R. v. Champion, 2016 ONCJ 125

COURT FILE NO. Brampton/14-8797 DATE: 2016-03-10 CITATION: R. v. Champion , 2016 ONCJ 125 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - RYAN CHAMPION Before Justice James Stribopoulos Heard on June 15, 2015, February 10, and March 10, 2016, Reasons for Sentencing Released on March 10, 2016 Ms. Annie Simitsis …………………………......…………..……..………………… … for the Crown Mr. Kenneth R. Byers.……..…….…………………….………………….……..…for the Defendant STRIBOPOULOS, J.: Introduction [ 1 ] Ryan Champion threw a single forceful punch that struck the victim hard in the face without any warning.

The punch caused significant injuries to the victim, including fracturing his jaw in two places. [ 2 ] Mr. Champion has taken responsibility for the punch he threw and the harm that resulted by pleading guilty before me to a charge of assault causing bodily harm, contrary to s. 267 (

b) of the Criminal Code . These are my reasons for sentence in Mr. Champion’s case. Circumstances of the Offence [ 3 ] In the early morning hours of Saturday June 21, 2014, Mr. Champion and the victim were both at the 52 nd Street Tap & Grill, which is located in the City of Brampton. Each young man was present in the company of friends and acquaintances. They were part of two different groups. [ 4 ] As too often happens when young men and excessive alcohol consumption come together, there was a dispute between members of the two groups. Words were exchanged. A young woman that Mr.

Champion knows was apparently insulted. A friend of the victim was punched. And, not surprisingly, the two groups were ejected from the bar. [ 5 ] The events that are the focus of this proceeding took place just outside the bar. The area is subject to video surveillance, which captured in vivid detail the assault for which Mr. Champion has pled guilty. [ 6 ] The recording shows that while the victim was engaged in a conversation with one of the staff members at the bar, Mr. Champion approached him from a distance and moved in quickly out of the victim’s sightline. Mr.

Champion then delivered a single forceful punch to the side of the victim’s face. The victim had no warning and, therefore, no opportunity to avoid the punch or to even prepare for it. At the time, the victim was standing next to a brick wall. The force of the blow sent him crashing into the wall.

[ 7 ] It is clear that there was no immediate provocation for this assault. There was no excuse or justification for Mr. Champion’s actions. His actions were calculated and deliberate. To use the vernacular, Mr. Champion “sucker-punched” the victim. [ 8 ] The results for the victim were significant. The force of the blow, along with the resulting impact into the brick wall, caused the victim to suffer some cuts and bruises to his face, as well as a minor concussion. [ 9 ] Even more significantly, the victim’s jaw was broken in two places; an injury that required immediate surgery to treat.

In the aftermath of that operation, the victim’s jaw was wired shut for nearly two months. During that time, the victim was unable to speak and was also incapable of eating solid foods. [ 10 ] The physical impact was significant, resulting in the victim losing almost 25 pounds. However, the experience was made even worse by the fact that the victim suffers from Tourette syndrome, which manifests itself, at least in part, through both verbal and physical tics.

By having his jaw wired shut, the victim was unable to relieve his tics; which, from an emotional standpoint, made the ordeal for him especially excruciating. [ 11 ] The physical impact upon the victim continues. In the months that followed, there were at least eight follow-up medical visits. There was also an emergency hospital visit to deal with a piece of the victim’s jaw that needed to be removed. In addition, dental surgery will be required to deal with some of the dental implications of the jaw fractures. There is also the real possibility in future of further dental complications for the victim.

Because of the jaw fractures, the victim’s jaw will always remain susceptible to further injury. [ 12 ] Finally, the victim’s injury led directly to the loss of his employment. Unable to speak for two months, the victim lost his job, which required him to interact with members of the public throughout the day. [ 13 ] In

summary, this offence had a significant impact, occasioning substantial physical, emotional, and financial harm to the victim. It also had an indirect impact upon his family, who were charged with the responsibility of caring for him as he recovered from his injuries. Circumstances of the Offender [ 14 ] Ryan Champion is 21 years of age. He was only nineteen at the time of this offence. [ 15 ] He has no prior criminal record. And, it would appear, based on the available sources, no prior history of violence. [ 16 ] Mr. Champion was born in Toronto, but raised in Brampton.

He grew up in a loving and supportive family, which consists of his mother, father, an older brother, who is six years his senior, and his twin sister. He continues to live at home with his parents. By all accounts, Mr. Champion had an idyllic upbringing, free of emotional or physical abuse. [ 17 ] As a child, Mr. Champion was diagnosed with a learning disability. He was accommodated throughout his elementary school education. However, once in high school, he began to struggle and feel overwhelmed by his schoolwork. [ 18 ] Unfortunately, by grade ten, Mr.

Champion began smoking marihuana and hanging around with a negative peer group. In response, his parents decided to move, which meant a new neighbourhood and a new school. The transition proved difficult for Mr. Champion, who felt isolated and depressed; feelings that were, at least in part, apparently the product of being bullied at his new school. Unfortunately for Mr. Champion, it would seem that drugs became his principal means of coping with these feelings. [ 19 ] As noted, Mr. Champion’s drug use began with marihuana, which he eventually began to use on a daily basis. Things worsened from there, with Mr.

Champion using and abusing a variety of substances, including psilocybin (mushrooms), methamphetamines, ecstasy, cough syrup, sleeping pills, cocaine and, eventually, crystal methamphetamine. In addition, Mr. Champion would also regularly consume alcohol, which came with added health complications for him given that he is a severe diabetic.

[ 20 ] On the night of the offence, Mr. Champion had ingested a combination of alcohol and prescription drugs. It seems likely that he was intoxicated when he assaulted the victim. [ 21 ] Not surprisingly, Mr. Champion’s drug use interfered with his studies and marred his academic progress. He ultimately dropped out of high school. To his credit, since his arrest, he has returned to school on a part-time basis, completing two credits through the Peel Adult Learning Centre. He is apparently just one credit shy of completing his high school diploma. [ 22 ] Thankfully, since his arrest, Mr.

Champion has made a concerted effort to obtain treatment for his substance abuse problem. This included successfully completing a 70-day residential drug treatment program in Aurora, from November 26, 2014 until February 4, 2015. [ 23 ] In the immediate aftermath of that program, Mr. Champion attended “Aftercare” each Wednesday evening while his parents and sister also attended a family group program those same evenings.

Unfortunately, that ended in May 2015, as his parents could no longer drive him to Aurora as they were busy assisting his maternal grandmother who was diagnosed with terminal brain cancer. [ 24 ] Mr. Champion subsequently sought help closer to home, obtaining the assistance of an addictions worker with the Peel Addiction and Referral Centre, where he apparently had regular appointments. Although he stopped attending in the middle of June 2015, I understand that he reconnected with the addictions worker at some point thereafter. He has also been attending weekly meetings as part of a 12-step program.

He has a sponsor through that program, whose letter speaks positively about Mr. Champion’s recovery. [ 25 ] Although Mr. Champion has suffered two relapses since completing the residential drug treatment program, the first in June 2015, and the second in February of 2016 (the very week before he was last in court), to his credit, he sought out help in the aftermath of each. [ 26 ] In November 2015 Mr. Champion began to see a psychologist; Dr. Walls. His mother sought out Dr. Walls because he was struggling with particular aspects of his recovery and she wanted to ensure that he had adequate supports.

On the sentencing hearing, defence counsel filed a report prepared by Dr. Walls. [ 27 ] Before preparing her report, Dr. Walls essentially reviewed the very same materials that formed the record on the sentencing hearing. In addition, she met with Mr. Champion for individual psychotherapy sessions on five separate occasions. Finally, Dr. Walls also administered two standardized psychological tests on Mr. Champion. She also administered a psychological test on both his mother and his father, in order to obtain further insight into Mr. Champion’s psychological circumstances. [ 28 ] In her report, Dr.

Walls provides a detailed explanation of the results of the testing she administered. By way of

summary, Dr. Walls described Mr. Champion as someone who struggles with social interaction. During his high school years, this led to feelings of inadequacy, which then served to develop into depression and anxiety. These feelings made Mr. Champion especially vulnerable to substance abuse issues. [ 29 ] According to Dr. Walls, nothing in the information she was provided, her clinical interviews, or the tests she administered, suggested that Mr. Champion had a history of aggressive interactions. As a result, she concluded that the event that brought Mr.

Champion before the court was, “an isolated incident fuelled by circumstance and substance use.” [ 30 ] In Dr. Walls’ opinion, Mr. Champion’s circumstances meet the criteria for a diagnosis of “Major Depressive Disorder, recurrent episode of moderate severity with anxious distress,” as contained in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders . Given the severity of Mr. Champion’s diagnosis, coupled with the fact that he remains in the early stages of his recovery from addiction, Dr.

Walls is of the view that: … it is imperative that Ryan continue to reside in a stable and supportive living environment that minimizes change in his daily routines. The impact of incarceration of any sort, including serving time on weekends, would likely result in a serious setback for Ryan in respect to his medical, mental health and recovery issues. [ 31 ] Since seeing Dr. Walls in late December 2015, Mr. Champion apparently began to take medication to help treat his depression. His mother testified that the medication is beginning to take effect and Mr.

Champion’s depression appears to be lessening. [ 32 ] In terms of work history, prior to late last month Mr. Champion had not held full-time paid employment since leaving school.

However, since he was last in court he has thankfully secured full-time employment working in a warehouse. The Positions of the Parties [ 33 ] The parties are far from agreed on the appropriate sentence in this case. I will briefly outline their respective positions. [ 34 ] On behalf of the Crown, Ms. Simitsis argues that given the unprovoked and calculated nature of the assault in this case, combined with the significant consequences for the victim, the objectives of denunciation and deterrence should be given preeminent position ahead of rehabilitation. In this case, Ms.

Simitsis argues that denunciation and deterrence require a custodial sentence. In support of its position, the Crown relies on the case law. When the circumstances of this case are compared to the precedents, Ms. Simitsis argues that a sentence of six months imprisonment is warranted.

Further, she maintains that given the callous nature of the attack and the significant consequences for the victim, it would be inconsistent with the fundamental purpose and principles of sentencing to permit the sentence to be served in the community. (A conditional sentence is a legally available sentence, given that the Crown elected to proceed summarily in this case.) Ultimately, the Crown’s position is bottomed on the principle of proportionality. A conditional sentence would not be proportionate, Ms.

Simitsis essentially argues, given the gravity of this offence and the offender’s degree of responsibility in its commission. [ 35 ] In contrast, Mr. Byers, on behalf of Mr. Champion, argues in favour of a conditional sentence. Although acknowledging the need for a sentence that meets the objectives of denunciation and deterrence, he contends that a properly crafted conditional sentence can be sufficiently punitive to adequately address these objectives. Mr. Byers notes that an equally important sentencing objective here, remembering Mr.

Champion’s youth, as well as his mental health and addiction challenges, is his rehabilitation. Given Dr. Wall’s opinion about the likely impact on Mr. Champion of being imprisoned, Mr. Byers contends that a six-month conditional sentence, followed by a lengthy term of probation, is the appropriate sentence in this case.

Sentencing Principles and Analysis [ 36 ] The Criminal Code provides that the fundamental purpose of sentencing is to “protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society”. [1] [ 37 ] This is accomplished by imposing “just sanctions” that serve one or more of the sentencing objectives, which include: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [2] [ 38 ] The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

This long-established tenet of the sentencing process is now expressly contained in the Criminal Code , [3] and also recognized as a principle of fundamental justice constitutionally guaranteed by

section 7 of the Charter . [4] To satisfy this requirement a sentence must “fit” both the gravity of the crime and the offender’s level of blameworthiness in its commission. [5] [ 39 ] In assessing the gravity of the offence, a number of considerations must be borne in mind, including: any minimum and maximum punishments mandated by Parliament; the threat the offence poses to the public and its impact on the community, both in a generic sense and in the particular circumstances presented by the case before the court; and the various considerations enumerated in

section 718.2 (

a) of the Criminal Code . [6] [ 40 ] In arriving at the appropriate sentence, it is axiomatic that the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [7] I turn to consider these next. [ 41 ] In my view, there would appear to be two significant aggravating features in this case. First, there is the nature of the assault itself. Mr. Champion did not throw his punch in the midst of a heated exchange before there was an opportunity for passions to cool.

Rather, by the time of the assault the fracas inside the bar had ended. The parties had been ejected and a couple of minutes had passed. After watching and re-watching the recording of the attack, it is clear that there was an element of deliberation behind Mr. Champion’s actions. After milling about outside the bar and studying the victim, Mr. Champion made a calculated decision to circle around and approach him quickly from the side in order to punch him forcefully without any warning. Although I accept that Mr.

Champion was intoxicated at the time, it is apparent from viewing the recording that there was some premeditation involved in this attack. In my view, these circumstances make the nature of the assault an extremely aggravating feature in this case.

[ 42 ] The other significant aggravating feature is the effect of this crime upon the victim. The threshold for “bodily harm” as it is defined in the Criminal Code is relatively low. [8] On the spectrum of what potentially qualifies, I think the victim’s injuries are on the more extreme end. The victim suffered a minor concussion, a fractured jaw in two places requiring surgery, nearly two months of having his jaw wired shut, an inability to speak or eat solid foods during that period and significant weight loss. Long after the assault, emergency surgery was required. And, dental surgery is still necessary.

Whether further medical or dental procedures will be required in future remains to be determined. Beyond the physical effects, there are also the psychological and economic effects. The experience of having his jaw wired shut was especially excruciating for the victim, given that he suffers from Tourette syndrome. As noted, being unable to speak for nearly two months, the victim also lost his full-time job. [ 43 ] In terms of mitigating features, there are a number of them, including: Mr. Champion’s youth (he was only 19 at the time of this offence); the absence of a criminal record; and Mr.

Champion’s considerable efforts, since his arrest, towards finally addressing his drug addiction. [ 44 ] More difficult to determine is whether or not Mr. Champion is remorseful. A guilty plea is usually credited as evidencing an offender’s remorse. In this case, however, the guilty plea came relatively late in the process; literally on the eve of the scheduled trial date.

Further, given that the crime was captured in very vivid detail on high-quality video, it is difficult to credit the guilty plea, in these circumstances, as little more than surrender to the inevitable. [9] Nevertheless, giving the guilty plea its due credit, especially when considered along with the substantial amount of community service that Mr. Champion has undertaken since his arrest (120 hours), and the letter of apology that was written and filed on sentencing, I ultimately accept that Mr.

Champion is genuinely remorseful for his actions. [ 45 ] The Court of Appeal has made it clear that, ordinarily, when sentencing a youthful first offender, the focus should be on specific deterrence and rehabilitation. These objectives normally counsel against imposing a custodial sentence. [10] That principle, however, has its limits.

It does not apply in cases involving, “very serious offences and offences involving violence”. [11] [ 46 ] In a case involving a premeditated and unprovoked act of violence that causes serious and longstanding injuries to the victim, the objectives of denunciation and deterrence must undoubtedly be kept at the forefront when deciding upon the appropriate sentence, even where the accused is a youthful first offender. [12] In this case, remembering all of the circumstances, I am strongly of the view that these objectives require a custodial sentence.

The parties essentially agree; what they differ on is whether or not it would be appropriate to allow Mr. Champion to serve such a sentence in the community.

I next turn to a consideration of that issue. [ 47 ] On my review of the statutory preconditions, given that the Crown proceeded summarily, a conditional sentence is possible in this case. [13] The imposition of such a sentence therefore depends on an application of subsection 742.1( a ), specifically, whether or not “the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 ”. [ 48 ] Given that Mr.

Champion has no prior criminal record, no prior history of violence, has been on bail since his arrest without incident, and has made significant efforts towards his recovery and therefore his rehabilitation since being charged, I am satisfied that permitting him to serve his sentence in the community would not endanger the safety of the community. [14] Therefore, the key question before me is whether or not such a sentence would be consistent with the fundamental purpose and principles of sentencing. [ 49 ] The sentencing objectives specific to Mr.

Champion: individual deterrence and rehabilitation, counsel strongly in favour of a conditional sentence in this case. Based on the record before me, I am satisfied that Mr. Champion has been specifically deterred. As noted, I accept that he is genuinely remorseful for his actions and the harm that he caused. [ 50 ] In addition, one would be hard-pressed to quarrel with Dr. Wall’s opinion that a young man like Mr.

Champion, facing the challenges he does in terms of his psychological circumstances and his recovery issues, would be best served by remaining ensconced in his family’s home, where he has the love and support of his parents. That said, I am far from convinced that Mr. Champion’s health issues are of such a magnitude that the imposition of a custodial sentence would constitute the sort of extraordinary hardship that would justify imposing a conditional sentence where a sentence of actual custody would otherwise be warranted. [15] No doubt, a conditional sentence would best serve Mr.

Champion’s rehabilitation, but that is simply one of a number of competing sentencing objectives; denunciation and general deterrence also operate as rather important considerations. [ 51 ] In the circumstances of this case, the pivotal issue would seem to be whether or not a conditional sentence is sufficient to the task of denouncing Mr. Champion’s crime and deterring others from engaging in similar conduct.

Generally speaking, as the Supreme Court of Canada made clear in Proulx , [16] a conditional sentence, with sufficiently onerous conditions, can achieve the objectives of denunciation and general deterrence. [17] At the same time, the Court also recognized that “ there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of

the offender’s conduct.” [18] The same is true of deterrence, with the Court acknowledging that, “there may be circumstances in which the need for deterrence will warrant incarceration.” [19] [ 52 ] I have given very careful consideration to the imposition of a conditional sentence in this case. Although I am satisfied that such a sentence is best suited to helping to facilitate Mr. Champion’s rehabilitation, I am ultimately of the view that the significant aggravating features in this case make such a sentence inappropriate.

In that regard, the following observation in Proulx would appear to have direct application to the circumstances of this case: 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. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence. [20] [ 53 ] In my view, this is just such a case.

There are significant aggravating features here, both in terms of the nature of the assault and the significant consequences it occasioned. Mr. Champion forcefully punched the victim in the face. He did so without provocation. The attack was premeditated. It was carried out without any warning. It was a cowardly and brutal act. The harm caused to the victim, in terms of his physical, emotional and financial well-being, was considerable.

In all of these circumstances, I believe that a jail sentence is necessary to denounce this very serious crime and to deter others from committing such senseless acts of violence, especially remembering the potential harm that such behavior can all too easily occasion. In short, I have concluded that, in all of the circumstances, a conditional sentence would not be proportionate to the gravity of this crime and Mr.

Champion’s level of blameworthiness in its commission. [ 54 ] In concluding that a jail sentence is necessary in this case, I am mindful of the principle that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. [21] At the sentencing hearing the parties referred to a number of cases involving assaults where victims suffered a broken jaw. Beyond the nature of the injury, none of these cases is entirely analogous.

Nevertheless, I think it deserves mentioning that counsel were unable to locate a single case where an assault that caused an injury as severe as a broken jaw resulted in the imposition of a conditional sentence. [ 55 ] I do not intend to review the various decisions relied upon by counsel in any detail. [22] Suffice to say that each resulted in a custodial sentence, with considerable variation between the bottom end of the range (3 months imprisonment to be served intermittently), [23] and the top end of the range (30 months imprisonment). [24] The differences in sentences are explained by the differing circumstances of each offender and each offence.

Another important variable would appear to be if the offender pled guilty, thereby evidencing his remorse, or was sentenced following trial. [ 56 ] Before addressing what I consider to be the appropriate sentence in this case, it is worth remembering a final well-established and important principle of sentencing.

The Court of Appeal has repeatedly instructed that an offender’s first sentence of imprisonment should be as short as possible and tailored to that individual’s particular circumstances. [25] The case law makes clear that for such offenders rehabilitation is a critically important consideration. [26] Conclusion [ 57 ] I have concluded that Mr. Champion must be sentenced to a period of imprisonment because of the significant aggravating features in this case. Such a sentence is required by the objectives of denunciation and general deterrence.

That said, I am also satisfied that the various mitigating features in this case warrant a sentence at the bottom end of the applicable range. I am referring here to Mr. Champion’s youth, the absence of a prior criminal record, his remorse, and the significant steps he has already undertaken towards his rehabilitation. Remembering the purpose, principles and objectives of sentencing, in light of the aggravating and mitigating features in this case, I have concluded that the appropriate sentence for Mr. Champion is 90 days imprisonment. [ 58 ] I am of course mindful of the challenges Mr.

Champion faces, and I share at least some of Dr. Wall’s concerns regarding the potential impact of imprisonment upon him. Although these concerns are not enough to justify the imposition of a conditional sentence in this case, they must be taken into account in fashioning an appropriate sentence. In order to help address concerns regarding Mr. Champion’s mental health and his recovery from drug addiction, I will direct that he serve his sentence on an intermittent basis.

This will allow him to enjoy the support of his family each week throughout the period he is serving his sentence, while also enabling him to continue to benefit from the mental health and addictions supports that he has already established in the community. Further, this will allow him to maintain his very recently acquired employment, which I believe would be of considerable benefit to his rehabilitation.

[ 59 ] The intermittent sentence will commence today, and continue thereafter each Friday, starting tomorrow, March 11, 2016, when he will be required to surrender into custody at 6:00 p.m., where he will be held until 4:30 a.m. on Monday morning. (In prescribing these hours of surrender and release, I am mindful of the fact that Mr. Champion will be working Monday to Friday from 6:45 a.m. to 3:30 p.m.) He shall continue to surrender each Friday thereafter, and be released each Monday, until the completion of his 90-day sentence. [ 60 ] In addition, I will place Mr.

Champion on probation during the period that his is serving his intermittent sentence, and on the completion of that sentence for a further period of two years. He will essentially be subject to the very same conditions under both orders. Firstly, there are the statutory conditions, which include: that he keep the peace and be of good behaviour; that he attend court, if and when directed to do so; and that he either advise the court or his probation officer, in advance, of any change of name, address or occupation. [ 61 ] Mr.

Champion will also be subject to the following additional conditions: that he report to a probation officer today, and thereafter if and when directed to do so by his probation officer; that he take any counselling as directed by his probation officer, with a specific recommendation that he continue taking counselling for anxiety, depression and/or substance abuse; that he sign any necessary releases to allow his probation officer to monitor his attendance for counselling, his progress with respect to that counselling, and his completion of same; and that he not have any contact, directly or indirectly, by any means, with the victim, and that he not attend at any place he knows the victim to be. [ 62 ] Finally, there will be one additional condition which will only apply to the order that will be in effect while he is serving his intermittent sentence; that being that when he surrenders into custody each Friday, he must have “0” blood alcohol concentration and not be under the influence of any non-medically prescribed drugs. [ 63 ] Given the violent nature of Mr.

Champion’s offence, pursuant to s. 110 of the Criminal Code of Canada , I am satisfied that it is in the interests of public safety to order that he be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of five years, commencing from today’s date. [ 64 ] In addition, this is a primary designated offence. Therefore, pursuant to s 487.051 of the Criminal Code , I am required to order that a sample of Mr.

Champion’s blood be taken for the purposes of including his DNA profile in the National DNA Databank. That will take place today, after he is taken into custody. [ 65 ] Lastly, pursuant to

section 737 of the Criminal Code I am required to impose the Victim Fine Surcharge. For this offence, given that the Crown proceeded summarily, the amount is $100.00. Mr. Champion will have 30 days to pay that amount. Released: March 10, 2016 __________________________ Justice James Stribopoulos