrying. The wounds to his neck and chest were very significant and life-threatening. The offender had a long history of physical and sexual abuse. He had a long criminal record as well, including a conviction for second degree murder. He was on parole for that murder at the time. Spies J., after reviewing the cases, found that the appropriate range for this type of offence was six to ten years. She sentenced Mr. Humphrey to 8 years.

5. Mitigating and Aggravating Factors

[32] There are important mitigating factors in this case. The most important mitigating factor is that Mr. Charleston pleaded guilty and accepted responsibility. It is also mitigating that Mr. Charleston did complete a residential treatment program, although, unfortunately, it appears he was unable to stay out of custody. I appreciate that he contests the new charges and that a trial is scheduled, but it is disappointing. I find it mitigating that Mr. Charleston has a great deal of community and family support. Although many families would have given up on someone like Mr. Charleston, he is very lucky that his has not. His former partner also remains supportive and has tried to assist him. That is also mitigating.

[33] The chief aggravating factors are the brutal and unprovoked nature of the assault by Mr. Charleston, and his long and frankly dreadful criminal record.

6. Ancillary Orders

[34] There will be a DNA order and a s. 109 order for life, as well as a non-contact order with Mr. Takawira.

7. Sentence Imposed

[35] Sentencing is an individual process, and a difficult one at that. A judge must identify the appropriate range of sentence for the particular type of offence and offender. The judge must balance the aggravating and mitigating factors, guided by the purposes and principles of sentencing. The fundamental principle of sentencing is that of proportionality, that the sentence must reflect the gravity of the offence and the degree of responsibility of the offender. Other principles at work in this case include the principles of denunciation and general and specific deterrence and rehabilitation. Obviously a significant and violent assault must be denounced, and like behaviour must be deterred. Given his very long history of violence, as reflected in his criminal record, Mr. Charleston also requires a very serious dose of specific deterrence. Finally, as I have tried to emphasize in my dealings with Mr. Charleston, I find that he is capable of rehabilitation but that he is a long, long way from being rehabilitated. In my view, he still represents a potential danger to the public. I say this especially in of the fact that Mr. Charleston simply seems unable to follow rules, and simply seems unable to refrain from committing acts of violence.

[36] The range of sentence for aggravated assault is very wide, as I have noted in my review of the cases. In my view, before taking account of mitigation – including mitigation for lockdowns, time in custody during covid, and Mr. Charleston’s efforts at rehabilitation – a proper sentence would be in the range of 7 to 8 years.

[37] Mr. Charleston was arrested on December 16, 2019, and then released on bail to attend counselling and a residential treatment program on April 13, 2022. That works out to 850 days in custody. Enhanced at 1.5:1 (R. v. Summers, 2013 ONCA 147, Criminal Code, s. 719(3.1)) that means he is credited with 1,275 days or 42.5 months. Mr. Charleston was arrested again on August 31, 2022. As of January 20, 2022 he will have spent 143 more days in custody. Enhanced at 1.5:1 means that he is credited with an additional 214.5 days, or just over 7 months. Rounding up slightly, I find that Mr. Charleston is to be credited with 50 months in custody, or 4 years and 2 months (1,489.5 days).

[38] Mr. Charleston has spent a considerable period of time in custody during the Covid-19 pandemic. He has also been subject to numerous lockdowns while in custody. This court has heard a great deal of evidence about the harsh conditions in custody during a period of intense lockdowns and Covid. I can say little more than has already been said in other cases about how challenging this has been for people in custody. Mr. Lobel argues that Mr. Charleston spent a total of 902 days in custody during the pandemic, or 30 months, which he argues I should credit at a ½ day for a total of 451 days or 15 months. Finally, Mr. Lobel argues that Mr. Charleston should be given credit for the strict bail conditions upon which he was released from April 13, 2022 to August 31, 2022. I released him on bail at that point for the purpose of taking treatment, but the conditions were strict and included a significant house arrest provision as well as ankle monitoring. The total period of time he was on this strict bail was 141 days or 4.7 months. Mr. Lobel argues that I should credit him with 2 months of Downes credit.

[39] At the end of the day, Mr. Lobel argues that I should credit Mr. Charleston with 65 months credit for pre-trial custody, taking all of the conditions into account, which amounts to more than the five year sentence that he suggests is appropriate.

[40] The Court of Appeal has made it clear that credit can be given for harsh conditions of custody, but that it is not necessary to use a mathematical formula in doing so. Rather, a sentencing judge should treat harsh conditions as a mitigating factor: R. v. Marshall, 2021 ONCA 344, R. v. Duncan, 2016 ONCA 754.

[41] As Doherty J.A. emphasized in Marshall, the key question is not what is mathematically required but what is a fit sentence. Non-statutory pre-sentence credit for pre-sentence custody must not be so excessive that it renders an otherwise fit sentence unfit. I agree with Mr. Lobel that Mr. Charleston should certainly receive credit for harsh conditions of custody during covid. I also agree he should receive some Downes credit for time on a strict house arrest, although I think two months is excessive – given that he was granted bail for the specific purpose of pursuing rehabilitation.

[42] As I said, I find that the appropriate range of sentence for this offence and this offender before taking pre-sentence custody would be a global sentence of 7-8 years (84 to 96 months) given the nature of the offence and the nature of the offender. Despite Mr. Charleston’s dreadful criminal record, the fact that he was on probation at the time of the offence, for which of course he will be separate sentenced, his history of violence, and the brutal and unprovoked nature of the attack, I would place him in the lower end of the range given his plea of guilty and his expression of remorse, which is mitigating.

[43] In sentencing Mr. Charleston I take into account the following mitigating factors for the purpose of determining a fit sentence with pre-sentence custody in mind:

• Mr. Charleston is a member of a historically disadvantaged group that is over-represented in the criminal justice system, black men. See: R. v. Morris, 2021 ONCA 680. This is a mitigating factor.
• I take into account the fact that Mr. Charleston did complete his rehabilitation program, and appeared to be doing well until his subsequent arrest. I am aware that he contests the charges and will be going to trial. I treat the completion of the program as a mitigating factor, as it shows Mr. Charleston has potential for rehabilitation, although, as I have stated, he has a long way to go.
• I also take into account as a mitigating factor the harsh conditions of custody and the strict bail conditions, as I have mentioned.

[44] When I balance all the factors, I sentence Mr. Charleston to 7 years, or 84 months. He is credited with 20 months for all the mitigating factors that I have mentioned, including Mr. Charleston’s attempts at rehabilitation, as well as statutory, or Summers credit of 50 months (4 years and 2 months) for time spent in custody. Thus, Mr. Charleston is sentenced to a further 14 months in custody.

[45] The warrant of committal shall read as follows:

• On the count of aggravated assault, Mr. Charleston is sentenced to 84 months less 70 months of pre-sentence custody, with 14 months left to serve.
• On the count of breach of probation, Mr. Charleston is sentenced to 3 months to be served concurrently to the aggravated assault count.

R.F. Goldstein J. Released: January 20, 2023

Reasons for Judgment on Sentence

COURT FILE NO.: CR-21-70000135-0000 DATE: 20230120 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – RICARDO CHARLESTON

R.F. Goldstein J.