minicounsel

Date: 2022 08 10 Court File No.: Central East Region: Oshawa Courthouse: File #20-22603

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

AUSTIN BOYLE

Before: Justice Peter C. West

Submissions Heard: June 17, 2022 and August 10, 2022 Sentence Imposed: August 10, 2022

Counsel: Ms. K. Buker ................................................................. counsel for the Crown Mr. S. Fraser........................................................ Counsel for the Austin Boyle

Endorsement

1On March 28, 2022, I found Mr. Boyle guilty of assaulting Taylor Slugg, his girlfriend of four years, after a two day trial. The matter was adjourned to June 17, 2022 when I heard initial submissions as to sentence and then adjourned further for Mr. Fraser to determine if the Central East Correctional Centre was now imposing intermittent sentences, either through a GPS Program or in the custodial facility. I have recently received confirmation from the Chief Justice’s Office that correctional facilities in the Province of Ontario are now implementing a GPS Program such that after the initial processing an accused is required to arrange for the GPS Program to install their equipment so the accused can be monitored in an approved residence for the days he will be serving an intermittent sentence.

2I do not intend to repeat the findings of fact I made in my original judgment, now reported at [2022] O.J. No. 1830. My findings of fact can be found in that judgment at paragraphs 13 to 61 and paragraphs 62 to 74. The offence of assault was committed by Mr. Boyle towards Taylor Slugg on October 14, 2020. I found Mr. Boyle caused a burn mark on Ms. Slugg’s chest as a result of extinguishing a cigarette on her chest through her blouse. I found Mr. Boyle pushed Ms. Slugg in the chest causing her to fall and strike her head on the pavement, which caused a bump and resulted in bleeding. I found that M. Boyle assaulted Ms. Slugg in the hallway of the La Quinta Hotel outside the elevator by violently and aggressively grabbing her neck and her hair, bending her over at the waist and then abruptly and forcefully whipping her upright. Mr. Boyle was clearly enraged, angry, out of control and extremely upset with Ms. Slugg on the two videos (both outside the hotel and in the hallway) as he chased her to the back door of the hotel, pushed past his mother, pulling open the back door and then trying and succeeding in getting by his mother and sister in the hallway where he grabbed Ms. Slugg as described. Finally, I found that Mr. Boyle choked Ms. Slugg in the hotel room. She had bruising to her chest where she was pushed, blood in and through her hair, a bump on her head from hitting her head on the pavement and finger marks and bruising beginning to develop around her neck, which was caused by both Mr. Boyle and his sister Brandy. It was clear to me that Ms. Slugg was attempting to get away from Mr. Boyle, she was clearly afraid of Mr. Boyle and was crying hysterically, pleading with Mr. Boyle’s mother and sister for help. In my view this was an assault that went on for an extended period of time, perhaps 30-45 minutes and Ms. Slugg had to escape and seek assistance from other persons outside the hotel, who hid her when Mr. Boyle came out looking for her. After taking a taxi cab to a parking lot she was picked up by friends who ultimately brought her to the police. In my view the nature of Mr. Boyle’s assaultive behaviour towards Ms. Slugg was extremely violent and serious and caused Ms. Slugg to be terrified for her safety at the time it was occurring and subsequently. The nature of Mr. Boyle’s assaultive conduct in my view is an aggravating circumstance.

3It is a statutorily directed aggravating circumstance, pursuant to s. 718.2 (a)(ii), that in assaulting Ms. Slugg, he abused his intimate partner of four years. As well, it was clear from Ms. Slugg’s evidence and from her Victim Impact Statement that Mr. Boyle’s conduct had a significant impact on her, which is an aggravating circumstance pursuant to s. 718.2(a)(iii.1). Further, Mr. Boyle in my view was in a position of trust in relation to Ms. Slugg having regard to their relationship.

4Mr. Boyle does not have a criminal record. He is 21 years of age and graduated from Grade 12. He also had an Individualized Education Plan up until secondary school. Mr. Boyle was diagnosed with ADHD and was medicated for this disorder from age eight to age twenty. He attended one high school and was suspended on one occasion for fighting with another student. He was active in sports. After high school he went on to study police foundations in college, however, decided to drop out of the program after incurring the assault charge. Currently he intends to attend college to take a trade.

5He is currently employed full-time with a local automotive seat and electrical systems manufacturer since September 2021, although, as of the June 2022, he had accepted a new full-time position in the “materials section” of another local automotive manufacturer, which was starting after the PSR was written. He seems to have strong support from his family and friends.

6There is conflicting information from Mr. Boyle and his family members and from Ms. Slugg who was also consulted by the probation officer, as it relates to Mr. Boyle’s and Ms. Slugg’s relationship. Further, another area of disagreement related to Mr. Boyle’s alcohol and substance use - Mr. Boyle and his family members indicated this was not a problem and Ms. Slugg indicated it was a constant problem affecting their relationship. What I can indicate is my observations of Mr. Boyle’s demeanour and his upset with Ms. Slugg and his treatment of her on video, put a lie to much of what was expressed by Mr. Boyle and his family members on this issue. It is my view that counselling respecting alcohol abuse and anger management as this relates to domestic violence will be important aspects of any sentence I impose.

7The probation officer expressed concern as Mr. Boyle presented minimization when it came to his role in the present offence, where he stated he felt he “did not commit a crime but is willing to accept whatever the Court decides” for his sentence. Mr. Boyle expressed, as did his mother, that nothing occurred. Both Mr. Boyle and his mother testified he had to grab Ms. Slugg in the manner he did because she was intoxicated and was stumbling into the cement wall of the hotel hallway. I found both Mr. Boyle and his mother lied in their evidence and that it was my view the video clearly showed Mr. Boyle chasing Ms. Slugg in the parking lot, pushing past his mother when she tried to stop him from entering the hotel, grabbing, manhandling and assaulting Ms. Slugg in the hallway and then forcefully walking her down the hallway out of the view of the camera to his mother’s hotel room. There was a burn mark on her chest and serious bruising to her chest and finger marks and bruising developing on her neck. Mr. Boyle is entitled not to accept my findings of fact as to what occurred in this case; however, the facts as I found them are clearly shown on the videos and I accepted Ms. Slugg’s evidence as a result of my finding that both Mr. Boyle and his mother lied and by what is shown on the photographs of Ms. Slugg’s injuries and what can be clearly seen occurring in the videos.

8Of course Mr. Boyle was entitled to have a trial respecting the charge he faced and although he is not required to accept my findings respecting the evidence, he is also not entitled to claim the mitigating benefit of a guilty plea and acceptance of responsibility. Further, on the evidence from the PSR I find that Mr. Boyle demonstrated a lack of insight and awareness of the underlying cause(s) of his assaultive behaviour. It also makes it difficult to fashion a sentence which addresses Mr. Boyle’s potential rehabilitation to prevent similar conduct in the future. Further, specific deterrence remains a sentencing principle that needs to be addressed in the sentence imposed to discourage Mr. Boyle from engaging in similar behaviour and conduct in the future. As expressed by the Ontario Court of Appeal in R. v. Shah, 2017 ONCA 872:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini, [1999] O.J. No. 251 (C.A.), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82; R. v. B.P. (2004), 190 O.A.C. 354 (C.A.), at para. 2.

Analysis and Sentence Imposed

11The 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 the various mitigating and aggravating factors which I must consider in determining an appropriate sentence.

12I am also mindful of the principle of restraint reflected in R. v. Batisse, 2009 ONCA 114, where the Ontario Court of Appeal held:

…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.

…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in [R. v. Dubinsky, 2005), at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

13The "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." In R. v. Nasogaluak, 2010 SCC 6, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary

14As Rosenberg J.A. held in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

15It is my view having regard to my findings of fact after Mr. Boyle’s trial, where I found he and his mother lied in their testimony respecting Mr. Boyle’s actions that were observed on the CCTV videos from La Quinta Hotel filed by the Crown and I accepted Ms. Slugg’s evidence as those same videos and the photographs of her injuries corroborated her testimony as to Mr. Boyle’s assaultive behaviour towards her, the gravity of the extended assault and violence perpetrated by Mr. Boyle was very serious. Further, his moral blameworthiness was extremely high. The harm occasioned to Ms. Slugg as a result of his assault was also significant and long lasting from an emotional viewpoint.

16The principle of parity under s. 718.2(b), which states a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances is an important and laudable objective but it is important to note that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C. A.):

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. (Emphasis added)

17Consequently, a proportionate sentence in each case, in large measure, is determined by the specific and unique facts and circumstances surrounding the offender and the commission of the offence. Although precedents involving similar cases can provide guidance in determining a proportionate sentence they should not dominate the sentencing process. In R. v. Rawn, 2012 ONCA 487, the Ontario Court of Appeal cautioned that:

[17] It goes without saying that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parity principle, a principle that, by definition considers another sentence imposed on another offender, to dominate the determination of a fit sentence.

18There is no doubt that domestic violence is a serious recurring social problem in Canadian society. A five-member panel of the Ontario Court of Appeal addressed the prevalence of domestic violence in the case of R. v. Inwood. Chief Justice Howland made these comments concerning domestic violence, which are equally applicable today (at p. 181):

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 the paramount considerations in sentencing in order to protect the public. In my opinion, this principle is applicable not only to violence between strangers but also to domestic violence. Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are. This does not mean in every instance of domestic violence a custodial sentence 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 added]

19It is clear from the caselaw that when sentencing an offender for a crime of domestic violence a judge must emphasize the principles of denunciation, general and specific deterrence: see Regina v. Pitkeathly, Regina v. Boucher, Regina v. Edwards and Levo, Regina v. Campbell, Regina v. Denkers.

20Although denunciation and deterrence are of paramount importance in domestic violence cases, rehabilitation of an offender, who is youthful, is still a relevant sentencing consideration. I am of the view if Mr. Boyle does not receive the counselling and treatment that he needs to address the underlying causes of his criminal behaviour, particularly towards any future intimate partners, he will re-offend. In my opinion, it is essential for Mr. Boyle to receive specific anger management and domestic violence counselling and alcohol abuse treatment to address his issues in order to ensure the public is protected.

21Any sentence imposed should promote a sense of responsibility in the offender and an acknowledgement of the harm done to the victim. Mr. Boyle has not demonstrated remorse for his actions or an acceptance of responsibility for the harm he has caused.

22It is my view that despite Mr. Boyle being a youthful first offender a jail sentence is necessary to address the paramount sentencing principles of both specific and general deterrence and denunciation. However, the principle of restraint is also important given Mr. Boyle does not have a criminal record and Mr. Boyle’s future rehabilitation must be addressed in any sentence imposed.

23The Crown submitted the appropriate sentence to be imposed in light of the mitigating and aggravating circumstances for Mr. Boyle’s criminal conduct towards Ms. Slugg was 90 days in jail to be followed by 12 months probation with conditions involving counselling and contact restrictions with the complainant. Mr. Fraser advised during submissions that he agreed with the Crown that the facts of this case required some form of jail sentence but he submitted something less than 90 days was the appropriate sentence and he submitted this jail sentence could be served intermittently, followed by a period of probation. Mr. Boyle was in the process of moving to a new employment opportunity and Mr. Fraser wanted to obtain a letter outlining Mr. Boyle’s hours of work and his responsibilities. I also expressed to counsel that it was my opinion that a longer period of probation was required having regard to Ms. Slugg’s fear for her safety and Mr. Boyle’s lack of insight into his conduct. It was agreed by counsel that Mr. Boyle’s sentencing would adjourned from June 17 to August 10, 2022.

24After hearing submissions by counsel, it is my view that the proportionate sentence for Mr. Boyle, having regard to the sentencing principles I have referred to and the mitigating and aggravating circumstances present on the facts of this case, is a 60 day intermittent jail sentence. I am mindful of ss. 718.2 (d) and (e), which direct sentencing judges not to deprive offenders of liberty if less restrictive sanctions may be appropriate in the circumstances and that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims. It is my view that Mr. Boyle’s physical abuse of his intimate partner on October 14, 2020, requires a short, sharp, jail sentence because of the paramount sentencing principles of deterrence and denunciation, despite his being a youthful first offender. The principle of restraint must also be considered and the sentencing principles of deterrence and denunciation can be met by a short period of custody followed by 2 years of probation. I do not want the jail sentence I am imposing to interfere with Mr. Boyle’s employment and this is why I am imposing an intermittent sentence. Consequently, as I indicated the jail sentence can be served on an intermittent basis from Saturdays at 8 a.m. to Sundays at 8 p.m. and each weekend thereafter until the sentence is served. Mr. Boyle’s probation will commence from today’s date and applies to the intermittent jail sentence I am imposing. Mr. Boyle must comply with Central East Correctional Centre’s protocols and requirements for serving his intermittent sentence. Any breach of these requirements and Mr. Boyle will be facing a criminal charge of unlawfully at large. It is my understanding that custodial facilities in Ontario will be utilizing a GPS bracelet monitoring program to ensure those serving an intermittent sentence will remain in their residence during the hours of an intermittent jail sentence order.

25I understand from Mr. Fraser he has instructions from Mr. Boyle to agree to pay restitution to Ms. Slugg in the amount of $2,642.50 for lost income, which was caused by his assaultive behaviour. In my view this is a mitigating circumstance and I will make that a term of Mr. Boyle’s probation. Mr. Fraser has advised today he has $500.00 in trust to be paid to Taylor Slugg, which he undertook to pay, so the restitution amount will be reduced to $2142.50. The restitution is to be paid at a rate of $200.00 per month through the Court office, payable to the Minister of Finance in favour of the complainant, Ms. Slugg. The restitution must be completely paid within 13 months of the start of the probation order but it can be paid earlier if Mr. Boyle chooses to do so.

26In addition, there will be terms of probation prohibiting Mr. Boyle from contacting or communicating with Taylor Slugg, directly or indirectly, by telephone, electronic/internet or any other means and there are no exceptions and he is to remain away 100 metres from any place he knows where she lives, works, worships, goes to school or any place he knows her to be with no exceptions. I understand from Ms. Slugg’s VIS that she does not wish to have any contact with Mr. Boyle in the future.

27Mr. Boyle is to live at an address as approved by his probation officer and not change that address unless it is approved by his probation officer.

28Mr. Boyle will also attend for such counselling as is recommended by the probation officer, which will include: (1) anger management, (2) alcohol abuse, (3) domestic violence counselling, which may include the PARS program and any other counselling deemed appropriate by the probation officer. Mr. Boyle is to sign a direction to his counsellors for release of information with his probation officer so they can monitor his progress and completion of any assessment, treatment or counselling so ordered.

29Mr. Boyle is to complete 30 hours of community service work, as approved by his probation officer and at a rate and schedule agreed to by his probation officer but within 18 months of the start of this probation order. Of course Mr. Boyle can complete his community service earlier than that time period.

30This probation is a reporting probation and as such Mr. Boyle is to contact his probation officer within two (2) working days of his release from custody and thereafter as he is directed by his probation officer. His reporting condition will end once he has completed his counselling as required by his probation officer, as well as the community service hours ordered in this probation order and the restitution is fully paid.

31There will be a term in the probation that Mr. Boyle is not to possess any weapons as defined by the Criminal Code of Canada.

32There will be a weapons’ prohibition order pursuant to s. 110 of the Criminal Code of Canada for a period of 5 years.

33I also order that Mr. Boyle provide a sample of his DNA pursuant to s. 487.04 of the Criminal Code of Canada as a secondary designated offence by 5:30 p.m. on August 10, 2022.

34It is my hope Mr. Boyle that through this sentence you will gain insight and awareness into the inappropriate nature of your conduct towards Ms. Slugg, so that in your future intimate relationships this type of conduct does not recur. I will advise you that it is my view this will only happen if you make a decision to change and approach your probation and counselling with this mindset. The amount of effort you put into the counselling and the community service you perform will be directly related to your success in the future.

Released: August 10, 2022 Signed: Justice Peter C. West

R. v. Boyle, 2022 ONCJ 402

Case Summary

Endorsement

Analysis and Sentence Imposed