ONTARIO COURT OF JUSTICE DATE: 2021 01 06 COURT FILE No.: Central East Region: Oshawa Courthouse 19-36998
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
RODNEY JOHN LOVE
Before Justice Peter C. West
Guilty plea entered on October 16, 2020 Oral Submissions heard on December 17, 2020 Written Reasons for Sentence Provided on January 6, 2021
Counsel: Mr. I. Skelton.................................................................. counsel for the Crown Mr. M. Strathman.............................. counsel for the defendant, Rodney Love
Introduction and Factual Background
1On October 16, 2020, Mr. Love pleaded guilty to a charge of assault causing bodily harm that occurred on August 6, 2019.
2I was advised he was unable to plead guilty earlier because of the Covid 19 pandemic. The Crown is seeking a suspended sentence and probation for 3 years. The defence is submitting a conditional discharge is the appropriate sentence. I ordered a pre-sentence report to obtain a detailed assessment of Mr. Love’s family background, work history and his character and involvement with the community. I received a very favourable PSR written by Todd O’Flaherty, Probation and Parole Officer dated December 10, 2020, which I will discuss in great detail later in these reasons.
3The facts of this matter are quite simple and straightforward. Mr. Love and the complainant, Paul Saban, are neighbours and live in townhouses linked together with separate driveways. Their yards are shared. Apparently there have been on-going issues between the two neighbours prior to August 6, 2019. Mr. Love has complained to the police about Mr. Saban’s conduct to him on two prior occasions, in 2017 and 2018. No action was taken other than the police speaking to Mr. Saban.
4On August 6, 2019, Mr. Saban’s girlfriend had pulled into the driveway of Mr. Saban’s townhouse. Mr. Love was outside on the porch of his house. When Mr. Saban’s girlfriend got out of her car, she heard Mr. Love yelling in her direction. He was saying he had things to tell her about Mr. Saban. Mr. Saban was also outside, and he yelled at Mr. Love to shut up. Mr. Saban then came towards Mr. Love and told him, “I’m not done with you yet.” Mr. Saban threw the first swipe at Mr. Love who then also took a swipe. Initially the altercation between the two men was consensual. Mr. Love felt he needed to defend himself and took a chair and swung it towards Mr. Saban. There was no allegation the chair connected with Mr. Saban. Mr. Saban grabbed a leg of the chair and pushed Mr. Love backwards. The two men continued fighting and at some point Mr. Love had a golf club, which he swung towards Mr. Saban.
5It was conceded that Mr. Love used excessive force when he used the golf club and swung it at Mr. Saban. Although he did not intend to hit Mr. Saban in the head the golf club struck Mr. Saban in the head, which resulted in the golf club breaking. Mr. Saban required 4 stitches to the top of his head. Photographs were filed as Exhibit 1A, 1B and 1C.
Circumstances of the Offender
6Rodney Love is 45 years of age and is married with two sons, aged 22 months and 7 years. He does not have a criminal record and has never before been involved with the police. Mr. Love’s mother gave birth to him when she was 17. His birth father did not want anything to do with him and has played no part in Mr. Love’s life. His mother married and he has a younger half sister with special needs who received the main share of his parents’ attention. Mr. Love was active in sports growing up, he was a “ranked” tennis player and played hockey and football in school. He was involved with a friend’s family growing up going on canoe trips regularly in Algonquin Park.
7Growing up he was “hyper-active” and put on Ritalin to manage his behaviour. He ultimately dropped out of school after completing four grade 9 credits. He left his family’s home and basically “couched hopped” until a friend’s mother took him in. He was involved with Children’s Aid and eventually he organized his student welfare to support himself. Instead of going back to school Mr. Love looked to the trades to make a living. Over time he worked in brick laying, which led to his owning an excavating company and a lifetime working with wood. Currently he owns a small incorporated construction company.
8He has been with his wife for the past 10 years and has been married for eight. He describes his marriage as a loving and supportive relationship. They have two children and he is close with his in-laws, who are supportive of him. He and his family have lived in the same house since they were married, and both indicated this is where they want to live forever. Mr. Love is described as dedicated to his children and actively involved in their lives. He coaches his son’s hockey team and he is noted as being very kind and generous to all of the kids he coaches, volunteering his time with them. A letter from the head coach of the Pickering Hockey Association team he is involved with wrote a letter supporting Mr. Love’s involvement with the team and in particular with a player who has special needs.
9Mr. Love would no longer be able to be involved in coaching hockey if he was convicted of this charge, as he would not be able to get by the vulnerable person sector check. He describes this possibility as being devasting for him. The probation officer noted that Mr. Love has Adult ADHD and a current diagnosis of depression, which he is receiving medical treatment for. He is currently taking Ciprolex for treatment of his anxiety and depression
10Since he left high school Mr. Love has never been unemployed. By the age of 21 he was working full-time in framing and then custom house building. At the age of thirty he paid off all of his debts and moved to Alberta to work for a number of years. He returned to Ontario and eventually opened his own company, Done Right Construction.
11Mr. Love has not consumed alcohol in four years as he recognized his drinking was starting to affect and impact his family life. He made a commitment to stop drinking and still attends Alcoholic Anonymous twice a week when he is able.
12Mr. Love was described by the probation officer as polite, candid, cooperative and engaged in the interview process. He took an anger management program with the Salvation Army, which he stated he found to be very helpful in giving him strategies to deal with high stress situations by walking away until he has calmed down. His wife and long-time friend, Steve Moore, both told the probation officer that they have seen a change in Mr. Love since the incident and have observed him engaging in de-escalation practices, he talks more and removes himself from stressful situations. Mr. O’Flaherty, the probation officer, who is also a certified anger management instructor with the Ministry of the Solicitor General, indicated that “it appears [Mr. Love] has made progress with gaining insight to his actions with respect to anger and he assumes responsibility for his own actions.” The probation officer believed there would be value in Mr. Love continuing to take steps to manage anger and stress.
13The probation officer did not receive any information from the collateral sources he contacted that would identify Mr. Love as having a propensity for violence. Everyone expressed that the commission of this offence was out of character for him. Ms. Lutes, who is the mother of the special needs child Mr. Love coaches told the probation officer, “Someone must have really pushed him to that point.”
14Mr. Love according to the probation officer took full responsibility for his actions. He acknowledged his actions were excessive. Although Mr. Love expressed resentment towards the complainant because of his conduct towards Mr. Love and his family, he also expressed remorse for his actions and empathy for his neighbour. Mr. Love was described as a pro-conventional citizen and family man who has the support of a loving wife and extended family and friends within the community. Mr. Love was described as amenable to community supervision.
Victim Impact Statement
15Mr. Saban provided a victim impact statement in March 2020 to the Crown’s office, which described the impact on him as a result of Mr. Love’s use of excessive force. Mr. Saban advised his injury affected his vision, memory, thought process and balance for 3 months. He was not able to work at his usual pace, which he also indicated caused him to lose income. He did not indicate in his VIS what type of employment he was involved in, nor did he describe exactly how his work was affected. Although Mr. Saban had signed a medical release form, no medical reports were obtained by police, although the names of his doctors were not provided to the Crown or police by Mr. Saban. It is difficult to assess exactly what impact the laceration to Mr. Saban’s head caused to him. Based on the VIS Mr. Saban describes that the assault did have a significant impact upon him and pursuant to s. 718(2) (iii.1) I treat this as an aggravating circumstance. It would have been of great assistance in determining how significant the injury was if I had received a medical report confirming his assertions.
16Mr. Strathman raised concerns about Mr. Saban’s credibility and reliability based on an allegation made by Mr. Saban in the VIS that Mr. Love called out to Mr. Saban’s girlfriend who was getting out of her car alleging false accusations about Mr. Saban’s infidelity. This was completely inconsistent with his original complaint to the police and later his statement to police concerning how the incident between he and Mr. Love occurred. Exhibit 5 are portions of Mr. Saban’s two statement to police where he indicated Mr. Love yelled to his girlfriend, “Hey, I’ve got a lot I can tell you about this joker.” Mr. Saban continued in his statements to say this caused him to approach Mr. Love, words were exchanged between the two men and he shoved Mr. Love and the altercation was on.
17Mr. Saban also referred to lost wages and expenses associated with his trying to find another place to live but there were no receipts provided despite the Crown requesting them after the VIS was provided. I was advised Mr. Saban had moved to another address after this incident and has not had any further altercations of any kind with Mr. Love since August 6, 2019. The Crown was not making any request for restitution as the amounts referred to in the VIS had not been substantiated.
Mitigating and Aggravating Circumstances
18Mr. Love pleaded guilty to the charge of assault causing bodily harm, which demonstrates his remorse and acceptance of responsibility for his actions. These are mitigating circumstances. Mr. Love’s intention to plead guilty to the charge was interrupted by the Covid-19 world pandemic when court proceedings were adjourned as a result of the courts being closed to the public. Further, this matter did not proceed to trial and I view the cost savings to the administration of criminal justice as being mitigating.
19When I asked Mr. Love if there was anything he wished to say before I sentenced him he indicated he had deep regret for his actions towards Mr. Saban and he had taken steps and time over the past 16 months to consider his actions. As a result, he had developed an understanding of strategies to not allow something like this to happen again.
20Mr. Love is a first offender, who has lived a pro-social life, gainfully employed with his own company and a dedicated and committed family man. This is a mitigating circumstance recognized by the Ontario Court of Appeal in R. v. Stein in 1974 when Justice G. Arthur Martin held sentencing judges should look to alternatives to incarceration for first offenders. Also, Justice Rosenberg who in making comments about R. v. Stein in a case called R. v. Priest reported in 1996 from our Court of Appeal indicated:
20That it is then an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the circumstances.
21A further mitigating circumstance is the very positive presentence report, which confirms Mr. Love’s remorse and acceptance of responsibility and demonstrates insight into why this incident occurred, which all bodes well for Mr. Love not engaging in similar conduct in the future. One of the things from the PSR that impressed me was Mr. Love’s ability to recognize when something in his life needed to change and his willingness and motivation to carry through with his decision to change. This is evident in the PSR with respect to his decision to stop drinking alcohol and to address his anxiety and depression and ADHD diagnosis that were detrimentally impacting his and his family’s life.
22Although he is not a youthful first offender, he has not been in any trouble with the law for 45 years, despite experiencing difficulties when he was first in high school and becoming homeless and not being supported by his mother and stepfather. He rose above difficult circumstances, which for some individuals might have resulted in becoming involved in the criminal justice system. He may have dropped out of school, but he taught himself through working hard at different jobs to ultimately learn various trades, which has led to his owning his own company and now working as a framer for custom built homes.
23Mr. Love has also been on bail on the charge he pleaded guilty to for about 17 months, without any further difficulty with his neighbour or any other criminal behaviour, which I consider to be mitigating.
24All of the collateral contacts spoken to by the probation officer described Mr. Love as a kind and gentle man and said his conduct and behaviour on this date were completely out of character. Further, the probation officer indicated he had no evidence of Mr. Love having a propensity for violence. Mr. Love, on his own, sought out an anger management course with the Salvation Army, which he completed and took to heart the lessons learned, as evidenced by those closest to him, who observed him dealing with stressful situations differently after taking the program. He is now more talkative about his feelings and is seen to be employing strategies to de-escalate stressful situations.
25On the facts put before me on this guilty plea it was Mr. Love who instigated a confrontation between Mr. Saban and himself by making the comment referred to in the facts to Mr. Saban’s girlfriend. Mr. Love may have complained to the police on two prior occasions about Mr. Saban’s conduct but on this occasion he fanned the flames of conflict between himself and Mr. Saban. This in turn angered Mr. Saban, who then became the instigator of the physical aspect of the altercation. Mr. Love should have known better but threw caution to the wind. In my view Mr. Love bears responsibility for what followed his comment. What initially was a consensual fight turned into an assault because Mr. Love’s use of the golf club was clearly excessive force on his part, which I find is an aggravating circumstance. A further aggravating circumstance is the fact Mr. Saban was injured by Mr. Love’s conduct and needed 4 stitches to close the wound caused by Mr. Love striking him with the golf club on his head. The fact Mr. Love did not intend to strike Mr. Saban on his head does not lessen the seriousness of his using a weapon to cause injury to Mr. Saban. A further aggravating circumstance is the fact Mr. Love’s conduct and the resulting injury had a significant impact on Mr. Saban.
Sentence Imposed
26The determination of a proper sentence in this case calls for a consideration and balancing of the principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, as well as the aggravating and mitigating factors which exist in this case. I have set out above a number of aggravating and mitigating factors and circumstances which I must consider in determining an appropriate sentence.
27The overarching principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing, which include:
a) general and specific deterrence; b) denunciation; c) rehabilitation; d) reparation to society or the victim; e) separation from society where necessary; f) the need to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.
28How much weight I place on any one objective will depend on the facts of each case.
29A sentencing judge must also have regard for s. 718.2, which provides: a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)(i) – (vi)); a sentence should be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b); the combined duration of consecutive sentences not be unduly long (718.2(c)); an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)); and all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders ( s. 718.2 (e)).
30Certainly in a case of assault causing bodily harm the sentencing principles of denunciation and deterrence are important, however, the principles of rehabilitation and restraint cannot be discounted or ignored, particularly when dealing with a first offender. Further, general deterrence and denunciation should not be over-emphasized (see Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34). It is only one factor the Court must consider (see R. v. Sears, [1978] O.J. No. 435 (C.A.). I agree with the assessment of the probation officer, which reflects that the principle of specific deterrence is not a significant factor in this sentencing given the previous steps already taken by Mr. Love in addressing his anxiety and his issues with his over-consumption of alcohol long before this incident occurred, as well as his acceptance of responsibility for his actions and his expression of the insight he has gained into the wrongfulness of his conduct and his decision to attend an anger management program, which he successfully completed. The Crown pointed to the fact that Mr. Love still has resentment towards Mr. Saban, as he expressed to the probation officer. I agree with Mr. Skelton that this is something Mr. Love needs to address through further counselling, which I understand from the PSR he is willing to engage in.
31Sentencing is a highly individualized process (see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at paragraph 92) and must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is to be increased or reduced to account for any aggravating or mitigating circumstances. It should strive to be similar in relation to other sentences imposed on similar offenders in similar circumstances but needs to also address the specific and particular circumstances of the offender to be sentenced. Recently in R. v. Suter, 2018 SCC 34, [2018] S.C.J. No. 34, the Supreme Court addressed the impact of collateral consequences in determining a proportionate sentence by sentencing judges. Justice Moldaver, for the majority, held in para. 27, “… An offender's level of moral blameworthiness will vary significantly depending on the aggravating and mitigating factors in any given case. In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant a sentence that falls below this broad range.” He went on to note:
47 There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself : see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 11
48 Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2 (a) of the Criminal Code -- as they do not relate to the gravity of the offence or the level of responsibility of the offender -- they nevertheless speak to the "personal circumstances of the offender" ( Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity : ibid. ; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit. [ Emphasis added ]
56 I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case -- collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. There is, however, no requirement that collateral consequences emanate from state misconduct in order to be considered as a factor at sentencing
32In R. v. Hayes, [1999] O.J. No. 938 (S.C.J.), Hill J. substituted a conditional discharge for a suspended sentence and probation where the charges involved mischief, wilful damage to property and assault with a weapon. In addressing when conditional discharges are appropriate he cited these cases at para. 32:
Discharges are not restricted to trivial matters: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.). Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: Regina v. Taylor (1975), 24 C.C.C. (2d) 551 (Ont. C.A.) at 552 per Arnup J.A. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 37 C.C.C. (2d) 182 (Ont. C.A.) at 184-5 per Martin J.A.; Regina v. Culley (1977), 36 C.C.C. (2d) 433 (Ont. C.A.) at 435 per Martin J.A. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.). While a discharge is only rarely appropriate in offences involving violence causing injuries, such a sentence is not universally unavailable in such circumstances: Regina v. Wood (1975), 24 C.C.C. (2d) 79 (Ont. C.A.) at 80 per Jessup J.A.
33Other cases where conditional discharges have been imposed are as follows: R. v. Menese, [1974] O.J. No. 736 (C.A.), a conditional discharge does not mean an accused goes scot free, they are still subject to terms of probation and have to earn discharge; R. v. McGee, [2011] O.J. No. 863 (S.C.J.), a conditional discharge was granted to a first offender who dealt with alcohol issues where the assault caused a three inch cut to the chin of a taxi driver; R. v. D’Souza, 2015 ONCA 805, at paragraphs 3-5, discharges are not restricted to trivial offences and the over-emphasis on the nature of the offence must be avoided, here an accused was granted a conditional discharge where the sentencing judge placed too much emphasis on general deterrence for a trafficking in a schedule II drug, where a first offender had made tremendous progress in overcoming an addiction to marihuana, doing volunteer work and attending university and finally, in R. v. Neundorf, [2011] O.J. No. 5241 (C.A.) an accused was convicted of abduction respecting her children in contravention of a custody order and sentenced to a 12 month conditional sentence, which was substituted with an absolute discharge on appeal where a conviction placed undue hardship to the accused’s travel to the United States for employment and to see their family.
34Section 730 of the Criminal Code outlines the criteria for the imposition of a discharge. A discharge cannot be imposed where the offence is one where a minimum sentence exists or where the maximum penalty for the offence is 14 years or more. Moreover, a discharge may only be granted where it would not be contrary to the public interest and would be in the best interest of the offender.
35I recognize there are cases where the circumstances surrounding serious offences will sometimes require a custodial sentence or at a minimum a conviction to be imposed despite the accused being a first offender. However, there are cases where the totality of the circumstances allow for the granting of a conditional discharge where it is not contrary to the public interest. In Mr. Love’s case the Crown proceeded by summary conviction so there is no minimum sentence and the maximum sentence available is eighteen months. A conditional discharge is clearly in Mr. Love’s best interest. The issue which must be determined is whether granting a conditional discharge is contrary to the public interest. Put another way, the issue to be determined is whether a conviction needs to be imposed to appropriately reflect the principle of general deterrence and denunciation or whether a conditional discharge can be imposed, which will adequately address general deterrence and denunciation, as well as recognize the importance of restraint and rehabilitation having regard to the fact Mr. Love is a first offender.
36A collateral consequence, which should be considered in determining an appropriate sentence is the fact that if Mr. Love is convicted he will not be able to get past a vulnerable person sector check and he would not be able to continue volunteering as a coach with his son’s hockey team. He has been described as an exceptional coach to the children he has worked with and in particular a young boy with special needs, whose mother spoke to the probation officer confirming this. In my view, a criminal conviction could detrimentally impact those pursuits. It is also reflected in the PSR just how important being involved as a hockey coach is to Mr. Love’s own mental well-being.
37I invited Mr. Love to say anything he wished to the court before I imposed my sentence. He took that opportunity and told me:
I am in deep regret for my actions. I have taken time to consider my actions and developed an understanding of strategies to not allow this to happen again.
38Further, it is my view his proactive steps in addressing whatever difficulties he has faced, which have resulted in very positive changes in his life, should be recognized. After being charged Mr. Love sought out an anger management program because he was concerned about how he had reacted to the complainant and he did not want his conduct to occur again in the future. A conditional discharge would not have the same consequence as a conviction registered as a result of a suspended sentence. The Court of Appeal in R. v. Meyers, R, v. Culley and R. v. Neundorf, supra, recognized this was an appropriate consideration in deciding whether to impose a discharge as opposed to registering a conviction.
39A conditional discharge can have a similar deterrent effect on other like-minded individuals where the terms of probation imposed are identical to the terms contemplated with respect to a suspended sentence. The Ontario Court of Appeal has recognized this in R. v. Cheung and Chow, supra. Also, general deterrence is not the sole consideration in assessing an appropriate sentence and where a sentencing judge has over-emphasized deterrence the Court of Appeal has substituted a conditional discharge for a suspended sentence (see R. v. Dubinsky and R. v. Sears, supra).
40It is my view a conditional discharge is clearly in Mr. Love’s best interest. I am also of the view, based on the context of the totality of the circumstances in this case, it is not contrary to the public interest. Mr. Love is entitled, in effect, to be given a second chance, primarily based on the positive and comprehensive presentence report prepared for his sentencing. Informed members of the public would support the granting of a discharge to Mr. Love. The fact Mr. Love is a first offender, the proactive steps he has taken to ensure he does not engage in similar conduct in the future and the collateral consequence of the loss of his ability to continue to volunteer as a hockey coach are appropriate considerations in deciding not to register a conviction in this case.
41I am therefore granting Mr. Love a conditional discharge and placing him on probation for 2 years with the following terms and conditions:
Released: January 6, 2021 Signed: Justice Peter C. West