Court File and Parties

Court File No.: 15-01729 Central East Region-Newmarket

Date: 2015-08-12

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Andre Morris

Before: Justice Peter C. West

Evidence Heard: April 30, 2015 and May 11, 2015

Conviction Registered: July 6, 2015

Sentencing Submissions Heard: July 6 and 8, 2015 and August 6, 2015

Reasons for Sentence: August 12, 2015

Counsel:

• Ms. M. Rumble for the Crown
• Ms. H. Dudding, Mr. T. MacDonald for the accused

Reasons for Sentence

Introduction

[1] Mr. Andre Morris was charged on February 18, 2015 with two counts of assault in respect of Ashley Alexander, the first occurring between February 1 and February 17, 2015 and the second occurring on February 17, 2015. In addition, Mr. Morris was charged with uttering threats to cause death to Ashley Alexander, between February 1 and 17, 2015. Mr. Morris pleaded not guilty upon being arraigned. The Crown elected to proceed by way of summary conviction on all charges.

[2] I convicted Mr. Morris of the three charges he was facing in a judgment dated July 6, 2015. The complainant, Ashley Alexander, recanted her KGB statement to police during her evidence. After submissions I rejected Ms. Alexander's evidence in court and accepted the reliability and credibility of Ms. Alexander's KGB statement. Based on the totality of the evidence, including the two photographs depicting injuries caused by Mr. Morris, the 911 call, which was consistent with the KGB statement, and as I have found, corroborates a number of areas of the KGB statement, I found the Crown has proven the following charges against Mr. Morris beyond a reasonable doubt:

1. Assault: kicking of Ms. Alexander's stomach on February 17, 2015;

2. Assault: choking Ms. Alexander, leaving a round red bruise to the left of centre on her neck and grabbing Ms. Alexander's mouth with his left hand and closing it, in the process causing a scratch on her left upper lip, between February 1 and 17, 2015; and

3. Uttering a death threat to Ashley Alexander, namely, threatening he was going to "cut her throat and drain her blood," between February 1 and 17, 2015.

[3] I am reproducing my findings of fact relating to the three charges in paragraphs 108-110 of the July 6, 2015 judgment:

[108] In terms of the seriousness of the assaultive behaviour occasioned by Mr. Morris, it is my view, the kick to her stomach when he was putting his one leg on her lap as he lay on the couch and she was sitting at the other end, could have had far more serious consequences than it did. However, there was no evidence of any bruising or injury. The EMS, who attended at her apartment as a result of the 911 call, did not take her to the hospital, which leads to the reasonable inference that she and her unborn child were not in any danger. This is significant as their assessment was conducted very shortly after the incident occurred. It is also significant in her KGB statement, close to its completion (around 2:03 a.m.), P.C. Marisette asks again how she is feeling right then and she responds, "Just tired, well the pain kind of eased." In my view this also relates to the level of seriousness to be given to Mr. Morris' conduct in repeatedly putting his one water/work boot onto her lap and Ms. Alexander pushing it off until he got angry and put it back on her lap with force such that he kicked her stomach. It should also be observed the kick was not what would normally be described as a kick, i.e. a person swings their foot towards another person who is standing or lying on the ground and kicks or strikes them. This kick occurred as Mr. Morris was putting his work/water boot back onto Ms. Alexander's lap and in the process struck her stomach.

[109] The grabbing of Ms. Alexander's neck with his left hand also could have had far more serious consequences but on the evidence led at this trial the bruise was small and transient, with no long lasting or permanent injury. It is my view the scratch caused by Mr. Morris grabbing Ms. Alexander's mouth to get her to stop arguing was likely not done intentionally. In my view the scratch was a natural and likely consequence of Mr. Morris' action, particularly if she did not want him to do what he did and she moved her head to get him to let go but not something he set out to do. Again, this injury was transient and not particularly serious.

[110] I have accepted Ms. Alexander's KGB statement respecting Mr. Morris threatening "to cut her throat and drain her blood." This is clearly a threat to cause death, however, based on her KGB statement, although this was a phrase he used repeatedly whenever he was upset about something, there was no accompanying violence which could lead to the reasonable inference he intended to carry through with his threat. In her KGB statement she told P.C. Marisette that Mr. Morris made this threat in the presence of his father.

[4] During submissions as to sentence it became obvious to me I needed a pre-sentence report to be prepared by an independent, impartial individual. Although Mr. Morris had been on probation previously, as will be discussed later in my reasons, no PSR had ever been prepared for the sentencing court. Consequently, the matter was adjourned to allow for the preparation of a PSR, which was received and marked as Exhibit 3.

[5] I was also provided with a number of other exhibits on sentence: Exhibit 2, Transcript of Sentencing Reasons of Justice D. Hackett, dated April 13, 2011; Exhibit 4, Information concerning Mr. Morris from his mother, Charmaine Dawkins; Exhibit 5, Information obtained by counsel from Mr. Morris; and Exhibit 6, a handwritten letter from Mr. Morris' father, Paul Morris.

Position of the Parties

[6] Ms. Rumble argues the appropriate sentence is 14 months, less pre-trial custody, to be broken down as follows:

• Assault involving kick to stomach: 4 months
• Assault involving the choking and scratch to upper lip: 4 months consecutive
• Uttering death threats: 6 months consecutive

In addition, the Crown is seeking the following ancillary orders: a DNA order, pursuant to s. 487.051(3) of the Criminal Code and a weapons prohibition, pursuant to s. 110 of the Criminal Code. It is the Crown's position the jail sentence should be followed by 3 years of probation with conditions.

[7] The Crown submits the sentence of 14 months is supported by the fact Mr. Morris has a criminal record for similar domestic violence offences and his last sentence was 9 months less pre-trial custody.

[8] The defence argues the appropriate sentence is one of 6 months, which has already been served by Mr. Morris in pre-trial custody. The defence argues although Mr. Morris has previously been convicted of similar offences involving another domestic common-law partner, those offences were significantly more serious. Further, there is approximately a 5 year gap between the offence date of the previous charges and the charges before the court.

Background of the Offender

[9] Mr. Morris is currently 27 years of age. He was born in Jamaica and was sponsored by his biological father to come to Canada with his younger brother when he was 13 years of age. Currently, I was advised Mr. Morris' immigration status is as a permanent resident. At age 15 he and his brother moved to a shelter as a result of their father being forced to leave his residence. Mr. Morris did not complete high school as he met his first common-law partner when he was 16. He left school to work. He was together with Chantal Mitchell for seven years. He had two children with Ms. Mitchell and their relationship ended in 2011 after Mr. Morris was incarcerated for domestic assault related offences.

[10] In 2012, Mr. Morris met Ashley Alexander and their relationship developed to where he moved in with Ms. Alexander and her three children in 2013. Mr. Morris has not lived with Ms. Alexander since February 18, 2015, as a result of being charged with the domestic-related offences involving Ms. Alexander. Ms. Alexander is pregnant with Mr. Morris' child and has a due date of August 24, 2015.

[11] His father lives in Toronto and works as an employee of a shipping/receiving department. His mother continues to live in Jamaica and his younger brother has returned there to care for her. He has a very good relationship with his mother.

[12] Mr. Morris has been gainfully employed since he left school, working in home building construction jobs, a fork lift operator, a packager and in shipping/receiving. His most recent employment was in landscaping and snow plowing with M. Sing, which was confirmed by the probation officer.

[13] Mr. Morris has a criminal record, Exhibit 1, which includes two prior convictions for domestic assault involving Chantal Mitchell:

• 2006-12-22 Toronto, ON: 1. Fail to Comply Recognizance; 2. Assault (1-2) Suspended Sentence & Probation 1 year on each charge (35 days pre-sentence custody).

• 2010-04-10 Toronto, ON: Fail to Comply Recognizance 10 days (3 days pre-sentence custody).

• 2011-04-13 Toronto, ON: 1. Mischief Under x2; 2. Threaten Death x4; 3. Forcible Confinement; 4. Assault with a Weapon (2-4) 4 ½ months (4 ½ months pre-sentence custody); (1) Mischief x2 15 days concurrent.

[14] The Crown provided the transcript of the sentencing judgment of Hackett J., Exhibit 2. Mr. Morris was found guilty of nine domestic-related charges after a trial. The charges involved Mr. Morris breaking into the apartment he shared with Ms. Mitchell, his common-law partner, and their children while she was on the phone calling 911. He broke a window to get into the apartment and smashed the phone but left when he learned she had called the police. Sometime after the police left he returned to the apartment. He got a butcher knife from the kitchen and approached Ms. Mitchell and the three young children telling them he would not go to jail for nothing and pointed the knife at them saying, "One, two, three, four coffins." He apparently said later he would spare the children. He chased them to the bathroom and Ms. Mitchell locked the door. He damaged the door with the knife causing a hole by the handle. He got into the bathroom and Ms. Mitchell and the children ran to the living room, then escaped outside and went to a neighbour's apartment where police were called again. Mr. Morris was described as being under the influence of alcohol when these threats and assaults were made. As indicated above, he received a sentence the equivalent of 9 months in jail and was placed on probation with conditions.

Mitigating Factors

[15] It is conceded by counsel for Mr. Morris there are not many mitigating circumstances that can be referred to. He is now 27 years of age, with a criminal record, which includes prior convictions for domestic violence involving a common-law partner.

[16] From the pre-sentence report, Exhibit 3, it is clear, although he did not complete high school, he has been consistently employed in various jobs and has supported his common-law partner and their children. In the charges before the court Ms. Alexander described Mr. Morris as a good provider who maintained full-time employment in snow plowing. His being employed unfortunately also has a negative effect, in that I believe this was one of the reasons Ms. Alexander was prepared to come to court and lie about Mr. Morris' conduct towards her, as she was dependant on the income he contributed to the household expenses.

[17] Another positive circumstance is reflected in the pre-sentence report respecting Mr. Morris' response to community supervision. He has complied in both instances with the conditions of his probation orders, successfully completing the PARS program on two occasions and commencing involvement with Alcoholics Anonymous. Both probation officers concluded he would be a suitable candidate for community supervision in the future. Further, his criminal record reveals that while he is subject to a probation order he has not committed any new criminal offences.

Aggravating Factors

[18] Section 718.2(a)(ii) provides that where an offender commits an offence by abusing his/her spouse or common-law partner this is deemed to be an aggravating circumstance. Further, it is my view it is an aggravating factor when the assaultive behaviour took place in the family home where the complainant should have been free from harm or violence. Section 718.2(a)(iii) provides where the offender commits an offence which abuses a position of trust or authority in relation to the victim, in this case as a common-law partner in their shared home, is an aggravating circumstance.

[19] Mr. Morris has a related criminal record where he has been convicted on two previous occasions of domestic violence in respect of his common-law partner, Chantal Mitchell. It is my view this is a serious aggravating circumstance.

[20] At the time of Mr. Morris striking Ms. Alexander's stomach with his foot, while attempting to put his foot on her lap after she had pushed it off, she was three months pregnant with their child. This is an aggravating circumstance.

[21] A further aggravating circumstance is the death threats made by Mr. Morris were made in the presence of Ms. Alexander's children. Although it is my finding Mr. Morris made these threats without any accompanying violence, such that a reasonable inference did not follow that he intended to carry through with his threats, as in the 2011 conviction when he was pointing a butcher knife, this does not lessen the negative impact such threats would have had on Ms. Alexander or her children.

[22] Although it appears Mr. Morris has co-operated with his probation officer, in terms of completing, for example, the PARS programme, it is also apparent he has not learned the necessary skills or tools to prevent him from becoming involved in assaultive behaviour towards his domestic partners and their children in the future. Based on Ms. Alexander's KGB statement it is clear Mr. Morris has not overcome his use of or addiction to alcohol. Ms. Alexander referred to Mr. Morris' abuse of alcohol as a cause of his assaultive behaviour in each of the assaults.

[23] The pre-sentence report reflects Mr. Morris does not show remorse or accept responsibility for the offences he has been convicted of. While this is not an aggravating circumstance, it is clear Mr. Morris does not have a great deal of insight into how to prevent a recurrence of such behaviour in the future.

Analysis

[24] The 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.

[25] There 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]

[26] It 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.

[27] Although 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. Morris 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. Morris to receive specific anger management counselling and alcohol abuse treatment to address his issues in order to ensure the public is protected.

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

[29] I have set out above the aggravating factors surrounding Mr. Morris' offences and it is my view that assaultive and threatening behaviour, in a domestic context, require a lengthy custodial sentence in order to reflect the required denunciation of the offence and to address the principal of general deterrence, which plays a significant role in sentencing of cases involving domestic abuse. Further, the principle of specific deterrence is an important consideration on the facts of this case given that Mr. Morris has a criminal record for domestic related offences. The only positive circumstance reflected in Mr. Morris' criminal record is the five year gap from the offence date involving Ms. Mitchell and these new charges involving Ms. Alexander. I am mindful that any sentence imposed must be proportionate to the gravity of the offence(s) and the degree of responsibility of the offender.

[30] Pursuant to s. 718.2 (b), it is clear a sentencing court must be mindful of similar sentences in similar circumstances. No two cases involving domestic violence will be identical in terms of the underlying circumstances or the background of the offender. I have reviewed a number of other sentencing decisions which delineate the sentencing principles to be applied: R. v. Chirimar, R. v. Rooplall; R. v. Harding; R. v. Markotic; and R. v. Shunmuganathan. What is clear is that the determination of an appropriate sentence must be based upon the unique circumstances surrounding the offence and the offender.

[31] Despite the increase in public awareness which has been brought about through media attention to the tragic consequences which often result from domestic violence, these types of offences remain common and, although progress has been made, like minded individuals must continue to be reminded that the Court will take these matters seriously and that jail is the norm, as opposed to the exception, for serious assaults in a domestic context (see Inwood, supra). In Mr. Morris' case, the need for specific deterrence is particularly pressing given his continued involvement in domestic violence involving his intimate partners.

[32] I am also mindful that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh, see s. 718.2(c). I must be cognizant of the principle of totality should I accede to the Crown's submission and impose consecutive sentences.

[33] Although a Victim Impact Statement was requested of Ms. Alexander, it is not surprising, given her recantation of her KGB statement, she refused to provide one. Her indication in the PSR is she wants to have contact with Mr. Morris in the future and resume cohabitation with him. Mr. Morris has also expressed to the probation officer his desire to resume cohabitation with Ms. Alexander given the imminent birth of his son. It is my view, Mr. Morris should not be permitted contact with Ms. Alexander until he has completed counselling which specifically addresses anger management and treatment for alcohol abuse and where such contact is recommended by his counsellors and his probation officer.

[34] As I indicated to the Crown during submissions, it is my opinion that a sentence of 14 months is well outside the appropriate range of sentence having regard to Mr. Morris' personal circumstances and the nature of the offences I convicted him of. In my view a sentence of six to nine months is the appropriate range (see cases referred to in paragraph 30, supra). His previous convictions were far more serious, in terms of the factual background and impact on the victims, than the offences before me. The offences in question all occurred within a two week period of time, when, according to Ms. Alexander's KGB statement, Mr. Morris was abusing alcohol. Having regard to the principle of totality, it is my view, it is not necessary or desirable to impose consecutive sentences; rather, given the offences all involve Ms. Alexander as the victim and the period of time during which the offences occurred is relatively short, concurrent sentences will properly address the principle of totality. Finally, it is my view the range of custodial sentence of six to nine months will properly address the paramount principles of general and specific deterrence and denunciation. It is also my view a three-year probationary term with conditions will also address the need for rehabilitation and protection of the public.

[35] Mr. Morris has spent 177 days in pre-trial custody since his arrest on February 17, 2015. Having regard to R. v. Summers, Mr. Morris is entitled to receive a 1.5 to 1 credit, pursuant to s. 719(3.1) of the Criminal Code, which would mean he has a credit of 266 days of pre-trial custody.

[36] I have been advised by defence counsel if I impose a sentence in excess of 6 months incarceration, because Mr. Morris is a permanent resident he will be subject to a deportation order, without appeal. In R. v. Pham, the Supreme Court of Canada held a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. The immigration consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation (see paragraphs 13-16).

Sentence

[37] Mr. Morris, if you would stand please.

[38] Consequently, in respect of the domestic violence charges relating to Ms. Alexander; namely, assault (x2) and threatening death, it is my view, having regard to the mitigating and aggravating factors that I have outlined, a sentence of six months incarceration is the appropriate sentence. Having regard to the pre-trial custody you have served since February 17, 2015, the appropriate sentence therefore is a suspended sentence and probation for three years with terms as warranted in this case. The information will reflect six months of pre-trial credit has been taken into consideration.

[39] The terms of your three years of probation are as follows.

Statutory Terms:

(i) Keep the peace and be of good behaviour;

(ii) Appear before the court when required to do so by the court;

(iii) Notify the court or the probation officer in advance of any change of name or address; and

(iv) Promptly notify the court or probation officer of any change of employment or occupation.

Additional Conditions:

[40] You will also abide by the following additional conditions:

(i) You will report to probation and thereafter as required;

(ii) You will reside at an address approved by your probation officer;

(iii) You will not associate or communicate, directly or indirectly, with Ashley Alexander, except through counsel, except through Family Court proceedings or pursuant to a Family Court order;

(iv) You will not attend within 100 meters of any known place of residence, employment or education of Ashley Alexander, except pursuant to a Family Court order;

(v) You will abstain absolutely from the use, possession and consumption of all alcoholic beverages and non-medically prescribed drugs;

(vi) You will attend for such assessment and/or continue such counselling for alcohol abuse, anger management or any other reason as your probation officer may direct and not stop that counselling without the permission of your probation officer;

(vii) You will sign any release of medical, psychiatric or other confidential information to your doctor/counsellor in favour of your probation officer so that they can discuss your progress;

(viii) You will not possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, according to law; and

(ix) You are not to possess any weapons as defined by the Criminal Code.

[41] There will be a weapons' prohibition order, pursuant to s. 110 of the Criminal Code, prohibiting you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for 5 years.

[42] Further, I am ordering the taking of samples of bodily substances from you that are reasonably required for the purpose of forensic DNA analysis pursuant to s. 487.051(3). My understanding is that if a sample of your DNA was already taken pursuant to your previous convictions that a further sample will not be taken.

Released: August 12, 2015

Signed: Justice Peter C. West