Court of Appeal decision focuses on deterrence, protection of society and sentence

Law360 Canada (May 10, 2024, 2:32 PM EDT) --

John L. Hill

One would expect that when Crown counsel Dena Bonnet began arguing a sentence appeal on March 12, 2024, she had to be confident the matter was a sure winner. She has served as Crown counsel at the Crown Law office since 2008 and regularly appears before the Ontario Court of Appeal. She could realistically argue that the sentence handed down at trial was demonstrably unfit.

Jedidiah Fortune was sentenced to two years imprisonment and six months to be served concurrently after pleading guilty to aggravated assault and breach of probation. He was also credited for time spent in pretrial custody. On March 21, 2022, Fortune and the victim were residents of the Better Living Centre Shelter in Toronto. Fortune entered the victim’s room and kicked the victim in the head.

He then chased the victim into a common area and stabbed him five times: twice in the chest, twice in the abdomen and once in the back. The injuries sustained in the attack were life-threatening. The victim suffered slash wounds to his diaphragm and liver and had his spleen surgically removed. Fortune was on probation at the time and prohibited from possessing weapons.

The Crown argued on appeal that the two-year sentence did not convey the need for specific deterrence and protection of society.  After all, Fortune had been sentenced to two years in 2016. In 2019, he upped his assaultive behaviour by using a hammer as a weapon.

The second assault led to a 10-month sentence. Indeed, the court would agree that this third act of violence would call for the application of a severe penalty and not just a modest increase suggested by the jump principle that would seek to increase a penalty when previous sanctions have been ineffective. The jump principle has little application when it comes to meting out sentences when there has been a dramatic increase in the violence or seriousness of the offence (R. v. Green, [2021] O.J. No. 7307; Her Majesty the Queen v. Borde [Indexed as R. v. Borde], 63 O.R. (3d) 417))

The Crown could look to s. 718.1 of the Criminal Code, which states that a sentence is demonstrably unfit when the sentence is disproportionate to the gravity of the offence and the degree of responsibility of the offender. The Supreme Court held in R. v. Lacasse, 2015 SCC 64, that in determining proportionality, a court should look to the circumstances of individuals who committed the offence and how similar offences have been sanctioned in similar circumstances. When a sentence falls outside the usual sentencing range without any rationale, that may be a signal that the sentence is demonstrably unfit (R. v. S.W., 2024 ONCA 173; R. v. Parranto, 2021 SCC 46). The Crown maintained the Appeal Court would be justified in imposing a five-year prison term for the assault and a one-year consecutive term for the breach of probation.

The Court of Appeal decided on April 12, 2024 (R. v. Fortune, 2024 ONCA 269). The appellate decision agreed with the Crown that the trial judge was insensitive to the repetition of severe and escalating violence to which Fortune had pleaded guilty. In the reasons for the decision, the court acknowledged the trial judge had weighed Fortune’s criminal record and considered the current offence committed in a shelter as aggravating. However, mitigating factors included the recognition that Fortune was dealing with mental health issues and rehabilitation was within reach. He was seeing a psychiatrist and was taking prescribed medication and fulfilling coursework in a residential treatment facility. All that did not excuse the imposition of a two-year term does not achieve the goal of specific deterrence. The trial judge failed to give sufficient appreciation for the severe harm incurred by the victim. The sentence was also out of line with case law.

Having found the sentence unfit, the court could impose the proper sentence. This was determined to be three years and six months. The court realized that Fortune had spent 19 months in pretrial custody. It noted that incarceration or reincarceration may not be appropriate where offenders have served all or most of their sentence (R. v. R.S., 2023 ONCA 608; R. v. T.J., 2021 ONCA 392; R. v. Davatgar-Jafapour, 2019 ONCA 353; R. v. Hamilton, (2004) 72O.R. (3d) 1 (Ont. C.A.); R. v. Sharma, 2019 ONCA 274) Given the respondent’s progress on release, it was decided that it would not be in the public interest to reincarcerate him. A probation order would suffice.

When the sentence appeal commenced, the Crown sought a lengthy incarceration period on top of the reformatory sentence yet to be served on the trial judge’s decision. The Crown successfully extended the sentence to three years and six months. However, Fortune will not be sent to jail at all because the Crown appealed and had a well-considered decision from the Ontario Court of Appeal. He was the real winner and will continue his rehabilitation on the street.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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