Court File and Parties

Ontario Court of Justice

Date: 2015-02-11

Court File No.: Toronto 4817 998 14-75003743

Between:

Her Majesty the Queen

— and —

Branden Bell

Before: Justice Richard Blouin

Trial heard on: December 4 and December 10, 2014

Sentencing Submissions heard on: January 21, 2015

Reasons for Sentence released on: February 11, 2015

Counsel:

• Ms. Meghan Scott, counsel for the Crown
• Mr. Mark Henry, counsel for the defendant Branden Bell

BLOUIN J.:

Introduction

[1] Branden Bell was charged with Aggravated Assault in July 2014 regarding an incident that occurred months earlier at the apartment of the complainant, Faith Paul. On December 4, 2014, a trial was conducted wherein both Ms. Paul and Mr. Bell testified. Since the defendant was detained, I remanded my ruling to December 10. On that day, I found the defendant guilty.

The Trial

[2] The defendant and the complainant were involved in an intimate relationship and were living together at the complainant's apartment in Toronto until May 9, 2014. The complainant says she was awoken by the defendant in the early morning hours of May 9, and attacked by him.

[3] She testified that she was pulled from her bed by her hair, thumping her head on the floor. The defendant's hand "gouged" at her face. She was able to separate from him long enough to put on her coat. He grabbed her and pulled her back. She believed that she broke her wrist while protecting herself as she fell to the floor. The complainant made it out of the apartment building, with the defendant attempting to prevent her from getting assistance. Eventually a woman on the street walked her to Mount Sinai hospital. She had a fractured wrist with a ruptured tendon, chipped tooth, two black eyes, and a possible broken nose.

[4] Mr. Bell denies assaulting the complainant on that date, contending that he was in Niagara Falls from the end of April 2014 until June. He described an incident between the two which occurred between April 20 and April 26. After returning to the apartment after drinking, the complainant was swinging at, and throwing an object at, the defendant. He put his hands up and pushed her away, "causing the black eyes." Later, when he spent two nights in the middle of June with the complainant, she had a splint on her wrist. When he asked about it, she told him she had fallen off her bike.

[5] I was obligated to apply the principles in R. v. W.(D.), [1991] S.C.R. 742:

1. If I believe the defendant's evidence, I must acquit.
2. Even if I don't believe it, if the defendant's evidence raises a reasonable doubt, I must acquit.
3. If a reasonable doubt is raised by the evidence in its totality, I must acquit.

[6] After doing so, I concluded that I did not believe the defendant, nor did his evidence raise a reasonable doubt. I was satisfied the complainant was truthful, and no reasonable doubt was raised when I considered all of the evidence. Accordingly, I found the defendant guilty of Assault Bodily Harm (with a proviso that I would hear argument at a later date to determine if the Crown had proved Aggravated Assault, which was the offence charged).

[7] Although I gave oral reasons on December 10 explaining my rejection of the defendant's evidence, and my conclusion that the Crown had proven the assault beyond a reasonable doubt, I will repeat them here:

• The defendant provided an alibi at trial and not before.
• The alibi had no possibility of verification since the defendant claimed he paid $40 cash for each night he stayed in Niagara Falls.
• The alibi was demonstrated to be false since the defendant was in Toronto on May 9. He was charged with another criminal offence (see Exhibit 4) on that same day.
• His account, explaining the complainant's black eye (which was photographed) was that during the April argument when she was swinging at him, he pushed her away "probably causing the black eye," is ludicrous and a feeble attempt to counter the photographic evidence.
• He was generally unreliable given his criminal record involving multiple offences of dishonesty (thefts and fraud).

[8] I accepted the evidence of Ms. Paul for the following reasons:

• The self-photographs (Exhibit 2) were consistent with her version of events.
• The defence position that she had fallen from a bike, and reported a fabricated story about abuse to the police three months later, was done to collect criminal injury compensation. Hospital records from May 9 rebutted any allegation of recent fabrication. She told the social worker at the hospital that her injuries were caused by her boyfriend but did not reveal his name. That last point was also consistent with her position that she still felt strongly for the defendant, and did not wish to be testifying in this case.
• The evidence established that she bore no strong animus to the defendant. She said he cried and apologized when he discovered the extent of her injuries. She told her landlord the injuries were caused by a bike accident (trying to protect the defendant). She would not tell the hospital authorities the name of her abuser (again, trying to protect the defendant). She was adamant that he did not punch her in the face, nor kick her. He was a good person, not a monster.

Aggravated Assault or Assault Bodily Harm

[9] On December 10, 2014, I found the defendant guilty of Assault Bodily Harm. I left open submissions as to whether the Crown had proved Aggravated Assault as charged. Those submissions were made on January 21, 2015.

[10] The mens rea of Aggravated Assault is objective foresight of bodily harm and does not require proof of an intent to maim, wound or disfigure. See R. v. Godin, [1994] 2 S.C.R. 484.

[11] In R. v. L.A.Y., [2012] O.J. No. 6465 (Ont. C.J.) at paras 73-74, Justice Fraser deals with the actus reus of Aggravated Assault:

73 The next issue for the court's consideration is whether the injuries sustained by K.P. are sufficient to constitute an aggravated assault. The elements of aggravated assault consist of wounding, maiming, disfiguring or endangering the life of the complainant. A breaking of the skin is necessary to constitute wounding: R. v. Littletent, [1985] A.J. No. 256 at para. 2. Internal bleeding can also constitute wounding: R. v. Vincent [2011] O.J. No. 143, para. 16.

74 In R. v. Beaudrow (sic), [1992] O.J. No. 2430, the appellant appealed his conviction on the aggravated assault by wounding offence as there was no evidence of a breaking of the skin. The complainant's teeth had been broken, and the trial judge had found that there was blood in the victim's mouth area. The Ontario Court of Appeal held that the injuries were sufficient to support a conviction for aggravated assault by wounding.

[12] The case law seems to have evolved from a strict interpretation of wounding that requires breaking of the skin, to a more liberal interpretation which includes internal bleeding. In my view, if the Court of Appeal found the injuries caused in Beaudrow to be Aggravated Assault, the injuries suffered by Ms. Paul (a broken wrist and ruptured tendon) must also fall into that definition. It would be impossible to find no internal bleeding resulting from these serious injuries.

[13] Accordingly, the law requires me to find the defendant guilty of Aggravated Assault.

The Sentence

The Law

[14] The Criminal Code states in section 718 that the fundamental objectives of sentencing include the denunciation of unlawful conduct, the deterrence of the offender along with other individuals from committing offences, separating the offender from society where necessary, assisting in rehabilitation of offenders, providing reparation to the victims and the community, promoting a sense of responsibility in offenders, and acknowledgement of harm done to the victims and the community. The Ontario Court of Appeal has stated in R. v. Boucher, as well as in subsequent cases, that in cases of domestic violence, denunciation and deterrence are the paramount sentencing objectives.

[15] The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1. In addition, s. 718.2 specifically outlines that spousal abuse is an aggravating factor which should increase the sentence, when considered with other aggravating and mitigating factors.

[16] Both counsel provided a number of cases to support their respective positions. I found the following cases to be most applicable to this case. In R. v. Maslakovic, [2000] O.J. No. 4247, the defendant received a sentence of 2 years less a day for Aggravated Assault on his wife. The defendant dragged his wife out of bed and kicked her in the ribs. Her injuries included two fractured ribs and a lacerated spleen. The defendant also punched her in the face, and as a result she sustained bruising to her face. The defendant had no prior criminal record.

[17] In R. v. Morris, 2012 ONCJ 51, the defendant was found guilty of Assault Causing Bodily Harm, Assault with a Weapon, and Possession of a Weapon for a Dangerous Purpose. The defendant's girlfriend was found with a piece of a broomstick imbedded in her hand, with part of it almost exiting out the back of her hand. The defendant was sentenced to 12 months imprisonment. Aggravating factors included the fact that it was a forceful attack on a domestic partner, that there existed a previous assault against the same complainant, and that the defendant lied about the attack.

[18] In R. v. Ibrahim, 2011 O.J. No. 4209, the Ontario Court of Appeal upheld the trial judge's sentence of 12 months incarceration. The defendant was found guilty after trial of Assault Bodily Harm (the Court of Appeal stayed the Assault with a Weapon court pursuant to Kienapple). The defendant was a "mature first offender who committed a serious assault on his spouse, causing her disfiguring injuries by striking her with a shovel."

Criminal Record

Level and Location of Court	Date (mm/dd/yyyy)	Offence/Infraction	Disposition/Décision
Newmarket, Ontario	October 25, 2007	Theft Under	Conditional Discharge and 12 months Probation
Newmarket, Ontario	January 29, 2008	Possession Controlled Substance: Cocaine	Suspended Sentence and 12 months Probation
Newmarket, Ontario	November 27, 2008	(1) Theft Under x2 (2) Fail To Comply Probation (3) Mischief Property (4) Fraud Under (5) FTC Under/Recog (6) Utter Forged Document	One (1) day jail (concurrent on all counts) and 24 months Probation
Newmarket, Ontario	October 13, 2010	Assault	Suspended Sentence and 12 months Probation
Newmarket, Ontario	May 2, 2011	(1) Fail to Comply Probation (2) Possession Cannabis	Count #1 seven (7) days Count #2 seven concurrent
Old City Hall, Toronto	November 6, 2012	(1) Assault and (2) Breach Recognizance (peace bond)	Count #1 1 day Count #2 1 day concurrent and 1 year Probation concurrent
Newmarket, Ontario	January 21, 2013	Theft Under	One (1) year Probation following 90 days Conditional Sentence
Barrie, Ontario	June 18, 2014	(1) Theft Under (2) Fail to Comply Probation	41 days intermittent and 9 months Probation
College Park Court, Toronto	August 22, 2014	(1) Fraudulently Obtain Food (2) Unlawfully at Large	Count #1 6 months Probation Count #2 6 months concurrent In addition to a fine and/or victim surcharge: Count #1 $1.00 / Count #2 $1.00 In addition to a sentence of imprisonment of Count #1 10 days / Count #2 30 days concurrent

Position of the Parties

[19] The defendant has pre-trial detention from September 10, 2014, to February 11, 2015, associated to this offence. The Crown submitted that a sentence of three years is appropriate (minus the pre-trial detention). The defendant submitted that 16.5 months is the correct sentence (nine months on top of 7.5 months credit).

Aggravating Factors

• Domestic abuse
• Grave injuries to the complainant which has disabled her from employment
• Two prior domestic assault convictions
• One of those prior domestic assault convictions relates to the same complainant
• Relatively lengthy criminal record

Mitigating Factors

• By all reports, even the complainant's, the defendant is a good person with a substance abuse problem
• No weapons, or extreme physical force used (no punching or kicking)

Victim Impact Statement

[20] The Victim Impact Statement dated January 13, 2015, written by the complainant, describes the very significant impact the offence has had on the complainant's day-to-day life. She says that she does not feel like herself. She has low self-confidence, and finds it hard to trust the people in her life. She has been unable to participate in most activities due to her injuries. Further, the complainant has been unable to work as a server. On January 6th, the complainant had surgery on her ruptured tendon and will not be able to return to work for another three months. As a result of this, the complainant has had financial difficulties, and worries that she will lose her apartment because she has been unable to pay rent.

Pre-Sentence Report

[21] Notwithstanding the comments above, the complainant appeared to the writer of the Pre-Sentence Report to "minimize the offence against him," as she blamed herself for the offence, stating that she bought the alcohol that night. She has known the defendant for fifteen years, loves him, and when he is sober, has no fear for her safety.

[22] The defendant is currently 28 years old and has no children. The defendant was born in Scarborough. His biological mother passed away when he was three years old. His father remarried two years later to his stepmother and the defendant eventually acquired two half-sisters. The defendant's father passed away in 2007.

[23] As an adolescent, he struggled with schoolwork and was suspended various times for fights and truancy. The defendant completed only his Grade 9 education and he has been diagnosed with Attention Deficit Hyperactivity Disorder.

[24] At the age of 14, the defendant began working at a restaurant. The defendant stated that he worked as a cook for ten years. He admitted that it was his abuse of alcohol and crack cocaine that cost him his job. Subsequent to this, the defendant was evicted and had to move to local shelters for assistance. He is currently unemployed and utilizes Ontario Works for financial support.

[25] The defendant admits to using alcohol and crack cocaine as a coping mechanism for his personal problems, and that he has engaged in criminal activity in order to support his drug use.

[26] The defendant has a criminal record starting in 2007, which contains two previous convictions for domestic assault, one of which was committed against the complainant. Currently, the defendant is under two distinct community supervision orders resulting from his conviction of Theft Under and Fail to Comply Probation on June 18, 2014, and of Fraud Obtain Food and Unlawfully at Large on August 2, 2014. The defendant has charges of both Fail to Comply Probation and Fail to Comply Recognizance on his criminal record, and for a previous domestic assault the defendant had failed to complete the PARS programme, although he maintained 13 of the 16 sessions were completed.

[27] The defendant's stepmother described him as a difficult person and expressed concerns over the defendant's anger and addiction issues. She stated that the defendant becomes confrontational and argumentative when he is under the influence of drugs. The complainant also stated that when the defendant is sober that he is "so pleasant" and she does not fear for her safety. Both the complainant and the victim believe the defendant would benefit from counselling to deal with his unresolved emotional issues.

[28] The defendant indicated his willingness to attend counselling for alcohol and substance abuse and has applied to Toronto Harbour Lights Ministries for substance abuse counselling. The defendant also completed an anger management programme while at the Toronto South Detention Centre.

[29] The Probation Officer believes the defendant is attempting to minimize his actions by describing one past domestic violence victim as "bipolar" and describing his past girlfriends and current victim of domestic assault as "alcoholics." The defendant continues to deny his guilt of the current offence, and he has shown little empathy for the complainant in this case, although, at the sentencing hearing, he contended that he was not attempting to put responsibility on others.

Conclusion

[30] In my view, the appropriate range of sentence, for an attack such as this, wherein the complainant suffers grave consequences combined with a recidivist offender who has two prior domestic assault convictions, one involving the complainant, is 18 to 21 months. A guilty plea would have provided mitigation so as to move closer to the lower end of that range. This, obviously, was not a guilty plea. Although reasonably foreseeable, I don't conclude the defendant intended the serious injury he ultimately caused. If he had punched or kicked the victim, I would have placed him closer to the top of that range.

[31] I conclude the defendant's sentence should be in the middle of that range. Accordingly, I sentence Mr. Bell to 19.5 months. He has served five months of pre-trial detention, and will be given credit at 1.5 to 1 pursuant to R. v. Summers. He will serve an additional 12 months commencing today. Since the defendant has requested assistance for substance abuse while in custody, I will recommend he serve his sentence at the Ontario Correctional Institute.

[32] In addition, Mr. Bell will be placed on probation for a period of 18 months. Since the offence is a primary designated compulsory DNA databank offence, I must make the required order. He will be prohibited from possessing items listed in s. 109 for a period of 15 years.

Released: February 11, 2015

Signed: "Justice Blouin"