R. v. Horton, 2022 NSSC 13

SUPREME COURT OF Nova Scotia Citation: R. v. Horton , 2022 NSSC 13 Date: 20220120 Docket: CRH 509691 Registry: Halifax Between: Her Majesty the Queen v. Lorne Eric Corey Horton SENTENCE DECISION Judge: The Honourable Justice Jamie Campbell Heard: December 15, 2021, in Halifax, Nova Scotia Counsel: Jane Mills, for the Crown Matthew Kennedy, for the Defence By the Court (Orally): [ 1 ] Lorne Eric Corey Horton is being sentenced today for 4 offences that he committed on Christmas Day in 2017. They involved a family dispute that turned into a physical fight with Mr. Horton, his father, and his uncle.

He has pleaded guilty to aggravated assault on his father, Adam Corey Cain and common assault on his uncle, Michael Cain. He has also pleaded guilty to resisting police officers in the lawful execution of their duties and possession of a weapon, in particular a box cutter knife, for a dangerous purpose. [ 2 ] Mr. Horton was 24 years old on Christmas Day 2017. The family had gathered at Mr. Horton’s grandmother’s home to celebrate the holiday. People stayed up late on Christmas Eve and some were still up, socializing in the early hours of Christmas morning. Mr.

Horton had a troubled relationship with his uncle, Michael Cain and that became the topic of a discussion. Mr. Cain became involved. He and his nephew Mr. Horton discussed their past. Mr. Horton then confronted his father, Adam Cain, about his grievances with him. The interaction got more and more heated. [ 3 ] Adam Cain and his partner decided to leave to prevent the disturbance from getting worse. Mr. Horton said that his father, Adam Cain, had bumped into him while he was gathering his bags together to leave the house. Mr. Horton thought that was intentional and pushed back at his father.

It turned into a shoving match. Then Michael Cain got involved. He confronted Mr. Horton about his behaviour and Mr. Horton shoved his uncle. That caused Michael Cain to fall backwards into a cart in the kitchen. [ 4 ] Mr. Horton and his father were grappling with each other, and Mr. Cain brought his son to the floor. He had Mr. Horton pinned to the ground, with his arms restrained. As Mr. Cain lightened his grip, Mr. Horton slid his neck out from under his father’s grip and bit him on the chest. After biting Mr. Cain and while still pinned down Mr.

Horton got a box cutter knife from his pocket and sliced his father’s face once lengthways from his left eyebrow and down to his cheek. Mr. Horton said that he believed that after he had bit his father, his father intended to hit him. But Mr. Cain did not hit his son while he had him pinned down and Mr. Cain did not have a weapon at any time. [ 5 ] Michael Cain tried to grab the knife from Mr. Horton and cut his hand in the process. After Mr. Cain was cut, the struggle stopped. [ 6 ] EHS was called.

They stabilized Adam Cain’s injury and it took about an hour to do that before he was transported to hospital for treatment. When there, he got 26 sutures to his face. [ 7 ] The police arrived. They had been informed that an adult son had cut his father’s face with a knife. Mr. Horton was in the house when they got there. He came outside and began to physically resist the two police officers. He struggled to get away from them as they tried to arrest him. Mr. Horton and the two officers slipped on the deck outside the home. When that happened, Mr. Horton made a run for it toward the woods.

A taser was deployed and Mr. Horton then complied with the directions given to him by the police. The police who

came to the scene did not observe any signs of intoxication. [ 8 ] Mr. Horton was arrested. He was released on a Recognizance with a Surety the next day, December 26, 2017. On September 24, 2018, his surety rendered, having indicated that Mr. Horton had left and not come back. A warrant was issued. Mr. Horton has spent a total of 5 days on remand for these charges. [ 9 ] Mr. Horton was born in Halifax. He was brought up by his mother and stepfather. His biological father, Adam Cain, was present only “off and on” while he was growing up. Mr.

Horton reported to the writer of his pre-sentence report that he was subjected to physical and emotional abuse by both his father and stepfather. He said that he was a problematic child and was placed with his grandmother for a while on a few occasions. He was taken for psychiatric evaluations during his teenage years after altercations with his father. Mr. Horton says that he now suffers from several psychological or psychiatric conditions but there is no medical evidence to confirm any diagnosis of that kind. He has Crohn’s Disease. [ 10 ] Mr.

Horton moved out of the family home as a teenager and lived downtown with various friends. He was back and forth to the family home over the years. He moved to Toronto in October 2017. [ 11 ] Mr. Horton has a three-year-old son. That child’s mother has custody of him. [ 12 ] Mr. Horton completed Grade 11. He has worked on his General Equivalency Diploma (GED) while incarcerated at the Atlantic Institution in Renous, New Brunswick. [ 13 ] Mr. Horton was not in Renous because of these charges. He has been in prison since January 14, 2019 on matters unrelated to these offences. Mr.

Horton is serving a 5-and-a-half year sentence for 7 offences committed between January 13 and 14, 2019 in Toronto. Those offences relate to two separate incidents. Both involved robberies at gunpoint while wearing a mask. In one, Mr. Horton confronted his former employer with a knife and stabbed him several times in the head and neck. Those offences took place after the events of Christmas 2017. [ 14 ] The report from Mr. Horton’s parole officer at Renous could not be characterized as positive. Mr.

Horton arrived there in June 2021 and since then was alleged to have been involved in two inmate assaults, one of which will likely result in criminal charges, a fight with another inmate, possession of a homemade sharp weapon, and has had a random urinalysis test come back positive for THC, methadone, and fentanyl. Those are reports from the Atlantic Institution. There is no indication that the reports or allegations have been the subject of an independent adjudication. [ 15 ] Mr. Horton does have a criminal record that predates these convictions.

In June 2014 he was sentenced to 3 years of imprisonment with respect to four firearms related offences. The next month, July 2014, he was sentenced to 20 days of custody for theft under $5,000 and on the same day, 10 days consecutive custody for failing to appear in court. In July 2016 he was sentenced to 20 days incarceration for failing to comply with a recognizance or undertaking, and 20 days concurrent to that sentence for resisting or obstructing a peace officer. [ 16 ] In

summary it might be said that Mr. Horton had a troubled upbringing and has led a troubled life so far, as a young adult. There are issues with substance use and impulse control. Defining a person as being a “violent person”, in most cases, focuses on one aspect of their personality and blocks out the rest, whether intentionally or not. There may be times and circumstances in which a person who has acted violently, shows remarkable restraint, or persons to whom they show kindness and a gentle disposition. Mr.

Horton’s pre-sentence report and criminal record indicate that there are circumstances in which he has shown himself capable of committing acts of violence. [ 17 ] Judges must consider all the principles and purposes of sentencing set out in the Criminal Code . They operate as a whole and require a consideration of the full context of the offender and the offence. [ 18 ] Crimes of violence, especially when weapons are involved, often result in a sentence of incarceration.

Deterrence is an important factor when addressing such crimes, but it must also be said that one factor should never become so important that others fade from view. The sentence must always be proportionate to the gravity of the offence and the degree of responsibility of the offender. A person should not be used as an object by which a message is delivered to the public. Any sentence must be proportional to the moral blameworthiness of the person upon whom the sentence is imposed. [ 19 ] Denunciation is closely related to deterrence and the words are often used together as a collocation.

While deterrence speaks to the effect of the sentence on others, denunciation speaks to the expression of disapproval on behalf of society. Whether or not a sentence has any impact on anyone else’s behaviour, sometimes the fact that a criminal act is morally wrong must be reinforced through the sentence imposed. But a sentence that makes such a statement should not be so harsh that it punishes an offender in a way that does not reflect that person’s own degree of culpability for the purpose of expressing moral outrage.

Denunciation must remain in tension with the other principles and purposes of sentencing. [ 20 ] Similar sentences should be imposed on similar offenders for similar crimes committed in similar circumstances. But no two crimes are repeated in the same way by different people. Context always matters. Sentencing does not become reduced to an exercise of matching similar looking cases to the one being dealt with. Other cases can provide guidance, but they do not provide a definitive answer. [ 21 ] The issue of rehabilitation must be considered.

Its significance may be reduced in dealing with the sentencing of those who have committed violent crimes, but even in the case of those who have committed serious acts of violence, the sentencing response must be tempered with the consideration of whether the person has any prospect for rehabilitation. [ 22 ] An offender’s background may be a factor that must be considered in sentencing. In some cases, reports are prepared to provide the court with context related to the lives of Indigenous or African Nova Scotia offenders.

Those reports allow for the consideration of historical conditions facing members of both groups which are overrepresented in prison populations. While no report is provided, courts also consider the life circumstances of other offenders who have grown up in poverty or in homes in which they have suffered abuse or neglect. Those factors also apply in tension with the others. They do not become the sole focus of the sentence and do not act as a form of “discount”, but they may act in tension with considerations like denunciation and deterrence.

[ 23 ] Aggravated assault, as an offence, covers a broad range of criminal behaviour. It can range from a situation that is just beyond an “in the moment” common assault committed by a person with no criminal record, having experienced difficult life circumstances and with excellent prospects for rehabilitation to an unprovoked and premediated assault causing serious injuries committed by a person with a long and violent criminal record. [ 24 ] The Ontario Court of Appeal in R. v. Tourville , 2011 ONSC 1677 , addressed the issue of that wide range.

At the bottom end there are exceptional cases in which a person may receive a suspended sentence. Those might involve offenders with no prior criminal record, who have come from abusive situations and made substantial steps toward rehabilitation after committing an assault in the context of a bar fight. The middle range generally involves first time offenders involved in what began as consensual fights but where the offender resorted to excessive force. That middle range attracts sentences of between 18 months and 2 years.

The higher range involved recidivists who engage in unprovoked or premeditated assaults with no suggestion of consent or self-defence. In those cases, sentences of 4 to 6 years have been imposed. [ 25 ] That range has been applied in Nova Scotia. [ 26 ] In R. v. Dimock , 2021 NSSC 232 , Justice Bodurtha sentenced the offender to 4 years imprisonment. Mr. Dimock attacked his girlfriend with a shovel and struck her several times on the head, ribs, arms, and shoulders. She had extensive bruising to her scalp, cuts, a broken arm, and suffered psychological trauma in addition to the physical trauma.

In that case, Justice Bodurtha provided a comprehensive review of sentencing law as it applies specifically to aggravated assault and a list of cases that serve to establish a range. The shovel used as a weapon was used multiple times, the attack was unprovoked, and the injuries were significant. The offender in that case expressed remorse for what he had done and had extensive community support. He owned a business and employed several people and was the father of young children. [ 27 ] In R. v. Robinson , 2021 NSPC 20 , the offender stabbed his brother with a knife. There had been longstanding animosity.

The stab wound was to the abdomen and there was a small laceration to the liver. The victim remained in hospital for 3-4 days and had ongoing psychological effects. The offender had a criminal record and that was used in considering the need for specific deterrence. Mr. Robinson’s grandmother was Aboriginal. There was little case specific information about that aspect of the offender’s background and while that limited the judge’s ability to apply that factor, she noted that it did not relieve her of the obligation of considering it.

The factor does not necessarily provide a justification for a lighter sentence but does provide context within which to understand and evaluate the circumstances of the offender. Her Honour Judge Buckle imposed a sentence of 4 years. [ 28 ] In R. v. Reddick , 2017 NSSC 189 , the case involved a fight that took place on the street. The accused struck the victim with a cane and caused multiple lacerations to his face and head. Mr. Reddick had an extensive criminal record for crimes of violence and the attack was unprovoked.

In that case Justice Coughlan considered the appropriate range of sentencing in an aggravated assault, having regard to the ranges referred to in Tourville . Because Mr. Reddick had an extensive and serious related criminal record, and the attack was unprovoked, he placed the case at the “high end” and imposed a sentence of 4 years. [ 29 ] In R. v. Ellison , 2017 NSSC 202 , Mr. Ellison attacked the victim with a golf club during an altercation. There were multiple strikes to the head and neck with a potentially lethal weapon.

The victim suffered from a fractured skull, cheek bone and eye socket, and a fractured spine. He was in hospital for several days. Mr. Ellison was 26 years old at the time of the incident. Justice Wright imposed a sentence of 4 years. [ 30 ] In R .v. Whebby , 2017 NSPC 83 , the victim was the boyfriend of Mr. Whebby’s former partner. The attack was motived by revenge. Mr. Whebby locked his ex-partner in the basement, got a 12 cm knife from the kitchen and stabbed the victim in the neck while he was in bed. The knife became lodged in the victim’s neck, punctured his airway and was close to the carotid artery. Mr.

Whebby pleaded guilty and had a positive pre-sentence report. The offence was considered to be out of character for him. Judge Hoskins (as he then was) imposed a sentence of 5 years. [ 31 ] There are, of course, cases in which there have been both longer and shorter sentences of incarceration considered to have been appropriate. Those having most similarity with this one however are in the range of 4 to 5 years. The principles and purposes of sentencing apply together.

Finding similar cases and deciding on a sentence that matches the circumstances of one or more of them most closely, privileges the principle of parity over the other factors. Those cases provide a range, but they do not provide an answer. [ 32 ] The lower range of sentences does not apply in this case. Mr. Horton was not a first-time offender with a positive pre-sentence report who had overcome difficulties to try to build a better life for himself. The offence itself was not a fight that simply went further than anyone expected.

This involved the use of a knife, to the face of a person. [ 33 ] The case has factors that militate toward the higher end of the range. The assault involved a knife. And that knife was used to cut the victim in the face. Adam Cain was seriously hurt. He had to have 26 stiches to his face and is permanently scarred. He was unable to work for 21 working days and lost more than $8,000 in income. [ 34 ] Adam Cain was in the process of leaving the home. All Mr. Horton had to do was to let him leave. Mr. Horton was not dragged into a fight. [ 35 ] When the police arrived, Mr.

Horton was not only uncooperative but attempted to flee. He later fled Nova Scotia while on release for these offences and then committed other serious offences in Ontario while awaiting trial on these charges. [ 36 ] Mr. Horton has a criminal record. It is not extensive, but it is not minor either. It involves firearms. And he has spent time in jail. The presence of a record does not lead in a straight line to a harsher sentence. It is a factor that can be considered when assessing the extent to which rehabilitation can be emphasized. R. v. Mauger , 2018 NSCA 41 . [ 37 ] Mr.

Horton’s behaviour after the events of Christmas morning 2017 can also be considered but in an even less direct way. He was involved in violent crimes in Ontario. Those are very serious, and he is serving a federal sentence with respect to them. Those issues bear on the extent to which it can be expected that rehabilitation can be achieved in the shorter term rather than the longer term. Mr. Horton is a young man. He clearly has issues that need to be resolved and they relate to public safety. Rehabilitation in the community will

not be an option for some time. The allegations reported from Renous would serve to confirm that assessment but because they are, at this stage, allegations, they should be given little weight. [ 38 ] The incident was serious and requires a serious and meaningful custodial sentence. The issue then is what is the least restrictive sentence that can adhere to the principles of sentencing while achieving the purposes of criminal sentencing. The sentence of either 4 years or 5 years could potentially be justified. The case does not rise to the level of the most extreme cases of aggravated assault. [ 39 ] Mr.

Horton pleaded guilty. He should be given credit for accepting responsibility in that way. [ 40 ] While denunciation and deterrence are important factors, Mr. Horton is a young adult. Despite his criminal record, the potential for rehabilitation cannot be ignored. His separation from society should not be an end in itself. [ 41 ] Mr. Horton did not come to his grandmother’s house looking for a fight. He did not plan an assault on his father or his uncle. He had a knife that he used as a weapon but there is nothing to suggest that when he first carried that knife the intent was to use it as a weapon. [ 42 ] Mr.

Horton did not attack his father from behind or attempt to overcome him with the assistance of others. The argument became a shoving match in which both were willing participants. The shoving match became a form of grappling or wrestling. It escalated when Mr. Horton bit his father. Adam Cain wrestled him to the ground and pinned him. That was when Mr. Horton brought out the knife. The use of the knife meant that the defence of self-defence was not available, but it is relevant that the knife was used in the context of an unplanned fight. [ 43 ] Mr.

Horton is neither at the very highest end nor the lowest end of the range for aggravated assault. A sentence of 4 years is the shortest period of incarceration that reflects his level of moral culpability in committing a serious act of violence with a weapon. That sentence will be served consecutive to the sentence that he is now serving. [ 44 ] Mr. Horton pleaded guilty to resisting the two police officers and possession of a weapon, being the box cutter. Each of those are separate offences but they happened close in time to each other and as part of the same offence. The use of a weapon and Mr.

Horton’s behaviour when the police arrived factored to some extent in the sentence set for aggravated assault. The sentence of 60 days for each of the offences will be served concurrent to the sentence for aggravated assault. [ 45 ] Mr. Horton pleaded guilty to common assault of his uncle, Michael Cain. The assault was not particularly serious but involved the application of force against Michael Cain. That offence should attract a sentence of 30 days incarceration. Again, that was part of the event involving the aggravated assault.

The sentence should be served concurrent to the sentence for aggravated assault. [ 46 ] The ancillary orders, a mandatory weapons prohibition for life, a DNA order and a forfeiture order with respect to the box cutter knife, will be granted. Any applicable victim fine surcharge is waived. [ 47 ] A stand-alone restitution order in the amount of $8,925 reflecting the lost wages of Adam Cain will be signed. Campbell, J.