R. v. Tsoraklidis, 2023 ONCJ 433

ONTARIO COURT OF JUSTICE CITATION: R. v. Tsoraklidis , 2023 ONCJ 433 DATE: October 4, 2023 COURT FILE No.: Toronto 23 48113730-00 20 75004156-99 BETWEEN: HIS MAJESTY THE KING — AND — STAVROS TSORAKLIDIS Before Justice Hafeez S. Amarshi Oral judgment: October 3, 2023 Written reasons for sentence released on October 4, 2023 A. Spieser................................................................................................. counsel for the Crown J. Raftery ................................................................................... counsel for Stavros Tsoraklidis H.S. Amarshi J.: A. Introduction 1 .

I found Stavros Tsoraklidis guilty after trial for assault with a weapon and administering a noxious substance with the intent to aggrieve or annoy contrary to sections 267 (

a) and 245(1) (

a) of the Criminal Code . [1] 2 . The offender previously did not attend on his date for sentencing and a bench warrant was issued. Mr. Tsoraklidis is in-custody and has pled guilty to an additional count of failing to attend court. 3 . The events in this case take place in the early morning hours of May 2, 2020, outside of The Kitchen Table, a grocery and convenience store, near Dupont Street and Davenport Road in Toronto. Mr. Tsoraklidis deployed pepper spray at the victim – Jason

Ball, who worked at the Kitchen Table. The victim suffered burn like injuries. I rejected the argument that Mr. Tsoraklidis was acting in self-defence when he sprayed the victim with a noxious substance. 4 . The Crown is seeking a nine-month jail sentence emphasizing the need for deterrence and denunciation in this case. The Crown outlined a number of aggravating factors including the use of a homophobic slur at the time of the offence. 5 . The defence is effectively seeking a time-served position, which is equivalent to 54 days followed by a period of probation. Mr.

Raftery points out to the difficult life circumstances experienced by this offender who himself was a victim of a violent crime and that this Court emphasize rehabilitation as a key sentencing principle. Further, the defence asks this Court to consider the provision of Downes “credit” to reflect the long period of time the offender was subject to a house arrest bail. B. Circumstances of the Offence 6 . On May 2, 2020, Jason Ball was completing overnight inventory when he heard Mr. Tsoraklidis knock on the outside glass of The Kitchen Table.

It was approximately 1:15 a.m. and the store had closed 90 minutes earlier. 7 . The knocking was sustained and went on for a few minutes. The offender pointed at the ATM in the store, while holding up his debit card. Mr. Ball indicated the store was closed. 8 . As the victim approached the door, Mr. Tsoraklidis called him a “faggot.” Mr. Ball opened the door and asked the offender – “What his problem was?” It is at this point he noticed the store’s chalk-board sign was missing and he exited the store to investigate. He walked a few steps and was struck by a wave of pepper spray.

The offender was at arms-length. 9 . Mr. Ball ran back into the store and locked the door. He went straight to the kitchen and called 911. He started rinsing his head and face. There were burns from the spray to his face, head, ears, chin and chest. From rinsing his face water trickled down his forearms, wrists and hands, where he felt a further burning sensation. 10 . According to the victim, the burns from the pepper spray lasted for weeks. He did not seek medical attention. C. Circumstances of the Offender 11 . Stavros Tsoraklidis is 41 years old. He spent a portion of his childhood in Greece.

He has had a previous drug addiction but has not used opiates for the last ten years. 12 . Mr. Tsoraklidis has a grade 10 education. Mr. Raftery described the offender as operating at a “fairly basic level” and that he is not particularly sophisticated, although there is no suggestion he has a cognitive deficit. 13 . He has been employed in the past painting houses and has worked in general construction. Mr. Tsoraklidis is periodically homeless. He has his father’s support and prior to his incarceration was living with him. 14 . The offender has a criminal record which comprises of two entries from 2014.

The first for impaired driving, for which he received a fine. He was further prohibited from driving for a 12-month period. For the second entry he was sentenced to a period of custody of just over 11 months for the use of an imitation firearm during the commission of an indictable offence. He served 202 days in pre-trial custody. 15 . Two years ago, he was attacked on a TTC subway. He was stabbed to the side of his body and to his shoulder. He spent five days in hospital. The attack had a lasting psychological impact on him, and he has carried pepper spray with him ever since.

16 . A pre-sentence report was ordered in this case, but Mr. Tsoraklidis refused to engage with the report writer. I note that, not to suggest it is a factor in sentencing, but as a result I may lack fulsome details about this offender’s background and prospects for rehabilitation. That said, Mr. Raftery provided a sufficient amount of information about Mr. Tsoraklidis for the purposes of sentencing. D. Sentencing Principles 17 .

Section 718 of the Criminal Code instructs that the goal of any criminal sentence is to “protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society." 18 . Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code .

These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community. [2] 19 . A fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

This is achieved by identifying and considering the aggravating and mitigating factors and circumstances of the offence and the offender bearing in mind the established principles of sentencing including those set out in

section 718.2 of the Code . 20 . In addition, the Court must always be mindful of the principle of restraint. [3] The impact on any victim must also be considered. It is in this context and in considering these principles, goals, objectives and factors, that the Court determines a fit sentence that will best achieve the sentencing objectives and is similar to sentences imposed in similar cases. [4] 21 . I further note that sentencing is a highly individualized process. It is driven by the facts of every offence and the unique characteristics of every offender.

Sentencing principles must be applied to the unique circumstances of the case. This means that, for the sentence I impose to be appropriate, it must be tailored to Mr. Tsoraklidis’ circumstances, and the circumstances of the offence he has committed. E. Aggravating and Mitigating Circumstances 22 . As I indicated, the Criminal Code mandates a consideration of any relevant mitigating or aggravating circumstances related to the offence or the offender. I find the following aggravating factors: (

i) The victim was vulnerable. He was working alone late at night in a small supermarket at the height of the pandemic. (ii) The impact of the offence on Mr. Ball is a relevant factor in sentencing. The victim suffered burns to his face, chest, hands and arms. The burning sensation lasted for weeks. He described at trial being in shock and disbelief. Although I do not have the benefit of a victim impact statement, it is reasonable to conclude that this offence has exacted a physical and emotional toll on Mr. Ball. (iii) Mr. Tsoraklidis used a homophobic slur prior to the attack.

Although there is no evidence to suggest that the victim’s sexual orientation was a motivating factor in the attack. The casualness in which the words were uttered is alarming. The slur was demeaning, and such conduct is to be clearly denounced. It has no place in modern Canadian society. It is an aggravating feature of this sentencing. (iv) The offender has a related criminal record, with a prior weapons conviction. He was subject to weapons prohibition at the time of the offence. (

v) Mr. Tsoraklidis failed to appear for his sentencing date. Although I gave this factor less weight than the other considerations.

23. There are few factors in mitigation. I note Mr. Tsoraklidis’ criminal record is not extensive, although it does contain a serious entry.There is a gap in the offender’s criminal record. The last entry dating to 2014, which suggests there are extended periods when thisoffender is not in conflict with the law. 24. Mr. Tsoraklidis has moved past an addiction to opiates. Although he has a limited education he has been gainfully employed in thepast. I have concluded there are prospects for rehabilitation. F. Downes Credit 25. The defence seeks credit for the period Mr.

Tsoraklidis was released on restrictive bail conditions, pursuant to R. v. Downes, (ON CA), [2006] O.J. No. 555 (C.A.). 26. Time spent under stringent bail conditions must be taken into account by a sentencing judge as a relevant mitigating factor onsentencing.[5] 27. When an offender seeks credit for stringent bail conditions, the focus of the inquiry is on the impact of the conditions on the offenderand whether they were punitive enough to be akin to punishment. The amount of credit to give is within the sentencing judge’sdiscretion.[6] 28.

The Court of Appeal in Downes at para. 37 further states, “Where the offender asks the trial judge to take pre-sentence bailconditions into account, the offender should supply the judge with information as to the impact of the conditions.” 29. Part of the difficulty in assessing Downes credit in this case is there is little evidence before me about the impact of the bailconditions on this offender. There is no affidavit, for example, outlining personal hardships experienced by Mr. Tsoraklidis’ during histerm on bail. 30.

The offender when given an opportunity to address this Court during the sentencing hearing and briefly explained he was not able togo anywhere and remained in his house everyday. This is obvious. 31. I note at least at the outset of his bail, he would have been subject to COVID-19 lockdown protocols. Further, Mr. Tsoraklidis wasnot working at the time, so there was no discernible impact on his livelihood. 32. I accept, however, as a matter of common sense, that a house arrest bail does impose personal hardships and can sufficiently restrictan accused’s liberty such that some credit is warranted. 33.

Accordingly, and despite the sparsity of evidence, I will grant one months’ credit for this offenders’ time spent on house arrest. G. Determination of a Fit Sentence 34. I readily accept that denunciation and deterrence are relevant sentencing principles in this case. The offender willfully deployed anoxious substance. I found Mr. Tsoraklidis acted out of anger, that he was the aggressor. There was no element of provocation and theviolence seemingly senseless.

The offender who admitted to carrying “mace” since he was stabbed on a subway train would have beenwell aware of the potential consequences of using pepper spray. In this case he stood at a short distance, roughly arm-lengths to deploythe noxious spray directly at Mr. Ball. 35. The pain experienced by the victim was clearly significant. He explained in considerable detail the terrifying moments that followedthe offence. The burning sensation lasted for weeks. A period of incarceration is warranted.

36 . I have concluded Mr. Tsoraklidis does have some prospects for rehabilitation and has experience working in construction. That he can be gainfully employed. His father is a supportive figure in his life. There is a gap in his brief criminal record. H. Conclusion 37 . I have determined the appropriate sentence is a seven-month jail sentence. He is sentenced to six months in jail for assault with a weapon and administering a noxious substance. The sentence is concurrent on each charge. He is to serve an additional 30 days in jail, consecutive, for failing to appear in court for his initial sentencing date. 38 .

Mr. Tsoraklidis has already served 54 days in jail, which is equivalent to 81 days with the application of enhanced credit. In addition, a further credit of 30 days is to account for the period when the offender was subject to a house arrest bail. Mr. Tsoraklidis is therefore sentenced to a further 3 months and 9 days in jail. 39 . Upon his release from custody, Mr. Tsoraklidis will be bound by a probation order for a term of 2 years with the following conditions: • Report to a probation officer in person within 72 hours of his release from custody.

Thereafter at all times as directed by the probation officer; • No direct or indirect contact with Jason Ball; • Not to attend at the Kitchen Table/Food Depot at 155 Dupont St, Toronto; • Take counselling as directed by a probation officer and sign any forms to enable the probation office to monitor enrollment attendance and completion of those programs. 40 . There will be a s. 110 order for 10 years, and DNA sampling is ordered as a primary designated offence for assault with a weapon. Mr. Tsoraklidis has no means of support. The victim fine surcharge is waived. 41 .

I want to thank both counsel for their professionalism and diligence in their carriage of this case. H.S. Amarshi J. [1] R. v. Tsoraklidis , 2023 ONCJ 279 [2]

Section 718 (

a) to (

f) of the Code . [3]

Section 718.2 (

c) to (

e) of the Code . [4] Sentencing principles as summarized by Justice Paciocco, as he then was, in R. v. Casselman , [2014] ONCJ 198 at para. 3. [5] R v. Schlaepfer , 2022 ONCA 566 at para. 13 . [6] See R. v. Joseph, 2020 ONCA 722 , at paras. 107-108 ; R. v. Schlaepfer , 2022 ONCA 566 at paras. 13 , 20-21 .