R. v. Archibald, 2013 ONCJ 769

Information No. 998-12-10608 Citation: R. v. Archibald , 2013 ONCJ 769 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN VS. KAILE JAMES ARCHIBALD * * * * * * * * R E A S O N S F O R J U D G M E N T GIVEN ORALLY BY THE HONOURABLE MADAM JUSTICE H. PERKINS-MCVEY on the 4 th day of June, 2013 at OTTAWA, ONTARIO * * * * * * * *

APPEARANCES B. Lee-Shanok Counsel for the Crown S. Adam Counsel for the defendant * * * * * * * * PERKINS-MCVEY, J. (Orally): THE COURT: At the outset I want to commend counsel for the materials that were provided to me, they were very helpful in reaching a difficult decision. Mr. Archibald, I don’t know if you fully appreciate how difficult it is to sit in the position that I do.

While at the same time considering the facts and the seriousness of the case, in reviewing the materials that your lawyer provided to me, I was reminded of the extraordinary efforts that you have made to try to deal with your addiction problem, and to give back to the community in a more positive way. The guilty plea in this matter was entered on October 24 th of 2012. A Pre-sentence Report was ordered and a book of sentencing materials was filed, as indicated, on behalf of Mr. Archibald. In exhibit three are also letters from Jericho Road and the New Connections Ministries. The victim in this matter, Mr.

Yasin Amada, did not choose to file a Victim Impact Statement. As indicated throughout the synopsis that has been filed in this matter, Mr. Amada suffered a stab wound to his lower abdomen, which was half an inch long and required three stitches. Fortunately the injuries were not more serious. The Crown in this matter, seeks a sentence of two years less a day, plus two years of probation, urging the Court to consider that the paramount principles of sentencing must be general deterrence and protection of the public.

The defence agrees that a jail sentence of 12 months is required, but asks the Court to consider 55 days of pre-sentence custody at 1.5 per one, or 83 days of pre-sentence custody, in accordance with the Ontario Court of Appeal decision of R. v. Summers . Defence also asks the Court to consider that the accused was at Jericho Road for seven months and 11 days, and I am going to round that up to seven and a half months, three and a half months of which was house arrest. In addition, the accused has been at the New Connections Ministries for 59 days.

The accused seeks a credit of nine months for the time in rehabilitative custody, and therefore seeks a further jail sentence of 90 days to be served on an intermittent basis. At the end of the sentencing hearing I asked the accused if he had anything to say, and I have to indicate that I was impressed. You have clearly taken this matter very seriously. You were well spoken, and it appeared to me that you were sincerely apologetic to the victim and to his friends and family for what occurred.

The charges that the accused has plead guilty to are two very serious charges. Disguise with intent, contrary to

Section 351 of the Criminal Code of Canada . In addition, the offence of aggravated assault, contrary to

Section 278. The facts of this case are essentially that on May 6 th 2012 at 19:50 hours, the accused entered Charlie’s Groceteria at 220 Carruthers Avenue. The accused had his face concealed by a baseball cap, sunglasses, and a flower-patterned towel covering the bottom of his face and neck area. The accused brandished a knife to the clerk and told him to open the till. The clerk began to open the register and the accused tried to empty the till. The clerk grabbed the accused, who then ran outside. The clerk followed, a struggle ensued, and in the struggle the clerk was stabbed in the abdomen.

Two witnesses observed the fighting and held the accused until the police arrived. The accused was arrested, interviewed, and he gave an inculpatory statement. An investigation revealed that not only was the accused under the influence on that day, but he had been struggling with addiction and had been drinking before committing the robbery. He indicated he did this because he owed people money. In terms of the background of the offender, the Pre-sentence Report is very positive. The accused was 25 years of age at the time of the offence, and had no prior record. The accused had a positive upbringing.

He had friends and succeeded academically. He moved out when he was 18 and went to Western Canada to go to film school. His mother and sisters became aware of his addiction issues, particularly when he returned from Western Canada. They educated themselves regarding addiction by attending a support group. They made arrangements for him to attend an addiction’s program in Merrickville, Ontario. He completed that program, but unfortunately later relapsed. He was able to get back on track and was able to find work, then started a relationship with Sandra Larabie.

Unfortunately, after that time he broke his foot, lost his job, became depressed, and this led to a secondary relapse. The accused now has a daughter with Ms. Larabie, and by all accounts is a very involved father of this two-year old young girl. He is involved in her care, and is engaged to Ms. Larabie, and intends to build a family with her. The accused has attended the Jericho Road Treatment Centre, and as indicated in the Pre-sentence Report, that he intends to continue to remain sober. Clearly, as indicated, his mother and sisters are proud of the effort he is making in dealing with his addiction.

The accused is currently on Social Assistance. He has had a history of addiction issues since he was a teen. In May of 2011, he completed the 28 day residential program in Merrickville. In August of 2011, he completed the 30 day stabilization program and attended A.A. He had been sober for six months as a result of that program. In June of 2012 while on release from custody, he went to Jericho Road and has engaged in their daily addictions spiritual counselling

program. As part of his addiction treatment he is attending A.A. at least three times per week and there are reports from his A.A. counsellors in the materials filed as exhibit three. His A.A. sponsor indicates that Mr. Archibald does appear to be genuine in his commitment to recovery. By all accounts, this offence does appear to be out of character. The accused has indicated that jail has been a rude awakening for him, and as a result he has done everything he can to rebuild a strong personal and professional support network to ensure that in moving forward, he will have a pro-social and crime free lifestyle.

By all accounts, both the Crown and the defence agree that the Pre-sentence Report is a positive one. The Probation Officer indicates, and I quote, “With the appropriate structure and support in place, it is hoped that the subject’s addiction issues will subside and the subject will move forward with a lifestyle free from the criminal justice system.” The defence has indicated that the significant sentence sought by the Crown will curtail any efforts at rehabilitation.

The Crown argues that although rehabilitation is important, it cannot be the paramount sentencing consideration, that it must be general deterrence and denunciation. Prior to amendments to the Criminal Code , I would have been able to consider whether a conditional sentence might have been appropriate in the circumstances. That is no longer an option available to me in law. The Crown has indicated that but for the accused efforts at rehabilitation, a penitentiary sentence would have been required. Therefore, the Crown suggests a sentence of two years less a day, plus probation.

In this matter there are a number of mitigating and aggravating circumstances. I take into account the following mitigating circumstances. You have entered a plea of guilt, and that is a very mitigating factor. You immediately took responsibility for the offence upon your arrest. You were a young man at the age of 25 at the time of the offence. You have shown sincere remorse, and this does appear to be

an act out of character. You cooperated with the authorities at the time of your arrest. You were struggling with addiction at the time, and you had consumed alcohol at the time of the commission of the offence. But since that time you have taken serious and sincere steps to deal with your addiction, and you have gained a number of social and professional supports to ensure that you lead a pro-social and crime free life in the future. There are however, aggravating factors, without question the seriousness of the offence. Aggravated assault is one of the more serious offences in the Criminal Code .

Your face was masked, so there was some planning and deliberation that went into this offence, given that. There was a weapon, not only brandished, but in fact used, and the victim received a stab wound. The victim is a convenience store clerk, a person who works in a vulnerable position, often working alone late at night. The victim required three stitches to close the wound. In this matter you have actual pre-sentence custody of 55 days. Your lawyer has argued that I should consider credit at 1.5 for one in accordance with R. v.

Summers , given that you were not able to access rehabilitative programs while awaiting sentence, given the lack of availability of early release on parole, and given the conditions at the Detention Centre. Given these factors I do find that it is appropriate to grant you enhanced consideration, and I will consider that you have done 83 days of pre-sentence custody.

Defence counsel has also asked me to give consideration to the time spent under restrictive liberty while at Jericho Road, and to a lesser extent the New Connections Program. I am advised that for the first three months of the Jericho Program you were under house arrest, and thereafter in a structured environment with some restrictions of liberty. You have been under a recognizance with fairly strict conditions, but there have not been conditions of house arrest. In accordance with the decisions of R. v. Downes and R. v.

Walsh , the Ontario Court of Appeal has directed that consideration can be given for an accused who has been out on bail under strict conditions of release, or an accused who has been in a rehabilitative program with restrictions. You have been at Jericho Road for 221 days, and 90 of those days were house arrest. In addition, you have been at the New Connections Program. In total, I have calculated 315 days at a rehabilitative centre. I give particular consideration to the fact that you were under house arrest for the first 90 days while at Jericho Road.

In determining the disposition of this matter, I will consider the pre-sentence custody of 83 days. I will also consider that the time you have spent in the rehabilitative centres, although not under house arrest, should be considered as pre-sentence custody in determination of the final disposition.

Section 718 of the Criminal Code sets out that the fundamental purpose of sentencing is to contribute respect for the law and the maintenance of a just, peaceful, and safe society, by posing just sanctions that reflect one or more of the enumerated sentencing objectives. Those objectives include denunciation of the conduct, deterrence of the offender and others who may be similarly situated. Separation of the offender from society where necessary. Rehabilitation and promotion of the sense of responsibility in the offender.

Any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Which particular objective a Court will give paramount consideration to, will depend on the unique circumstances of the offender, and the unique circumstances of the charges before the Court. The Crown and defence each provided case law to support their respective positions. Although none of the cases are exactly on point to your case Mr. Archibald, there are important principles which emerge and which are of assistance in determining the appropriate sentence. In R. v. Brochu , [2000] O.J.

No. 3635 , the Court imposed a jail sentence of 27 months. What is significant in that case is that the accused had a criminal record, including a criminal record for armed robbery, for which he had previously received a sentence of 11 months. The accused was seen as having no remorse for his crime. At paragraph 50 of that decision, the Court states, “A primary principle of sentencing in matters such as this must always be related to general deterrence and protection of the public.

Anyone working in a small corner store or small convenience store may always be considered to be a more vulnerable person, perhaps than others, and deserves the protection of the Courts as demonstrated by the sentences that Courts impose.” There are obvious differences to your case. You clearly have remorse and you have no criminal record. In R. v. Ramadan [2010] O.J. No. 5997 , the Ontario Court of Appeal upheld a sentence of 12 months for a convenience store robbery where the accused brandished a knife. In that case the appellant had been engaged in rehabilitation.

Of course the difference here is that you used a knife in this case, you didn’t just brandish it. Generally sentences imposed on youthful first offenders will stress individual deterrence and rehabilitation rather than general

deterrence. Cited at paragraph 16 of R. v. Dirie [2011] O.J. 5460, the Court states, “An exception to that general rule may be justified for serious crimes involving a significant risk to public safety. Even for thoseoffences however, the youthfulness of an offender remains a relevant consideration.” Further at paragraph 16, the Court quotes the decision of Justice Rosenberg in R. v. Borde (ON CA), [2003] 172 C.C.C. (3rd) 225, at paragraph 36, “The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciationand general deterrence.

Whereas here the offender has not previously been to a penitentiary or served a long adult sentence, the Courtsought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.” I’ve also been provided with the decision of R. v. Macri [2012] SKPC at page 94. In that case the accused acted as a driver forconvenience store robberies, which the co-accused committed using a knife. The accused was 20 years of age and had no prior record. Since the offences, the accused had quit using drugs, changed his peer group and found employment.

The Court found that while a jailsentence was required to pay adequate attention to denunciation and deterrence, in light of the accused circumstances and as he was notthe principal offender, a sentence at the lower end of the range was appropriate, 12 months concurrent for two counts of robbery. While I do accept that the principles of denunciation and general deterrence must be given adequate consideration, given that theoffences before the Court are very serious, and particularly given that the accused used a knife to stab the victim, the accusedcircumstances, your circumstances Mr.

Archibald, and your extraordinary efforts at rehabilitation require the Court to also considerrehabilitation and the principle of restraint, as you are a youthful first offender who has not only good, but excellent prospects atrehabilitation. That is what makes this sentencing so difficult Sir. The Court of Appeal has repeatedly affirmed that the doctrine of restraint continues to inform the principled exercise in sentencingdiscretion that I am still left with. This can be found in the Ontario Court of Appeal decisions of R. v. Batisse 93 O.R. 3rd Series, 643, R. v.

Speziale 107 O.R. 3rd Series,page 447, ONCA, and R. v. Brooks [2012] ONCA, page 703, where the principle of restraint is evoked particularly where there is aprospect of rehabilitation. In the decision of the Court of Appeal in R. v. Greene, which is an unreported decision found at May 27th 2002, Ontario Court of Appeal,court file 37307. The Ontario Court of Appeal expressly adopted the logic of restraint as expressed by the B.C. Court of Appeal in R. v.Preston. In that case Ms. Preston was a heroin addict with over 20 prior convictions, including reformatory sentences for heroin trafficking.

Shehad been convicted of three more heroin related offences. The Court accepted that Ms. Preston had made genuine efforts at rehabilitation. The trial judge suspended the passing of sentence andplaced her on probation with the focus on drug counselling.

The B.C. Court of Appeal dismissed the Crown appeal. In R. v. Greene, the Ontario Court of Appeal quoted the Preston decision, and applied its rationale to Mr. Greene, who was an addictwho had committed break and enters. He also had over 100 prior convictions. On this day he had entered into a residence and stolen acomputer in order to feed and fuel his addiction to cocaine. His sentence was reduced from two years to one year by the Ontario Courtof Appeal. The decision of R. v. Greene has most recently been quoted in R. v. Dziensis [2012] ONCJ 442, at paragraphs 25 to 31.

So while general deterrence, denunciation, and retribution, all play a role and have weight in the calculus of sentencing, as stated by the Supreme Court of Canada, Justice Lamarre, in R. v. M.(C.A.) (SCC), 105 C.C.C. (3rd) 327 at paragraphs 79 to 81. “Retribution and deterrence incorporates a principle of restraint. Retribution requires the imposition of a just and appropriatepunishment and nothing more.” And that is what I am going to try to achieve Mr. Archibald. Sentencing is achieved by attempting to find that fine balance between all of those enumerated principles of sentence.

In this matter, I am taking into account that you are a youthful adult who plead guilty, had no prior record, and successfully completedseven and a half months at Jericho Road Addiction, which was followed by after care of 94 days at New Connections. You actively attend Alcoholics Anonymous, and have engaged in numerous positive volunteer activities. You have also takenresponsibility and are a proud parent of a two year old, and have positive dreams for yourself and your family in the future.

I also note that you have been able to celebrate one year of sobriety as of May 7th of 2012, and that indeed is an achievement. I know that jail is going to be difficult. There will be temptations to your sobriety, and you will have a negative peer group, withoutquestion. The difficult task for me is to honour your efforts at rehabilitation and yet at the same time, I must recognize the seriousness of theoffence and the harm done to the vulnerable convenience store clerk.

In this matter I note pre-sentence custody at 1.5, Madam Clerk, therefore 83 days of pre-sentence custody, and that’s going to be notedon the aggravated assault. I take into account that you have been actively involved in drug and alcohol programming for a period ofapproximately 11 months since your release. Three months of that time was under house arrest. You also abided by strict terms ofrelease and engaged in volunteer activities and Alcoholics Anonymous. I consider that to be the equivalent of approximately five monthsin custody.

Bearing in mind the need to balance the principles of denunciation and deterrence with restraint, and to encourage your continuedrehabilitation, as stated by the Ontario Court of Appeal in R. v. Lazo [2012] O.C.A., page 389 at paragraph 8, that Court stated,

“The public interest is always served by diverting individuals in the appellant situation into drug treatment programs that address the addictions which fuel their criminal activity.” In this matter I consider a sentence of 15 months to be a sentence at the lowest end of the range, which balances those principles. In considering the pre-sentence custody and time spent in residential treatment, I am going to impose a further sentence of seven months, followed by two years probation on strict conditions.

I am also going to make a recommendation to the Correctional authorities that you be considered for a temporary absence pass to enable you to continue your addiction treatment. I am going to impose the mandatory order under

Section 109 of the Criminal Code that you be prohibited from possessing any weapons for a ten year period, and I am going to grant the Crown’s request that a sample of your blood be taken for the DNA data bank. I will waive the Victim Fine Surcharge.

As indicated, I am placing you on probation for a period of two years on terms and conditions as follows: ( 1 ) Keep the peace and be of good behaviour; ( 2 ) Appear before the Court if and when required to do so; ( 3 ) Notify the Court or probation office in advance of any change of name, address, employment, or occupation; ( 4 ) You will report within two working days of your release from custody; ( 5 ) You will reside only at an address approved of by the probation office; ( 6 ) You are not to associate or communicate with Yasin Almada; ( 7 ) You are not to attend within 500 metres of his place of residence, place of employment, or any place he may be at; ( 8 ) You are not to attend Charlie’s Groceteria at 220 Carruthers Avenue; ( 9 ) You are to abide by a curfew by being in your place of residence between the hours of 10:00 p.m. and 6:00 a.m.

Sunday to Thursday, and 11:00 p.m. to 6:00 a.m. Friday to Saturday, or as set out by the probation office. There are exceptions to this. Except for employment, except for the prior written permission of the probation office, and except to attend counselling or A.A., or to comply with any other terms of this order; ( 10 ) You are to abstain from the purchase, possession, and consumption of alcohol and other intoxicating substances; ( 11 ) As directed by the probation office, you are to attend for any assessment, treatment, or counselling programs.

That simply gives them the jurisdiction and ability to refer you to programs if that’s needed for any after care Sir. ( 12 ) You will sign any releases as required by the probation office to monitor your attendance and progress at any such counselling or therapy programs.

Given that Alcoholics Anonymous has been of tremendous benefit to you Sir, I am going to make this condition. ( 13 ) That you attend A.A. or N.A. a minimum of twice per week, and provide the required releases so that the probation officer can monitor your continued attendance at those programs. ( 14 ) You are not to possess any weapons, ammunition or explosives as defined in the Criminal Code or imitations thereof.

The seven months jail will be on the first count and concurrent on the second. * * * * * * * * THE HONOURABLE MADAM JUSTICE H. PERKINS-MCVEY COURT CLERK : Your Honour , the five months of pre-trial custody in residential, should .... THE COURT: That is not to be noted, that was taken into consideration in determination of the sentence. The only pre- sentence custody that should be noted is the actual pre-sentence custody at the 1.5, which is 83 days. COURT CLERK : Thank you so much.

THE COURT: I will make the recommendation that was indicated on the warrant of committal, that he may be considered for a T.A.P. to resume treatment in an addiction treatment facility. MR. ADAM : Thank you, Your Honour . THE COURT: Thank you Mr. Archibald. I know that you appreciate what a difficult decision it was. There are limitations on the kind of sentence I could impose. As I indicated, if a conditional sentence had been available to me in law, it is something I certainly would have considered.

I wish you the best for you and your family, and once this is behind you, you will be able to move on and become the young man you want to be. The remaining counts will be marked withdrawn. You will need to remain so that an officer can accompany you Sir. * * * * * * * * Certificate of Transcript Evidence Act (Subsection 5(2)) I, Wanda Gagnon, certify that this document is a true and accurate transcription of the recording of Kaile James Archibald, in the Ontario Court of Justice, held at 161 Elgin Street,

Ottawa, Ontario, taken from recording 0411-11-20130604, which has been certified in Form 1. Date: June 04, 2013 Wanda Gagnon, Court Reporter