R. v. Smith, 2011 ONCJ 377

Citation: R. v. Smith , 2011 ONCJ 377 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. J. Levy ) for the Crown ) — AND — ) ) ) Mr. J. Bogle orin smith ) for the defendant ) ) ) ) ) lipson J.: REASONS FOR SENTENCE [ 1 ] Mr.

Smith pleaded not guilty to one count of escape lawful custody, two counts of assault with intent to resist arrest, two counts of assault police and one count of attempt to disarm a peace officer of his firearm. [ 2 ] On August 30.2010, the court found that the Crown had established beyond a reasonable doubt the actus reus of each offence charged. [ 3 ] I would summarize the court’s findings as follows: On July 6, 2008, officers stopped the accused who had been driving in an aggressive and erratic manner on Lawrence Avenue East in Scarborough. Mr.

Smith was also a suspended driver for whom there was an existing warrant of committal for a three day jail term. When police attempted to pull him over to the curb lane, the accused screeched to a stop in the left lane of westbound Lawrence Avenue East. The officers attempted to arrest the accused who was standing in the middle of road. Mr. Smith assumed a fighter’s stance and punched P.C. McCabe in the forehead with a closed fist. The officers attempted to subdue the accused by baton and pepper spray but the accused was seemingly unaffected. He ran away.

Two citizens who saw the accused assault the officer assisted the police in their pursuit of Mr. Smith by tripping and tackling the accused. Mr. Smith fought to get away. One witness said that the accused “was going crazy”. As the police were trying to handcuff Mr. Smith, the accused reached for Sgt Hayes’ holstered firearm. It took three of the officers to remove his hand from the officers’ gun. One witness, Mr. Sprachlin, saw the accused’s finger on the trigger of the firearm. Sprachlin grabbed the accused’s hand and slid the gun back into the officer’s holster.

He saw one of the officers strike the accused on the shin with a baton. The police were also pepper spraying the accused during the incident. Despite the force and pepper spray being used on the accused, Mr. Smith showed no reaction and kept on fighting. Mr. Smith was in a complete rage. Sgt Hayes felt the accused tugging at his waistline five or six times as he “fiercely” tried to rip the gun from his holster. Eventually the officers took control of Mr. Smith. During the incident the accused suffered a broken leg and required surgery.

The criminal responsibility issue [ 4 ] The evidence heard at trial disclosed a live issue concerning Mr. Smith’s mental state at the time of the alleged offences. On consent of the parties, the court made an order pursuant to

section 672.11(

b) for a psychiatric assessment as to whether the accused was, at the time of the commission of the alleged offences, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1) of the Criminal Code .” [ 5 ] Dr. Phillip Klassen, a respected senior forensic psychiatrist, assessed Mr. Smith and his comprehensive report is filed as exhibit 1. Dr. Klassen drew the following conclusions found at page 16: 1. “Mr. Smith does suffer from a mental illness that could conceivably bring him within the ambit of

section 16, that being schizophrenia.” 2. “There are reasons to believe that [he] was suffering from symptoms of schizophrenia, at the material time, given his reported history of treatment, non-adherence, and the observations of family.” 3. “That being said, this gentleman’s account of his behaviour at the material time, does not suggest to the undersigned, that his behaviour was principally driven by psychological symptoms.

Untreated major mental illness, exacerbated by alcohol and/or cannabis use, may have accelerated, or activated this gentleman such that he was more impulsive or reactive at the material time, but particularly absent the arresting officers’ notes from the Toronto East Detention Centre (which might reveal the extent of that activation, and thus compromised in his capacity for rational choice, vis a vis his acts, omissions or knowledge of wrongfulness), it’s not my opinion that this gentleman meets the threshold for psychiatric support for a finding of not criminally responsible due to a mental disorder.” 4. “The behavioural agitation that he manifested at the material time may have been in part a product of schizophrenia, albeit

situational, charaterological, and substance-related issues, may have been live as well; parsing out the contribution of each of these issues has proven quite challenging.” [ 6 ] Counsel did not challenge Dr. Klassen’s conclusions and neither party submitted that there was sufficient evidence for the court to find that Mr. Smith was not criminally responsible at the time of the offences. [ 7 ] I am satisfied beyond a reasonable doubt that the accused was criminally responsible and he is convicted of each of the offences. What is a fit sentence? [ 8 ] I turn now to the difficult issue of sentencing Mr. Smith.

It was unnecessary to order a pre-sentence report in this case since Dr. Klassen’s assessment is certainly comprehensive and covers all of the areas of concerns usually found in a P.S.R. [ 9 ] These offences were committed approximately three years ago. The offences involve assaults on police officers as well as an effort to disarm one of the officers during the course of the arrest. As I indicated in my factual findings on August 30, 2010, the accused created a life-threatening situation for those near him and for himself when he attempted to disarm Sgt. Hayes. He made concerted efforts to disarm the officer.

I am satisfied that he knew what he was doing throughout. Mr. Smith wished to resist his arrest and use as much force as he could muster to avoid apprehension. However, there is also a real likelihood that his mental illness played some role in his extreme agitation and behaviour. [ 10 ] Mr. Smith is a 40 year old first offender. He lives with his mother and is supported by ODSP. He immigrated to Canada from Jamaica in 2003. His personal background is detailed in Dr. Klassen’s assessment. Mr. Smith does not appear to have any history of antisocial conduct in Jamaica. Mr.

Smith appears to spend his days socializing with friends at a neighbourhood garage. Aside from some driving suspensions for highway traffic related matters, Mr. Smith has had no prior conflicts with the law since coming to this country. [ 11 ] According to family members, the accused had been treated for schizophrenia in Jamaica. In Canada he has had two psychiatric admissions. The first took place in 2003 and was for approximately 48 hours for either drug induced psychosis or schizophrenia.

The second admission took place shortly after his release on the charges before the court when he was started on antipsychotic medication to address delusional thinking. Dr. Klassen states at page 15 of his report: “Physicians struggled somewhat as regards whether to diagnose him as suffering from a substance induced psychotic illness, or schizophrenia exacerbated by substance use. Family members, however, articulate a history very consistent with schizophrenia; they report paranoid and other delusions, and auditory hallucinations, indeed it’s indicated that Mr. Smith, continues to suffer from these symptoms. Mr.

Smith, while acknowledging that he may suffer from an illness, denied symptoms, with the undersigned. He does acknowledge a history of difficulties with his temper. He acknowledges continued use of alcohol and cannabis, albeit there may be some minimization with respect to the extent of the same” [ 12 ] Dr. Klassen opined that Mr. Smith has likely suffered from untreated symptoms of a major mental illness for many years. As well he likely suffers from alcohol and cannabis abuse disorders. The accused informed Dr. Klassen that he had consumed one beer just prior to his arrest. [ 13 ] Since August, 2008 Mr.

Smith has been treated by a psychiatrist through the Community Health Outpatient Clinic. The court was advised that Mr. Smith has continued to see a psychiatrist and has been compliant with antipsychotic medication. Positions of the Parties [ 14 ] Crown and defence acknowledge that sentencing Mr. Smith is a difficult exercise. On one hand, the accused engaged in extremely dangerous behaviour that would ordinarily require a stiff denunciatory sentence. On the other hand, the court cannot ignore the strong possibility that his major mental illness played a significant role in the extreme behaviour in which Mr.

Smith engaged. Crown counsel submitted that absent the mental illness factor, a substantial reformatory term was appropriate. He did not oppose a blended sentence that would still permit the accused to be treated in the community. Counsel for the accused submitted that the court should impose a conditional sentence in the 8-9 month range. [ 15 ] What should have been a routine traffic stop evolved into a life threatening situation for Mr. Smith as well as the officers and citizens involved in his detention and arrest. This was as a result of Mr. Smith’s violent behaviour.

In imposing sentence, I must consider the vulnerability of police officers placed in extremely dangerous situations such as occurred here. The most important objectives of sentencing in this case are denunciation and deterrence. But rehabilitation is also important. Mr. Smith’s continued psychiatric treatment must be a significant feature of this sentence in order to assist the accused and for the sake of community safety. Proportionality is the fundamental principle guiding any sentence.

Section 718.2 states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. While the offences are serious and involve assaultive behaviour against police officers in the execution of their duties, the court must also take into account Mr. Smith’s mental deficits. The principle of restraint found in subsections 718.2(

c) and (

e) is also relevant. That is, an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. The court must consider all available sanctions other than imprisonment that are reasonable in the circumstances. Mr. Smith is a first offender. He spent 10 days of pre-trial custody. He suffered a fractured tibia during his apprehension and required surgery.

He has not reoffended in the three years since release. [ 16 ] The evidence establishes that the accused sought to assault the officers and resist arrest because he was attempting to avoid arrest on the warrant of committal. The violence he used was extreme and he attempted to disarm an officer of his firearm. Had he succeeded there is no doubt that Mr. Smith would have shot an officer or himself be shot or both.

It is unclear even now how much insight the accused has into his conduct and whether he harbours much in the way of regret or remorse. [ 17 ] Given the seriousness of the offences but taking into account the accused’s mental deficits, I am of the view that a custodial sentence with lengthy probation is the appropriate disposition. In the circumstances of this case, a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing.

[ 18 ] Mr. Smith is sentenced to 90 days imprisonment, concurrent on each charge. In order to permit the accused to continue psychiatric treatment and other rehabilitative programs, he will be permitted to serve this sentence on an intermittent basis. He will report to the detention centre no later than 6 p.m. on Friday and be released no later than 6 a.m. the following Monday on consecutive weekends until the sentence is completed.

The accused will also be placed on probation for two years with the following conditions: • Report to probation officer in person not less than once per month. • Reside at address approved by your probation officer. • Counselling for substance abuse as may be recommended by your probation officer and sign releases. • Report to the detention centre in sober condition. • Not to possess or carry weapons as defined by the Criminal Code . • Continue to attend for psychiatric treatment with Dr.

Chin or his designate or as recommended by his probation officer and sign releases. • Take recommended counselling and sign releases. • Not to operate a motor vehicle. [ 19 ] There will be a DNA order as well as a weapons prohibition order pursuant to s.110 for five years. Released: July 18, 2011 Justice T. Lipson