R. v. Harris, 2011 ONCJ 5

COURT FILE No.: Region of Durham 998 06 06913 Citation: R. v. Harris , 2011 ONCJ 5 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — David Harris Before Justice J. De Filippis Heard on: December 17, 2010 Reasons for Sentence released on January 13, 2011 Mr. F. Stephens ...................................................................................................... for the Crown Mr. M.

MacGregor ............................................................................................ for the Defendant [ 1 ] The defendant was found guilty, after trial, of the following eleven offences [1] : Three counts of assault causing bodily harm, involving P.C. Paul and P.C. Miglia; four counts of assaulting a peace officer while engaged in the execution duty, involving Sgt Vandenberg, P.C. Paul, P.C. Miglia, and P.C. Fisher; and four counts of assaulting a peace officer to resist arrest, involving the same four officers. [ 2 ] The following

summary of the facts is relevant to sentencing: The defendant was lawfully arrested outside his home for the theft of a swimming pool from Wal-Mart. Sgt. Vandenburg took hold of the defendant’s right arm and P.C. Paul had a hold of his left arm. The defendant tensed up as they approached the police vehicle. Paul pushed him over the hood of the vehicle to handcuff him. The defendant tucked his arms in and “reefed down” (dropping his weight). Vandenburg tried to get the defendant’s right hand back so that he could be handcuffed but the latter continued to resist.

The defendant grabbed Paul’s left index finger and pulled it straight back, causing extreme pain. He continued to bend the officer’s finger as Paul reached over the defendant’s shoulder with his right arm in an effort to “bear-hug” him and take him to the ground. Paul lifted the defendant slightly and they went down an embankment into a ditch. Paul landed on top of the defendant with his left arm underneath him. The officer thought his arm had broken and put his legs out to maintain control.

His face was beside that of the defendant and he observed the latter blow hard on the sand and gravel as tried to push his weight up. He also heard the defendant say, “You’re not taking me” and “you can’t take me”. When he was told to stop resisting the defendant said “I am resisting, fuck you.” Paul asked Vandenburg to call for help. The defendant continued to thrash about, kick, and push back with his legs and temporarily succeeded in breaking free from Vandenburg. P.C. Miglia arrived on scene to assist.

Miglia decided not to use pepper spray to control the defendant because Paul was too close to him and, instead, kicked him in the face. The defendant stood up, grabbed the sides of Miglia’s police vest, lifted her up, and threw her into the ditch. As he did so, Miglia had a hold of his shirt and it ripped as she was thrown, injuring her finger. She landed on her back and did a complete somersault. She saw him coming and put up her feet but she believes she blacked out because by the time she got up the other officers had handcuffed the defendant’s other hand.

P.C Fisher arrived at about the same time as Miglia and saw the defendant throw her into the ditch. He joined the other officers in trying to restrain the defendant. Fisher was kicked in the leg and shin and was also pushed to the ground when the defendant struck him with both hands in the chest. Fisher jumped top of the defendant. As he did so, Vandenburg tasered the defendant on the shoulder. Vandenburg had not used a taser before and may have not done so properly.

In any event, the defendant was not subdued until the fourth application of the weapon. [ 3 ] Paul said the confrontation lasted between four and ten minutes and described it as exhausting. He said this was “the worst fight in 20 years of policing”. Afterwards, he noticed a “grin” on the defendant’s face. Paul was examined at a hospital after the incident in question. He had a laceration, much like road rash, on the upper part of his hand and cuts to the forearm. His finger was badly sprained and his hand was swollen.

A half cast was put on the radial bone (a full cast was not possible because of the swelling) and Paul was not back to normal duties for about a month. He experienced pain to his arm and finger for about two months. After the incident Miglia went to the hospital and learned she had fractured her small finder. She had bruises on her arm, right thigh, and left leg. [ 4 ] The defendant is now 35 years old. He has been in a common law relationship for 15 years and has two children, aged seven and 15 months. He operates a towing business as well as an interlocking brick business.

He employs between three and six people. The defendant has the following criminal record: • 10 June 1997 - Impaired Driving - $400 fine and driving prohibition • 16 October 1997 - Mischief, Fail to Appear - 14 days jail

• 15 December 1997 - Assault with Weapon, Utter Threats, and Assault Causing Bodily Harm – 1 day (plus 4.5 months PSC) andprobation • 11 June 2006 – Fail to Provide Breath Sample – 14 days jail and driving prohibition • 14 September 2007 – Utter Threats – 1 day jail (plus 17 days PSC) and probation • 19 October 2009 – Escape Lawful Custody, Breach Probation – 1 day jail and probation • 13 January 2009 – Theft – 5 days jail and probation [5] The defendant tendered two letters of support. One is from his spouse, Ida Sagi. Ms Sagi reports that one of their twochildren has a bone marrow disease.

This requires regular medical visits and immediate attention in the event of a fever. Thedefendant’s ongoing assistance is of great comfort to her and she does not know what she will do if he is incarcerated. I accept thesincerity of Ms Sagi’s comments. The other letter is from Jeremy Bass, a man who retained the defendant as a contractor. Mr. Bassstates that, although he was not present for the incident in question [or the trial], he believes the defendant’s version of events.

He addsthat he is “an excellent judge of character” and reports “with full confidence that the only thing David Harris is guilty of is the theft of aswimming pool….Dave is a non-violent individual….Assault in any manner, let alone the assault of a police officer is extremelyuncharacteristic of him”. Mr. Bass is obviously unaware of the defendant’s criminal record. In any event, the only relevance of thisremarkable letter is the fact that it was tendered at all; it shows the defendant remains unremorseful. [6] The defendant served 31 days in pre-sentence custody.

Moreover he has been on bail for these offences for four years. According to Defence counsel, the delay in starting this trial is due to the fact that the defendant’s first lawyer was disbarred.

Duringthis lengthy period, the defendant maintained contact with his spouse and children, but could not live with them as his bail required himto reside with his father. [7] The Crown suggests the following consecutive jail sentences for the four counts of assault bodily harm, for a total oftwo years less one day; 18 months with respect to Paul, six months less one day with respect to Miglia, and three months each withrespect to Vandenburg and Fisher. Defence counsel suggests a conditional sentence or an intermittent jail sentence.

Neither counseladdressed the other counts. [8] The purpose and principles of sentencing is defined in

section 718 of the Criminal Code as the maintenance of a just, peaceful andsafe society by the imposition of sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [9]

Section 718.2 of the Code sets out additional principles, including: (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [10]

Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence:(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose aterm of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving thesentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles ofsentencing set out in ss. 718 to 718.2. [11] A conditional sentence is a legitimate sentencing option for the offences in question.

Having regard to the defendant’scriminal record, I am concerned that he will not obey the terms of a conditional sentence. In any event, I am convinced that the principlesof denunciation and deterrence preclude such a sentence in this case. [12] Denunciation and deterrence can be reflected through a conditional sentence, even in the most serious offences. TheCourt of Appeal for Ontario made this clear in a case involving criminal negligence causing death.

In R v Kutsukake, 21 September 2006,the court set aside a jail sentence and substituted a conditional sentence because the trial judge did not consider appropriate alternativesto incarceration. The offender in that case was a 20-year-old first offender who had agreed to pull the deceased behind her car while hewas on a skateboard. She reached a speed of 80 km/hour. The deceased fell and was struck by another car. The Court of Appealconsidered the leading case of R. v. Proulx 2000 SCC 5 and stated as follows: A conditional sentence can achieve both punitive and restorative objectives.

To the extent that both punitive and restorative objectivescan be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment isparticularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive

sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(

d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances. [ 13 ] The defendant is a mature man with a record for violence and defiance of lawful authority. He resisted arrest by thrashing and kicking at police officers while he had a single handcuff on, creating a dangerous situation. The defendant assaulted four officers and injured two of them. In the case of Paul, the defendant’s conduct in bending back the officer’s index finger and causing him to fall was not mere resistance, but a deliberate act to cause harm.

During the struggle officers told the defendant to stop resisting arrest as it was “only for a swimming pool”. Such resistance is difficult to understand and it is reasonable to conclude that he was angry at having been arrested in front of his family and friends. In any event, for the reasons previously delivered, I reject the Defence claim that the defendant was responding to an assault upon him by the police. I find the police acted properly. In this context, the defendant’s conduct attracts a high moral culpability. In addition, he has shown no remorse.

His behaviour must be condemned in strong terms that will also serve as an example to others. In all the circumstances, I conclude that the objectives of denunciation and deterrence can only be achieved by a jail sentence. In determining the length of that sentence I take into account the fours years this case has been before the court and the letter written by Ms Sagi. [ 14 ] The defendant will be sentenced for all offences expect the second count of assault causing bodily harm to P.C. Miglia and the four counts of assaulting a peace officer while in the execution of duty.

These five counts will be stayed on the basis of R v Kienapple [1975] 1 S.C.R. 79 .

The defendant’s pre-sentence custody will be considered on a 2:1 basis in accordance with the law before three recent legislative changes. [ 15 ] The defendant is sentenced to a total of 12 months in jail, as follows: Six months, for the assault causing bodily harm to Paul; one month, in addition to the 31 days pre-sentence custody, for the assault causing bodily harm to Miglia, to be served consecutive to the preceding sentence, and one month for each of the offences of assault resisting arrest, to be served concurrently to one another and consecutive to the preceding sentences.

In the result, the defendant will serve eight months in jail in addition to the pre-sentence custody. [ 16 ] The defendant will be subject to the following ancillary orders: He will supply a sample of his DNA and be bound by a weapons prohibition, pursuant to

section 109 of the Code, for a period of 10 years. Released: January 13, 2011 Signed: “Justice J. De Filippis”