



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. O'Loughlin, 2017 ONCA 89

DATE: 20170201

DOCKET: C61835

Watt, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Keith William O'Loughlin

Appellant

Keith William O'Loughlin, acting in person

Matthew Gourlay, duty counsel

Dayna Arron, for the Crown

Heard: May 10, 2016

On appeal from the conviction entered on December 18,
    2015 and the sentence imposed on February 11, 2016 by Justice Lynne Leitch of
    the Superior Court of Justice, sitting with a jury.

By the Court:

[1]

The appellant appeals his conviction of assault causing bodily harm and
    seeks leave to appeal and, if leave is granted, appeals the sentence imposed
    upon him.

[2]

As these brief reasons explain, we have decided that both appeals fail
    and should be dismissed.

The Background Facts

[3]

A jury found the appellant guilty as a participant in the unlawful
    assault of a fellow inmate at Elgin Middlesex Detention Centre. It was uncontroversial
    at trial that the victim had been unlawfully assaulted and had suffered bodily
    harm (multiple rib fractures, damaged teeth, bruising and cuts). As a result of
    that assault, the critical issue for the jury to decide in connection with the appellant
    was the nature and extent of his participation, if any, in the assault.

[4]

Reduced to its essentials, the case for the Crown consisted of the
    evidence of the victim and a surveillance video seized by police from the
    detention centre. A police officer familiar with the alleged participants and
    the place where the events occurred, narrated the video as it was played for
    the jury. Still photographs taken from the video were also filed as exhibits at
    trial.

[5]

The victim identified two inmates who participated in the assault.
    Joseph Kennedy was the principal assailant. Kennedy punched and beat the
    victim. Donald Schaeffer pushed the victim into the washroom area where the
    assault occurred and kept him confined there as Kennedy repeatedly struck the
    victim. Others were standing around, but the victim could not (or would not)
    identify them.

[6]

The victim did not identify the appellant as a participant in the
    assault.

[7]

The principal evidence against the appellant was the surveillance video
    and accompanying narration. After identifying the various participants, the
    narrator pointed out the appellant who was initially seated at a table playing
    cards, but apparently paying close attention to the other goings-on in the
    immediate vicinity. As the altercation involving Kennedy, Schaeffer and the
    victim took place in the doorway to the washroom area of the detention centre,
    the appellant got up from his seat and walked, with an apparent purpose,
    towards the washroom area.

[8]

At the doorway to the washroom, the appellant peeled away a hand
    grasping the doorframe and entered the washroom. The appellant then appeared to
    move his leg in a manner the narrator described as similar to a "knee
    strike" used by police officers to subdue those who resist arrest.

[9]

The appellant did not testify at his trial. He called as a defence
    witness, Joseph Kennedy, the principal assailant. Kennedy told the jury that
    the appellant played no role in the assault of the victim. Indeed, according to
    Kennedy, the appellant interceded when Kennedy was about to stomp on the
    victim's head, saying "Joe, that's enough, that's enough".

[10]

By the time of the appellant's trial, both Kennedy and Schaeffer had
    pleaded guilty and been convicted for their involvement in the assault on their
    fellow inmate. Schaeffer, but not Kennedy, had been sentenced.

The Charge to the Jury

[11]

Trial counsel were in agreement that the appellant could be found guilty
    of the offence charged either as a joint principal or as an aider in the
    assault by Kennedy. The trial judge charged the jury accordingly, including in
    her charge an instruction, based on
R. v. Thatcher
[1987] 1 S.C.R.
    652, that the jurors need only be unanimous in finding guilt, not as to the
    nature of the appellant's participation.

[12]

The trial judge instructed the jury on the position of the defence in
    accordance with the submission of the appellant's trial counsel. The judge
    explained that the appellant's position was that he went to the washroom area
    to see what was happening there. He did not assault the victim nor help anyone
    else who was participating in that assault. In other words, present but not
    participating.

[13]

Trial counsel did not object to the charge to the jury.

The Appeal from Conviction

[14]

Duty counsel acknowledges that if an evidentiary basis existed for
    leaving participation as a joint principal and/or aider to the jury, the jury
    instructions contain no legal errors.

[15]

In his submissions, the appellant pointed out that the victim did not
    say that he (the appellant) assaulted him and was unclear whether the hand
    holding onto the doorframe was his (the victim's) or somebody else's.  The
    appellant reiterated the position his counsel advanced at trial, that he was
    present but did not participate in the assault.

[16]

We have had and taken the opportunity to review the video of the
    relevant events. We are satisfied that it constitutes a sufficient evidentiary
    basis upon which the trial judge could instruct the jury that they could find
    the appellant guilty of assault causing bodily harm, either as a joint
    principal or an aider of the principal, Kennedy. This is not a case of
    accidental presence, of simply being in the wrong place at the wrong time. The
    appellant's presence was intentional, his involvement active. The appellant's
    position was clearly put to the jury and roundly rejected by them after brief
    deliberations. There is no basis upon which this court can interfere.

[17]

The appeal from conviction is dismissed.

The Appeal from Sentence

[18]

At trial, counsel for the appellant suggested a custodial sentence of
    12-15 months. The trial Crown sought a sentence of 3 years in the penitentiary.
    The parties were
ad idem
that pre-disposition custody should be
    deducted from whatever sentence the trial judge imposed and were also in
    agreement about the quantum of that credit (389 days).

[19]

The trial judge considered that a fit sentence was one of imprisonment
    for 20 months. From that sentence she deducted 409 days for pre-disposition
    custody and imposed an actual sentence of 191 days.

[20]

In imposing sentence, the trial judge considered the appellant was the
    least culpable of the trio of participants  Kennedy, Schaeffer and the
    appellant  and that his participation was that of an aider, not that of a
    joint principal.

[21]

In support of his claim for a reduction in the length of sentence
    imposed, the appellant invokes the principle of parity. He points to the
    sentence imposed on Schaeffer  18 months  and says that parity requires that
    his sentence be less. Schaeffer was sentenced as the least involved, but his
    participation was actually greater than that of the appellant. On this basis,
    the appellant says, his sentence should be reduced to a term of imprisonment of
    less than Schaeffer received.

[22]

Schaeffer was more than four years older than the appellant. He had what
    the sentencing judge in this case described as a significant record, the
    details of which were not provided. Schaeffer pleaded guilty before a judge of
    the Ontario Court of Justice within 8 months of the offence and, more
    importantly, before the surveillance video had been disclosed. Schaeffer
    apologized for his conduct and the sentencing judge found him to be genuinely
    remorseful.

[23]

The judge who sentenced Schaeffer considered him the least involved of
    the three men then charged. However, the judge did not have the advantage of
    the surveillance video, an item of real evidence that better displays
    Schaeffer's actual role.

[24]

The appellant was 38 years old at the time of the offence and 40 when he
    was sentenced. His youth and adult record, which extends for nearly a
    quarter-century, includes property and motor vehicle offences, as well as
    escaping from lawful custody and being unlawfully at large. He has five prior
    convictions for assault and a dozen and a half convictions for failures to
    comply with release terms or sentencing dispositions. He has been recommitted
    twice as a statutory release violator.

[25]

Inherent in the term "parity" and the parity principle in
    sentencing is the notion of comparables. Offenders. Offences. Circumstances.
    The parity principle expressed in s. 718.2(b) of the
Criminal Code
tells us that a sentence should be
similar
to sentences imposed on
    similar
offenders
for similar
offences
committed in similar
circumstances
.

[26]

The appellant holds up the sentence imposed on Schaeffer as a benchmark.
    But its invocation scarcely favours an equivalent or lesser sentence for the
    appellant. Schaeffer pleaded guilty within 8 months of the offence on the basis
    that he was the least involved. There can be no doubt that his guilty plea,
    genuine remorse and the level of participation acknowledged before the
    sentencing judge were substantial mitigating factors. To the extent that his
    minimal level of participation was a mitigating factor in a determination of
    the quantum of sentence, we know from the surveillance video that his
    involvement was not as advertised.

[27]

We are satisfied that the sentence imposed on the appellant did not
    violate the parity principle, or for that matter, any other principle or
    objective of sentence. It was a fit sentence for him for what he did.

[28]

For these reasons, we grant leave to appeal sentence, but dismiss the
    appeal from sentence.

CONCLUSION

[29]

The appeals from conviction and sentence are dismissed.

Released: February 1,
    2017 ("DW")

"David Watt
    J.A."

"M. Tulloch
    J.A."

"Grant
    Huscroft J.A."


