Court File and Parties
Ontario Court of Justice
Date: 2018-09-25
Court File No.: Halton 3539/17
Between:
Her Majesty the Queen
— and —
Michael Vicente
Before: Justice David A. Harris
Heard on: July 5, 2018
Reasons for Sentence released on: September 25, 2018
Counsel:
- A. Camara, for the Crown
- M.B. Currie, for the defendant Michael Vicente
Reasons for Sentence
D.A. HARRIS J.:
Introduction
[1] Michael Vicente pled guilty to charges of assault causing bodily harm on November 1, 2011 and assault on November 9, 2017. Both charges arose in Oakville and involved his wife Andrea Vicente.
[2] Crown counsel elected to proceed summarily on both charges after Mr. Vicente waived the six month limitation period with respect to the first charge.
[3] Mr. Vicente is before me today to be sentenced.
[4] Crown counsel suggested that I should impose a conditional sentence of imprisonment for one year followed by two years of probation.
[5] Counsel for Mr. Vicente suggested that I impose a conditional discharge.
[6] I find that a conditional discharge running for three years is the appropriate sentence.
[7] My reasons for this are set out under the following headings:
- The law regarding conditional discharges
- The fundamental purpose and principles of sentencing
- The facts underlying the offences
- The impact on the victim
- The background of Mr. Vicente
- Analysis
Conditional Discharge
[8] Section 730(1) of the Criminal Code provides that:
Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
[9] There is no minimum sentence here. The offence is not punishable by imprisonment for 14 years or life. So I can grant Mr. Vicente a conditional discharge if I consider it to be in his best interests and not contrary to the public interest.
[10] In Regina v. Sanchez-Pino, the Ontario Court of Appeal stated that:
16 ….. In my view, the primary purpose of Parliament in enacting that section was to provide that an individual, although found guilty of what may loosely be described as a "less serious" offence, would not have a conviction recorded against him in all cases. In other words, he would not "have a criminal record" as a result of the occurrence.
17 The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing.
18 Obviously the section is not confined to "simple cases of possession of marijuana". It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.
[11] In R. v. Fallofield, the British Columbia Court of Appeal made a number of observations regarding the discharge provisions, including the following:
- (1) Discharges are not limited to technical or trivial violations;
- (2) Generally, the requirement that a discharge would be in the best interest of the accused would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions; and
- (3) While the public interest in the deterrence of others must be given due weight, it does not preclude the judicious use of the discharge provisions.
[12] In R. v. Meneses, the Ontario Court of appeal took into account:
- (1) that the appellant was a widow with children;
- (2) that she has had a good standing in the community;
- (3) that she has no criminal record;
- (4) that her misconduct was an isolated one and out of keeping with her past good character; and
- (5) that a conviction might have a detrimental effect on her ability to obtain gainful employment in the profession of dentistry of which she already has some expertise.
[13] It was in the public interest for this woman to be given every opportunity to become a useful person in the community and earn a livelihood for herself and her family.
[14] Further:
The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way when other considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit such an offence. A conviction and a fine would not be a deterrent to a professional shoplifter, but, of course, such a person would not receive either an absolute or conditional discharge.
[15] Finally:
It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing the offence. In this case the accused is subject to the terms of the probation order, and in the event that the terms of the probation order are met, she will have earned her discharge.
[16] In R. v. Carson, the Ontario Court of Appeal stated that:
The sentencing judge rejected certain of the Crown's submissions concerning sentence on the basis that they would have an unnecessarily harsh impact on the appellant's prospects to continue his employment as a police officer. This is a legitimate factor, among others, to be taken into account at a sentence hearing. Neither the appellant's personal interest nor the societal interest would be served by the imposition of a sentence, not otherwise warranted, that would preclude the appellant's continued employment as a police officer.
[17] There are of course limits on how far this may be taken. In R. v. Swierszcz, the Ontario Court of Appeal stated that "The fact that a person may suffer professional consequences cannot justify the imposition of a sentence that is outside of the appropriate range". The Court of Appeal allowed the Crown appeal since a conditional discharge was far outside of the range appropriate for the kind of criminal conduct in that case.
[18] That does not however take away the fact that, subject to the above limitation, collateral consequences, such as a negative impact on employment, are a legitimate factor to be considered when determining the appropriate sentence.
[19] I also note the following comments by Justice Hill of the Ontario Superior Court of Justice in two summary conviction appeals:
- (1) Discharges are not restricted to trivial matters;
- (2) 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;
- (3) Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration;
- (4) A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge.
[20] With respect to the offence of assault causing bodily harm, I am mindful of the comments of the Ontario Court of Appeal in R. v. Wood that:
It is our view that in cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused.
[21] This was more recently (2015) adopted by the Ontario Court of Appeal in R. v. Huh.
[22] This may be true "in almost every case" but it is not true in every case. Counsel for Mr. Vicente provided me with a number of cases involving assault causing bodily harm in which the Ontario Court of Justice or the Superior Court of Justice granted a conditional discharge. She also included a decision of the British Columbia Court of Appeal. My review of these cases turned up several more.
[23] It is clearly necessary for me to examine the fundamental purpose and principles of sentencing in order to determine whether a conditional discharge would be appropriate in the particular circumstances of this case.
Fundamental Purpose and Principles of Sentencing
[24] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[25] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.
[26] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.
[27] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:
The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.
[28] He went on to state that:
The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.
[29] He then quoted Rosenberg J.A. who had previously described the proportionality requirement 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.
[30] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.
[31] Section 718.2(a)(ii) provides that evidence that an offender, in committing an offence, abused a spouse or common law partner, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.
[32] Section 718.2(d) provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".
[33] The Supreme Court of Canada noted in Gladue v. The Queen that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community.
[34] Before applying these principles, I must take into account the facts underlying the offence and the background of Mr. Vicente.
The Offences
[35] Andrea and Michael Vicente have been together for 20 years and married for 12. They have three daughters aged 10, 7 and 4.
[36] On November 1, 2011, while at their home they became engaged in a verbal argument over the children.
[37] He was lying on the couch and told her to leave him alone. She was standing over him and continued to ask him questions. He responded by kicking her arm causing it to break. She was treated in hospital and was placed in a cast from the wrist to the shoulder until the injury healed. This incident was not reported to police at that time.
[38] On November 9, 2017 at approximately 2:00 a.m. they were again at home. She was asleep when she was woken by the accused who was demanding to know, "Who's Greg". Apparently she had uttered "Greg" in her sleep and he wanted to know why she would call out his name. She was not aware that she made that utterance and said so. He stated to her, "You better tell me, I will kill you, you will die". He pressed his fist against her temple and pushed her head into her pillow demanding that she tell him who Greg was. He was screaming at her which woke their children.
Impact on the Victim
[39] Andrea Vicente provided a Victim Impact Statement which really did not qualify to be called that.
[40] She described the negative impact of Mr. Vicente being separated from his family as a result of being charged. She said nothing about the impact of the offences themselves.
[41] She spoke highly of Mr. Vicente and praised him at some length for his behavior, both as a husband and as a father.
Background of Mr. Vicente
[42] I have been provided with a bound volume of materials submitted on behalf of Mr. Vicente. These included five letters from three counsellors, eight reference letters and numerous receipts for counselling services.
[43] From these, and the submissions of his counsel, I have learned the following.
[44] Mr. Vicente is 38-years-old.
[45] He is employed as a mechanical technician. He is registered with the Ontario College of Trades. His employer conducts ongoing criminal records checks on him because he goes into places where security clearances are needed.
[46] He and his wife have been married for 13 years. They have three daughters. The restrictions on his access to them since being charged have been stressful for all of them.
[47] He has the support of his wife and other family members. Some of them appeared with him in court.
[48] The reference letters come from people who have known Mr. Vicente for over 20 and even 30 years. They all express surprise at the fact that he could commit these offences. They describe a caring and loving husband and father, a good friend and someone who would help a total stranger in a heartbeat.
[49] He was embarrassed to have had to ask these people for these letters.
[50] He has been active with soccer both as a player and as a coach for his daughters and other children. He will not be able to continue with the coaching because whatever sentence I impose will make it impossible for him to be cleared by a vulnerable persons' check required by all youth sports groups. He misses this part of his life greatly.
[51] He explained that the two offences occurred at times of stress in his life.
[52] In 2011, he kicked out at her in frustration. Although he did not intend to injure her, he kicked with sufficient force that he broke her arm.
[53] He was instantly remorseful and took her to hospital, and she forgave him.
[54] In 2017, there were a number of stressors in his life. He was already angry and suspicious when his wife uttered another man's name while asleep. He threatened her and pushed her face into a pillow.
[55] Since then he has taken steps to address what might have led him to commit these offences. He has attended numerous counselling sessions with two separate agencies over an extended period of time.
[56] I note the following comments from the most recent report:
As you are aware, Mr. Vicente has been attending our Anger Resolution Program since April 12, 2018. To date, he has attended 16 sessions and is attentive to the process. He continues to appear motivated during counselling sessions and frequently asks questions to further his understanding.
At this point, Mr. Vicente has progressed through the assessment and Information gathering portion of the program and is working well with challenging and understanding the basis for his thoughts, emotions and behaviours. He continues to appear committed to the counselling process, booking several sessions in advance.
Mr. Vicente has demonstrated a solid understanding of the thought/emotion/behaviour connection and has been able to report several occasions where he has assimilated this information into his daily life. In addition, he has reported several occurrences of utilizing healthy techniques with successful results.
I have encouraged him to maintain his increased awareness and assimilation of beliefs and behaviours, as noted above, in his daily life. Further, I would encourage him to continue to find healthy alternatives for stress relief and conflict resolution.
My recommendations at this point would be for him to continue with anger management counselling in order to solidify his application of healthy techniques and newly learned beliefs, cognitions and behaviours.
[57] Mr. Vicente has expressed an intention to continue with his individual counselling and to complement that with couple's counselling once that is permitted.
[58] I noted that Mr. Vicente was crying as he told me that he had been sorry from the very beginning and wanted to make things right. He never wanted to hurt his wife or to scare her.
Analysis
[59] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:
The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.
[60] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."
[61] General deterrence and denunciation are clearly the most important principles of sentence in this case, but I must not lose sight of the other principles.
[62] I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. Vicente and yet, at the same time, one that is responsive to his unique circumstances.
[63] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.
[64] The aggravating circumstances can be found in the facts surrounding the offences.
[65] Assault causing bodily harm is a serious offence. A broken arm is a very serious injury.
[66] I do note that this occurred as a result of a single kick. In that regard this case is different from both R. v. Wood, supra and R. v. Huh supra.
[67] Mr. Vicente went on to commit the further assault, albeit six years later.
[68] Both assaults were on his wife.
[69] There are also a number of mitigating factors that are present here.
[70] Mr. Vicente pled guilty. I take that to be an expression of remorse and an admission of responsibility. He made it unnecessary for his wife to relive her victimization in court.
[71] He has recognized the issues that led him to commit his crimes and he has taken significant steps to address these issues.
[72] There have been collateral consequences for Mr. Vicente.
[73] He has confessed his wrongdoing to many of his friends and acquaintances. Most continue to stand by him, but it is reasonable to expect that his stature has been diminished in their eyes. Further the continued support of those who stood by him bodes well for his ongoing rehabilitation. So does the support of his wife.
[74] He has had limited access to his children since being charged.
[75] He has been, and will continue to be unable to coach children's soccer teams, something that he previously enjoyed very much.
[76] There is a real possibility that a conviction could adversely impact his work. As he is the sole source of income in the family, this would affect his wife and children as much as it would him.
[77] Mr. Vicente had no previous criminal record. In fact, other than these two assaults which occurred six years apart from each other, there is no suggestion of wrongdoing on his part.
[78] In the past, he has freely given of his time to the community around him.
[79] I will be including a provision for community service in the sentence I am about to impose. Community service orders were introduced approximately 40 years ago. At the time they were touted as an alternative to imprisonment. Clearly they were intended to have a deterrent effect. They also provide an element of restorative justice as they require offenders such as Mr. Vicente to give something back to the community.
[80] A community service order can of course be part of either a conditional discharge or a suspended sentence or a conditional sentence of imprisonment.
[81] I am satisfied that a conditional discharge with probation for three years would be in Mr. Vicente's interests and that it would not be contrary to the public interest.
[82] I am satisfied that such a sentence, combined with the collateral consequences to Mr. Vicente will deter any like-minded individuals from committing similar offences.
Sentence
[83] For all of the above reasons, I sentence Mr. Vicente as follows.
[84] He is granted a conditional discharge with probation to run for three years.
[85] The terms of the probation will require that Mr. Vicente:
keep the peace and be of good behaviour;
appear before the court when required to do so by the court;
notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;
report in person to a probation officer immediately and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;
cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;
not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Andrea Vicente except:
- (1) pursuant to a family court order made after today's date or for the purpose of conducting or defending family court proceedings;
- (2) in the presence of or through legal counsel;
- (3) for the purpose of making contact arrangements or having contact with his children by means of email or text message; or
- (4) with her prior written consent, filed in advance, by her, with the probation intake or the assigned probation officer. This may be cancelled by her in any manner at any time.
not be within 20 metres of any place where he knows her to live, work, go to school, frequent, or any place he knows her to be, except as stated above;
attend and actively participate in all assessment, counselling or rehabilitative programs for anger management or domestic violence, which may include Partners Assault Response (PAR) Program, or any other program directed by the probation officer;
perform 100 hours of community service work. This work is to commence by October 21, 2018 and shall be completed at a rate of not less than 6 hours per month. He shall complete the work as directed by and to the satisfaction of the probation officer. He shall complete all of his community service hours by / within 18 months.
[86] I also make the following two ancillary orders.
[87] Assault causing bodily harm is a primary designated offence and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. Vicente of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis. I decline making a similar order with respect to the assault charge, a secondary designated offence, solely to avoid a redundant order.
[88] Finally, with respect to both charges, pursuant to section 110 of the Criminal Code, for the next five years Mr. Vicente is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.
[89] I give Mr. Vicente four months to pay the victim fine surcharges.
Released: September 25, 2018
Signed: Justice David A. Harris