R. v. Dunlop, 2014 ONCJ 44

R. v. Dunlop

Ontario Court of Justice

Reserved judgment – Gilles Renaud J. – Released on January 23, 2014

Counsel:

• J. Cavanagh, Counsel for the Crown
• E. Little, Counsel for Mr. Dunlop

The Factual Background

1On December 3, 2013, after the prosecution elected by way of summary conviction, Mr. Dunlop pleaded guilty to an accusation of assault with a weapon involving a cordless telephone. The victim, Ms. D.S., is his former intimate companion with whom he shared a residence.

2The defendant agreed that he was intoxicated at the relevant time and that he demanded $20.00 from the victim who refused, as she did not have any money to spare. As a result, Mr. Dunlop picked up a telephone and struck Ms. S. in the area of her temple. Further, Mr. Dunlop said a number of quite unpleasant things including a statement to the effect that he was capable of killing her.

3The victim was quite anxious over the matter, felt chest pains, and contacted 911 in order to obtain medical attention and was seen at a hospital. Eventually, she contacted the authorities in order to file a formal complaint.

4Mr. Cavanagh, Crown counsel, remarked that other abusive and violent acts of this nature had marked the couple's relationship over the years, though the formal record of prior convictions did not reflect all past misconduct, a statement advanced to provide context for the victim's emotional and physical trauma. The Crown added that abuse of alcohol was typically prominent in the genesis of Mr. Dunlop's anger.

The Offender's Criminal Record

5That being said, the formal record is as follows:

• 2001-02-01 - Fail to comply with a probation order - $100.00 fine
• 2000-11-02 - Fail to comply with a probation order – Mischief under $5,000 – 15 days on each concurrent one to the other
• 1998-08-19 - Assault; Assault with a weapon – 6 months on each c/c – probation for 3 years – lifetime weapons prohibition order
• 1994-11-04 - Possession of a narcotic - $100.00 fine
• 1991-05-11 - Fail to comply with a probation order - $300 fine
• 1990-05-11 - Break and enter and theft – 21 days and probation for 3 years
• 1989-06-08 - Released on mandatory supervision
• 1989-03-15 - Mandatory supervision violation – recommitted to custody
• 1989-03-07 - Assault – 30 days
• 1988-07-27 - Impaired operation - $600 fine – 1 year driving prohibition
• 1988-04-07 - Released on mandatory supervision
• 1985-10-23 - Parole violator – recommitted to custody
• 1985-09-19 - Assault – 30 days
• 1985-03-22 – Paroled
• 1982-12-24 - Manslaughter – 6 years and 6 months
• 1976-03-26 - Break, enter and theft – Suspended sentence and probation for 12 months

6The Crown indicated that the 1998 convictions for assault involved the placement of a butcher type knife to the throat of the victim.

The Victim Impact Statement

7The victim impact information provided by Ms. S. makes plain that she has suffered a great deal on the emotional level, finding that the event was nightmarish, especially in light of the prior abuse she suffered at the hands of the offender.

The Positions of the Parties

8As discussed briefly earlier, the Crown pointed out that it was open to me to accept that prior, unprosecuted acts of Mr. Dunlop are to be weighed in taking account of the harm visited upon the victim as a result of Mr. Dunlop's assaultive actions on the day in question, but that these prior acts do not count as entries on his criminal record and the step and gap principle must be applied as against the formal record. Further, emphasis was placed on the timing of the guilty plea, as it did not spare the victim from the trauma associated with waiting for trial, though it spared her from having to testify.

9The Crown submitted that a conditional jail term was unfit for a number of reasons, chiefly that the same victim had been assaulted previously, and that repeated domestic violence of this nature prohibited the conclusion that the sentence was consistent with sentencing principles given the codified aggravating weight in cases of abuse of trust leading to violence against one's intimate partner, with reference to s. 742.1 (a) of the Criminal Code.

10Accordingly, the prosecution sought a jail term within a custodial setting of 120 days, a DNA order, a weapons prohibition, a probation order of great length to prohibit contact with the victim, and a victim fine surcharge.

11Mr. Little, defence counsel, responded with a well-honed submission, which was outlined in writing for the Court's benefit, a boon that is greatly appreciated. In sum, the Court was urged to either impose an intermittent jail term of 30 days or a period of house arrest of 60 days, in light of the 6 days of pre-sentence custody, the guilty plea that spared the victim from further victimization, albeit on the day of trial, the gap in his record as buttressed by the expert guidance of Professor Manson, and the signal contribution to the community in the nature of 300 hours of volunteer work.

12The defence placed emphasis on a number of important elements, notably the sad life experienced by the offender, his quite frail health, his guilty plea in light of a full docket and the real possibility that the case might not have been reached, demonstrating a resolve to assume full responsibility for his harmful conduct, his behaviour whilst on judicial interim release including the 300 hours of volunteer work, the significant community support he enjoys as marked by the letters of support and community members in Court, and the rehabilitative anchor found in a new relationship.

13In the circumstances, it will necessary to review the case law on domestic violence in order to ascertain whether this principle, applied to this offender in question, and involving a repeat victim, takes this instance outside the range of a conditional sentence and if so, what should be the fit jail sentence in light of the concession that imprisonment is required.

Domestic Violence: A Review of the Case Law

Introduction

14For ease of understanding, the Court will analyze the applicable case law by means of a thematic review.

The Codification of the Need to Eradicate Domestic Violence by Means of Aggravated Weight in Sentencing

15At the outset, it will be of assistance to highlight Parliament's injunction to the Courts to assign aggravating weight in circumstances in which unlawful conduct involves an attack on certain fundamental values, in this case the sanctity of domestic relationships and the imperative of repressing violence within the family unit. It must be underscored at this introductory stage that this principle is not a novel one, though it was enacted in the Criminal Code for the first time on September 3, 1996, by means of Bill C-41. Indeed, sentencing Courts have been cognizant of the need to assign aggravating weight to such offences for quite some time. However, the fact of the statutory recognition of the need to counter this blight against our social peace by means of sentences that must reflect the aggravated weight resulting from an attack on a basic element of organized society is to be underscored. Thus, the inclusion of domestic violence as a codified aggravating circumstance, pursuant to the authority of s. 718.2 (a)(ii) of the Criminal Code, is of fundamental importance in the selection of a fit and proper sentence.

16For ease of reference, s. 718.2 (a)(ii) reads as follows:

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner… shall be deemed to be aggravating circumstances.

Instruction on Sentencing for Cases of Domestic Violence that Pre-dates the Introduction of s. 718.2 (a)(ii)

17It might be thought superfluous to draw attention to cases that were decided prior to the introduction of s. 718.2 (a)(ii) of the Criminal Code by reason of the fact that the authority of many pronouncements might well have been overtaken by the legislation, but the very general nature of the provision in question "evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner… shall be deemed to be aggravating circumstances" indicates that it might be quite valuable to frame the contemporary response to offences of domestic violence against an appropriate historical background. In fact, a great number of the sentencing principles applied today flow directly from the guidance of the appellate courts advanced in the decade prior to the enactment of Bill C-41 on September 3, 1996.

The Recognition of the Tragedy of Domestic Violence

18The tragedy of domestic violence in Canadian society has been recognized increasingly in Canada over the last decades. Indeed, the Supreme Court of Canada characterized this vexing issue as a profound problem in R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852. Justice Wilson observed at para. 32, pages 872-873 S.C.R.:

[32] The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomenon in recent years has revealed both its prevalence and its horrific impact on women from all walks of life. Far from protecting women from it the law historically sanctioned the abuse of women within marriage as an aspect of the husband's ownership of his wife and his "right" to chastise her. One need only recall the centuries old law that a man is entitled to beat his wife with a stick "no thicker than his thumb". [Emphasis added]

19Her Ladyship then drew greater attention to the social background to the proposed legislative and social transformations, as follows:

[33] Laws do not spring out of a social vacuum. The notion that a man has a right to "discipline" his wife is deeply rooted in the history of our society. The woman's duty was to serve her husband and to stay in the marriage at all costs "till death do us part" and to accept as her due any "punishment" that was meted out for failing to please her husband. One consequence of this attitude was that "wife battering" was rarely spoken of, rarely reported, rarely prosecuted, and even more rarely punished. Long after society abandoned its formal approval of spousal abuse tolerance of it continued and continues in some circles to this day.

[34] Fortunately, there has been a growing awareness in recent years that no man has a right to abuse any woman under any circumstances. Legislative initiatives designed to educate police, judicial officers and the public, as well as more aggressive investigation and charging policies all signal a concerted effort by the criminal justice system to take spousal abuse seriously. However, a woman who comes before a judge or jury with the claim that she has been battered and suggests that this may be a relevant factor in evaluating her subsequent actions still faces the prospect of being condemned by popular mythology about domestic violence. Either she was not as badly beaten as she claims or she would have left the man long ago. Or, if she was battered that severely, she must have stayed out of some masochistic enjoyment of it.

The R. v. Inwood Principle: Domestic Violence is Not a Private Matter

20The Ontario Court of Appeal has provided signal instruction to trial courts with respect to the difficult enterprise of selecting a fit and proper sentence in cases of domestic assault in R. v. Inwood, 1989 CanLII 263 (Ont. C.A.). In so doing, the five person panel underscored the public nature of this form of violence and the reasons may fairly be read as an acknowledgement that to consider it merely a private matter would serve not only to perpetuate it, but to remove victims from the protection of the Courts.

21The accused was convicted of assault occasioning bodily harm upon his wife and received a suspended sentence of three years duration with supervised probation. It is to be noted that he was jailed for 30 days in respect to a related conviction of assault upon his 12 month old child, to be followed as well by probation for 36 months.

22Although the precise factual basis for the conviction is somewhat vague, there was objective evidence of injuries suffered by the complainant as follows: "tenderness on the left occipital area of her head, a bump on the bridge of her nose, a slight swelling of the nose, a slightly swollen lower lip with lacerations inside, a small bruise at the right elbow, and bruising of the inner upper left arm." The trial judge found that the "injuries interfered with her comfort and were more than merely transient and more than merely trifling." Refer to para. 10.

23Briefly, the Crown appealed against the suspension of sentence. "It was the contention of counsel for the Crown that Inwood should have received a custodial term for the assault on his wife, in addition to the three-year term of probation." Refer to para. 24. It will be of assistance to set out the following passage from Chief Justice Howland's judgment, concurred in by a full bench comprised of Brooke, Houlden, Robins, and Grange, JJ.A., as consigned at para. 25:

Crown counsel drew attention to the fact that domestic violence was very widespread in Canada. Counsel for the defence acknowledged that there was a heightened public awareness of such violence and of child abuse. It was conceded that fines, probation and even discharges were routinely granted for domestic assaults, and that the suspended sentence imposed in this case was not an exceptional disposition. The court was asked to adopt a sterner policy towards domestic violence in light of the recent increase in the maximum penalties for assault and assault causing bodily harm as indicative of Parliament's increased concern with offences involving violence.

24Howland, C.J.O. then stated: "This Court has acted on the principle that where there is a serious offence involving violence to the person then general and individual deterrence must be paramount considerations in sentencing in order to protect the public [...]" See para. 26. The Court added "In my opinion, this principle is applicable not only to violence between strangers but also to domestic violence." The unanimous judgment of our Court of Appeal goes on to state the law as follows, again as recorded at para. 26:

Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are. This does not mean that in every instance of domestic violence a custodial term should be imposed, but that it should be normal where significant bodily harm has been inflicted, in order to repudiate and denounce such conduct. I am pointing out later that battered wives, where there are persistent or prolonged assaults, may require special consideration in determining the appropriate punishment. [Emphasis supplied]

25In the result, the Court was of the view that an appropriate disposition would have been a custodial term of three months and that in failing to impose such a sentence, the learned trial judge erred. "Although of comparatively short duration, the violence to [the spouse] was serious and merited more than a suspended sentence, and a lengthy term of probation, in order to bring home to the public and to Inwood that such behaviour will not be tolerated." Refer to para. 29.

The Bonneteau Principle: The Paramountcy of Denunciation and Deterrence

26Although it might be stated that the Court of Appeal for Ontario already held as such in 1989 in the Inwood case, the framing of above noted principle in accordance with the subsequent judgment of the Alberta Court of Appeal in R. v. Bonneteau, 1994 ABCA 327 (CanLII), [1994] A.J. No. 726 is reflective of the pains taken by that Court to ensure a systematic and sound analytical basis for the selection of appropriate severity in cases of domestic violence, from the least instance satisfying the Code definitions to the most grave.

27In that case, Hetherington, J.A., Veit and MacKenzie, JJ. (ad hoc), dealt with a Crown sentence appeal as follows. The accused had pleaded guilty to two counts of assault causing bodily harm and to one count of assault. The victim was his common law wife. The trial judge had sentenced the accused to a total of 90 days' imprisonment, to be served on an intermittent basis plus 12 months' probation. The Alberta Court of Appeal allowed the appeal and substituted a total sentence of imprisonment for two years less a day. In so doing, the court stated, inter alia, that "where the assault is serious, general deterrence and denunciation are the paramount considerations in sentencing." Refer to para. 34, citing R. v. Ollenberger, 1994 ABCA 72 (CanLII), [1994] A.J. No. 153 in particular.

The Brown Principle: The Starting Point is the Fit Sentence for a Stranger

28The best means of expressing the so-called Brown principle is to make plain that the starting point for sentencing instances of domestic violence is to assign aggravating weight to the conduct as if it had involved two strangers as opposed to two individuals involved in a domestic or romantic relationship of some kind. In fact, the judgment in R. v. Brown, 1992 ABCA 132 (CanLII), [1992] A.J. No. 432 contains valuable guidance on the correct analytical approach in cases of sentencing for domestic violence. Indeed, the correct first step should be to consider how the Court would assign aggravating weight were the facts identical, save for the existence of a prior relationship between the parties. In this respect, note the language found at para. 20, page 353 C.R.:

[20] In cases of assault by a man against his wife, or by a man against a woman with whom he lives even if not married, the starting point in sentencing should be what sentence would be fit if the same assault were against a woman who is not in such a relationship. For example, what would be the fit sentence if the man had assaulted a woman on the street or in a bar -- and if the aggravating factors (such as severe violence, or a serious record of previous convictions for similar or other assaults), or the mitigating factors (such as a guilty plea or other evidence of remorse) were the same as in the actual case? [Emphasis added]

29Subsequently the Court added, at para. 26:

It is not possible to draw up an exhaustive list of factual elements which should be taken into account in sentencing in wife-assault cases. Because the violence has occurred in the context of a spousal relationship without which the man might never have been violent toward the woman, the Court must consider whether the assault for which the man has been convicted is relatively minor in nature, or is an isolated incident, or whether there are other circumstances which make it desirable that the sentence not be such as to be counterproductive to the possibility that the family relationship will be preserved (if there is any such possibility remaining). The first two of these points will already have been taken into account in deciding what the starting-point should be; that is, what the fit sentence would have been if it had been an assault between strangers. […] [Emphasis supplied]

30Further guidance on the issue of violence between strangers and in the case of non-strangers in a situation of domestic violence is found in R. v. Inwood: "This Court has acted on the principle that where there is a serious offence involving violence to the person then general and individual deterrence must be paramount considerations in sentencing in order to protect the public [...]" See para. 26, page 293 O.A.C. The Court added "In my opinion, this principle is applicable not only to violence between strangers but also to domestic violence." [Emphasis supplied] Noteworthy as well is the following comment, found at page 293 O.A.C., para. 26: "Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are." [Emphasis supplied]

31In addition, it may be apposite to point out the dissenting judgment, in the result, of Mr. Justice Cory (as he then was) in R. v. R.J.S., [1983] O.J. No. 168 (C.A.), at page 4: "Acts of indecency such as these, committed upon a stranger to the accused, would certainly result in a term of imprisonment."

32In other words, what would be the appropriate penalty were a stranger the subject of the offence, to which is added that element of denunciation and of general deterrence inherent in abusing one to whom protection is owed.

33The judgment in R. v. Brown also provides direction on the pre-1996 reform judicial view that any offence of domestic violence necessarily involved a breach, by the offender, of the victim's trust. As we read at para. 21:

[21] […] When a man assaults his wife or other female partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape. Such women's financial state is frequently one of economic dependence upon the man. Their emotional or psychological state militates against their leaving the relationship because the abuse they suffer causes them to lose their self-esteem and to develop a sense of powerlessness and inability to control events. [Emphasis supplied]

34In a case decided prior to sentencing reform, R. v. Hartle, [1995] O.J. No. 1100 (Prov. Div.), I remarked as follows at para. 50:

[50] In the final analysis, the defendant breached a trust in striking his spouse, a person who would look to him for protection, notwithstanding the separation. As well, he violated the trust of being admitted to her home. A passage in Macbeth, Act 1, Scene VII in which the main character considers a bloody course of action is apposite:

He's here in double trust: First, as I am his kinsman and his subject, Strong both against the deed: then, as his host, Who should against his murderer shut the door, Not bear the knife myself." (lines 13-16)

One who assaults the person who received him into her home, being related to the victim by marriage, may fairly be said to be breaching a "double trust", warranting a term of prison.

Loss of Self-Esteem and Development of Sense of Powerlessness

35R. v. Brown discusses the question of a victim's loss of self-esteem and acquisition of a sense of powerlessness as a result of domestic violence, chiefly at para. 21: "[…] Their emotional or psychological state militates against their leaving the relationship because the abuse they suffer causes them to lose their self-esteem and to develop a sense of powerlessness and inability to control events."

Judicial Notice of the Widespread Extent of Domestic Violence

36It is of interest that the Ontario Court of Appeal did not contest the proposition put forward by Crown counsel to the effect "[…] domestic violence was very widespread in Canada." See R. v. Inwood at para. 25, page 292 O.A.C. Further, it did not require further or better evidence. In addition, the Court remarked: "Counsel for the defence acknowledged that there was a heightened public awareness of such violence and of child abuse." Refer again to pages 292-293, para. 25.

37In light of this last observation, it will be useful to quote from Mr. Justice Gordon in R. v. McKee [1994] O.J. No. 490 (Gen. Div.). At para. 13, the Court observed: "Violence in the family setting is of great concern in society today. Violence between men and women has gained at great deal of prominence in the public eye over the last few years. It is greatly frowned upon and to be deterred if at all possible. In each case, it is necessary however to review the facts and the sentence must meet those facts." In the case at Bar, the Court noted the absence of a wanton beating by the accused and that the force applied was not severe. Accordingly, there was a suspended sentence for a period of 12 months.

Judicial Recognition of Parliament's Increasing Concern for the Subject

38Note that para. 25, page 292 O.A.C. of R. v. Inwood includes these comments: "The Court was asked to adopt a sterner policy towards domestic violence in light of the recent increase in the maximum penalties for assault and assault causing bodily harm as indicative of Parliament's increased concern with offences involving violence."

Stress of Life Not Resulting in Mitigation

39R. v. Glen, [1983] O.J. No. 179, 1 O.A.C. 212 (C.A.) makes plain at para. 14, p. 214: "This court has a duty to make it clear that however unhappy a spouse may be about his or her marital life, and however great the marital stress may become, resorting to violence is not the answer. The sanctions for violence will be very severe."

Spouse of Domestic Violence a Captive Victim

40R. v. Jenner, [1994] O.J. No. 691, a decision of Mr. Justice Donnelly, includes these comments found at para. 25: "This incident as I find it cannot be viewed as a typical scene of domestic violence between husband and wife where the wife is, in a sense, a captive victim. If I took that view of the matter, jail would be the inevitable result." In essence, Donnelly J. found that the complainant was aggressive and demonstrated a provoking attitude that resulted in a deliberate confrontation.

Sentencing Instruction Subsequent to the Introduction of s. 718.2 (a)(ii)

Denunciation as a Primary Consideration

41Note the case of R. v. Campbell, 2003 CanLII 48403 (ON CA), [2003] O.J. No. 1352, at para. 8 in order to gauge the reach of the objective of denunciation in cases of domestic violence committed by first offenders, admittedly in the circumstance of a grave offence. As we read, "The appellant argues that the sentencing judge erred in giving prominence to denunciation and deterrence despite the fact that the appellant was a first offender." The Court's response is found at para. 9: "We do not agree. The sentence is within the appropriate range for attempt murder in a domestic situation. This court has repeatedly stated that the principle of deterrence is of paramount importance in determining the appropriate sentence for crimes of domestic violence. See, for example, R. v. Edwards (1996), 1996 CanLII 1522 (ON CA), 28 O.R. (3d) 54."

Paramountcy in the Gradation of Principles to be Assigned to Denunciation and Deterrence

42The case law makes plain that the Courts charged with fixing a fit and proper sentence in cases of domestic violence are guided principally by the objectives of denunciation and deterrence. In this vein, a recent and forceful expression of the view that denunciation and deterrence are of paramount importance in sanctioning domestic violence is found at para. 46 of R. v. Rahanam, 2008 ONCA 1, [2008] O.J. No. 1, per Watt J.A.:

[46] In cases involving violence arising out of an existing or failed domestic or romantic relationship, the predominant sentencing objectives are denunciation and deterrence. See R. v. Boucher (2004), 2004 CanLII 17719 (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.) at p. 488 per Simmons J.A. Further, sentences imposed must promote a sense of responsibility in offenders and an acknowledgement of the harm done, not only to the immediate victim, but also to the community at large. In cases like this, the likelihood of enduring psychological trauma to the victim from the irrational, controlling and obsessive nature of the misconduct is significant. See Boucher, supra, at p. 487 per Simmons J.A.

43In the case of R. v. P.S., [2007] O.J. No. 1476, 2007 ONCA 299, we are reminded at para. 50 that the Court of Appeal for Ontario has "[…] made clear that crimes of domestic violence warrant giving paramount importance to denunciation and both general and specific deterrence. This is so even where the offender has not previously been to the penitentiary."

44Further, R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 includes these directs observations on the principles of sentencing applicable in the case of domestic violence and harassment in such a factual context, at para. 38, which are reproduced herein for ease of cross-reference:

[38] In R. v. Bates, 2000 CanLII 5759 (ON CA), [2000] O.J. No. 2558, at paras. 35 and 36, Moldaver and Feldman JJ.A. explained the principles and objectives to be applied in imposing sentence in domestic violence and harassment cases:

Domestic violence and harassment cases most often involve conduct directed by a male spouse or partner against a woman. Yet offenders who feel empowered to harass a partner or former partner with impunity will not necessarily confine their behaviour to that person, but may also harass and terrorize her friends and family members. As this case illustrates, the respondent somehow perceived that his love and need for the complainant allowed him to be an unwanted presence in her life and in the lives of her family and associates, and to threaten and terrorize them to achieve his ends. His irrational actions made him a menace to [the complainant] and to those close to her.

Consequently, when an offender like the respondent comes before the court for sentencing, it is important for the court to denounce his conduct in the clearest terms by fashioning a heavy sentence.

45In addition, R. v. B.T.Y., [2006] B.C.J. No. 1491, 2006 BCCA 331 contains useful guidance on the policy of the law that no mitigation in sentencing severity, to the contrary, arises in sentencing when the victim of violence is a member of the offender's family, in conformity with s. 718.2 (a)(ii):

[41] It is helpful to refer to R. v. Hendry et al. (Whitebear) (2001), 2001 CanLII 21168 (ON CA), 161 C.C.C. (3d) 275 (C.A.) in which a similar error in principle was concerned. In that case, the trial judge had declined to make a DNA order on the basis that it was a case of domestic violence, and the offender only offended against his spouse. In rejecting the distinction the trial judge had made, the court said:

[50] In my view, the trial judge made several errors in principle. He erred in refusing to make the order because the respondent only assaulted his spouse. In R. v. Bates (2000), 2000 CanLII 5759 (ON CA), 146 C.C.C. (3d) 321, at 330 and 331, this court recently had occasion to discuss the nature of spousal abuse in terms that are directly applicable to this case:

[35] Domestic violence and harassment cases most often involve conduct directed by a male spouse or partner against a woman. Yet offenders who feel empowered to harass a partner or former partner with impunity will not necessarily confine their behaviour to that person, but may also harass and terrorize her friends and family members.

46R. v. Campbell, 2003 CanLII 48403 (ON CA), [2003] O.J. No. 1352 (C.A.), instructs us at para. 8: "The appellant argues that the sentencing judge erred in giving prominence to denunciation and deterrence despite the fact that the appellant was a first offender." The Court's response is found at para. 9: "We do not agree. The sentence is within the appropriate range for attempt murder in a domestic situation. This court has repeatedly stated that the principle of deterrence is of paramount importance in determining the appropriate sentence for crimes of domestic violence. See, for example, R. v. Edwards."

47Reference may usefully be made as well to para. 34 of R. v. Woods, [2008] S.J. No. 200, 2008 SKCA 40 which contains these helpful remarks:

[34] Courts across Canada have long recognized the significance of the problems of domestic violence and spousal abuse.

For example, in R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, Wilson J., for the majority of the Supreme Court of Canada, said this at p. 872: The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomenon in recent years has revealed both its prevalence and its horrific impact on women from all walks of life.

The sentencing goals of deterrence and denunciation naturally play an important role in establishing appropriate societal values and attitudes in relation to this kind of crime.

Deterrence as a Primary Consideration in Sentencing for Domestic Violence

48By reason of the fact that references to the objective of denunciation found immediately above are invariably accompanied by mention of the objective of deterrence, no further reproduction of these authorities is required in the circumstances.

Incarceration is Not Required Either by Legislative Enactment or by Reason of Appellate Direction

49Having just reviewed the objectives of denunciation and deterrence, it will be of assistance to pause in order to note that although Parliament has legislated often, and of late, to direct that even first offenders guilty of a great number of offences be jailed, Parliament has not chosen to modify the Criminal Code to direct courts to imprison all, or even a class of, offenders guilty of domestic violence, notably repeat offenders, as is the case with impaired operators of motor vehicles, to name but one example. In addition, no case is known to have directed trial judges to impose jail sentences in all cases of such wrongdoing, or to have instructed that a conditional jail sentence cannot be selected to sanction these types of crimes.

50Thus, the aggravating weight which must be assigned to cases of domestic violence must not be seen as an injunction by either the legislative branch or the case law to the effect that denunciation and deterrence trump all other objectives in all cases.

Vulnerability of the Victim

51In many respects, to speak of the vulnerability of the victim of domestic violence is to speak of redundancies in that all victims of domestic violence are vulnerable by reason of their participation in a relationship of some kind. In other words, if you offer up your heart to someone, you are placing yourself in a vulnerable state.

52The first judgment of interest in this vein was drawn by Justice Gorman. This particular decision, R. v. Randell, [2006] N.J. No. 7 (Prov. Ct.), provides valuable guidance on this issue at paras 19-20 by emphasizing the vulnerability of the spouse:

[19] Section 718.2 (a)(ii) of the Criminal Code indicates that "evidence that the offender, in committing the offence, abused the offender's spouse or common law partner" shall be "deemed to be aggravating circumstances."

[20] In R. v. O'Donnell, [2002] N.J. No. 333, I had the opportunity to consider section 718.2 (a)(ii) of the Criminal Code and sentencing in cases involving assaults in intimate relationships. In imposing sentence in that case, I said:

Spousal assault is a societal problem of depressingly impressive magnitude. Offences involving men having assaulted their female spouse is a common feature of a judge's daily case load. The seriousness of spousal violence is reflected in Parliament having concluded that "evidence that the offender, in committing the offence, abused the offender's spouse ... shall be deemed to be an aggravating" circumstance in the imposition of sentence (see section 718.2 (a)(ii) of the Criminal Code of Canada). Our courts have a responsibility to reflect Parliament's intent in the sentences they impose.

Females, in particular, are in extremely vulnerable positions in relation to their male spouses. General deterrence and protection of the public must be the primary sentencing principles applied in offences of this nature. The sentence imposed in this case must attempt to protect other spouses, from such violence, by clearly stating that significant sentences will be imposed for such offences. [Emphasis added]

53Justice Gorman then consigned valuable observations addressing the wider issue of domestic violence from a holistic and international perspective at para. 21:

[21] In its 1995 Report, From Rhetoric to Reality, Ending Domestic Violence in Nova Scotia, the Law Reform Commission of Nova Scotia stated that, "Law is one of the central instruments used by governments to advance social, justice and other policies yet the legal system and law do not appear to be having much impact in eradicating this social problem." After considering reports "from around the world and other parts of Canada" the Commission noted that the continuation of violence after a woman leaves a relationship "highlights the extent" of this societal problem:

... violence against women by their spouses is a life threatening situation which is not treated seriously by the legal system or by society in general. The common theme that surfaces is a failure to comprehend and respond to domestic violence as a life-threatening situation which should be accorded the highest priority in terms of response and protection. It would not be an understatement to say that for many women, the experience of existing with a violent man is akin to living with a time bomb which will eventually result in death. The fact that many women continue to experience violence after they leave or no longer live with the spouse highlights the extent of the difficulty posed for women. The failure on the part of the entire legal system to appreciate this fact and respond accordingly is the central problem.

International standards now recognize domestic violence as a significant violation of women's human rights akin to torture and as a major barrier to equality. Despite all of this, the situation remains unchanged. Since the law in Canada already clearly prohibits harassments, threats and all forms of physical violence, it appears that the existing law is not obeyed or respected.

Although the legal system itself cannot alter human behaviour and attitudes, the law and the delivery of legal services can encourage or reinforce particular attitudes. The Commission believes that little use is made of the criminal justice system by women experiencing this form of violence and that one of the reasons for not using the law is that it is not seen as responsive to their needs. This is an access to justice concern for women in that the system is clearly not serving the needs of all people equally.

54Further, noteworthy is the case of R. v. Paquette, [2001] O.J. No. 5000 (C.A.). In that judgment, the Court endorsed the following, at para. 22: "The trial judge carefully considered the relevant aggravating and mitigating circumstances in this case, including the appellant's sad life and circumstances. We see no error in principle, no failure to consider relevant factors, nor any over-emphasis of the appropriate factors in the sentence imposed. Moreover, the sentence falls within the normal range of sentences that may reasonably be imposed in cases of second degree murder of an unarmed spouse. There is no basis to interfere." [Emphasis added]

55Of note, the offender was sentenced to life imprisonment without eligibility for parole for fourteen years. He shot his wife in the face at close range with a 12-gauge shotgun, while heavily intoxicated, as was she. In effect, she was entitled to expect her spouse to protect her from an armed aggressor, not to be the armed aggressor.

Repetition of Assaultive Behaviour (in General)

56R. v. Hart, [2004] O.J. No. 3509 (C.A.), serves to emphasize that severity is appropriate in cases of an "... attack on the victim (the appellant's wife) [that] was repeated and life threatening". See para. 1. In addition, he had previously choked his wife into unconsciousness and been convicted of aggravated assault.

57On the subject of domestic violence and repeated or multiple convictions involving the same victim, the case of R. v. Kopriva, 2008 ONCA 54, [2008] O.J. No. 233 guides us as to the need for severity in order to protect a victim of repeated domestic violence from future violence. As we read at para. 1, the Crown appealed from the 60-day sentence imposed on the respondent on his third conviction for a domestic assault on his same-sex partner, submitting that the sentence reflected an error in principle and was manifestly unfit. The court agreed and meted out a twelve month term.

58In so doing, it noted at para. 2 that "This was the respondent's sixth assault-related offence, his third on the same victim, and his tenth violence-related offence. The sentence was imposed for a domestic assault committed less than 48 hours after the respondent was released from jail for a previous assault on the same victim. It also occurred in circumstances that were in contravention of his terms of release, including the term that he not consume alcohol; alcohol consumption was a known trigger for the respondent's violent behaviour."

Place of Safety as Site of Crime

59Many cases discuss the relevance in aggravation that the victim was the subject of an offence of domestic violence in a place of safety such as his or her home. In R. v. K.K., 2004 CanLII 45030 (ON CA), [2004] O.J. No. 4884, the appellant and the complainant were involved in an intermittent domestic relationship for 16 years. On the night in question, the appellant arrived at the complainant's home in an intoxicated state. When the complainant told him that she no longer wished to be involved romantically with him, the appellant repeatedly stabbed the complainant in the legs. Although the complainant's injuries were not life-threatening, they required 51 stitches, left scarring on her legs, and inflicted nerve damage to one of her legs. She may never recover full feeling in that leg. Mr. King pleaded guilty to assaulting the complainant with a knife and was sentenced to 18 months incarceration, followed by 2 years' probation. The sentence was upheld.

60In the course of so doing, the Court observed at para. 7 that the attack "... occurred in the complainant's home in the context of a lengthy domestic relationship that left the complainant unsuspecting of the potential for danger."

61Refer to R. v. Munro, 2003 CanLII 4958 (ON CA), [2003] O.J. No. 512, at para. 72 in particular. As discussed therein, the sentence was upheld notwithstanding that it represented quite an increase from his prior worst sentence, in keeping with the degree of violence and the significant injuries, and the fact that the assailant had been a guest in the home of the victims. Noteworthy are the 423 stitches to the face required to treat one of the victims. See para. 17. By parity of reasoning, the situation would be worse in the case of domestic violence. More recently on the subject of aggravation in cases of domestic violence by reason of the factor of the offender violating the victim's place of safety, we find guidance in the case of R. v. Hunda, 2008 ONCA 244, para. 1 which includes the following remarks:

[1] […] the trial judge identified numerous serious aggravating factors, two of which are specifically identified by Parliament as aggravating factors. This was a domestic assault during which the appellant held a knife to the victim's throat. He did so after forcing his way into her home. The appellant was on probation at the time for offences committed against the same victim. His criminal record includes over fifty convictions, including several assault offences. He even continued to contact the victim after his arrest on the break-in charges. [Emphasis added]

62In the circumstances, it was held that "[…] the trial judge, given the joint submission, should have imposed a sentence at the bottom of the appropriate range. We would impose a total sentence of four years […]" Refer to para. 2.

Related Record

63R. v. White, [2007] N.J. No. 227, 2007 NLCA 44 provides a useful example of the severity which may attach to an offender who has shown by his prior record a propensity for violence towards intimate partners. Refer to para. 14 in particular. Note as well para. 1 of R. v. Nowacki, [2006] O.J. No. 1728 (C.A.).

64Touching further on the question of the criminal record, it will be of assistance to quote from para. 46 of R. v. P. (G.), 2014 ONCA 39:

[46] The appellant acknowledges that the sentence was within the range of sentences appropriate for offences such as these. The appellant was in a position of trust. The abuse was frequent and ongoing. Although there was no collateral physical violence, the appellant's manipulation and ongoing abuse of the complainants left both complainants psychologically scarred. The appellant had previously served a custodial sentence on an earlier sexual assault and remained undeterred. As a result, I consider the trial judge's determination that a global eight year sentence appropriate and that it reflects no error. [Emphasis applied]

Alcohol Consumption as a Known Trigger for Violence

65R. v. Kopriva, 2008 ONCA 54, [2008] O.J. No. 233 includes this comment at para. 2: "[… The assault] also occurred in circumstances that were in contravention of his terms of release, including the term that he not consume alcohol; alcohol consumption was a known trigger for the respondent's violent behaviour."

Domestic Violence and Breach of Trust

66Some insights into this aggravating element of sentencing are found in the following quotations from R. v. VanEindhoven, [2007] Nu.J. No. 2, 2007 NUCJ 2, at para. 25 wherein we find reproduced the Crown's submission: "In committing this offence, the offender violated two offence-specific attributes deemed aggravating by Parliament as set out in s. 718.2 of the Criminal Code, namely, a breach of trust and a crime of violence against a spouse."

67Hence, it is an obvious conclusion, but one which needs to be expressed in the reasons for judgment, that any offence of violence in which one's spouse is the victim is necessarily a breach of trust; in other words, every offence of domestic violence involves a breach a trust. On the other hand, not every breach of trust involves violence as against a spouse.

A Brief Word on the Timing of the Guilty Plea

68R. v. Gamble, 2013 ONSC 7615, a judgment of Durno J., provides a useful introduction on the issue of the timing of the guilty plea, starting at para. 105:

105 The starting point is that a guilty plea and particularly one entered early in the proceedings is entitled to a substantial credit in the sentencing process. R. v. Mann 2010 ONCA 342, at para. 21. The earlier the plea, the greater the indication of remorse, the saving of expense and inconvenience, hence the impact in mitigation. R. v. Rosenberg, [1993] O.J. No. 3260 (Gen.Div.) at para. 19. The effect of a guilty plea will vary with the circumstances of each case. In some, the plea is a demonstration of remorse, in others it is simply a recognition of the inevitable. However, even where a plea is not a manifestation of genuine remorse, it may still save valuable judicial resources and provide finality to the proceedings. R. v. Faulds (1994), 1994 CanLII 770 (ON CA), 20 O.R. (3d) 13 (C.A.) at para. 14 […]

108 Appellate courts have repeatedly noted the significance of the timing of a plea and its impact on the administration of justice. Court trial time is a precious commodity. Appropriate early guilty pleas are to be encouraged. Last minute guilty pleas can result in courts sitting idle although in some situations other cases can be heard in the vacated time. Here, four days of court time had been set aside for a trial that never proceeded. However, setting aside trial time for a two-day case because of a Charter application that never appeared was a factor to consider. I am unable to see how a valid consideration in sentencing in all cases would be excluded from consideration because the Attorney General's guidelines did not include that reason as an aggravating factor.

109 A late guilty plea is never an aggravating factor in sentencing. A guilty plea is always a relevant mitigating fact on sentence. However, a late guilty plea generally and in this case has less mitigation. In the result, there are consequences for those who decide to plead guilty on the trial date -- less mitigation on sentencing.

110 At times, a late plea does not attract significantly less or any less mitigation than an early plea. For example, when the Crown agrees to accept a plea to a lesser offences that had been offered from early in the proceedings or if there has been some reason counsel could not obtain instructions. Here, there is nothing upon which it could be concluded defence counsel had any problems getting instructions from the respondent.

The Conditional Jail Regime

69In this instance, although the conditional jail regime is available to the offender by reason of the Crown's election, I conclude that the prosecution is correct to submit that such a disposition is inconsistent with s. 742.1 (a) of the Criminal Code as it is not consistent with the fundamental purpose and principles of sentencing. Indeed, it would fail to give effect to both denunciation and deterrence in cases of domestic violence.

Conclusion

70In the result, a jail term is required to denounce this instance of domestic violence and to deter both Mr. Dunlop and the public at large. It would have been far more severe than the 4 month term sought by the Crown but for the late guilty plea (which is being assigned mitigating weight in the circumstances) and the other mitigating elements advanced by the defence. An order pursuant to s. 743.21 of the Criminal Code will issue prohibiting contact with the victim whilst Mr. Dunlop is incarcerated. Mr. Dunlop will then comply with a probation order for three years, with conditions of counselling, alcohol interdiction, and of no-contact with the victim. He is prohibited from having firearms and other related weapons for 5 years, and he must submit a sample of his DNA. Finally, he must pay a victim fine surcharge of $50.00 within 30 days.

Gilles Renaud, J.