COURT FILE NO.: CR-21-40000092-0000 DATE: 20230117

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING - and - eden gidharry

COUNSEL: S. Pearl, for the Crown J. Kaldas, for Mr. Gidharry

HEARD: December 19, 2022

KELLY J.

Reasons for Sentence

[1] On March 20, 2020, Mr. Eden Gidharry went to work at Commercial Bakeries armed with two samurai swords and one dagger-type knife. He entered the office of Mr. Steven Brain, the plant manager. Using the swords, Mr. Gidharry slashed Mr. Brain, causing significant injuries to the area of his right underarm and right leg. Mr. Gidharry also swung the sword and caused the laptop screen of Mr. Brain’s computer to be split in two. Mr. Brain was on the other side of the laptop when this occurred.

[2] Mr. Gidharry was charged with attempted murder, aggravated assault, and assault with a weapon. At the commencement of trial before me, sitting without a jury, Mr. Gidharry pleaded guilty to aggravated assault and carrying concealed weapons contrary to ss. 268(2) and 88(1) of the Criminal Code, R.S.C., 1985, c. C-46 respectively. Following the trial, I found Mr. Gidharry guilty of attempted murder, committed contrary to s. 239(1) of the Criminal Code.

[3] It is agreed that the offences of aggravated assault and assault with a weapon arise from the same acts carried out by Mr. Gidharry, giving rise to the conviction for attempted murder. As such, they will be conditionally stayed pursuant to the principles in R. v. Kienapple, [1975] 1 S.C.R. 729. As such, Mr. Gidharry is being sentenced for the attempted murder of Mr. Brain.

[4] Crown counsel seeks a sentence of 15 to 20 years’ imprisonment. Counsel for Mr. Gidharry submits that the appropriate sentence is in the range of 6 to 9 years and asks that a sentence of 8 years be imposed.

[5] For the following reasons, I find that the appropriate sentence is as follows: 17 years’ imprisonment, less 4 years, 3 months for a further sentence of 12 years, 9 months to serve.

Factual Overview

[6] At the time of the incident, Mr. Gidharry was an employee in the shipping and receiving department of Commercial Bakeries. Mr. Brain was the plant manager. Mr. Brain testified that he was aware that Mr. Gidharry worked at the bakery and had greeted him on occasion. That was the extent of their relationship. That changed in the days leading up to the offences.

March 18, 2020

[7] Two days before the incident, on March 18, 2020, Mr. Gidharry attended at Mr. Brain’s office unannounced. Mr. Brain described Mr. Gidharry as “distraught, angry, upset and unsettled”. Mr. Brain’s assistant, Ms. Carmelina Pulla, was present.

[8] Mr. Gidharry complained that other employees in the plant (“Victor” and “Colin”) were asking about his personal life and his weapons collection (i.e., his swords). Mr. Gidharry wanted Mr. Brain to be aware and to do something about it. Mr. Brain told Mr. Gidharry that he would, and he did.

[9] Mr. Brain spoke with Victor first. Thereafter, Mr. Brain invited Mr. Gidharry to another meeting. Initially, Mr. Gidharry did not wish to meet with Mr. Brain, but he eventually did so.

[10] During the second meeting, Mr. Gidharry seemed calm. Mr. Brain told him that he had spoken with Victor and assured Mr. Gidharry that no one would be inquiring about his personal life anymore. Mr. Gidharry responded, saying something like, “I know what he is up to” or, “I know what he is doing”.

[11] Mr. Gidharry mentioned that he had to inform the police that he possessed the swords. Mr. Brain confirmed that he should do so.

[12] At some point, Mr. Gidharry asked Mr. Brain about his religion. Mr. Brain responded, telling Mr. Gidharry that it was none of his business. Mr. Gidharry then explained that he does meditation and asked Mr. Brain if he did too. Mr. Brain replied that he did not. Mr. Brain found the comments about meditation to be “out of the blue”, and he tried to change the subject. The meeting ended.

March 19, 2020

[13] The next day (March 19, 2020), Mr. Brain met with Colin and then with Colin and Mr. Gidharry together. Mr. Brain believed that the meeting with Colin and Mr. Gidharry was a good one. However, Mr. Gidharry mentioned meditation again.

[14] Mr. Gidharry said that he had seen Mr. Brain when he was meditating. Mr. Brain inquired as to whether that was “good or bad”. Mr. Gidharry replied that it was “bad” but provided no details of what that meant. Mr. Gidharry also mentioned something about chakras.

[15] Mr. Gidharry told Mr. Brain that he had gone to the police station to make a report (presumably about his weapons) but that he was not given access. Mr. Brain told Mr. Gidharry not to worry and that they were “all good here”. Although Mr. Brain found some of the conversation with Mr. Gidharry to be “strange”, he thought that the meeting went well.

March 20, 2020

[16] The next day (March 20, 2020), Messrs. Brain and Gidharry arrived at the Commercial Bakeries plant at approximately 8:00 a.m. Mr. Brain was in his office looking at his security monitors when he heard the alarm in the plant. He became more concerned when he saw a lot of employees running and exiting the packaging plant.

[17] Although Mr. Brain did not see Mr. Gidharry on the security surveillance videos in the plant, the video shows Mr. Gidharry walking through it. He is carrying the two samurai swords as he does.

[18] Mr. Brain testified that the plant door is close to his office. He heard it open. He looked up. Mr. Gidharry had entered his office. Almost immediately thereafter, he was assaulted by Mr. Gidharry.

[19] Mr. Brain described the assault as follows:

i. Mr. Gidharry entered his office. He had one sword in each hand. They were in the air pointing away from Mr. Gidharry and towards Mr. Brain.

ii. Mr. Gidharry came around the desk and stood directly in front of Mr. Brain. Mr. Brain described that Mr. Gidharry was “pretty much” right next to him.

iii. Mr. Brain saw Mr. Gidharry raise the sword overhead. It started coming towards him. In response to that action and in “pure reflex”, Mr. Brain raised his right arm to protect his head and neck as he believed that to be the trajectory of the sword. To be more specific, Mr. Brain testified that he believed “the path and direction as well as the force of the strike” were directed to his head and/or neck area. That is why he moved the way he did – to protect his head and neck. The first strike with the sword hit Mr. Brain in the area of his right armpit.

iv. The second strike was to his leg. The second strike was also the result of an “over the head motion” with the sword in the hand of Mr. Gidharry.

v. As Mr. Gidharry was striking him, Mr. Brain heard Mr. Gidharry grunting. Mr. Brain described the noise as an “exertion of force”, a “sign of attack”.

vi. Mr. Brain positioned his office chair between he and Mr. Gidharry to create some space. He asked Mr. Gidharry, “what are you doing?” Mr. Gidharry responded, saying something like, “you were in my head all night”.

vii. Mr. Gidharry then started moving around the office. He raised the sword and swung it down, splitting the computer screen of the laptop that sat on Mr. Brain’s desk. The computer was open, and it was immediately in front of Mr. Brain at the time. Mr. Brain was startled.

viii. Ms. Pulla then entered the office. Mr. Brain heard her beg Mr. Gidharry to stop and asked why he was doing this. Mr. Brain heard Mr. Gidharry reply, saying something like, “Steve was after him” or “in his head all night”. Mr. Brain heard Mr. Gidharry say that he went to the police and rang the bell, but they would not let him in.

ix. Mr. Vinh Tu then entered the office. Mr. Brain observed him use a chair to buffer himself from Mr. Gidharry. Mr. Gidharry was moving back and forth in front of the desk with the swords still in his hands.

x. The police arrived thereafter. At that time, Mr. Brain fell to the floor. He believed that he did so because of his injuries and utter relief. He had thought he was going to die. He left by ambulance.

[20] Mr. Brain described his injuries as follows:

To his right side: The area of his armpit was cut open.

To his right leg: His leg was sliced open from the area above his knee to his ankle. Flesh was hanging from the bone. His medial collateral ligament (“MCL”) was cut. The blood loss was significant. Muscle was cut from his leg, and he has less muscle in it now.

[21] In a statement to police that I ruled admissible, Mr. Gidharry said, amongst other things, that he had to kill Mr. Brain due to a “spell/curse” and that this suggestion had come to him when he was meditating. He also said that he had had a dream that he had to defecate in Mr. Brain’s mouth to break the spell but that he was not able to do so, etc.

[22] There were other witnesses to the offence and other evidence at trial. It is referred to in detail in my reasons for judgment. [2]

Victim Impact Statements

[23] The Victim Impact Statements may be summarized as follows.

Mr. Steven Brain

[24] Mr. Brain was the victim of attempted murder. He begins his statement by saying that March 20, 2020 is a date he will never forget. Mr. Gidharry’s attack has left him physically and emotionally scarred forever. He is reminded of the horror of the day each time he gets dressed. The scars transport him back to the attack each time he sees or feels them. The vivid memories of that day include looking down at his leg completely slashed open, flesh hanging off, blood flowing on his office floor and thinking he might die.

[25] Mr. Brain credits both his assistant and the first responders for saving his life. That said, he experienced tremendous physical and emotional pain, both on the trip to the hospital in the ambulance and once he got there. He was helpless. Covid had just begun. He was unable to have visitors after undergoing surgery. He was alone and scared in the hospital, dealing with the trauma of the incident.

[26] Thereafter, he was forced to cope with a loss of dignity as he was unable to go to the bathroom, shower, bathe or get dressed without assistance. This put extreme pressure on his family. As he said, “The joys of life that I had known before like playing guitar, skiing, golfing, tennis, playing pool or games with family and friends … all snatched from me in an instant when my body was callously butchered by the swings of two samurai swords.”

[27] Mr. Brain explains that his freedom has been taken from him. He is unable to live in peace and without fear for himself, his family and his co-workers. He is afraid of being alone at night and constantly looks over his shoulder. He has become distrustful of others.

[28] Due to the stress he suffers because of the attempt on his life, Mr. Brain feels that he can no longer perform his job effectively. As such, even after months of rehabilitation and recuperation, he cannot continue. After 28 years, working for a company that he loves, he has given notice that he will no longer be employed at Commercial Bakeries. The reason? He cannot perform his job effectively because of the physical and mental trauma he has suffered. He feels guilty about this, in particular because he recognizes that his assistant saved his life.

[29] Despite the trial concluding, it has not brought Mr. Brain closure. He advises that instead, it has reinforced his worst fears. The evidence that he heard at trial has left him “terrified and unsettled”. He said:

My attacker believes I had the ability to cast a curse or spell on him and he had to kill me to break it. For all I know he still believes this. I am terrified he will be released into the community to attack me again. There has been no evidence to suggest otherwise. He tried to kill me and failed. Who can assure me and my family he will not try again if released?

[30] Mr. Brain ended his statement saying the following, “Every morning I wake up with these scars on my body and mind. This is not who I was before March 20, 2020. That person is gone forever.”

Ms. Rebecca McDouall

[31] Ms. McDouall is Mr. Brain’s spouse. They have a daughter. She explained that March 20, 2020 changed the life they have built together forever.

[32] Ms. McDouall explained the fright that she experienced upon learning that her husband had been attacked by two samurai swords. She managed to have a few moments with her husband before surgery. The surgery lasted for six difficult hours, and she was able to see her husband for only a few minutes after it finished. Then Covid hit. The hospital was shut down and no visitors were allowed. That left her husband alone in the hospital, leaving her with feelings of helplessness and advocating for him over the phone. When her husband returned from the hospital, Ms. McDouall became the breadwinner, parent, emotional support and nurse. She recognizes that her husband will be leaving his job which has increased the pressure on her to provide for the family.

[33] Ms. McDouall observes that her husband continues to be frightened – checking the locks and being wary of strangers – even while Mr. Gidharry remains incarcerated. Ms. McDouall ended her statement, saying the following:

I know that the Steve of 2019 is gone and he recently said, ‘I hate that this defines who I am now’ but in reality, this defines who we are now. His anxiety and edginess have changed us forever …

Ms. Carmelina Pulla

[34] Ms. Pulla was Mr. Brain’s assistant at the time of the incident. She came in early on March 20, 2020 to catch up on some work. She had no idea that she would be responsible for providing first aid to her boss and saving his life that morning. She will never forget the appearance of Mr. Gidharry and in particular, the rage in his eyes. She also recalls the words he spoke, suggesting that he was not afraid to die and that he was not afraid to kill her too. She described the incident as akin to that of a “horror movie”.

[35] The incident has left Ms. Pulla traumatized. She blames herself for not responding to the alarm sooner. She has trouble sleeping, has nightmares and finds it difficult to be at peace. She suffers from PTSD which is triggered by loud noises, shouting, etc. She is on edge and fearful when she is outside her house. She does not feel safe alone and has family members accompany her in public places.

[36] Ms. Pulla recognizes that Mr. Brain has to leave the company and she understands. She, too, is trying to cope with the situation she finds herself in because of the incident. She states:

I have been seeing a therapist and hoping to one day put this all behind me and feel like myself again, especially for my family. Every day I try to move forward and try to be a better wife, mother, daughter, sibling, and friend. I want to thank my husband, family and friends for being so supportive. I want to get back to feeling healthy and happy. I want to stop feeling like all of that has been taken away from me. I want to trust in myself and others again.

Background of Mr. Gidharry

[37] The background of Mr. Gidharry was provided by way of a report from Waypoint Centre for Mental Healthcare dated July 11, 2022. Crown counsel sought and was granted an assessment order to determine if there was a basis for a finding of Not Criminally Responsible. The assessment was conducted and there was no basis to do so.

[38] Mr. Gidharry’s background may be summarized as follows:

i. Mr. Gidharry is currently 38 years of age.

ii. He was born in Grenada. He came to Canada on August 8, 2007, and he is a permanent resident.

iii. He is single. He has no children.

iv. Mr. Gidharry’s father is 68 years of age. He is a plantation owner, and he lives in Grenada. Mr. Gidharry is in contact with his father, by phone, approximately once a week.

v. Mr. Gidharry’s mother was a personal support worker. She died of cancer in 2010, when she was 46 years of age. She separated from Mr. Gidharry’s father when he was 10 years of age.

vi. Mr. Gidharry has two sisters. One is a nurse in Grenada. The other is a personal support worker who lives in Canada.

vii. Mr. Gidharry has a high school education. He attended at Centennial College to study mechanics. However, he did not finish this education and did not get his diploma.

viii. Prior to his arrest, Mr. Gidharry was living with an uncle in Toronto.

ix. At the time of his arrest, Mr. Gidharry was employed as a forklift operator in the shipping and receiving department at Commercial Bakeries in Toronto. Before that, he worked in construction, door-to-door sales and marketing.

x. Mr. Gidharry does not have a criminal record.

xi. There is no suggestion of either alcohol or drug abuse by Mr. Gidharry. There is no history of mental health issues. He has not been treated for any psychiatric disorders.

[39] The following is a summary of relevant portions in the Waypoint assessment report:

i. At Waypoint, Dr. W.J. Komer attempted to question Mr. Gidharry on a number of occasions about the circumstances surrounding the alleged offences. Mr. Gidharry said that he did not wish to make any comments about the incident. He did say that he smoked a joint prior to the incident. He also expressed frustration about being dismissed and disrespected by a colleague at work. Mr. Gidharry said that he completed education and training that made him more qualified than his coworker who insisted he complete a task in a way that Mr. Gidharry thought was wrong. He believed that this was “an attempt to manipulate him into appearing bad in favor with his superiors”. Mr. Gidharry described himself as “very, very angry” and “doing things that I wish I hadn’t done”. Dr. Komer noted that Mr. Gidharry expressed regret for what he had done but not remorse. He expressed his belief that “one way or another, I’m going to have to do some time for this, that’s a fact”.

ii. Dr. Komer concluded that Mr. Gidharry was not presenting with features of a major mental illness. Dr. Komer stated:

He [Mr. Gidharry] does not have a history of having been diagnosed with any mental or substance use disorder or having had problems with his psychosocial functioning. However, since Mr. Gidharry did not want to make any comments pertaining to statements he made and/or may have made around the time of his alleged offences, I was unable to determine whether or not they may reflect symptoms of a mental disorder. He acknowledged having used cannabis prior to the incident which may have contributed to experiences he may have had at the time.

Mr. Gidharry is, in my opinion, Fit to Stand Trial. He has an understanding of the nature or object of the proceedings and their possible consequences and an ability to communicate with counsel.

Although it is possible that Mr. Gidharry was suffering from a mental disorder at the time of his alleged offences, given his refusal to discuss issues related to the incident, I am unable to determine if any beliefs and/or perceptions he may have had at the time were due to a mental disorder and/or substance-related disorder and whether they would have rendered him incapable of appreciating the nature and quality of his actions or knowledge of their wrongfulness. As such, I am unable to express an opinion about Mr. Gidharry's Criminal Responsibility by virtue of Section 16(1) of the Criminal Code. Should Mr. Gidharry agree to and cooperate with being assessed, I would recommend that he be returned to Waypoint for a further assessment.

[40] To the Court’s knowledge, Mr. Gidharry did not participate in a further assessment.

[41] Various letters of support were filed on behalf of Mr. Gidharry. They may be summarized as follows:

Thomas Charles is Mr. Gidharry’s uncle. He describes Mr. Gidharry as a “good boy”, a “family-oriented person who is always there” as well as “reliable” and “responsible”. He is surprised by the current charges before the court.

Kellisha Douglas is a first cousin who has known Mr. Gidharry for 30 years. She lives in Grenada. In her letter, she referred to Mr. Gidharry as “Ryan”. She says that he was part of an extended family who grew up with his father being the main caregiver. His grandmother also played a role. She described that Mr. Gidharry was helpful, lending a hand to the family to ensure that animals were fed, plants watered, the harvest completed and produce sold. He was also the entertainer, telling good jokes and imaginative stories. As an adult, she describes that Mr. Gidharry likes to read and meditate. She describes him as a “calm and peaceful individual”, “never in confrontation with anyone”. She refers to his conduct as a “laps” [sic] in judgment”. He is a “kind and tender sole” [sic].

Kenda Douglas stated that she has known Mr. Gidharry for over 30 years. She says that he has “always displayed a high level of integrity and respect for the people in the community and surrounding areas”. She describes him as “very responsible” and “focused”. He is dedicated to family, friends and is “entirely peace-loving”. To her knowledge, Mr. Gidharry is not a violent person, and she is confident that this conduct will not be repeated in “the near future”. She describes Mr. Gidharry as remorseful and willing to attend for counseling.

Stacey Long is a cousin by marriage. She met Mr. Gidharry when he came to Canada, and they are close. She describes Mr. Gidharry as a “very kindhearted person” who is there when you need a shoulder to cry on or an ear to listen. He is a hard worker and made friends wherever he went. Ms. Long did not believe that Mr. Gidharry would “ever” be in trouble with the law.

Nesha Gidharry is Mr. Gidharry’s sister. She describes her brother as a “kind, loving person” despite the passing of his mother at a young age. She has never seen him “exhibit any form of violence”. She says that “the situation doesn’t speak to who my brother is, his greatest concern is our father”. She apologizes to the family and the victim.

Avenal Gidharry is also a sister to Mr. Gidharry. She describes her brother as a “good person” who “never got himself in trouble”. She was “shocked and saddened” by the news of this occurrence. She realizes that the situation is “unforgivable”.

Daniel Noel is Stacey Long’s spouse and Mr. Gidharry’s cousin. He and Mr. Gidharry grew up together in Grenada and were close. He describes Mr. Gidharry as a “good child” who “never caused problems”. After his mother passed, Mr. Gidharry worked hard to provide for his family.

[42] Mr. Gidharry has been incarcerated since his arrest on March 20, 2020. Records were provided by the Toronto East Detention Centre showing that Mr. Gidharry was in a cell with two others (as opposed to one other) on 106 nights. He slept on a mattress on the floor on 14 of those nights. Yard time was reduced and Mr. Gidharry’s unit was subject to droplet protocols on several occasions meaning that he was let out of his cell for 30 minutes a day to access showers, telephone and television. In person visits were cancelled several times because of lockdowns which occurred over 200 times (all day and partial days) due to staff shortages.

[43] Mr. Gidharry provided an affidavit to the Court describing the conditions of his incarceration since March 20, 2020. The contents may be summarized as follows:

a. He has been subject to frequent lockdowns where he remains in his cell for long periods of time.

b. There are partial lockdowns when he cannot leave his cell from 3:00 p.m. until 9:00 a.m. the following day. On other occasions, he is locked down for the entire day, sometimes on consecutive days. Often, the inmates are not provided with the reasons for the lockdowns.

c. The cells are small and cramped. The temperature in the cell varies from being too hot to too cold.

d. The impact of the lockdowns differs from inmate to inmate. Some become verbally abusive, and others become physically abusive.

e. When the lockdown days are successive, inmates may be allowed out of their cells for 20 minutes at a time to shower and use the phone. Yard time is infrequent, lasting 20 to 25 minutes.

f. On occasion, he has been triple-bunked. The cells are designed for two inmates so the third inmate must sleep on the floor.

g. The pandemic has restricted access to programming.

h. Lockdowns have been caused by those on the range having Covid. This increases the anxiety of the inmates.

[44] Mr. Gidharry addressed the Court and said the following:

I just want to say I’m really sorry for what happened. It was never my intent to cause the family any grief or harm to Mr. Brain. There is no plan to complete any job. There was no job in the first place. I just want the judge to know that it was never my intention to go through this ordeal or put anybody through this ordeal. It was just a bad time for me. For what it is worth, I am sorry for it.

The Legal Framework

General Principles

[45] In determining an appropriate sentence for Mr. Gidharry, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[46] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)). [See R. v. Nur, 2015 SCC 15]

The Range of Sentence

[47] A number of cases have been provided by Crown counsel and counsel for Mr. Gidharry. I have reviewed them all.

[48] The range of sentences contained in the Crown’s book of authorities range from 13 years’ incarceration [R. v. Nazir, 2020 ONSC 4991; and R. v. Adamson, 2013 ONSC 2365] to life imprisonment. [R. v. Mann, 2016 ONSC 2675] The range of sentences imposed in the cases provided by counsel for Mr. Gidharry are in the range from three years [R. c. Kaleki, 2016 QCCQ 1276] to 15 years’ imprisonment. [R. v. Tan, 2008 ONCA 574]

[49] The cases provided demonstrate that there are many variables to be considered in determining the appropriate sentence for a person convicted of attempted murder. There is a wide range of sentences imposed because there are a number of different circumstances that can result in conviction for attempted murder. On occasion, no injury is caused to the victim. On others, the injuries are significant and long lasting. An attempted murder can be premeditated, or it can be impulsive. [R. v. Ljeskovica, 2008 ONSC 63569, at para. 16] Some accused persons plead guilty, others do not. As stated by Lamer C.J.C. in R. v. M. (C.A.), [1996] 1 S.C.R. 500 at 375, “sentencing is an inherently individualized process”. This case is no exception.

Other Considerations: Presentence Custody

[50] Mr. Gidharry should be given credit for the time he has spent in presentence custody pursuant to s. 719(3.1) of the Criminal Code and R. v. Summers, [2014] 1 S.C.R. 575.

[51] Certain circumstances, particularly in the instance of harsh presentence incarceration conditions, can be relevant in the determination of an appropriate sentence: see R. v. Duncan, 2016 ONCA 754, at para. 6 and R. v. Marshall, 2021 ONCA 344, at para. 52. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence.

[52] COVID is also a valid consideration on sentencing. Pomerance J. has given guidance on this issue in R. v. Hearns, 2020 ONSC 2365, commencing at para. 16, wherein she held:

16 COVID-19 also affects our conception of the fitness of sentence. … Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

Analysis: The Fit Sentence

[53] In sentencing Mr. Gidharry, I consider the following to be the aggravating factors:

i. Mr. Brain was the plant manager at Commercial Bakeries. He was attacked by an employee whom he knew for only a short time.

ii. The attack on Mr. Brain was unprovoked.

iii. The assault was planned. Mr. Gidharry equipped himself with two samurai swords and another knife before attending at the Commercial Bakeries premises.

iv. Mr. Gidharry, an employee of Commercial Bakeries, gained access and walked through the plant armed with his weapons visible and scaring others as he did so. It is clear that he was looking for one victim, Mr. Brain. No others were injured as he travelled through the plant.

v. The conduct of Mr. Gidharry in the office is frightening. He struck Mr. Brain twice – once in the leg and once in the upper body. He was aiming for the head as he hit Mr. Brain in the underarm area.

vi. Mr. Gidharry wielded and used one of the swords to destroy Mr. Brain’s laptop computer. The screen was sliced into two pieces. I do not accept that it was simply intentional vandalism of a piece of office equipment as suggested by counsel for Mr. Gidharry. Mr. Brain was on the other side of the computer at the time. It would have been terrifying.

vii. Mr. Gidharry threatened to kill Ms. Pulla, who came to the assistance of Mr. Brain.

viii. Even though others tried to stop him, Mr. Gidharry persisted.

ix. Deadly weapons were used.

x. Mr. Brain was a longtime employee of Commercial Bakeries, a job that he enjoyed. The attack in his place of business adds to the emotional impact of the event.

xi. To say that the attack had an impact on Mr. Brain, his family and Ms. Pulla would be an understatement. Nobody has been the same since this attack.

xii. The effects of this incident are permanent for Mr. Brain, both mentally and physically.

xiii. Ms. Pulla and Ms. McDouall have been mentally damaged.

xiv. Despite rehabilitation and counseling, Mr. Brain has had to leave his job, one that he enjoyed for 28 years.

[54] In sentencing Mr. Gidharry, I consider the following to be the mitigating factors:

i. Mr. Gidharry has no criminal record.

ii. He was employed at the time of the incident.

iii. Mr. Gidharry has the support of his uncle whom he lived with at the time. He also appears to have the support of other family members.

iv. Mr. Gidharry is a permanent resident. He is likely to be deported.

v. I am satisfied that Mr. Gidharry has suffered while incarcerated due to the particularly punitive pretrial incarceration conditions that have arisen. Those include the harsh conditions created by the lockdowns and being incarcerated during the pandemic.

vi. Mr. Gidharry showed some remorse for his conduct during the sentencing hearing.

[55] Attempted murder is one of the most serious offences known to our law. That is because a person convicted of the offence is found to have had the intention to kill the victim. As described by Chief Justice Lamer in R. v. Logan, [1990] 2 S.C.R. 731, at pp. 399-400, “an attempted murderer is, if caught and convicted, a ‘lucky murderer’”. He continued:

The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less a killer than a murderer: he may be lucky -- the ambulance arrived early, or some other fortuitous circumstance -- but he still has the same killer instinct. Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe.

[56] A conviction for attempted murder will almost always result in a lengthy penitentiary term. [R. v. McArthur, 2004 ONCA 8759, at p. 241] That is the case here. Although the sentence proposed by counsel for Mr. Gidharry would result in a penetetiary sentence, I do not find that 6 to 9 years would reflect the gravity of the offence or the culpability of Mr. Gidharry.

[57] This is not a case similar to that of R. v. Oelkuch, 2006 ONSC 26479, provided by counsel for Mr. Gidharry. In that case, Mr. Oelkuch had stabbed his employer repeatedly but stopped when the complainant pleaded for his life. The offence was premeditated and occurred at the complainant’s home. However, Mr. Oelkuch surrendered immediately to police. He gave a full confession. He was remorseful and within days, apologized to the complainant. He had a long history of drug abuse and aggression. He had a borderline personality disorder and was not taking his medications at the time. He was sentenced to 6.5 years’ imprisonment.

[58] In some respects, his case is more similar to that of R. v. Campbell, 2018 ONCJ 736 wherein Mr. Campbell attempted to kill a co-worker whom he believed was harrassing him. He attended at their place of work, removed a knife from his glove compartment and walked into the building, passing security and other co-workers. He headed straight for the victim who was sitting at his work station. He repeatedly stabbed the victim in the head and neck. He then walked out, got into his car, drove to the police station and advised he had just killed his co-worker. The victim suffered significant and longlasting injuries. The Court found that Mr. Campbell was suffering from mental illness that may have contributed to the attempted murder. [19] Mr. Campbell was sentenced to 17 years’ imprisonment.

[59] Mr. Gidharry’s conduct in attempting to murder Mr. Brain is at the more serious end of the spectrum when the cases provided to the Court are considered. It was premeditated and not spontaneous, similar to Campbell. It was planned, arising from interractions with Mr. Brain in the days preceding the assault with the samurai swords. The injuries were serious. Mr. Brain has suffered long lasting effects – both physical and mental. However, and unlike in Oelkuch, there is no evidence of substance abuse or mental illness. [R. v. Hagendorf, [2000] O.J. No. 6072, at para. 54, where Durno J. held, “…Reported cases support the position that a person who commits an offence while suffering from a major mental illness which is at least a contributing factor in the commission of the offence receives a shorter term than those who commit the same offence unaffected by mental illness.”]

[60] Counsel for Mr. Gidharry suggests that mental illness may have played a role in the offences because Mr. Gidharry, amongst other things, believed that he had to kill Mr. Brain because Mr. Brain had put a spell/curse on him, etc. Counsel suggests that there is an inference to be drawn from Mr. Gidharry’s offence: that he was in a temporary psychosis. While that may be, to make that finding would be pure speculation. There is no evidence before me to suggest that that mental illess was a contributing factor to the offence.

[61] Further, it does not appear that Mr. Gidharry has any insight into his conduct. Although he has apologized, he has done nothing to address his conduct since his arrest. The evidence supports the finding that Mr. Gidharry made a decision on how to deal with an issue at work – attacking his boss with samurai swords. The only thing that has changed since this offence is that Mr. Gidharry has been in custody.

[62] The appropriate sentence imposed must be one from which our society feels protected and which deters others from committing similar crimes, without crushing the hopes of Mr. Gidharry. While Mr. Gidharry appears to have the support of his family, there is no suggestion of a treatment plan on his release.

[63] Mr. Gidharry also deserves a sentence that addresses the appropriate legal principles in consideration of his background and the facts. It is important that this Court condemn Mr. Gidharry’s actions as completely unacceptable and deter him and others from committing such crimes. The public must be protected.

[64] Further, I recognize that this is Mr. Gidharry’s first sentence of incarceration. In coming to my conclusion about the appropriate sentence, I am cognizant of the principles set out in R. v. Priest, at p. 296:

[I]t is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

[65] Further, in reaching my conclusion about the fit sentence, I am mindful of the fact that this is Mr. Gidharry’s first visit to the penitentiary and of the direction of Rosenberg J.A. in R. v. Borde, at para. 3 that a “first penitentiary sentence should be as short as possible”. That said, the jump principle is not applicable in light of the seriousness of these offences, including the moral blameworthiness of Mr. Gidharry.

[66] Having considered the aggravating and mitigating factors of this case, including the fact that Mr. Gidharry was subject to lockdowns and was incarcerated during the pandemic, I was of the view that a sentence of 17.5 years would be appropriate. However, I will reduce it to 17 years to account for the harsh conditions of Mr. Gidharry’s presentence incarceration.

[67] Mr. Gidharry has spent 1,026 real days in custody. Enhanced at 1.5 days for each day spent in presentence custody (pursuant to Summers), Mr. Gidharry will be given credit for 1,539 days or 51.5 months or 4 years, 3 months.

Conclusion

[68] Mr. Gidharry is sentenced to 17 years’ imprisonment. His sentence will be reflected as follows:

Attempt Murder: 17 years less 4 years, 3 months for a further sentence of 12 years, 9 months to serve.

Aggravated Assault: Conditionally stayed.

Carry Concealed Weapons: Conditionally stayed.

[69] Mr. Gidharry will be subject to the following ancillary orders:

a. The offence is a primary designated offence and there shall be a mandatory DNA Order, pursuant to s. 487.051 of the Criminal Code, requiring that Mr. Gidharry provide the number of bodily substances that are reasonably required for the purpose of forensic DNA analysis.

b. An order under s. 109(2) of the Criminal Code that Mr. Gidharry is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for the rest of his life; and

c. An order that Mr. Gidharry have no contact or communication with Mr. Brain during the custodial period of his sentence, pursuant to s. 743.21 of the Criminal Code.

Kelly J.

Released: January 17, 2023