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Conditional discharge granted after Gladue analysis in assault causing bodily harm sentencing.
Following a conviction for assault causing bodily harm, the sentencing issue was whether the accused should receive a suspended sentence with a criminal record or a conditional discharge.
The court reviewed aggravating harm to the complainant, including concussion and whiplash, alongside mitigating factors including no prior record, mental health and substance use disorders, remorse, rehabilitation efforts, and Indigenous background.
Applying ss. 718 and 718.2 of the Criminal Code and the Gladue framework, the court emphasized restorative principles and the individualized circumstances of Indigenous offenders.
The court held that a non-custodial disposition without a criminal record was appropriate in the circumstances.
The accused was conditionally discharged and placed on probation for 18 months.
The accused was found guilty of assault causing bodily harm after recklessly kicking a volleyball into a crowd.
Jean-Claude Robitaille was charged with assault with a weapon and assault causing bodily harm after kicking a volleyball that struck Michelle Powell in the face during Canada Day 2023 celebrations at Ashbridges Bay, Toronto.
The court examined whether the kick was accidental or reckless/deliberate, focusing on the mens rea for assault.
Evidence showed Robitaille kicked the ball hard toward a group of people, causing significant injury.
The court found that the force and proximity of the kick established that the risk of bodily harm was either intended or objectively foreseeable, rejecting the defence of accident.
Intoxication was not a defence as assault is a general intent offence.
