Lawyers make submissions in biker’s dangerous offender hearing
Lawyers disagreed over whether or not biker Pierre Aragon meets the legal criteria needed to be designated a dangerous offender as they began their final submissions in the 35-year-old’s dangerous offender hearing in Peterborough Superior Court of Justice on Wednesday.
They also offered different opinions on how much more time he should spend in jail, should Justice Hugh O’Connell decide that he shouldn’t receive the designation, which comes with an indeterminate sentence – that is, one without a set duration.
Aragon was convicted of aggravated assault, assault with a weapon, possession of a weapon and uttering threats after a jury trial in 2014, but has not been sentenced. The charges stem from the vicious beating of Loners member Fernando Fernandes on Park St. on July 22, 2012.
Assistant Crown attorney Lisa Wannamaker argued in support of an eight to 10-year jail term and long-term supervision order for aggravated assault – which carries a 14-year maximum.
Defence lawyer Derk Derstine seeks a five- to seven-year prison sentence, less more than five years of pre-sentence custody.
Both lawyers sent their submissions to the judge in writing prior to Wednesday’s proceedings, which started with Wannamaker making oral replies to Derstine’s defence submissions, which court heard were filed last week.
The Crown first filed its submissions in June 2015 before the matter was further delayed.
The prosecutor argued that several defence claims are not founded in the evidence heard during the trial and subsequent dangerous offender application process.
For example, Wannamaker disputed that three co-accused who were already sentenced after pleading guilty to lesser roles in the incident were members of motorcycle gangs. One never was, while one was a prospect, she said.
Later during his submissions, Derstine agreed to a degree, but pointed out how “any brief glance” at one the men’s history shows he was “well-entrenched” in gang culture.
Wannamaker also disagreed with the defence statement that no one suffered life-threatening injuries in the beating, pointing out how Fernandes’ injuries required 60 to 70 stitches, putting a steel plate in his arm and left an indent in his skull.
The man is still experiencing limitations, she said, including reduced use of his arm, as well as suffering from headaches.
Later, Derstine agreed that aggravated assault is a serious offence, but re-asserted that no evidence was heard during the trial that indicated Fernandes’ injuries were lifethreatening.
The prosecutor strongly disagreed with the defence claim that Aragon has shown “significant remorse,” saying“nothingcouldbefurtherfromthe truth.” He has minimized the offence and blamed others, Wannamaker said, asking the judge to look at his behaviour in jail.
Aragon has been responsible for “brutal assault” while in prison, including one caught on video at Lindsay’s Central East Correctional Centre that left a man unconscious.
Throwing meal trays, being caught with weapons and getting into consensual fights have been among his many misconducts, Wannamaker added. “If that’s a sign of remorse for the attack ... then I’m missing the point.”
Later, she added that loud celebrations could be heard during the pocket dial – “telling” evidence that was key in the trial – and how that showed “unfeeling.”
Derstine pointed out later that severalofwhattheprosecutorcalledmisconduct reports are actually unadjudicated occurrence reports, urging the judge to be careful in adopting them.
His client was absolved of an assault that was not caught on film and has been a victim of violence himself, he added.
Aragon was expected to make a verbal statement later on Wednesday expressing his remorse and indicating that he intends to tread a better path, Derstine said during a recess.
The Crown disputes his claim to be done with gangs and cites his contempt of court conviction from last year as proof he still adheres to a gang code of conduct not to “rat” on a brother. Aragon refused to testify in the trial of fellow gang member Bob Pammett.
O’Connell pointed out, however, that even if Aragon has cut those ties, he could still uphold that code out of fear for the possible consequences.
Wannamaker also opposed the defence claim that more than one bat was used in the attack. Fernandes testified that he may have been attacked by more than one person because it “came from every angle” and he was “hit all over his body,” she said.
She also disagreed that a Crown witness, forensic psychologist Dr. Jeff McMaster, called Aragon “treatable.” noting that he said his issues are, but not him. Aragon was kicked out of a substance abuse program while in Kington’s Joyceville Institution. “He’s never been amenable to treatment.”
The prosecutor also opposed the defence view that Aragon’s violent behaviour is fuelled by drug and alcohol addiction and his affiliation with gangs, which he entered at age 14.
McMaster, who diagnosed Aragon with antisocial personality disorder, testified that his aggression is not substance-dependant, she said.
Aragon’s parents and sister were among those to write letters of support. Wannamaker urged O’Connell to consider how much weight he should give them in his decision.
The prosecutor also took issue with individuals who were used as character references, including someone who is wanted in two jurisdictions, including for breach of probation locally. “I’d be interested in his whereabouts.”
Since his Aug. 22, 2012 arrest, Aragon has served 1,387 days – or three years and 292 days – in prison, less the 242 days he served from April 18 to Dec. 18, 2016 for his contempt conviction, Wannamaker calculated.
If he receives an indeterminate sentence, the Crown seeks one-forone credit for Aragon’s time in jail, not the the 1.5-to-one enhanced credit often given sought by the defence.
She cited his 11 convictions for violent offences, including for aggravated assault for his role in the brutal December 2005 murder of 35-yearold Shawn Douse of Keswick, as well as assaulting his father and a Crown witness, and his history of prison misconducts.
In his submissions, Derstine also asked the judge to review the sentences of the co-accused, noting the legal principle of parity. He urged O’Connell to consider the “extraordinary distinction” between the two years they received and the “life sentence” Aragon faces.
They didn’t commit the same crime his client did, “But it’s in the same ballpark,” Derstine said, pointing out how drivers involved in bank robberies are routinely sentenced to similar ones as the robbers themselves.
O’Connell noted early in the proceedings that Aragon is responsible for 90 per cent of the delays in the case, paired with the illness experienced by his former lawyer and the mandatory retirement of Justice Alfred Stong, who presided over the trial.
The final submissions are scheduled to be completed on Feb. 17 before O’Connell reveals his decisions on a still-to-be-determined date.
The judge has also yet to rule on constitutionality arguments of the dangerous offender provisions that were made when the hearing reconvened in December.
Aragon – who is now housed at the Toronto East Detention Centre – also is also sueing for $1,250,000 in general damages for negligent treatment and care while in custody at Lindsay’s Central East Correctional Centre.
Excessive lockdowns due to staff shortages, loss of dignity, pain and suffering, and inability to practice religion, in violation of Sections 7, 9 and 12 of the Canadian Charter of Rights and Freedoms were among the general damages listed in his claim, which was served Jan. 3.
He also seeks punitive, aggravated, or exemplary damages of $500,000 and special damages, such as medical expenses, in a yet-to-be-determined amount.
None of those accusations have been proven in court.
Court Wednesday that been retained for coming appeal, which was addressed for the first time Jan. 9 in Toronto .... There were more than a dozen people seated in the gallery, mostly members of ragon’s immediate family, during Wednesday’s proceedings. also heard has