COURT FILE NO.: CR-23-10000041- 00AP DATE: 20240524 ONTARIO SUPERIOR COURT OF JUSTICE

JUDGMENT IN SUMMARY CONVICTION SENTENCE APPEAL

J. R. PRESSER J.

I. INTRODUCTION

[1] This is a summary conviction appeal of sentence.

[2] The sentence under appeal is a suspended sentence with 12 months of probation for an unprovoked assault on a stranger, from behind, on a city street.

[3] The appellant, Andrew Thomas, pleaded guilty. He is a youthful Black man with schizophrenia. He was not taking his psychiatric medication and was suffering from the effects of his mental health condition at the time of the assault. He has one prior conviction for unauthorized possession of a prohibited or restricted firearm with ammunition, for which he was sentenced to 18 months’ incarceration in addition to nine months’ credit for presentence custody. The appellant had taken meaningful steps to address his mental health issues by the time of sentencing and was gainfully employed. He argued that, given his decompensated mental state at the time of the offence; his ongoing rehabilitation; and the negative collateral consequences of a further conviction on him as a young Black man, the appropriate sentence was a conditional discharge and 12 months’ probation.

[4] The Crown position was that in the circumstances of this unprovoked attack on a stranger from behind, her injuries and the effects of the assault on her, and the appellant’s criminal record, the appropriate disposition was a suspended sentence and 12 months of probation.

[5] The sentencing judge accepted the Crown’s position. She suspended sentence and ordered 12 months of probation.

[6] Mr. Thomas appeals his sentence. He submits that the sentencing judge erred in principle in ways that impacted on the sentence, and that the sentence is demonstrably unfit. The Crown submits that there are no errors in principle that impacted on the sentence, and that the sentence is not demonstrably unfit.

[7] I have carefully reviewed all the materials filed on this appeal, including all the evidence filed at first instance, and considered the governing legal authorities and the submissions of counsel. I have been especially mindful of the need to consider the impact of systemic racism and the effects of mental health challenges in fashioning a proportionate sentence for a youthful Black man with schizophrenia. For the following reasons, I have concluded that the sentencing judge’s reasons, while spare, reveal no error in law or principle. I have also concluded that the sentence is not demonstrably unfit in all the circumstances of this case.

II. OVERVIEW OF THE EVIDENCE AND SENTENCING PROCEEDINGS

[8] On September 13, 2023, the appellant pleaded guilty to one count of assault, contrary to s. 266 of the Criminal Code. The facts of the offence are these. On November 17, 2021, the victim passed the appellant on a sidewalk in Toronto. He yelled something at her as she passed. As the victim walked away, the appellant sprinted toward her from behind. He jumped into her back, body checking her, and knocked her to the ground. The entire incident was caught on CCTV.

[9] The victim was transported to hospital where she received medical attention. Her injuries were minor. She filed a victim impact statement. In it, the victim described and complained at length about pre-existing injuries from an accident in the workplace; and what she saw as the failures of the Workplace Injuries Compensation Board to adequately address them. Much to most of what the victim included in the victim impact statement was irrelevant to the assault by the appellant.

[10] The victim impact statement did include some information that was relevant to the assault by the appellant. The victim wrote that the assault by the appellant made her pre-existing injuries worse. She also wrote that the attack by a stranger left her in a state of “emotional breakdown,” and that the effects of the assault required her to take an increased dose of the prescription pain medication she was on.

[11] When the Crown tendered the victim impact statement in evidence, counsel for the appellant noted the inclusion of the irrelevant and inadmissible evidence. He asked the sentencing judge to disregard and disabuse herself of it. The sentencing judge received the victim impact statement as filed, and agreed to disregard the irrelevant information it contained.

[12] The Crown filed the appellant’s criminal record as an exhibit on sentence. He had one prior conviction, as noted above.

[13] The appellant is a 29-year-old Black man. He was born and raised in Toronto. He reported that he had a good upbringing. He is one of five children. He graduated from high school.

[14] The defence filed a number of documentary exhibits on the sentencing hearing. These include: excerpts from disclosure; medical records relating to the appellant from the Centre for Addiction and Mental Health (“CAMH”); a Community Treatment Order (“CTO”) under the Mental Health Act; a letter congratulating the appellant for being on the Dean’s Honour List at George Brown College in the fall of 2018; information about the appellant’s earnings from music streaming services; letters confirming that the appellant was working with Reconnect Community Health Services dated June 15, 2023 and with Across Boundaries, dated May 11, 2023; pay statements confirming that the appellant was working at Swiss Chalet; a report on human rights, mental health and addictions; and three articles reporting the results of research into the negative effects of criminal convictions on future employment prospects, particularly for Black men.

[15] Together, the defence exhibits combined with the submissions of counsel gave evidence of the following, none of which was contested by the Crown:

• That the appellant is schizophrenic.
• That he was not taking his medication at the time of this assault, and was in a significantly decompensated mental state as a result. The police officers who arrested the appellant noted that he was agitated, and possibly having a psychotic episode.
• That the appellant was admitted to CAMH through its emergency department on November 19, 2021, two days after the assault. He was involuntarily detained under the Mental Health Act, R.S.O. 1990, c. M.7, at CAMH until November 29, 2021. He was acutely psychotic on admission. On discharge, the appellant stated an intention to continue complying with the anti-psychotic medications he had been started on while an involuntary in-patient.
• That he was re-admitted to CAMH from January 15, 2022, and detained there involuntarily. He was brought to the CAMH emergency department by his mother when non-compliance with psychiatric medication led to acute psychosis. He was agitated and aggressive on admission. The appellant improved with treatment by anti-psychotic medication. He was discharged from CAMH on February 3, 2022 under the terms of a CTO, which remained in effect until August 2, 2022.
• That the appellant has a documented history of schizophrenia, cannabis use disorder, and medication non-compliance, dating back to 2016. CAMH records reveal that when the appellant was unmedicated, his mental health deteriorated and he became agitated and aggressive.
• That at the time of sentencing, the appellant was living in the community, and was no longer subject to a CTO. Since the end of that order in August 2022, he had been compliant with anti-psychotic medication and treatment. He was working with Reconnect Community Health Services, and was enrolled in their Mental Health and Justice Prevention Program. The appellant’s case manager at Reconnect confirmed that he was attending monthly psychiatrist appointments; was keeping other scheduled appointments with supports involved in his care; and was committed to continuing his recovery journey. He was also working with Across Boundaries, an organization that assists racialized people who are struggling with addiction and mental health issues. The appellant’s case manager at Across Boundaries confirmed that he was attending scheduled case management sessions and other programming there. The appellant was focused on the goals of returning to post-secondary education to major in business, and of continuing to remain pro-social and maintain his pro-active lifestyle.
• That the appellant is a high school graduate. He pursued studies at George Brown College, and was on the Dean’s Honour List in the fall of 2018.
• That at the time of sentencing, the appellant was working as a line cook at Swiss Chalet. At the time of this assault, the appellant was unemployed and was collecting ODSP.
• That the appellant is a hip-hop artist and MC whose music is available for download on several music streaming platforms, and this is a source of some income for him.
• That there are negative stereotypes about people with mental health challenges that may intersect with negative stereotypes about racialized people. These may adversely impact on employment prospects, the availability of affordable housing, and the availability of mental health and support services.
• That having a criminal record may negatively affect ex-offenders’ ability to secure employment. This is true for all people with criminal records, but the impact of past convictions on employment prospects is more profoundly negative for Black ex-offenders than it is for otherwise similarly situated white ex-offenders. Research suggests that Black ex-offenders are 40 percent more likely to suffer from disadvantage in the labour market as a result of their criminal records than white ex-offenders.

[16] The defence submitted that the appellant was in a psychotic state at the time of the offence, and that was an underlying cause of his criminal behaviour. Accordingly, in the defence argument, the appellant’s mental health condition was a mitigating factor.

[17] In addition, defence counsel highlighted for the sentencing judge that the appellant had worked hard to rehabilitate himself, and was committed to continuing to do so. Since the time of the offence, the appellant had committed to complying with treatment. He had been successful in that regard. He had had no admissions to psychiatric hospital since his discharge in August 2022, had successfully completed his obligations under the CTO, and had had no new criminal charges. He had engaged with community supports and pro-social programming, and continued to see his psychiatrist. He had been working part time at Swiss Chalet as a line cook, while pursuing his work in the music industry. The appellant intended to pursue further education, seek full-time employment, and continue to work in the music industry. Accordingly, defence counsel submitted, in addition to the sentencing objectives of denunciation and deterrence, the court should focus on the objective of rehabilitation in sentencing the appellant.

[18] The defence submitted that, in all the circumstances of this case, the statutory and jurisprudential tests for a conditional discharge under s. 730 (1) of the Criminal Code were met. In the defence argument, a conditional discharge would be in the appellant’s best interests, and would not be contrary to the public interest. In fact, according to the defence, a conditional discharge would be in the public interest.

[19] Defence counsel asked the sentencing judge to apply R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, to a consideration of the effects of systemic racism on the collateral consequences of a conviction as opposed to the effects of a conditional discharge. The argument was that, as a person of African-Canadian descent who also has a mental illness, the appellant suffers impediments to his prospects as a result of the criminal record he already has. Counsel submitted that a further conviction would present an even greater barrier to the appellant’s progress. It would benefit the appellant and the public if the appellant is able to work, to succeed in his music business, and to progress in his education. In the defence argument, a conditional discharge would give the appellant incentive to remain crime free. It would also enable him to benefit from the purging provisions of the Criminal Records Act, R.S.C. 1985, c. C-47, sooner than a conviction would. In this way, in the defence submission, a conditional discharge would be greatly advantageous to the appellant and the public because it would make him more fit for full-time employment, and more capable of pursuing education and the music business sooner. The defence relied on caselaw establishing that there is no legal prohibition on conditional discharges in cases where an offender has a prior criminal record (R. v. Carson (2004), 185 O.A.C. 298) or even in cases of violent offences resulting in serious injuries (Carson; R. v. Wood (1975), 24 C.C.C. (2d) 79 (Ont. C.A.); R. v. Gilpin, [1975] O.J. No. 749 (C.A.)).

[20] The Crown acknowledged that the appellant is a Black man who struggles with mental health challenges, and that this can create disadvantages for him. However, the Crown submitted that this was a serious offence. It was an unprovoked assault on an unsuspecting stranger from behind. The victim did sustain minor injuries but, in the Crown’s submission, this assault could have caused much more disastrous consequences for the victim. The Crown argued that the appellant’s criminal record was an aggravating factor on sentence. In all the circumstances, the Crown maintained that a fit sentence was a suspended sentence with 12 months of probation.

[21] The sentencing judge reserved her decision on sentence. On September 19, 2023, the sentencing judge gave her reasons for sentence orally. She suspended sentence and ordered 12 months of probation.

III. THE GROUNDS OF APPEAL

[22] The appellant appeals his sentence to this court on the following grounds:

1. That the sentencing judge erroneously overemphasized the content of the victim impact statement and failed to consider that much of the content was irrelevant and inadmissible;
2. That the sentencing judge erred in failing to adequately address the appellant’s deteriorated mental health at the time of the offence, identify it as a contributing factor to the commission of the offence, or consider it as a mitigating factor;
3. That the sentencing judge erred in failing to apply Morris or consider the impact of the social context evidence filed as to the effects of systemic racism on the collateral consequences of a conviction for the appellant as a Black man;
4. That the sentencing judge erred in her consideration of the public interest component of the legal test for a conditional discharge under s. 730 (1) of the Criminal Code, by erroneously construing the public interest too narrowly;
5. That the foregoing errors impacted on the sentence; and
6. That the sentence was demonstrably unfit.

IV. ANALYSIS

1. Standard of Review

[23] Sentencing is a delicate and discretionary process. Sentencing judges have “broad discretion to impose the sentence they consider appropriate within the limits established by law”: s. 718.2(1) of the Criminal Code; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 39. Accordingly, appellate courts owe considerable deference to the decisions of sentencing judges: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 35; Lacasse, at paras. 39-52.

[24] An appellate court can only intervene to vary a sentence in two circumstances. First, if the sentencing judge made an error in principle that had an impact on the sentence: Friesen, at para. 26; Lacasse, at para. 44. Errors in principle “include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor”: Friesen, at para. 26; see also Lacasse, at para. 43. Second, an appellate court can intervene if the sentence is demonstrably unfit: Friesen, at para. 26; Lacasse, at para. 52. When either of these circumstances warranting intervention obtain, the appellate court may set aside the sentence and replace it with a sentence it determines to be fit in all the circumstances: Friesen, at paras. 27–29; Lacasse, at para. 43.

[25] An appellate court is not at liberty to modify a sentence merely because it would have made a different order: Lacasse, at para. 40, citing R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46. Neither is an appellate court free to intervene because it would have weighed the relevant factors differently: Lacasse, at para. 49, citing R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 46. Appellate intervention is only warranted in the two circumstances outlined above: where there is an error in principle that affected the sentence, or where the sentence is unreasonably or demonstrably unfit.

2. Did the Sentencing Judge Err in Her Consideration of the Victim Impact Statement?

[26] In my view, the sentencing judge did not erroneously overemphasize the content of the victim impact statement or fail to recognize that much of its content was irrelevant and inadmissible.

[27] The victim impact statement does contain much information focused on a pre-existing injury that had nothing to do with the appellant, and no bearing on a fit sentence for him. However, defence counsel did not object to the sentencing judge receiving the unredacted victim impact statement. Instead, counsel drew the sentencing judge’s attention to the irrelevant and inadmissible content, and asked her to disregard it. She explicitly agreed to do so.

[28] The victim impact statement did contain information about the impact of this specific assault on the victim, as noted above. The sentencing judge was entitled to consider that relevant and admissible information. She quite properly did so.

[29] In her reasons for sentence, the sentencing judge referred to the victim impact statement as follows: “The victim impact statement outlines how the victim has suffered, both physically and psychologically” (Transcript of Reasons for Sentence, September 19, 2023, at p. 5, ll. 6-8). She also noted that the victim “suffered greatly” as a result of this unprovoked attack by a stranger (Transcript of Reasons for Sentence, September 19, 2023, at p. 5, ll. 30-32). These characterizations of the impact on the victim are correct, considering only the admissible portions of the victim impact statement. At no point in her reasons for sentence did the judge refer to any irrelevant or inadmissible portions of the statement.

[30] There is no error in principle in the sentencing judge’s consideration or treatment of the victim impact statement.

3. Did the Sentencing Judge Err in Her Treatment of the Appellant’s Deteriorated Mental Health, its Contribution to the Commission of the Offence, or in Failing to Consider it as a Mitigating Factor?

[31] I find no error in the sentencing judge’s consideration or treatment of the appellant’s deteriorated mental health at the time of the offence, or generally.

[32] The appellant filed extensive evidence at the sentencing hearing documenting his mental illness, including at the time of the offence and shortly after; his psychiatric hospital admissions and treatment history; his CTO; and his current and ongoing rehabilitative efforts. His lawyer made submissions about his mental illness and its impact on this offence, and his compliance with medication and treatment since the time of the offence. Defence counsel submitted that the appellant was in the throes of a psychotic episode at the time he committed the assault, and that this was an underlying reason for his criminal offending. He asked the sentencing judge to consider the appellant’s mental illness, its role in his commission of the offence, and his efforts to rehabilitate as mitigating.

[33] The sentencing hearing transcript demonstrates that the judge was aware of the appellant’s mental health challenges. She engaged with the evidence and defence counsel’s submissions in relation to it. She sought further information, questioning defence counsel about it, asking whether the appellant’s Community Treatment Order had been renewed, and learned that it had not been (Transcript of Guilty Plea and Sentencing Hearing, September 13, 2023, at p. 17, l. 30 – p. 18, l. 7). She read aloud from a CAMH psychiatrist’s discharge note dated February 3, 2022 (Transcript of Guilty Plea and Sentencing Hearing, September 13, 2023, p. 18, ll. 8-23).

[34] The reasons for sentence reveal that the sentencing judge understood and considered the evidence in relation to the appellant’s mental health. Throughout her reasons, the sentencing judge made extensive references to this. She referred to:

• the appellant’s psychiatric diagnosis of schizophrenia and cannabis use disorder (Transcript of Reasons for Sentence, September 19, 2023, at p. 4, ll. 7-9);
• his non-compliance with psychiatric medications in the period leading to the offence and his undisputed deteriorated mental state at the time, accepting that he was “unwell when he assaulted the victim” (Transcript of Reasons for Sentence, September 19, 2023, at p. 3, ll. 25-32; p. 6, ll. 23-24);
• his history of admissions to psychiatric hospital (Transcript of Reasons for Sentence, September 19, 2023, at p. 3, ll. 25-27; p. 4, ll. 1-6, ll. 13-15);
• his history of non-compliance with anti-psychotic medication leading to decompensation, aggression, and violence in the past (Transcript of Reasons for Sentence, September 19, 2023, at p. 4, ll. 8-11);
• his successful compliance with a CTO (Transcript of Reasons for Sentence, September 19, 2023, at p. 4, ll. 13-19);
• his continued compliance with anti-psychotic medication and other treatment after the CTO expired (Transcript of Reasons for Sentence, September 19, 2023, at p. 4, ll. 16-29);
• his participation in the Reconnect Mental Health and Justice Prevention Program; the letter provided by his Reconnect Case Manager, calling it “a very positive letter about his supports and Mr. Thomas’s positive attitude to improve his life” (Transcript of Reasons for Sentence, September 19, 2023, at p. 4, ll. 25-29);
• his ongoing engagement with mental health supports at Across Boundaries; the letter provided by Across Boundaries describing the appellant as “goal-oriented with hopes of continuing his education and remaining prosocial” (Transcript of Reasons for Sentence, September 19, 2023, at p. 4, l. 30 – p. 5, l. 1); and
• the fact that the appellant has “done a lot of hard work” to get to a stable place in his life, recognizing that he had “a lot to be proud of”; the court’s hope that the appellant would continue “on this positive path” twice (Transcript of Reasons for Sentence, September 19, 2023, p. 3, l. 19 – p. 5, l. 1).

[35] It is well-accepted that mental illness may be a mitigating factor on sentence: R. v. Fabbro, 2021 ONCA 494, at paras. 25-26; R. v. Ellis, 2013 ONCA 739, 312 O.A.C. 328, at paras. 116-121, leave to appeal ref’d [2014] S.C.C.A. No. 53; R. v. Prioriello, 2012 ONCA 63, 288 O.A.C. 198, at paras. 11-12. Where there is evidence that an offender suffers from mental health challenges, the sentencing judge is required to consider whether there was a causal link between those challenges and the offence: Fabbro, at para. 26; Ellis, at para. 116; Prioriello, at para. 11. The judge is further required to “determine the extent to which those matters contributed to the appellant’s conduct and the impact of that finding on the appropriate sentence”: Ellis, at para. 116. Mental illness that plays a central role in the commission of the offence may indicate diminished moral blameworthiness and/or that “punishment and deterrence may be ineffective or unnecessary and treatment and rehabilitation of the offender may be paramount considerations”: Ellis, at para. 117, citing R. v. Batisse, 2009 ONCA 144, 93 O.R. (3d) 643, at para. 38.

[36] In this case, the sentencing judge accepted that the appellant was in a deteriorated mental state at the time of the offence, and that this contributed to his commission of the offence. She held: “[t]here is no dispute that when he committed the assault, he was not taking his medication and his mental state deteriorated significantly” (Transcript of Reasons for Sentence, September 19, 2023, at p. 3, ll. 28-32); and “I accept that Mr. Thomas was unwell when he assaulted the victim” (Transcript of Reasons for Sentence, September 19, 2023, at p.6, ll. 23-24).

[37] The sentencing judge did not explicitly say that she had considered the extent to which the appellant’s mental illness contributed to this assault or the impact of these factors on the appropriate sentence. However, she did, as noted, refer extensively to the evidence surrounding the appellant’s mental health, including mitigating factors arising from his medication and treatment compliance.

[38] Even while recognizing that the appellant was unwell at the time of the assault, the sentencing judge still decided to focus on general deterrence and the seriousness of the offence in the determination of a fit sentence. She held:

The most important sentencing principles in this case are general deterrence and denunciation. I accept that Mr. Thomas was unwell when he assaulted the victim, however when focusing on general deterrence and the seriousness of this offence, I do not see how it would not be contrary to the public interest to grant a conditional discharge (Transcript of Reasons for Sentence, September 19, 2023, at p. 6, ll. 21 – 28).

[39] It is trite law that a judge is presumed to know the law, and need not refer explicitly to every factor that informed their analysis or decision. In this case, the trial judge extensively referred to and considered the evidence relating to the appellant’s mental health condition and his rehabilitation. She also considered the appellant’s history of non-compliance with medication, and the psychiatric decompensation and aggressive behaviour that resulted from it, documented in exhibits filed by the defence. She was entitled to do so. The sentencing judge found that the appellant was mentally unwell at the time of the offence, but still concluded that deterrence and denunciation were paramount. Reading the reasons for sentence as a whole, the sentencing judge made no error. She evidently concluded that the appellant was unwell at the time of the assault and that this contributed to his offending behaviour, but not so much so that it diminished his moral blameworthiness to the point of displacing the need for denunciation and deterrence. In other words, the reasons as a whole demonstrate that the sentencing judge considered the appellant’s mental health to be a mitigating factor, but not an overwhelming one. This was a conclusion the sentencing judge was entitled to make. Absent meaningfully reduced culpability, the circumstances here required a denunciatory and deterrent sentence. The sentence was fit, fair, and proportionate in all the circumstances.

[40] In my view, the sentence would have been fit even if the sentencing judge had explicitly quantified the extent to which mental illness contributed to the offending behaviour, found that it was a major contributing factor, and found that the appellant’s moral blameworthiness was accordingly significantly reduced. An unprovoked assault causing injury on an unsuspecting stranger from behind by a person with a prior conviction for a gun possession offence could well attract a much more punitive sentence than the suspended sentence and probation given here, without offending proportionality.

[41] It should be recalled that probation has traditionally be viewed as a rehabilitative sentencing tool: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 32-33. The suspended sentence and 12 months of probation to which the appellant was sentenced is a sentence that emphasizes rehabilitation. It is a just and proportionate sentence, one that accounts for the mitigating effects of the appellant’s mental health challenges, and his rehabilitation.

4. Did the Sentencing Judge Err in Failing to Apply Morris or consider the Impact of Social Context Evidence as to the Effects of Systemic Racism on the Collateral Consequences of a Conviction?

[42] The appellant submits that the sentencing judge erred in failing to apply Morris, and in failing to wrestle with how systemic racism would magnify the negative effects of an accumulating criminal record for him as a Black man. The appellant submits that the sentencing judge erred in failing to consider the collateral consequences of a further conviction as relevant to a determination of a fit and proportionate sentence in this case.

[43] I conclude that the sentencing judge did not err in this way.

[44] The reasons for sentence demonstrate that the judge did consider Morris and the social context evidence of systemic racism filed by the defence. Early in her decision, she noted that defence counsel “filed two volumes of exhibits to support his position that Mr. Thomas should receive a conditional discharge. I have reviewed the materials and heard oral submissions” (Transcript of Reasons for Sentence, September 13, 2023, p. 3, ll. 12-15).

[45] Later in her reasons, the judge referred more explicitly, albeit briefly, to Morris and the social context evidence, and considered their effect on a fit sentence in this case:

I’ve considered the case of R. v. Morris and supporting material counsel filed with respect to employment prospects of black ex-offenders. The studies were very helpful, compelling, and informative. They summarize that criminal record data constitutes an especially damaging type of personal data, given that it brings a particular type of stigma. Mr. Thomas has a very serious entry on his record from June 12th, 2019, which I have already mentioned, for a very serious gun charge. My sentencing Mr. Thomas to a conditional discharge or a suspended sentence cannot undo what is already on his record (Transcript of Reasons for Sentence, September 19, 2023, p. 5, ll. 16 – 30).

I have no evidence before me that a suspended sentence and probation will affect Mr. Thomas’ profession or occupation, or that it will affect his travel, employment, and of maintaining important relationships.

There is no evidence that he will lose his livelihood if I enter a conviction (Transcript of Reasons for Sentence, September 19, 2023, p. 6 ll. 13-21).

[46] In so holding, the sentencing judge demonstrated that she considered Morris and the social context evidence filed by the defence in relation to the collateral consequences of a conviction for the appellant. She was aware of the potential for adverse collateral consequences on his future employment prospects as a result of systemic racism. Nevertheless, she came to the conclusion that an additional criminal conviction would be of little consequence, given his prior conviction for a serious firearms offence for which he had served a jail sentence. This was a conclusion she was entitled to make on all the evidence before her.

[47] The articles filed by the defence at the sentencing hearing document the negative effects of a criminal record on employment outcomes, particularly for Black men. However, none of the articles speak to the effects of a second or subsequent criminal conviction on employment outcomes. None of the research reported in the articles establishes that employment prospects worsen when an ex-offender has more than one criminal conviction.

[48] In “Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records,” by D. Pager et al.,[^1] the authors report the results of their large-scale field experiment into the effects of a criminal record on the ability to secure low-wage employment. They found a significant negative effect of a criminal record on employment prospects, one that is substantially worse for African-American ex-offenders than for white ones. This experiment did not test the differential impact on employment outcomes based on the number of convictions on ex-offenders’ criminal records.

[49] In “The Edge of Stigma: An Experimental Audit of the Effects of Low-Level Criminal Records on Employment,” by C. Uggen et al.,[^2] the authors report the results of their research into whether employers distinguish convictions for felonies[^3] from single arrests for disorderly conduct, with no resulting charge or conviction, when they are making hiring decisions. The authors found that employers, when considering job applicants, do differentiate between arrest with no charge/conviction and conviction. Employment outcomes are better for applicants who were arrested but not charged than for applicants who were convicted, with worse employment outcomes for Black applicants than white ones across the board. However, this experiment did not test whether a second or subsequent conviction as opposed to an arrest (and finding of guilt) with no conviction after a first conviction had an adverse impact on employment prospects.

[50] In “Privacy Loss as a Collateral Consequence,” by S. E. Lageson,[^4] the author relies on the above two articles, among other sources, to make the case that criminal records impact on ex-offenders’ lives in harmful ways. Negative employment outcomes, which are worse for Black ex-offenders, are among these collateral consequences of a criminal record. Again, this article does not address whether the collateral consequences of a criminal record will be worsened for an ex-offender who has two convictions instead of only one.

[51] In sum, the evidence before the sentencing court established that a criminal record was likely to have negative collateral consequences on an offender’s employment prospects. It established that these negative consequences are likely to be worse if the offender is Black. However, the evidence did not establish that once a person already has a criminal record, the addition of a further criminal conviction as opposed to a conditional discharge would add further negative collateral consequences. Simply put, none of the evidence spoke directly to the issue of the effect of a second conviction on a person who already has a record.

[52] At most, the subsequent conviction extended the amount of time the appellant would have to wait for a pardon, and the Morris evidence could support a conclusion that there would be additional effects of systemic racism for the appellant during that period, assuming that he would get a pardon in any event. However, the reality is that the subsequent finding of guilt might well make an early pardon unlikely, regardless of whether there was a discharge or conviction.

[53] On this evidentiary record, the sentencing judge was entitled to conclude that there was no evidence that a second conviction would make a difference to the appellant’s future employment prospects. She was entitled to weigh the evidence and conclude that a further conviction would cause little additional negative collateral consequence. It was open to the sentencing judge to find that negative collateral consequences of a criminal conviction to the appellant as a Black man would already attach, given his existing record for a serious gun crime, regardless of whether he was convicted or discharged for this offence. There is no error in principle here.

[54] The sentencing judge was not required to quote at length from Morris or the social context evidence. She was not required to engage in a lengthy or detailed explanation of her reasoning process. The reasons for judgment demonstrate that the sentencing judge considered Morris and the social context evidence and engaged with them. The reasons explain why she came to the conclusion she did. There is no reversible error in the sentencing judge’s application of Morris or her consideration of the social context evidence as to the effects of systemic racism on the collateral consequences of a conviction.

5. Did the Sentencing Judge Err in Her Consideration of the Public Interest Component of the Legal Test for a Conditional Discharge?

[55] The sentencing judge did not err in her statement or application of the legal test for granting a conditional discharge.

[56] In her reasons for sentence, the judge referred to and applied the correct test for determining whether a conditional discharge would be appropriate, as follows:

When deciding whether to grant a conditional discharge, I must consider the following: Mr. Thomas’ guilty plea and remorse, the charge of assault has no prescribed minimum sentence, the discharge is in the accused’s best interest, and granting a discharge is not contrary to the public interest. A conditional discharge is available to a person who has a prior finding of guilt. I accept that a conditional discharge is in Mr. Thomas’ best interest, however I am not convinced that it is not contrary to the public interest. I have no evidence before me that a suspended sentence and probation will affect Mr. Thomas’ profession or occupation, or that it will affect his travel, employment, and of maintaining important relationships.

There is no evidence that he will lose his livelihood if I enter a conviction. The most important sentencing principles in this case are general deterrence and denunciation. I accept that Mr. Thomas was unwell when he assaulted the victim, however when focusing on general deterrence and the seriousness of this offence, I do not see how it would not be contrary to the public interest to grant a conditional discharge (Transcript of Reasons for Judgment, September 19, 2023, at p. 6, ll. 1-27).

[57] The decision as to whether to grant a discharge, after considering the relevant factors and objectives of sentencing, is discretionary. In R. v. Sanchez-Pino (1973), 11 C.C.C. (2d) 53, an early case considering the granting of discharges but a foundational one cited by the appellant, at p. 59, the Court of Appeal for Ontario held that:

To attempt a . . . specific delineation [of when a discharge should be ordered] would be unwise, and might serve to fetter what I conceive to be a wide, albeit judicial, discretion vested in the trial Court. That Court must consider all the circumstances of the accused, and the nature and circumstances of the offence, against the backdrop of proper law enforcement in the community, and the general criteria [set out in the Criminal Code and earlier in the judgment] [emphasis added].

[58] Similarly, in R. v. B.J.M. (1976), 55 A.R. 222 (C.A.), 1976 ALTASCAD 6, at para. 14, the court held that “[i]n consideration of the exercise of the discretion to grant an absolute or conditional discharge, we emphasize that it is quite impossible to lay down rules which would cover the myriad of situations which may appear before a judge confronted with the task of appropriate sentence in any given case.”

[59] Caselaw does establish that the seriousness of the offence and the need for general deterrence are relevant to a determination of whether a conditional discharge would not be contrary to the public interest. A need for general deterrence may lead to the conclusion that a discharge is not in the public interest: Sanchez-Pino, at p. 59; R. v. Fallofield (1973), 13 C.C.C. (2d) 450 (B.C.C.A.), at p. 455. The more serious the offence, the less likely it is that a discharge would not be contrary to the public interest: Sanchez-Pino, at p. 59; B.J.M., at para. 15.

[60] The appellant acknowledges, at para. 51 of his factum, that the governing authorities highlight the importance of general deterrence in the determination of the public interest in this context.

[61] Nevertheless, the appellant submits that the sentencing judge erred by taking too narrow an approach to the determination of the public interest. He submits that the sentencing judge demonstrated tunnel vision by only considering general deterrence, and whether a conviction would result in the loss of his current entry-level position with a chain restaurant. In so doing, in the appellant’s submission, the sentencing judge failed to give adequate consideration to the public interest more broadly, as she was required to do. The appellant relied on caselaw in which courts considered it to be in the public interest for an offender to be discharged so that they would be able to continue to engage in employment or a profession, advocacy, charitable work, or other activity, to the benefit of the community: R. v. MacDonald, 2013 ONCA 295; R. v. Kalonji, 2010 ONCA 111; R. v. Flynn, [1995] O.J. No. 1216 (Gen. Div.), at para. 25; R. v. Myers (1978), 37 C.C.C. (2d) 182 (Ont. C.A.). He argued that it was an error for the judge at first instance not to consider the impact of a conviction on the appellant’s future employment, educational, and business prospects in the determination of the public interest.

[62] I do not accept that the sentencing judge erred in this way. She explicitly considered whether a conviction would negatively impact on the appellant’s profession or occupation, his travel, employment, important relationships, or livelihood. She found that there was no evidence that it would. Given the sentencing judge’s earlier realistic assessment that a discharge would not undo the negative effects of his prior conviction on his future prospects (and effectively that a second conviction would not demonstrably increase them), this was a finding the sentencing judge was entitled to make.

[63] Indeed, there was no evidence specific to the appellant that a conviction and suspended sentence would make any difference to his future prospects, given his prior criminal record for a serious firearms offence. By contrast, the authorities relied on by the appellant all involved offenders who established that a conviction would prevent them from being able to engage in prosocial activities of benefit to the community in the future. The sentencing judge’s consideration of the public interest in the appellant’s future prospects reveals no error.

[64] Moreover, after determining that a discharge would be in the appellant’s interests, the sentencing judge properly considered the factors relevant to determination of whether it would not be contrary to the public interest. She considered the seriousness of the offence, the need for general deterrence and denunciation, the mitigating effects of the appellant’s guilty plea and his mental illness, and the effects of a conviction on his life and future prospects. Having considered the proper factors relevant to the public interest, the sentencing judge weighed these factors as she saw fit in the circumstances. This was an exercise of her discretion that she was entitled to engage in. It does not give rise to a basis for appellate intervention.

6. Was the Sentence Demonstrably Unfit?

[65] The appellant submits that in all the circumstances of the case, including his diminished moral responsibility arising from his mental illness, that he only has one prior conviction, his significant pro-social and treatment efforts, and the impact of a Morris analysis of the collateral consequences of a conviction, the sentence is demonstrably unfit.

[66] With respect, I cannot find that the imposition of a suspended sentence and 12 months of probation is demonstrably unfit in all the circumstances of this case.

[67] Courts have used a variety of phrases to describe what it means for a sentence to be “demonstrably unfit.” These include: “clearly unreasonable,” “clearly or manifestly excessive,” “clearly excessive or inadequate,” or representing a “substantial and marked departure”: Lacasse, at para. 52, citing R. v. Rezaie (1996), 31 O.R. (3d) 713 (C.A.), at p. 720. What all these formulations share is that they speak to the very high threshold for appellate intervention on the basis of fitness of sentence: Lacasse, at para. 52. A sentence will only warrant such intervention where it unreasonably departs from the requirement that sentences be proportionate to the gravity of the offence and the moral blameworthiness of the offender, considered alongside all the relevant principles and objectives of sentencing: Lacasse, at para. 53.

[68] This was an unprovoked attack on a stranger from behind on a city street, causing physical and emotional injury to the victim. The appellant had a prior conviction for a serious gun offence, for which he served an 18-month jail sentence on top of nine months’ credit given for presentence custody. There were meaningful mitigating factors, and ongoing rehabilitation. Given the gravity of the offence and the appellant’s criminal record, he could reasonably have been sentenced to a more punitive disposition than he was, if not for the mitigating factors and his rehabilitative efforts and potential. In all the circumstances of this case, a suspended sentence and 12 months’ probation was proportionate to the gravity of the offence and the moral blameworthiness of the offender. The sentence was not demonstrably unfit.

V. FRESH EVIDENCE

[69] Both the appellant and the respondent sought leave to file fresh evidence on appeal. Both parties consented to the admission of the other party’s fresh evidence if I found that there was an error in principle or that the sentence was demonstrably unfit, and was proceeding to sentence the appellant afresh. Both parties agreed that the fresh evidence should not be admitted if I found no basis for appellate interference.

[70] I have found no error in principle, that the sentence is not demonstrably unfit, and no basis for appellate intervention. As a result, in accordance with the joint position of the parties, I have not admitted the proposed fresh evidence on appeal.

V. DISPOSITION

[71] The appeal is dismissed.

J. R. Presser J.

Released: May 24, 2024

COURT FILE NO.: CR-23-10000041- 00AP DATE: 20240524 ONTARIO SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING – and – ANDREW THOMAS Appellant

REASONS FOR JUDGMENT J. R. Presser J.

Released: May 24, 2024

[^1]: D. Pager et al., “Sequencing Disadvantage : Barriers to Employment Facing Young Black and White Men with Criminal Records” (2009) Ann Am Acad Pol Soc. Sci. 623(1), at pp. 195-213. [^2]: C. Uggen et al., “The Edge of Stigma: An Experimental Audit of the Effects of Low-Level Criminal Records on Employment” (2014) Criminology 52:4, at pp. 627-654. [^3]: This was an American study. [^4]: S.E. Lageson, “Privacy Loss as a Collateral Consequence” (2020) the Annual Review of Interdisciplinary Justice Research 9, at pp. 16-31.