r v. Tony COLIDA, 2014 QCCQ 21412

R. c. Colida 2014 QCCQ 21412 JT 1383 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-057634-112 DATE: December 4, 2014 ______________________________________________________________________ PRESIDING: THE HONOURABLE CHRISTIAN M. TREMBLAY, J.C.Q. ______________________________________________________________________ Her Majesty the Queen Prosecutor v.

Tony COLIDA Accused ______________________________________________________________________ SENTENCE ______________________________________________________________________ INTRODUCTION [ 1 ] On July 8, 2014, Tony Colida was found guilty of assault causing bodily harm to the complainant, Mr. Hanna Ghazal. [ 2 ] Mr. Colida was found guilty after a trial. He was then represented by an attorney. [ 3 ] The accused is facing an indictable offence and is liable to imprisonment for a term not exceeding ten years (s. 267(

b) Cr. C .). [ 4 ] This is the sentencing of Mr. Colida. POSITION OF COUNSEL [ 5 ] The Crown proposes that the Court sentences the accused to 12 months of imprisonment with probation. [ 6 ] This proposition takes into consideration the age of the victim, the severity of injuries, the fact that the accused committed a senseless act of violence to the victim. [ 7 ] For the Crown, the sentence should be appropriate and deterrent. [ 8 ] The Defense proposes a conditional sentence of imprisonment with a probation of two years.

PROBATION OFFICER’S REPORT [ 9 ] On July 8, 2014, the Court required the preparation of a probation report. [ 10 ] On or around October 22, 2014, the Court received a letter from a probation officer and his supervisor. They confirmed the absence of collaboration of the accused (exhibit S-3). CONTEXT [ 11 ] The accused and the victim know each other and live in the same building. [ 12 ] On April 9, 2011, an incident occurred in the dressing room of the sauna. Mr. Colida was annoyed with Mr. Ghazal because he hit his sandals on the wall for them to dry. Mr. Colida lost his self control.

After making a complaint to the janitor, he hit Mr. Ghazal more than once with his fist. Mr. Ghazal was seriously injured (exhibits P-1 and P-2). Mr. Ghazal went to the hospital. His eye socket was fractured on the right side. He had a black eye. His right shoulder and his right hand were also injured. [ 13 ] Mr. Colida never denied the fact that he punched Mr. Ghazal in the face. He told the Court he acted in self defense. His version of the facts was not retained by the Court.

[ 14 ] At the time of the incident, the victim was 71 years old and the accused was 50 years old. [ 15 ] Mr. Ghazal speaks arab but does not speak English or French. Mr. Colida does not speak arab. VICTIM IMPACT STATEMENT [ 16 ] In conformity with

section 722(

a) Cr. C ., the Court shall consider the statement prepared by the victim with the help of his grand-daughter (exhibit S-1). [ 17 ] Mr. Ghazal has been shaken by the event. He was stunned by the reaction of Mr. Colida. [ 18 ] He still has a fear of the accused because they live in the same building. When he sees him, he modifies his direction to avoid contact with the accused. [ 19 ] He continues to replay the event in his head and tries to understand why Mr. Colida attacked him. This is a cause of anxiety. [ 20 ] Mr. Ghazal has headaches and sleeping disorders. PURPOSE AND PRINCIPLES OF SENTENCING [ 21 ] The Court must now consider the various sentencing factors. [ 22 ]

Section 718 Cr. C . sets out the purpose and general principles of sentencing: denunciation, deterrence, separation from society, rehabilitation, reparation for harm done, and the promotion of a sense of responsibility. [ 23 ]

Section 718.1 Cr. C . adds this fundamental principle: that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 24 ] In addition, under

section 718.2(b), the Court must take the principle of parity of sentencing into account, that is, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances . MITIGATING FACTORS [ 25 ] As stipulated under

section 718.2(a), a sentence should be increased or reduced in account for any relevant aggravating and mitigating circumstances relating to the offence of the offender. [ 26 ] The Court identified the following mitigating factor : • The accused was depressed. [ 27 ] Considering Mr. Colida did not collaborate with the probation officer, the Court does not benefit from the enlightenment of a probation report. This is why the mitigating factors are limited here.

AGGRAVATING FACTORS [ 28 ] The Court notes the following elements: • This is a serious case of violence against a vulnerable person. • The assault was completely unjustified. • The accused hit the victim more than once. • The consequences for the victim were serious in every aspect (physical and psychological). • The criminal record of the accused (exhibit S-2) shows that he was convicted in 1999 for criminal harassment.

Other condemnations are irrelevant (burglary (1979); being in possession of stolen goods (1979); theft (1982); breaches of recognizance (1999)). • The accused never expressed any regrets about what he did; he does not show remorse. • The accused was 50 years old when the crime was committed; he was supposed to be mature enough to control himself even if he was frustrated by a communication problem or habits of the victim who lives in the same building than the accused. • The Court considers there is a probable risk of reoffending.

SENTENCING [ 29 ] As mentioned, the Crown suggested a sentence of 12 months of imprisonment with probation. The Defense suggested a conditional sentence of imprisonment with probation. This suggestion could not be followed for the following reasons.

[ 30 ] Parliament has set out a maximum sentence of ten years for assault with bodily injury, armed assault, and harassment. Under

section 742.1 Cr. C ., the Court may not impose a conditional sentence for an offence causing serious bodily harm within the meaning of

section 752 Cr. C .

They are offences punishable by at least ten years’ imprisonment and involve: • The use of violence against another person. • Conduct inflicting serious psychological harm on another person. [ 31 ] These elements reflect the objective gravity of the offence at issue. [ 32 ] The general principles having been outlined, the mitigating and aggravating factors must now be analysed. [ 33 ] The aggravating factors are numerous and there is only one mitigating factor. [ 34 ] In such situation, the accused could be convicted from a few months up to around 24 months of imprisonment [1] . [ 35 ] Recently, my colleague Judge Downs convicted an accused to six months for the same offence [2] .

The Crown’s position was two years of imprisonment. The probation report was favourable to the accused and the mitigating factors were numerous. [ 36 ] The picture here is worse than the case Judge Downs had to evaluate. [ 37 ] In Vega Espinoza c. La Reine [3] , the Court of appeal confirmed the sentence of nine months of imprisonment imposed by the first judge. After they got out of a bar, the accused punched many times the victim in the face. Many of his teeth were broken and treatment by a specialist was necessary. The risk of reoffending was high. [ 38 ] Mr.

Colida is not eligible to an intermittent sentence (s. 732(1) Cr. C .) because the Court considers imposing a sentence of imprisonment for more than ninety days. [ 39 ] In the leading case of R. v.

Proulx [4] , rendered on January 31, 2000, the Supreme Court stated the following: [114] Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction, (…). [ 40 ] In fact, in this case, the Court is in presence of certain factors or a combination thereof: the offence is a serious one, the aggravating factors are important and there is only one mitigating factor; the risk of reoffending is high. [ 41 ] Upon analysis, the Court finds that the objectives of denunciation and deterrence will be achieved with a sentence of ten months of incarceration with a probation for a period of two years.

CONCLUSION [ 42 ] FOR THESE REASONS , the Court : [ 43 ] IMPOSES an incarceration for a period of ten months to the accused Tony Colida. [ 44 ] IMPOSES on the accused a probation order of two years with the following conditions : • Keep the peace and be of good behaviour. • Appear before the Court when required to do so by the Court. • Inform the Court of any changes of address or name. • Abstain from being in the physical presence of Mr. Hanna Ghazal. • Abstain from communication or attempting to communicate in any manner with Mr.

Hanna Ghazal. [ 45 ] PROHIBITS the accused from having any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance in his possession for a period of ten years pursuant to paragraph (

a) of subsection 109(2) Cr. C . [ 46 ] AUTHORIZES the taking of samples of bodily substances for the purposes of forensic DNA analysis pursuant to subsection 487.051(1) Cr. C . (Form 5.03).

__________________________________ CHRISTIAN M. TREMBLAY, J.C.Q. Me Dannie Leblanc Counsel for the Prosecutor Me Marc Bissonnette Counsel for the Accused (Me Marc Bissonnette ceased to represent the accused during deliberation period) Dates of hearing: May 8, 2014 and July 8, 2014