W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:
486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).
(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v.
B.P. (Appellant)
BEFORE: LABROSSE, MACPHERSON and CRONK JJ.A.
COUNSEL: Maureen McGuire
for the appellant
C. Jane Arnup
for the respondent
HEARD: October 13, 2004
RELEASED ORALLY: October 13, 2004
On appeal from the sentence imposed by Justice Paul F. Lalonde of the Superior Court of Justice, sitting without a jury, on March 19, 2004.
E N D O R S E M E N T
1The appellant was convicted of two counts of assault causing bodily harm and one count of assault, for which he was sentenced to three years imprisonment. He was also ordered to provide a DNA sample and was prohibited from possessing weapons for life. He seeks leave to appeal his sentence and, if leave be granted, appeals his sentence.
2The appellant argues that the trial judge erred in his consideration of the appellant’s lack of remorse for the offences in question. We agree. This is not a case where the trial judge treated the appellant’s lack of remorse as relevant to rehabilitation and specific deterrence on the basis that it indicated a failure by the appellant to accept responsibility for his actions; nor is this a case where the trial judge regarded the appellant’s lack of remorse as disentitling him to mitigation consideration on sentencing. To the contrary, the reasons of the trial judge indicate that he accepted Crown counsel’s submission at trial that the appellant’s lack of remorse was an aggravating factor relevant to fashioning an appropriate sentence. This was an error in principle.
3Given this error, this court is obliged to determine a fit sentence for the appellant. In our view, a global sentence of three years imprisonment, as imposed by the trial judge, is appropriate here having regard to the circumstances of these offences and this offender. In particular, the agreed facts filed in support of the appellant’s guilty plea detail the prolonged abuse of three separate partners with whom the appellant enjoyed domestic relationships. In all three instances, one or more weapons were used, or their use was threatened by the appellant either upon himself or his victim. In addition, in all three instances, the abusive acts were serious, involved considerable violence and inflicted significant physical or continuing psychological trauma on the victims. These facts alone warrant a substantial term of imprisonment.
4As well, the appellant’s record before this court indicates that he has a history of abusive behaviour for which he has never been treated by appropriate experts. He has only recently registered in or become wait-listed for various counselling programmes. Although the appellant has made some progress in his rehabilitation efforts since his sentencing hearing, the fact remains that he engaged in savage, abusive behaviour, involving multiple victims, during a period of about six years.
5Accordingly, for the reasons given, leave to appeal sentence is granted and the sentence appeal is dismissed. The sentence imposed by the trial judge remains in place.
“J.M. Labrosse J.A.”
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”
