COURT FILE NO.: CR-23-10000031-00AP DATE: 20240723 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – GUO LUO
J. Bruno for the Crown C. Martell, for Mr. Luo
HEARD: April 10, 2024
S.A.Q. AKHTAR J.
[1] On appeal from the sentence imposed on 27 July 2023 by Justice Daniel Moore of the Ontario Court of Justice.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[2] On 21 June 2023, the respondent was convicted of the offences of assault with a weapon, weapons dangerous and carrying a concealed weapon after a three-day trial. On 27 July 2023, the sentencing judge imposed a conditional discharge with 18 months’ probation. The Crown now appeals the sentence arguing that it is demonstrably unfit.
Background Facts
[3] On 12 December 2019, the respondent attended a dental clinic in Toronto to complain about a dental implant. He attended the clinic on three occasions that day even though he had no appointment. On two of the occasions, he stood at the door of the clinic staring towards the reception area. As a result, the clinic staff locked the door, closed the window blinds and contacted the business owner to inform him of the respondent’s presence.
[4] On 13 December 2019, staff decided to book an appointment with an alternative dentist who would be able to explain any issues that might have arisen with the implant to the respondent. The respondent arrived at the office that morning and demanded to see the victim, one of the dental office’s staff. She was unwilling to meet with him because of his previous behaviour. Nevertheless, the officer manager insisted the victim, who was four months pregnant, speak with the respondent and she agreed.
[5] The respondent went into the victim’s office and they discussed what had happened the previous night. She tried to explain that there was nothing wrong with the implant and that the clinic was in the midst of arranging an appointment with a different dentist. The victim came to the view that the respondent did not understand her comments so she asked to speak to his wife who had accompanied him on previous visits and assisted with translation.
[6] Suddenly and without warning, the respondent attacked the victim. He lunged over her desk, drew a knife from his jacket pocket and stabbed her hands. The victim described the knife as having a jagged edge. The respondent then moved around the desk to continue his attack. The victim raised her hands to block the knife and kicked it out the respondent’s hand. The respondent retrieved the knife and used the dull end of the knife to beat the victim on her stomach and top of her head.
[7] Two fellow members of staff responded to the victim’s screams. They tried, unsuccessfully, to pull the respondent off the victim. However, he continued to beat her with the knife. Eventually, a third colleague entered the office and managed to drag the respondent away from the victim before removing the knife from his hand. The respondent was pulled into a nearby bathroom by two employees where he remained until police arrived and arrested him.
[8] The attack was recorded on a security video in the office.
[9] The victim was taken to St. Michael’s hospital after her colleagues noted that her pants were now wet. Doctors reported a release of vaginal fluid and multiple lacerations to her hands. She was unable to work outside her home after the attack because her son was born prematurely and diagnosed with cerebral palsy. The victim was off work after the attack on unpaid stress leave.
[10] After his arrest, the respondent remained in custody for a total of 126 days after which he obtained bail. He was released on bail on 16 April 2020 with house arrest conditions containing numerous exceptions for counselling, and attending psychiatric appointments. On 23 June 2023, the respondent’s bail was varied by the court with the house arrest condition being removed. He remained on house arrest for a period of three years and two months.
[11] At the sentencing hearing, the Crown filed Victim Impact Statements which detailed the emotional consequences of the attack suffered by the victim including depression and anxiety persisting three years after the event.
[12] The defence also filed reports showing that the respondent was being treated for schizoaffective disorder presenting anxiety but not psychotic symptoms. Another report indicated that even though the respondent had a long standing mental illness his use of antipsychotic medication protected against a full deterioration to full psychosis.
[13] The defence filed evidence that appeared to indicate that the respondent had gone to the dental office because he believed that the dentist had intentionally damaged his teeth, that he had been billed for dental work that removed stitches that he believed was unnecessary, and that time estimates for recovery were flawed. According to materials filed by the defence, the respondent still harboured animosity towards the dental staff and continued to believe his actions were justified.
[14] The Crown asked for a sentence of imprisonment of 12 months and 3 years’ probation whereas the defence submitted that a conditional discharge was appropriate.
The Trial Judge’s Reasons
[15] On 17 July 2023, the sentencing judge imposed a conditional discharge with probation. He explained his reasons for doing so in the following way:
Were I sentencing Mr. Luo and he did not have any presentence custody it is likely that I would have found that a conditional discharge would be contrary to the public interest. It is also highly likely that I would not have sentenced him to any real jail at all. He likely would have received either a suspended sentence or a conditional sentence. But Mr. Luo has significant presentence custody, 126 days, when he was presumptively innocence, recovering from a suicide attempt that happened immediately after the offence and in mental health crisis, and the end of his presentence custody occurred during the early weeks of the Covid 19 Pandemic.
In addition, he has been on judicial interim release for over three years, on terms that are not that dissimilar from a conditional sentence. Of course, a conditional sentence can only be for a maximum of two years less a day. So, Mr. Luo has had extremely significant restrictions of his liberty as a result of the commission of these offences, far in excess of what these offences proportionately require. In the circumstances, I am certainly satisfied that no further custody is warranted, and I need not consider quantifying the precise amount of enhanced presentence, of either Duncan or Downes credit.
[16] The Crown appeals the sentence arguing that the sentencing judge committed a number of errors and imposed a sentence that was demonstrably unfit.
[17] I agree with the Crown. The sentencing judge made a number of errors in passing sentence.
[18] This was a very serious offence which had significant emotional implications both at the time of the offence and thereafter.
[19] The judge referred to “the profound impact on the victim” but appeared to give it no weight. The victim in this case was a person who dealt with the public on a daily basis and was attacked in the confines of her work location. She was entitled to feel safe in that location. However, the sentencing judge failed to acknowledge this principle.
[20] Nor did the judge recognise that he was mandated by s. 718.2(iii.1) of the Criminal Code to take into account “evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.” The judge’s reasons appear to equate the “profound effects” felt by the victim in some part to the premature birth of her son. The judge was correct to conclude the premature birth of the victim’s child and the subsequent diagnosis of cerebral palsy were not aggravating factors as the Crown had not proven the respondent’s attack as being responsible for the child’s condition. However, that did not mean that the obvious terror and subsequent trauma could be ignored when determining the appropriate sentence.
[21] In addition the judge failed to acknowledge other aggravating features in this case such as the planning involved in the attack and the use of a weapon that could have caused far more serious injuries than it did.
[22] Moreover, the judge’s conclusion that a conditional discharge was justified because the offender had spent 126 days in pre-trial custody was flawed. The judge had already concluded that at the outset a conditional discharge was not in the public interest. The determining factor, according to the judge was the fact that the respondent had spent time in pre-trial custody. It is unclear to me how the fact that an offender has spent time in pre-trial custody becomes a factor in the imposition of a conditional discharge in the public interest.
[23] The judge also failed to calculate the time spent in pre-trial custody for sentencing purposes in order that it be reflected on the record. He simply concluded that he did not need to quantify it in light of his determination that a conditional discharge was justified. This was also an error.
[24] I also agree with the Crown that any probation order that attached to the offender’s sentence should have contained a condition that the respondent seek counselling and include a reporting condition bearing in mind the respondent’s mental health history. This order was requested by the Crown and not opposed by the defence but was not made.
[25] As described, this was a very serious violent offence. In R. v. Huh, 2015 ONCA 356, 335 O.A.C. 394, the court, at para. 12, made the following comment:
We adopt the observation in R. v. Wood (1975), 24 C.C.C. (2d) 79 (C.A.), at para 4: "[i]n cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused." In our view, a conditional discharge does not meet the public interest in this case. While a discharge may have been in the interest of the appellant, in this circumstance, it was not in the public interest. Accordingly, leave to appeal the sentence is granted, and the sentence appeal is allowed. It now falls to this court to impose what we deem to be an appropriate sentence.
[26] In light of the above, I find that the imposition of a conditional discharge constitutes a demonstrably unfit sentence. Here, a six to nine month sentence of imprisonment would not have been unreasonable.
[27] Notwithstanding the judge’s errors, I am reluctant to send the respondent back to prison at this stage.
[28] I would therefore set aside the conditional discharge and sentence the respondent to 189 days of custody. Since he has served that period of time - 126 days of pre-trial custody which along with the enhanced calculation set out in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, amounts to 189 days - there is to be no further period of incarceration. I would also vary the probation order to include conditions of reporting and counselling to the probation officer. The respondent must also sign any releases required by the probation officer.
S.A.Q. Akhtar J. Released: 23 July 2024
COURT FILE NO.: CR-23-10000031-00AP DATE: 20240723 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – GUO LUO REASONS FOR JUDGMENT S.A.Q. Akhtar J.