R. v. Ryan, 2023 NLSC 102

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Ryan , 2023 NLSC 102 Date : July 17, 2023 Docket : 202101G3189 HIS Majesty The KING v. Anthony Ryan Before: Justice Valerie L. Marshall Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 16 and 29, 2023 Date of Oral Judgment: June 29, 2023

Summary: A jury determined that the Offender was guilty of the offences of assault with a weapon and aggravated assault. The Court imposed a sentence of 5 years’ imprisonment, less credit for remand, plus ancillary orders.

Appearances: Jeffrey A. Summers Appearing on behalf of the Crown Cletus E. Flaherty Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. A. (K.J.) (1988), (NL CA), 69 Nfld. & P.E.I.R. 99 (Nfld. C. A.); R. v. Bourgeois, 2017NLTD(G) 182; R. v. Murray, 2015 NLTD(G) 147; R. v. Wheeler (2011), 315 Nfld. & P.E.I.R. 25 (NLPC); R. v. King, 2018 NLSC 36; R.v. Mitchell, 2005 NLTD 80; R. v. Parker (2013), 342 Nfld. & P.E.I.R. 205 (NLPC); R. v. Day (2007), (NL PC), 266Nfld. & P.E.I.R. 166 (NLPC.); R. v. Hogg, 2004 MBCA 114; R. v. Costello, 2003 BCCA 421; R. v. Le, 2018 ONCJ 483; R. v.

Baylis,2022 ONCA 41; R. v. Sesay, 2020 BCCA 41; R. v. Wallin, 2003 BCSC 809; R. v. Hilbach, 2023 SCC 3; R. v. Overacker, 2005 ABCA150 STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] Two brothers, Anthony Ryan and William Ryan, were charged with the offences of aggravated assault and assault with aweapon. The charges arose from a violent assault which happened on Cookstown Road in St. John’s on August 14, 2019.

The violentassault caused grievous harm to the victim, Corey Evans. [2] Anthony Ryan’s offences were described in the Indictment, as follows: Count 1 On or about the 14th day of August, A.D., 2019, at or near St. John’s, in the Province of Newfoundland and Labrador, did commit anaggravated assault by unlawfully wounding, maiming, disfiguring or endangering the life of Corey Evans, thereby committing anindictable offence contrary to

Section 268 of the Criminal Code. Count 2 On or about the 14th day of August, A.D., 2019, at or near St. John’s, in the Province of Newfoundland and Labrador, did unlawfullyassault Corey Evans, and in committing said assault did use a weapon, thereby committing an indictable offence contrary to Section267(

a) of the Criminal Code. [3] Pursuant to a guilty plea and a joint submission, William Ryan was sentenced by a Provincial Court Judge to a term ofimprisonment of 6 years. [4] In this Court, Anthony Ryan proceeded to trial by judge and jury. The trial commenced on March 1, 2023 and continued untilMarch 29, 2023, when the jury returned with verdicts of guilty on both counts. [5] At the jury trial, the Crown had put forward two paths of liability for the jury to consider. One path of liability was thatAnthony Ryan committed the offences as a joint principal with his brother, William Ryan; and the second path of liability was thatAnthony Ryan aided William Ryan to commit the offences charged.

[ 6 ] For the following reasons, I have determined that a sentence of 5 years imprisonment, less remand credit, is a fit sentence to impose on Anthony Ryan. CIRCUMSTANCES OF THE OFFENCES [ 7 ] The evidence at trial established that shortly after midnight, in the early morning of August 14, 2019, Corey Evans unlawfully broke the front door window of William Ryan’s residence at 42 Cookstown Road, St. John’s, Newfoundland and Labrador. As stated, William Ryan is the brother of Anthony Ryan. Both Anthony Ryan and William Ryan were inside the residence at the time the window was broken by Mr. Evans.

According to the evidence at trial, William Ryan then went out onto the street in pursuit of Corey Evans, and Anthony Ryan also went out onto the street. Eyewitnesses observed William Ryan hit Mr. Evans in the head with an object, causing Mr. Evans to fall to the ground; and William Ryan and Anthony Ryan proceeded to assault Corey Evans while he was lying on the ground. The evidence at trial established that the assault was brief, lasting only seconds. [ 8 ] Anthony Ryan’s role in this two against one assault was captured by an eyewitness’ grainy cell phone video.

The video footage depicts the victim, Corey Evans, lying on the ground with Anthony Ryan standing in the vicinity of Corey Evans’ feet, and William Ryan on the street and by Corey Evans’ head. The video depicts William Ryan appearing to strike Corey Evans three times in the area of Mr. Evans’ head, with an object. It was not disputed that William Ryan violently struck Mr. Evans in the head, and caused Corey Evans to suffer significant head injuries. The video further depicts Anthony Ryan raising his arm and making a striking motion with an object, towards Mr. Evans’ lower body.

The video footage was a few seconds in duration. [ 9 ] At trial, Anthony Ryan indicated that in the video footage he had a broken golf club in his hand; and that the golf club struck the sidewalk, but not Mr. Evans. Further evidence at trial suggested that the object Anthony Ryan was holding may have been a bamboo stick. In either case, Anthony Ryan was clearly depicted in the video making a striking motion with his arm with an object, towards the area of Mr. Evans’ lower body. [ 10 ] The video footage also depicts Anthony Ryan stopping the assault on Corey Evans.

Specifically, after a matter of seconds, the video shows Anthony Ryan pushing William Ryan away from Corey Evans. [ 11 ] Although the assault was brief, Mr. Evans suffered significant life-threatening and life-altering injuries, including a traumatic brain injury, as a result of his being struck in the head by William Ryan. As stated, Anthony Ryan did not strike Corey Evans in the head. The agreed statement of facts entered at trial described Mr. Evans’ injuries as follows, at paragraph 3: 3.

At the hospital, Evans was diagnosed with multiple skull fractures and a brain bleed which required an emergency craniotomy (surgery on his skull) to relieve the life-threatening swelling on his brain and repair blood vessels. Evans also received emergency treatment for a wound to his arm that had nicked an artery, resulting in significant blood loss.

POSITIONS ON SENTENCING [ 12 ] Crown Counsel proposed that it was appropriate to impose a sentence on Anthony Ryan in the range of 6 to 7 years, with ancillary orders. [ 13 ] Defence Counsel took the position that a more appropriate sentence was within the range of 3 to 4.5 years for the aggravated assault, concurrent with 2 to 3.5 years for assault with a weapon, with ancillary orders. [ 14 ] Up to the date of this sentencing decision, Anthony Ryan had served 29 days for pre-trial custody. Following the jury verdict, he was remanded into custody.

The total time he has spent on remand up to and including the date of this decision, is 29 + 93 = 122 days. It was not disputed that this is an appropriate case to apply a 1.5 credit, for a total of 183 days credit for remand custody. [ 15 ] Defence Counsel submitted that the Court should also consider a credit for the time Anthony Ryan spent on bail, under strict conditions. ANALYSIS [ 16 ] When determining a fit sentence, the purpose, objectives and principles of sentencing must be considered in accordance with sections 718 , 718.1 and 718.2 of the Criminal Code of Canada , R.S.C. 1985, c.

C-46 (the “ Code ”), which state as follows: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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; and (

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

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion,sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or theoffender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, (iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providinghealth services, including personal care services, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 orreleased on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and (vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, includingpersonal care services, shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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 and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [17] In my view, deterrence and denunciation should be the primary sentencing objectives in this case. The objective ofrehabilitation must also be considered, along with the remaining objectives. [18] When sentencing for assaults, our courts have applied the “Atkins’ factors” from R. v. A. (K.J.) (1988), (NLCA), 69 Nfld. & P.E.I.R. 99 (Nfld. C. A.).

At paragraph 48, Chief Justice Goodridge identified these factors as including: the extent ofthe assault; the degree of violence or force used; the impact of the crime upon the victim, the victim’s family and the offender; thedegree of trust involved; public abhorrence to the type of crime; the attitude of the offender and his plea; biological and psychiatricfactors that lead to the commission of the offence; the need for general and specific deterrence; the prospect of successful rehabilitation;the antecedents and age of the offender; the time the offender has spent in custody prior to trial; and sentences imposed by other courts inour province and elsewhere in Canada.

The extent of the assault [19] In this case, although the assault was committed in a matter of seconds, the extent of the assault was significant. Corey Evanssustained multiple skull fractures, a brain bleed, and he required an emergency craniotomy. He has had reconstructive surgeries to repairhis skull. Mr. Evans suffers significant residual health issues due to the traumatic brain injury. The degree of violence or force used [20] The degree of violence was significant. It is not disputed that William Ryan violently struck Corey Evans in the head with anobject, and with enough force to fracture Mr. Evans’ skull.

Anthony Ryan did not strike Corey Evans in the head, but he used an objectwhen he made the striking motion in the vicinity of Corey Evans’ lower body, while standing by Corey Evans’ feet. Victim impact [21] Mr. Evans attended the sentencing hearing in a wheelchair, but he did not provide a victim impact statement. Nevertheless, it isclear that the impact on him is significant. As stated, Mr. Evans suffered multiple skull fractures. According to the medical reportsprovided at the sentencing hearing, Mr. Evans required reconstructive surgeries to repair his skull. He suffered a traumatic brain injury

and he continues to suffer residual health issues, including expressive aphasia and functional impairment. Mr. Evans suffered paralysis of his right arm and leg, and he uses a wheelchair and/or cane for mobility. [ 22 ] A victim impact statement was provided by Josephine Evans, Corey Evans’ spouse. Ms. Evans further confirmed and detailed the extent of Mr. Evans’ brain injury. Ms. Evans confirmed that Corey Evans was paralyzed on the right side of his body, and he has undergone vigorous physiotherapy. She indicated that he walks with a cane, but still needs a wheelchair. She further indicated that Mr.

Evans is blind in his right eye, with no movement of his right arm. He has undergone three surgeries and still has one more surgery remaining. Ms. Evans confirmed that Mr. Evans cannot speak or communicate because of the brain injury, and he is learning how to read and write again. Ms. Evans also described the impact on her, including how her life has changed and the stress she suffers. Degree of trust involved [ 23 ] This is not a case where a trust relationship existed between Anthony Ryan and Corey Evans. Public abhorrence to the type of crime involved [ 24 ] As stated by Justice Handrigan in R. v.

Bourgeois , 2017 NLTD(G) 182, at paragraph 26, the “p ublic decries crime of any kind, for obvious reasons …”. In my view, public abhorrence would be high for a violent crime resulting in grievous harm. The need for specific and general deterrence [ 25 ] As stated, denunciation along with general and specific deterrence are paramount when considering a fit sentence in this case. Particularly considering that this assault was extremely violent; and that Anthony Ryan committed the assault while Corey Evans was lying on the ground.

The prospect of successful rehabilitation [ 26 ] The prospect for rehabilitation is a consideration. The pre-sentence report indicated that Anthony Ryan was at a moderate risk/need level with a 23 per cent chance of recidivating. The pre-sentence report further indicated that Anthony Ryan is a suitable candidate for community supervision. Further, Anthony Ryan did not breach his bail conditions, which were imposed in the Fall of 2019, and he has had no incidents during remand. This all suggests that Anthony Ryan’s prospects for rehabilitation are favourable.

Biological and psychiatric factors [ 27 ] With respect to Anthony Ryan, there were no apparent biological or psychiatric factors leading to the commission of the offence. The pre-sentence report indicated that he does not participate in alcohol or illicit drug use. The attitude of the offender to what he has done and his plea [ 28 ] Anthony Ryan did not enter a guilty plea. However, this is not an aggravating factor. [ 29 ] Through his Counsel at the sentencing hearing, Anthony Ryan expressed remorse by suggesting that he wished he had acted quicker to de-escalate the situation.

Further, he takes very seriously the fact that Corey Evans was injured, and he never intended Corey Evans to be injured in the way he was. The antecedents and the age of the Offender [ 30 ] Anthony Ryan is 50 years of age. He has a limited criminal record, which is somewhat dated.

According to the pre-sentence report, Anthony Ryan’s criminal record commenced in 1991, when he was convicted of one count of theft under $1000. [ 31 ] In March of 2011, he was convicted of possession for the purpose of trafficking, and he was sentenced to a two-year federal term. [ 32 ] In September of 2011, he was convicted of assault, uttering threats to cause bodily harm, and failure to comply with an undertaking, for which he was sentenced to 67 days in custody. [ 33 ] According to the pre-sentence report, Mr. Ryan comes from a family of eight siblings. He has good family relationships with his sisters.

The pre-sentence report indicated that he was placed in foster care with his brother, William Ryan, from around 5 to 8 years of age, before being returned to the care of his father. Anthony Ryan has four children from a previous relationship; and three children with his current partner. [ 34 ] Anthony Ryan left high school at the age of 16 to begin to work. In 2007-2008 he attended the Operating Engineers College in Holyrood. He completed his GED, and obtained a heavy equipment operator’s certification.

He appears not to have had any problem obtaining employment, and he has future plans as a truck driver. [ 35 ] As indicated, the pre-sentence report suggests that Mr. Ryan does not participate in any form of alcohol or drug use. Sentences imposed by Courts Assault with a weapon

[36] Under

section 267(

a) of the Code, 10 years is the maximum sentence for the offence of assault with a weapon. [37] In R. v. Murray, 2015 NLTD(G) 147, our Court considered the range of sentences for assault with a weapon, and determinedthat the range is broad in our province; but that a sentence greater than 2 years is unusual. At paragraphs 27 and 28 the Court stated, asfollows: 27 The range for assault with a weapon appears to be quite broad in this province. In R v. Philpott, 2011 NLTD(G) 30 the assaultwas with a knife and resulted in injuries to the victim's hands. A sentence of 14 months' imprisonment was imposed.

At paragraph 17,Justice LeBlanc refers to Justice Handrigan's finding in R v. Lewis, (2002), (NL SC), 212 Nfld. & PEIR145 (NLSC(G)) that the range of sentences for the offence of assault with a weapon is broad, ranging from a suspended sentence to a sixyear sentence. 28 In R v. Wheeler (2011), 315 Nfld. & PEIR 25 (NLPC), at paragraphs 91 and 92, Judge Gorman provided a comprehensive reviewof sentencing precedents from our province for the offence of assault with a weapon.

Based on his review, I conclude that while therange is indeed broad, a sentence in excess of 2 years imprisonment is not typical, and likely requires significant aggravatingcircumstances. [38] Based on the case law provided, I remain of the view that while the range of sentence for assault with a weapon is broad, theusual range of sentence does not exceed 2 years’ imprisonment, unless there are significant aggravating circumstances. In this case, theserious injury of Corey Evans is a significant aggravating circumstance.

Aggravated Assault [39] Under section 268(2) of the Code, 14 years is the maximum sentence for aggravated assault. [40] Counsel submitted numerous cases for the Court to review for the purposes of determining an appropriate range of sentence foraggravated assault. I have considered all, and will refer to some of these cases. [41] Both Counsel referred the Court to Justice Handrigan’s decision in R. v. Bourgeois. After reviewing sentencing case law foraggravated assault, at paragraph 46 Justice Handrigan concluded that our province’s range of sentence for aggravated assault is 2 to 6years’ imprisonment. In R. v.

Bourgeois there were two offenders. The victim suffered 12 stab wounds to the upper body. Surgery wasrequired, and the victim suffered physical and psychological impacts. One offender was sentenced to 36 months. The second offender,who had a more extensive criminal record, was sentenced to 60 months. [42] In R. v. Wheeler (2011), 315 Nfld. & P.E.I.R. 25 (NLPC), Judge Gorman provided an extensive review of case law of sentencesfor aggravated assault from our province. Judge Gorman noted that there was a broad range extending from 12 months to 10 years.

Ultimately, he concluded that the range of sentence for aggravated assault with a knife is 3 to 6 years. [43] In R. v. King, 2018 NLSC 36, the offender had attacked the victim with a box cutter at the workplace. Intervention wasrequired to stop the assault. At the time of the assault, the offender was subject to a no-contact order with the complainant, and he had acriminal record for domestic assault. The victim suffered scarring, surgeries, ongoing pain, loss of mobility and psychological impacts. Justice Burrage determined the appropriate sentence to be a term of imprisonment of 6 years. [44] In R. v.

Mitchell, 2005 NLTD 80, the offender attacked an 84 year old man, hitting him in the head several times with a pieceof asphalt. The injuries were extensive, including a degloving of the forehead and skull, and a compound nose fracture. Surgery wasrequired and the victim suffered loss of feeling on a part of his head, pain and trauma. The offender was on probation at the time of theattack. He pled guilty to aggravated assault and was sentenced to 6 years of imprisonment. [45] In R. v.

Parker (2013), 342 Nfld. & P.E.I.R. 205 (NLPC) the offender assaulted the victim, including kicking him in the headwith steel toe boots. The victim suffered a permanent brain injury with devastating impacts. The victim was severely impaired verbally,cognitively, and in physical coordination, and he could not work. A guilty plea was entered, and a sentence of 4 years of imprisonmentwas imposed. [46] In R. v. Day (2007), (NL PC), 266 Nfld. & P.E.I.R. 166 (NLPC) a repeat offender pled guilty and wassentenced to 7 years for aggravated assault. He was also sentenced for theft and robbery with violence.

The offences were committedwhile he was on parole. In a convenience store, the offender had grabbed the victim by the neck and hit her several times in the head. The victim suffered an intracranial bleed from a head injury, as well as a fractured larynx. The victim suffered psychological and long-term physical effects, including right vocal chord paralysis. [47] In R. v. Hogg, 2004 MBCA 114, the offender brutally assaulted the victim by using a bar of heavy metal as a weapon to strikethe head of the victim, and then kicked him. The victim suffered a skull fracture and brain damage.

The offender pleaded guilty toaggravated assault. An appropriate sentence was determined to be 4 years’ imprisonment (less credit for time served on a conditionalsentence). [48] In R. v. Costello, 2003 BCCA 421, the offender committed aggravated assault on a 3 year old child, while the offender was onprobation. The child was violently shaken by the offender and suffered a brain injury and paralysis. The sentence imposed and upheldwas 4 years’ imprisonment, in addition to the year of pre-trial custody. [49] In R. v. Le, 2018 ONCJ 483, the offender had attacked and injured four complainants in the workplace.

The attack wasunprovoked, and the offender used a metal bar to strike three of the complainants. One complainant suffered a fractured eye socket and

brain injury, causing a permanent significant cognitive impairment, as well as physical impairment as the victim could no longer walk. The first-time offender was sentenced concurrently for aggravated assault and assault with a weapon, to a total of 3 years and two months in jail. [ 50 ] In R. v. Baylis , 2022 ONCA 41 , on one occasion the offender struck a victim with a baseball bat, causing the victim to suffer a skull fracture and permanent brain injury. On another occasion, the offender hit another victim over the head with a beer bottle causing further injuries.

There was no provocation, and the sentence imposed and upheld for aggravated assault was 5 years of imprisonment, and 6 months consecutive for assault with a weapon. [ 51 ] In R. v. Sesay , 2020 BCCA 41 , the offender’s sentence of 6 ½ years was upheld for an “unprovoked sucker punch” assault. The assault caused a significant brain injury to the victim, with lifelong effects. The offender had an extensive criminal record including a history of noncompliance with court orders. He was deemed to be at moderate to high risk of further violent offending. [ 52 ] In R. v.

Wallin , 2003 BCSC 809 , a 9 year sentence was imposed for aggravated assault, following a guilty plea. The offender had no prior criminal record. The violent act was an unprovoked strangulation, which left the victim in a vegetative state with permanent injuries. [ 53 ] Considering the foregoing and all the case law provided, I am satisfied that the range of sentence in our province for aggravated assault is 2 to 6 years (as was stated by Justice Handrigan in R. v. Bourgeois , at paragraph 46).

An aggravated assault causing a brain injury should attract the higher end of the range of sentence, being 4 to 6 years. AGGRAVATING AND MITIGATING FACTORS [ 54 ] Aggravating factors must be proven by the Crown beyond a reasonable doubt. Although the attack on Corey Evans lasted only seconds, the serious nature of the injuries sustained by Corey Evans is a significant aggravating factor. [ 55 ] Further, the circumstances of the offence are aggravating.

Specifically, an aggravating circumstance is the fact that it was a two against one fight, with weapons, and that Anthony Ryan participated in the assault while Corey Evans was lying on the ground. [ 56 ] Anthony Ryan’s past criminal record is neither recent, nor significant. That being said, he is not a first-time offender. [ 57 ] As far as mitigating factors go, I am satisfied the evidence at trial established that the attack on Corey Evans was not premeditated.

Rather, the attack was impulsive and precipitated by Corey Evans’ unlawful act of breaking out the window of William Ryan’s residence. [ 58 ] Further, it is mitigating that the attack was brought to an end by Anthony Ryan’s act of pushing William Ryan away from Corey Evans, thereby stopping even more serious harm than was already inflicted. [ 59 ] Finally, as stated through his Counsel at the sentencing hearing, Anthony Ryan did express regret for the injuries that Corey Evans suffered; and that he wished he had acted quicker to de-escalate the situation. [ 60 ] I add that Defence Counsel submitted that it was appropriate to consider a credit for the lengthy period of time that Anthony Ryan was on strict bail conditions.

His bail conditions were imposed in the Fall of 2019, and included a curfew from 9 p.m. at night, to 6 a.m. in the morning. However, due to the absence of evidence establishing any detrimental impact on Anthony Ryan arising from the strict bail conditions, I will not consider his strict bail conditions to be a mitigating factor, nor will they be considered to assess a credit for remand.

PARITY AND MORAL CULPABILITY [ 61 ] Both Counsel referred to William Ryan’s sentence, but for different reasons. [ 62 ] Crown Counsel submitted that the principle of parity must be considered in light of William Ryan’s sentence of 6 years of imprisonment for the same incident. However, in my view, the sentence imposed on William Ryan is of limited value as a precedent. In William Ryan’s case, there was a guilty plea and a joint submission; and the Court was not provided with reasons for decision.

I am unaware as to what the aggravating and mitigating factors were for William Ryan (other than the guilty plea). [ 63 ] In the meantime, Defence Counsel submitted that Anthony Ryan should receive a lower sentence than William Ryan, because of Anthony Ryan’s lesser role in the assault of Corey Evans. Defence Counsel suggested that the level of moral culpability for Anthony Ryan was less than that of William Ryan. [ 64 ] I agree with Defence Counsel that Anthony Ryan’s role in the commission of the offences was less than William Ryan’s role.

Specifically, the evidence at trial established that it was William Ryan, not Anthony Ryan, who dealt the vicious blows to Corey Evans’ head, thereby inflicting the brain injury to Corey Evans. By contrast, Anthony Ryan participated in the assault by striking (or attempting to strike) Corey Evans’ lower body. [ 65 ] Further, in R. v. Hilbach , 2023 SCC 3 , the Supreme Court of Canada indicated that a determination as to whether an aider’s role is mitigating is “highly contextual”. They stated this at paragraph 101, as follows: 101 Mr.

Zwozdesky nevertheless raises the possibility that parties to the offence may have reduced culpability, citing the example of Link . However, I am not persuaded that Link illustrates the notion that parties to the offence have little moral fault relative to principal offenders. The question of whether an offender's role as an aider or abettor plays a mitigating factor in sentencing is highly contextual ( R. v. Overacker , 2005 ABCA 150 , 367 A.R. 250 , at paras. 23-26 ; R. v. Hennessey , 2010 ABCA 274 , 490 A.R. 35 , at para. 47 ). A sentencing

discount purely because a party was an aider or abettor would go against the purpose of the party liability provisions in s. 21, whichensure an "individual will bear the same responsibility for the offence regardless of which particular role he or she played" (R. v.Vu, 2012 SCC 40, [2012] 2 S.C.R. 411, at para. 58 (emphasis added), citing R. v. Thatcher, (SCC), [1987] 1 S.C.R. 652,at pp. 689-90).

Where there is a disparity between the criminal records of the principal and the aider or abettor, or where there areaggravating circumstances, like assaultive behaviour, that apply to the principal but not the aider or abettor, then the latter offender'ssentence may be lower than that of the principal (McIvor, at para. 29; R. v. Price (2000), (ON CA), 144 C.C.C. (3d)343 (Ont. C.A.), at paras. 54-56). However, both are jointly responsible for the commission of the index offence. As a matter of principleand policy, finding otherwise would encourage offenders to act as aiders or abettors.

Thus, the minimum sentence's mere application toaiders and abettors fails to establish its constitutional infirmity. [66] Considering Hilbach, and the context in which Anthony Ryan committed the offences, I find that his lesser role is not amitigating factor. [67] To elaborate, the jury found Anthony Ryan to have acted as either an aider, or as a joint principal, with William Ryan incommitting the offences with the requisite intent. The jury therefore found that Anthony Ryan was a party to the “assaultive behaviour”portrayed in the video footage.

The video footage shows a two on one vicious attack committed against Corey Evans, while CoreyEvans was lying down on the street. Anthony Ryan’s role in that attack was lesser inasmuch as he did not physically administer theblows that caused the serious harm to Corey Evans. However, based on the video footage and the jury’s verdicts, I find that AnthonyRyan’s participation was integral to the offences charged (see R. v. Overacker, 2005 ABCA 150, at paragraph 23). [68] As a result, I conclude that Anthony Ryan is as morally culpable as his brother; his lesser role is not a mitigating factor.

DISPOSITION [69] I have considered the submissions of Counsel, the objectives and principles of sentencing, the circumstances of the offence, thecircumstances of the offender, the aggravating and mitigating factors, and the case law respecting range of sentence. [70] Based on the foregoing analysis, I find that 2.5 years of imprisonment is a fit sentence to impose for the offence of assault witha weapon, as committed by Anthony Ryan. [71] Further, I find that 5 years of imprisonment is a fit sentence to impose for the offence of aggravated assault, as committed byAnthony Ryan. [72] In determining these sentences, I have also considered the Atkins’ factors, and particularly the grievous bodily harm suffered byCorey Evans as a result of the two on one assault.

Denunciation and deterrence are the paramount considerations. Further, I haveconsidered that brain injury cases warrant sentences in the higher end of the range of sentence. At the same time, I have considered themitigating circumstances, and Anthony Ryan’s favourable prospects for rehabilitation. Although Anthony Ryan is as morally culpable asWilliam Ryan, his sentence must be individualized. [73] The sentences imposed are to be served concurrently, for a total of 5 years of imprisonment. A remand credit of 183 days is tobe deducted from the 5 years. [74] Both Counsel agree that a DNA order is appropriate.

Pursuant to

section 487.05 of the Code, Anthony Ryan is ordered toprovide samples of bodily substances reasonably required for the purposes of forensic DNA analysis. [75] Both Counsel agree that a firearms prohibition order is also appropriate in accordance with

section 109 of the Code. A firearmsprohibition is mandatory in this case, and is imposed for the duration of 10 years, in accordance with section 109(2) of the Code. [76] I am exercising my discretion to waive the victim surcharge. Anthony Ryan will be incarcerated, and therefore unable to earnincome for the purposes of payment of same. [77] Finally, pursuant to

section 743.21 of the Code, I am imposing a non-communication order prohibiting Anthony Ryan fromcommunicating with Corey Evans, directly or indirectly, during Anthony Ryan’s period of custody. CONCLUSION [78] In

summary, a sentence of 5 years of imprisonment is imposed on Anthony Ryan for Count 1, aggravated assault. Aconcurrent sentence of 2.5 years of imprisonment is imposed on Anthony Ryan for Count 2, assault with a weapon. Therefore, thesentence imposed on Anthony Ryan is a total of 5 years of imprisonment, less a remand credit of 183 days (which is to be deducted fromthe 5 year sentence). As well, ancillary orders imposed upon Anthony Ryan are a DNA order, a firearms prohibition order, and a non-communication order. _____________________________ Valerie L. Marshall Justice