New & Notable: Realistic Sentencing Options

Polanco-Gabriel was tried by a judge and jury of two counts of threatening bodily harm, one count of possession of a weapon for the purpose of committing an offence, one count of aggravated assault and one count of assault with a weapon. The jury only returned a verdict of guilty on one count, the possession of the weapon for the purpose of committing an offence. A mistrial was declared in respect of the remaining counts, which the Crown subsequently stayed. Polanco-Gabriel returned before Campbell J for sentencing on the sole count he was convicted of: R v Polanco-Gabrial, 2014 ONSC 3307

The facts of the case were simple. Polanco-Gabriel was at a baseball game in Toronto along with some 80 spectators. During the game he got into a scuffle with Mr Diaz over a woman also in attendance at the game and who was known to both parties. The altercation went from verbal to physical and resulted in Polanco-Gabriel being escorted away by a friend.

Some 10 minutes after being escorted out, Polanco-Gabriel returned to the ball game, this time wielding a machete, and yelling that he had a machete, which was plainly obvious.  The baseball game stopped and a group of people surrounded the accused. Meanwhile, Mr Diaz armed himself with a bat and made his way towards Polanco-Gabriel. The two men yelled at each other in Spanish and swung their weapons. Mr Diaz was hit a few times on his forearm with the machete. The fight ended when Diaz struck Polanco-Gabriel in the head rendering him unconscious.

At the sentencing hearing Polanco-Gabriel argued for a conditional discharge. The Crown sought a reformatory sentence of 4 to 6 months followed by 2 years probation.

In addressing the inappropriateness of a conditional discharge in the circumstances of this case, Campbell J held:

First, while discharges are often in the bests interests of an accused, there is no evidence in this case that suggests, in any specific way, that a discharge would be in the best interests of the accused. Defence counsel fairly conceded that a conviction would have no adverse consequences for Canadian citizenship of the accused. Further, given his history of employment it does not appear that a conviction would likely impact upon the accused's present employment or his future employment prospects. While there is always a possibility that a conviction might inhibit travel to certain other parts of the world, this risk was not one mentioned by defence counsel as being of any concern to the accused.
Second, and in any event, even if a conditional discharge was in the best interests of the accused, I have no hesitation concluding that a discharge would be contrary to the public interest. Given the gravity of the offence committed by the accused, the potential danger it caused to innocent members of the public, and the need to effectively denounce and deter such offences, a discharge is simply not a realistic sentencing option in the circumstances of the present case @paras 39-40.

Ultimately, Campbell J imposed a sentence of 3 months and 18 days, with credit for 12 days of pre-sentence custody. The sentencing judge noted that had the offender not been a mature first offender a longer sentence would have been appropriate @para 45.


New & Notable: If at first you don't succeed...maybe you should stop

Daniel Woods was trafficking in cocaine. He got caught. He was found to have $1,130 and some drugs including 95.5 grams of cocaine. He was charged. He was released pending trial and resolution of that charge. While on release he again trafficked in cocaine. He was caught, again. This time he had 288.5 grams of cocaine and 79 ecstasy pills, along with $540. He was charged, again. He pleaded guilty to both charges.


Woods was a young man, he had no prior record and he had a gambling addiction. The sentencing judge imposed a sentence of 18 months jail on the first charge and 30 months jail on the second. Woods appealed: 2013 ONCA 766.

The Court of Appeal upheld the sentence. In doing so it offered the following:

However, the sentencing judge considered it an aggravating factor that the appellant committed the second offence while released on an undertaking and awaiting disposition of the first offence.

We agree. Where an accused re-offends while on release, the sentencing principles of general deterrence and denunciation must be given more significance to discourage and denounce such conduct. Further, we see no basis for the appellant’s submission that the sentences on the two offences should have been concurrent. We are not persuaded that the sentencing judge made any error or that the sentence is unfit [emphasis added]; [parars 3-4].


New & Notable: If at first you don't succeed...

MM was serving an intermittent sentence.  MM, undeterred by this sentence, re-offended in relation to the same victim.  At sentencing the judge held that "specific deterrence was an overwhelming consideration".  Due to this consideration, De Filippis J jumped a joint position and rejected the apparent reliance on the guilty plea as sufficient mitigation to support the joint position. 

The Court of Appeal agreed - 2012 ONCA 247: "Saving the victim from having to testify was an important consideration but it could not justify the sentence that was proposed in this case" [para 1].