Court File and Parties

COURT FILE NO.: CR-23-10000023-00AP DATE: 2023-11-29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – ELIJAH MCGIBBON Appellant

Counsel: Joseph Hanna, for the Respondent Lindsay Board, for the Appellant

HEARD: November 28, 2023

BEFORE: Pinto J.

Reasons for Decision (Summary Conviction sentencing Appeal)

Overview

[1] The Appellant, Elijah McGibbon, appeals against a sentence imposed by Block J. of the Ontario Court of Justice (OCJ) in reasons delivered on May 16, 2023. On November 21, 2022, the appellant pled guilty to one count of assault causing bodily harm contrary to s. 267 (b) of the Criminal Code. On June 8, 2023, the appellant was sentenced to one year in custody, three years’ probation, and ancillary orders.

[2] The appellant requests that this court convert his custodial sentence to a conditional one or, in the alternative, that the custodial sentence be reduced.

[3] For the reasons that follow, the appeal is dismissed.

Discussion

[4] The appellant appeals on three grounds:

1. The sentencing judge should not have admitted the victim impact statement of Mr. Gomez, the victim, as drafted.
2. The sentencing judge erred in applying the Proulx analysis for a conditional sentence; and
3. The sentencing judge imposed a sentence that was demonstrably unfit.

[5] With respect to the first issue, I find that the sentencing decision was not infected by the incorporation of the inappropriate content of the victim impact statement. The sentencing judge stated, at page 39 of his decision:

It’s very important to have a balanced appreciation of all of the individuals impacted by sentencing, and in this case, it is primarily Elijah McGibbon. It’s also Mr. Gomez, and I read several times and listened to his victim impact statement with interest. It’s not infrequent that those who are most damaged by crime, want the most severe form of sentence for the criminal. But there are other things to consider besides the hideous brutality of the act and part of the judge’s investigation, preparatory to sentencing, is to see whether that act is the sum of a man or an aberration.

[6] Citing this paragraph and other aspects of the sentencing decision, the appellant submits that the victim in this case read out a statement that far exceeded the bounds of a permissible victim impact statement per s. 722(4) of the Criminal Code and the applicable case law: R. v. Beals, 2023 ONSC 555; R. v. Gabriel.

[7] I find that the appellant is asking, in effect, that I read into the words, “there are other things”, that the judge took into account the inappropriate content of the victim impact statement. I find that, to do so would require me to interpret the words of the sentencing decision in an unbalanced manner, particularly where there is a competing interpretation, namely that the sentencing judge was cautioning himself against adopting the improper and more punitive parts of the victim impact statement. The appellant has failed to meet his burden on this ground of appeal.

[8] On the second ground of appeal, the appellant submits that the sentencing judge failed to advert to the Proulx test or to address it in principle: R. v. Proulx, 2000 SCC 5, at pars 22, 41, 102, 105 and 107. The appellant argues that the sentencing judge merely stated at p. 43:

I reject the very capable and considered comments directed at, or submission directed at procuring for [the appellant] a conditional sentence. The act was of kicking [the victim] on the ground was a gratuitous act, a great violence. It would send entirely the wrong message to the rest of the community, and to [the appellant] himself, if I was to consider that house arrest was an appropriate punishment for this kind of conduct. I considered it, long and hard over the course of the morning. There is no way in my view that this conduct should result in a house arrest sentence.

[9] The appellant submits that the sentencing judge committed similar errors as the trial judge in R. v. Ali, which decision was reversed by the court of appeal: R. v. Ali, 2022 ONCA 736. In Ali, the Court of Appeal held at paras. 26 to 28, that the trial judge committed two errors: first, by relying on the level of violence of the offence to adequately address the principles of deterrence and denunciation; and second, in failing to consider restraint and rehabilitation in relation to whether a custodial or conditional sentence was appropriate.

[10] I note that the sentencing judge in Ali found that, “from all accounts, this violent offence is entirely out of the character of both men,” yet that, “the sheer brutality of this assault requires the imposition of a custodial sentence. A conditional sentence cannot satisfy the sentencing objectives of denunciation and general deterrence.”

[11] The Court of Appeal held that the trial judge in Ali erred because she “failed to consider restraint and rehabilitation in relation to whether a custodial or conditional sentence was appropriate.” In other words, the problem in Ali was that, notwithstanding the correct invocation of all sentencing principles, the trial judge, in her application of the principles, failed to include restraint and rehabilitation and therefore effectively only applied denunciation and deterrence to arrive at the custodial sentence of 15 months in that case.

[12] I disagree that Block J., the sentencing judge here, made similar errors to Ali. Notwithstanding the passage highlighted by the appellant averting to conditional sentences, I find that the sentencing judge’s reasons read as a whole make a connection between the circumstances of the offender, the offence in this case, and why a conditional sentence was considered but found inappropriate.

[13] In the very next passage at p. 43, the sentencing judge states:

As I had indicated obliquely, the tasks of sentencing, in particular as far as Mr. McGibbon is concerned, I have indicated that his rehabilitation is a very serious question for the court, one that I think will be affected by the sentence that I give him. A message has to be sent to likeminded persons, that conduct of this kind merits a serious sentence of incarceration.

[14] I find that the sentencing judge seems to be weighing the rehabilitation factor and the possibility of a non-incarceral sentence, but still reaching a conclusion that “conduct of this kind” merits a custodial sentence.

[15] Later in his reasons, at p. 44 the sentencing judge states, “one year in custody gives affect to all of the considerations I have spoken about” (emphasis added) and references rehabilitation and confirms that the appellant is a person worth rehabilitating and that he has “done considerable amount of upfront work in the way of community service and counseling.”

[16] The assessment report done for the appellant is this case places him in the low-to-moderate risk of reoffending. I agree with the Crown that this makes the circumstances of the appellant somewhat different than the offenders in Ali for whom the sentencing judge describing their assault as “entirely out of character”.

[17] Moving then, on to the appellant’s third ground of appeal, that the one-year custodial sentence is unjust, I see the imposition of this sentence as related to and as a consequence of the balancing of aggravating and mitigating factors that the sentencing judge took into account including the question of a conditional versus custodial sentence. Whereas the Crown had requested two years less a day in custody, and the Defence sought a conditional sentence in the 12-to-18-month range (or alternatively a 90-day custodial sentence to be served intermittently), the sentencing judge handed down a sentence of one year in custody, three years’ probation, and ancillary orders.

[18] I find that the sentencing judge determined that the circumstances of the offence – including kicking a defenceless man in the face while he lay on the ground, which caused significant trauma in his life which is going to continue – necessitated a custodial sentence, however, the length of that sentence was half of what the Crown had requested. I cannot say that the sentence imposed was unfit.

Conclusion

[19] In conclusion, sentencing decisions are entitled to considerable deference on appeal. I find that, the arguments made on appeal while couched in the language of legal error, effectively ask that I reweigh and reinterpret the aggravating and mitigating factors and sentencing principles differently. There exists a presumption that trial judges know the area of law in which they work. This is a case where the sentencing judge could have expanded on his reasoning, particularly in respect of why a conditional sentence was not appropriate. But it was not a legal error for the sentencing judge to acknowledge that the gravity of the offence was a predominant factor as to why a conditional sentence was inappropriate. And, in the outcome, a one-year custodial sentence is not an unfit sentence even though conditional sentences are also available on the same set of factors.

[20] The appeal is dismissed and the sentence of Block J. is upheld.

Released: November 29, 2023 Pinto, J.