Editor’s Note: Corrigendum released March 19, 2010. Original judgment has been corrected with text of corrigendum appended. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 475 Date: 2009 12 08 Docket: QBCNJ No. of 2008 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and RYAN JOSEPH CAMERON SCOTT W. KADASH Counsel: John Stoesser for the Crown Douglas R. Andrews, Q.C. for Ryan Joseph Cameron Noah P. Evanchuk for Scott W. Kadash JUDGMENT GUNN J. December 8, 2009 [1] The accused entered a guilty plea to committing an assault causing bodily harm on Wallace Flood on August 27, 2006 contrary to s. 267(b) of the Criminal Code. [2] After the plea was entered on September 14, 2009 pre-sentence report was ordered and prepared in relation to each of the accused. written victim impact statement was filed by the Crown on behalf of Mr. Flood. At the time of sentencing letter was filed on behalf of each of the accused from their employer, Flynn Canada Ltd. In addition Certificate of Achievement from Metis Addictions Council and personal letter of reference was filed on behalf of Ryan Cameron. The Crown asserted that each of the accused had previous criminal record, but did not file these with the court, instead choosing to rely on the information contained in the pre-sentence reports in relation to each accused’s previous criminal history. Neither accused took any issue with the record as alleged. In addition the Crown filed as an exhibit on the sentencing some photographs taken of Mr. Flood following the incident in question. [3] Submissions were made on behalf of the Crown and by each of the accused through their counsel. have set out in some detail the information available to the court aside and apart from the submissions for reason. Some aspects of the assault are described in the pre-sentence reports and in Mr. Flood’s victim impact statement. These references to the events leading up to and comprising the assault have been obtained from both Mr. Flood and from the accused persons. The facts presented by Mr. Flood and those presented by each accused, do not accurately reflect the facts placed before the court by the Crown in its submissions on sentence and those facts accepted by each of the accused through their counsel. In the documents filed, Mr. Flood asserts that his injuries were greater than those presented by the Crown, and the accused have minimized their involvement and culpability for the offence. [4] In sentencing each of these accused persons, the court will rely only on the facts presented by the Crown and accepted by each of the accused in relation to the description of the assault itself and the participation of each accused in that assault, and in the injuries which are alleged to have been suffered by Mr. Flood as the victim of this assault. [5] Mr. Wallace Flood knew each of these accused prior to the assault. He had met Ryan Cameron on job site at some time prior and had no other real connection with Mr. Cameron. Scott Kadash had previously been involved in romantic relationship with Mr. Flood’s sister Crystal and the relationship had ended badly. As result there were bad feelings between Mr. Kadash and the Flood family. Mr. Cameron and Mr. Kadash were employed by the same company, Flynn Canada Ltd. [6] On the date in question, Mr. Flood had gone to his sister Crystal’s house in the afternoon to check on it as she was out of town. He was talking to her on the phone when he heard knock at the door. When he answered the door he was still on the phone with Crystal. Mr. Flood saw Mr. Cameron who asked where Crystal was. Mr. Flood offered the phone to Mr. Cameron who promptly hung up the phone. Mr. Flood then saw Mr. Kadash, who had been standing off to the side somewhat. Mr. Kadash stuck his foot in the door to stop Mr. Flood from closing it. [7] Crystal called back and Mr. Flood answered and told her that Mr. Cameron and Mr. Kadash were there. There was still some jostling going on at the front door and the phone was once again disconnected. Crystal called 911 so the police would go to her house. By the time the police arrived the accused were gone and Mr. Flood was there and was injured. [8] The reason for the visit was unclear, but there was some reference to Crystal owing some money to Mr. Cameron. And Mr. Kadash indicated he was upset about Mr. Flood ‘bad mouthing’ him around town. [9] The assault began when Mr. Cameron struck Mr. Flood in the head and stunned him. Mr. Flood indicated he was then pushed around by both of the accused and he fell over piece of furniture and into some glass which caused laceration on his arm and hand. [10] Mr. Flood fell to the floor and he curled up in protective way as both accused kicked and punched him while he was on the floor. It ended with Mr. Kadash pushing him to the floor and warning him not to make any complaints about this. Then the accused left. [11] When the police arrived they found Mr. Flood on the door step and he was “bloodied and dazed.” He gave them statement and then he went to hospital where his injuries were described as “minor”. The injuries asserted by the Crown and acknowledged by both accused are that Mr. Flood suffered lacerations to his face, head and arms and contusions to his face, head and upper body. All of these were described as minor injuries by the medical personnel. [12] Specifically, the Crown is not relying on the injuries described by Mr. Flood in his victim impact statement and those injuries are not admitted by the accused. [13] There does not appear to be any real explanation for the assault. Mr. Kadash offered an explanation to the police which is not accepted by the Crown. Mr. Cameron appears to have been tagging along with Mr. Kadash. And at this point both accused would simply suggest it was an act of stupidity on their part. THE PERSONAL CIRCUMSTANCES OF THE ACCUSED PERSONS [14] Neither accused person has any significant criminal record, and the Crown adopted the information set out in the pre-sentence reports and indicated it was not “stressing” the record. Mr. Kadash has one previous conviction for impaired driving in 2005. Mr. Cameron has one previous conviction as an adult for .08. The offence occurred in 1997, but was not dealt with in court until 2003. Mr. Cameron had six youth dispositions including theft, failing to stop at an accident, pointing firearm, misleading peace officer and further weapons offence. Mr. Cameron’s counsel indicated that all of these youth dispositions arose from one incident. [15] Mr. Cameron was born November 14, 1977. He was 29 years of age at the time of the offence. Mr. Cameron reports that his father was an alcoholic who physically abused him and his mother. His parents divorced when Mr. Cameron was about years of age and life improved somewhat for Mr. Cameron, as he remained with his mother until about the age of 15. At that point he left home because he did not want to finish school and he wanted to find employment. Mr. Cameron still has good relationship with his mother and he identifies her as his most significant and stable support. His mother and his brother were present in court to support him. [16] Mr. Cameron is currently single although he was previously in relationship and he has daughter from that relationship. He financially supports his daughter and he is involved in her life. [17] Mr. Cameron has some experience with alcohol and drug use. Although Mr. Cameron has one conviction related to the use of alcohol, he does not consider that he has any overall problems with the use of alcohol. However he also experimented with marihuana and oil beginning at about age 13. From the age of 14-25 he says he used marihuana and oil every day. He became addicted to crack/cocaine at the age of 25 and this continued until he was about 27 years old. Someone tried to shoot him causing him to realize that his drug use was serious problem. He attended the Metis Addictions Council of Saskatchewan, Inc. and completed 28 day program for his alcohol and drug use. This was completed May 4, 2006, approximately months prior to the commission of this offence. Mr. Cameron abstained from the use of drugs completely for while and now indicates he uses marihuana every other weekend, but he does not consider this to be problem. [18] Mr. Cameron has grade 11 education and is employed by Flynn Canada Ltd. as foreman in the Metal Division. Except for one month from October 5, 2009 to November 5, 2009 Mr. Cameron has been working there since 2006. Mr. Cameron was off for that one month on sick leave, suffering from chronic bronchitis and stress. [19] With the exception of the two years when he was addicted to crack/cocaine, Mr. Cameron has continuous work record from the age of 15 to the present. The Branch Administrator of Flynn Canada Ltd. prepared letter of reference for Mr. Cameron for the court proceedings in which he said that Mr. Cameron is great asset to their company. He reports that Mr. Cameron is valued and reliable employee, who arrives on time, works hard, takes whatever hours are available and who as foreman has job entailing considerable responsibility in the supervision of his crew. [20] Mr. Cameron has not spent any time in custody as result of this charge. He was released on bail on conditions that he keep the peace and be of good behaviour and that he not have contact with Mr. Kadash or the victim. [21] Mr. Kadash was born June 10, 1967 and is now 42 years of age. Mr. Kadash enjoyed stable home life as child. He is currently single with no dependents. He was previously in five year relationship with Mr. Flood’s sister Crystal. The relationship ended badly and there are still significant issues between Mr. Kadash and the Flood family. [22] Mr. Kadash reports no difficulties in the use of alcohol. He says it was not factor in the current offence and he has abstained from the use of any alcohol as condition of his release on bail on this charge. Mr. Kadash is not regular drug user, but reports he has experimented with marihuana and cocaine, but nothing in the past ten years. [23] Mr. Kadash has grade 12 education and he has been employed in the construction industry for 23 years. He is journeyman glass worker. He has been employed with Flynn Canada Ltd since 2005, owns his own home and earns approximately $60,000.00 per year. The Branch Administrator for Flynn Canada has filed letter of reference for Mr. Kadash in these proceedings. Mr. Kadash is identified as great asset to the company. As foreman he has the responsibility to oversee each project he is assigned to which includes: ensuring the safety and well being of his crew; keeping track of the payroll; completing all safety paperwork daily; meeting with general contractors and any other duties assigned. [24] Mr. Kadash spent five days in custody after his arrest on this charge and he was released on August 31, 2006 on number of conditions which include the following: keep the peace and be of good behaviour; report to the court when required to do so; report in person to the bail verification and supervision officer at times to be specified; reside at an approved residence or one approved by the bail verification officer; advise of any change of employment, education or contact with police officials; not travel beyond 60 k’s of his residence without prior written approval; abstain from the use or possession of alcohol or non-prescription drugs; not enter any premises where the primary function is the sale or consumption of alcohol; and non contact with Crystal and Wallace Flood. Mr. Kadash has complied with these conditions for over three years. THE IMPACT ON THE VICTIM [25] The following Criminal Code sections have relevance: 722(1)Victim Impact Statement For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. 724(3) Disputed facts Where there is dispute with respect to any fact that is relevant to the determination of sentence, (a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial; (b) the party wishing to rely on relevant fact, including fact contained in pre-sentence report, has the burden of proving it; (c) either party may cross-examine any witness called by the other party; (d) subject to paragraph (e), the court must be satisfied on balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and (e) the prosecutor must establish, by proof beyond reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender. [26] Mr. Flood filed lengthy written victim impact statement with the court which as indicated earlier is not totally consistent with the version of the facts and the injuries suffered placed before the court by the Crown. In R. v. Gardiner (1982), 1982 CanLII 30 (SCC), 68 C.C.C. (2d) 477 (S.C.C.) Dickson, J. held that “facts which justify the sanction are no less important than the facts which justify the conviction” and that [c]rime and punishment are inextricably linked”. This passage was quoted with approval by Sharpe, J.A. in R. v. W. (V.), (2008), 2008 ONCA 55 (CanLII), 53 C.R. (6th) 355 at para 25. Justice Sharpe went on to say the following: ... This means at the sentencing stage, “the accused is not abruptly deprived of all procedural rights existing at trial: he has right to counsel, right to call evidence and cross-examine prosecution witnesses, right to give evidence himself and to address the court.” [27] Section 724(3) codifies Gardiner, supra. Justice Sharpe then said the following at paragraph 27 of R.v. W.(V.), supra: [27] Although victim impact statements are not specifically mentioned, can see no principled reason for excluding them from the reach of the general rule articulated in Dickson, J. in Gardiner or these procedural protections listed in s. 724(3). conclude, therefore that victim impact statements are admissible, pursuant to s. 722(1), but that their use is subject to the general provisions of s. 724(3). The Crown bears the burden of proving any disputed fact and the offender has the right to cross-examine on the evidence the Crown leads. [28] Accordingly will read Mr. Flood’s victim impact statement through the lens of Gardiner, supra and s. 724(3) of the Code. Mr. Flood reports that his life has been on hold since the date of the assault. He did not work for three months following this incident. He says his arm still bothers him and that he has scars. He no longer lives in Saskatchewan as he feels threatened. He feels he has lost three years of his life and has lost the companionship of his family as he does not feel safe in Saskatchewan. CROWN’S POSITION ON SENTENCE [29] The Crown submits that sentence of incarceration in an institution of up to two years less one day would be appropriate in the circumstances for Mr. Kadash. In making this submission the Crown relies on the fact that the assault took place at residence, albeit not that of the victim. It notes that there were two assailants beating the victim, and that there was some significant history involving the Flood family and Mr. Kadash. In terms of Mr. Cameron the Crown submits that sentence of eighteen months to two years less one day would be appropriate. In addition it seeks DNA order and firearms prohibition. The Crown did not make reference to any authority in support of its submission. DEFENCE SUBMISSION [30] The defence counsel submit that this offence is not one for which incarceration is appropriate, taking into consideration the facts of the offence, the severity of the injuries and the minor criminal records of the two accused. They submit that suspended sentence with conditions would be appropriate, or alternatively conditional sentence with conditions. [31] Section 718 of the Criminal Code sets out the purpose and principles of sentencing as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just 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; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 court that imposes sentence shall also take into consideration the following principles: ... (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ... (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, with particular attention to the circumstances of aboriginal offenders. [32] It should perhaps be noted that conditional sentence is still available for this offence. The legislation has changed since the commission of this offence and pursuant to the current legislation, this would be categorized as ‘serious personal injury offence’ and conditional sentence would not be available. (See s. 741.1 and s. 752 Criminal Code) However pursuant to s. 11(i) of the Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”), the accused will have the benefit of the lesser punishment. [33] No reference was made by the Crown or the defence to any other cases to assist the court in assessing the issue of parity. [34] review of the recent decisions of the Saskatchewan Court of Appeal does not reflect any cases which appear to be directly on point. [35] In Q. v. Delorme (2008 SKCA (SentDig) 2, January 10, 2008) the accused was 43 years of age and was charged with physically abusing her children over six year period. The accused caught her son, then age 7-8, playing with matches and she held his hand over stove burner resulting in severe burns to his hand. Ms. Delorme was sentenced to total of 16 months on all charges, but 10 months on the assault causing bodily harm charge. The accused had no previous criminal record and her sentence appeal was dismissed. [36] In Q. v. Johns (2008 SKCA 20 (SentDig) (CanLII) May 15, 2008) the accused was 26 years of age with previous record of about 29 previous convictions. He was drinking with his uncle and they had disagreement. He sat on his uncle and struck him repeatedly with his fists and feet. He also threw tire rim at the victim and hit him with 4. The victim had significant injuries. The accused appealed his sentence of 20 months which had been imposed after joint submission and the appeal was dismissed. [37] In Q. v. Ross (2008 SKCA (SentDig) 44 December 9, 2008) the accused was 50 years old with significant record. He assaulted his employer when he was fired as result of using company vehicle for personal business. The accused and the victim had been for drink after work. The accused kicked the victim in the face and then punched him. He lost consciousness after falling to the ground. He required 19 stitches to close wound on his face and lost 25% of the vision in one eye. fine of $800.00 plus one year probation was imposed by the trial judge and the accused’s appeal from sentence was dismissed. MITIGATING AND AGGRAVATING FACTORS [38] Mr. Cameron has been employed consistently for all but two years since his fifteenth birthday. He is valued employee of his current employer. He is contributing member of society. He is father and has accepted his responsibility to be financial and emotional support for his daughter. He has had some difficulties in his life and has made some strides towards overcoming those difficulties as evidenced by his successful completion of his alcohol and drug abuse program. He has entered plea of guilty to this offence which is the first step in rehabilitation. He has the support of his family which is always very important. [39] The nature of the offence itself is aggravating. He participated in gratuitous violence without any real explanation for doing so. This occurred at home. Mr. Cameron has previous criminal record as an adult and as youth, even though this is not being stressed by the Crown. Mr. Cameron tended to minimize his responsibility in the pre-sentence report. And even though Mr. Cameron has had difficulties with drugs in the past, he candidly acknowledges that he uses illicit substances on regular basis at present. [40] Mr. Kadash is mature adult who has been employed in the construction industry for significant period of time and who currently holds responsible position. Mr. Kadash has no related record. He has been complying with strict bail conditions for over three years. He has entered plea of guilty to this offence which is the first tangible step towards rehabilitation. [41] The circumstances of the offence are aggravating. Mr. Kadash is the accused who has previous history with the Flood family and bears some responsibility for including Mr. Cameron in this feud. Mr. Kadash minimized his responsibility for his actions in the pre-sentence report, even though he did, through counsel, take responsibility in court. [42] The victim has been affected significantly by this crime. [43] Taking into consideration both the aggravating and the mitigating circumstances, the principles of sentencing, the facts, and the circumstances of the accused cannot conclude that incarceration in facility is an appropriate disposition in the circumstances. [44] In my view a fine plus a probation order with strict conditions can accomplish the principles of sentencing as quoted above. The principles of parity demand similar sentences in the circumstances. [45] sentence Ryan Cameron as follows: [46] I impose a fine of $1,500.00 plus I direct that you comply with the terms of a probation order for two years. direct that you are bound by the following conditions: 1. You shall keep the peace and be of good behaviour; 2. You shall appear before the court when required to do so by the court; 3. You shall notify your probation officer in advance of any change of name or address, and promptly notify your probation officer of any change of employment or occupation; 4. You shall report to probation officer within two working days after the making of the probation order and thereafter when required to do so by your probation officer and in the manner directed by your probation officer; 5. You shall remain in the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from your probation officer; 6. You shall provide 150 hours of community service over period of 18 months; 7. You shall not contact or communicate directly or indirectly with Wallace Flood or Crystal Flood except through member of the Law Society of Saskatchewan; 8. You shall not knowingly be within 500 meters of the place of residence or the place of employment or place of education of Wallace Flood or Crystal Flood; 9. You shall participate in any evaluation and any treatment recommended to you by your probation officer for anger management and/or alcohol and drug abuse. 10. For period of six months commencing today, you must reside at 18 2250 7th Avenue North, Regina, Saskatchewan unless you have written permission from your probation officer to live elsewhere. 11. Commencing December 8, 2009 you shall be confined to your residence from 8:00 p.m. each evening to 7:00 a.m. the next morning for period of six months, ending on June 8, 2010. [47] sentence Scott Kadash as follows: [48] impose fine of $1,500.00 plus direct that you comply with the terms of probation order for two years. direct that you are bound by the following conditions: 1. You shall keep the peace and be of good behaviour; 2. You shall appear before the court when required to do so by the court; 3. You shall notify your probation officer in advance of any change of name or address, and promptly notify your probation officer of any change of employment or occupation; 4. You shall report to probation officer within two working days after the making of the probation order and thereafter when required to do so by your probation officer and in the manner directed by your probation officer; 5. You shall remain in the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from your probation officer; 6. You shall provide 150 hours of community service over period of 18 months; 7. You shall not contact or communicate directly or indirectly with Wallace Flood or Crystal Flood except through member of the Law Society of Saskatchewan; 8. You shall not knowingly be within 500 meters of the place of residence or the place of employment or place of education of Wallace Flood or Crystal Flood; 9. You shall participate in any evaluation and any treatment recommended to you by your probation officer for anger management and/or alcohol and drug abuse. 10. For period of six months commencing today, you must reside at 2152 Halifax Street, Regina, Saskatchewan unless you have written permission from your probation officer to live elsewhere. 11. Commencing December 8, 2009 you shall be confined to your residence from 8:00 p.m. each evening to 7:00 a.m. the next morning for period of six months, ending on June 8, 2010. [49] direct that each accused receive copy of the probation order and that the accused receive the explanation set out in s. 732.1(5) of the Criminal Code. [50] In addition make an order for each accused pursuant to s. 109 of the Criminal Code. You are each prohibited from possessing any firearm, other than prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance during the period that begins today and ends ten years from today; and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [51] make an order in relation to each accused pursuant to s. 487.051(4) of the Criminal Code and Form 5.041. make an order in Form 5.03 authorizing the taking from each accused the number of samples of bodily substances that is reasonably required for purpose of forensic DNA analysis. order that you appear on or before December 15, 2009 at the Regina City Police Station for the purpose of the taking of the bodily substances by means of the investigative procedures set out in ss. 487.06(1) of the Criminal Code. You are warned that failure to appear in accordance with this order may result in warrant being issued for your arrest. You are also warned that failure to appear, without reasonable excuse is an offence under the Act. [52] In addition to the sentences imposed am required to consider the imposition of victim fine surcharge. In all of the circumstances am of the view that as each of you are employed victim fine surcharge would be appropriate in the circumstances. order each of you to pay victim fine surcharge of $225.00. [53] The time in default of payment of the fine will be calculated in accordance with s. 734 of the Criminal Code. [54] The fine and the victim fine surcharge shall be paid to the Local Registrar’s Office, Court of Queen’s Bench on or before June 8, 2010. [55] direct my clerk to explain the provisions of s. 734 s. 734.8 and s. 736 to the accused. E. J. Gunn QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 475 Date: 2010 03 19 Docket: QBCNJ No. of 2008 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and RYAN JOSEPH CAMERON SCOTT W. KADASH Counsel: John Stoesser for the Crown Douglas R. Andrews, Q.C. for Ryan Joseph Cameron Noah P. Evanchuk for Scott W. Kadash March 19, 2010 CORRIGENDUM GUNN J. to JUDGMENT of December 8, 2009 (2009 SKQB 475) [56] The citations for the cases referred to in paragraphs 35-37 of the judgment should indicate the cases were reported in the Sentencing Digest.
The two accused entered a guilty plea to committing an assault causing bodily harm contrary to s. 267(b) of the Criminal Code. HELD: A fine plus a probation order with strict condition can accomplish the principles of sentencing. Each accused is fined $1,500 with a probation order for two years. Corrigendum received dated March 19, 2010 and added to fulltext.