Court Information

Ontario Court of Justice

Date: January 28, 2020

Court File No.: Ottawa 18-A12410

Parties

Between:

Her Majesty the Queen

— And —

Carly J. Anderson

Before: Justice P.K. Doody

Sentencing submissions heard on: December 6, 2019

Reasons for Judgment released on: January 28, 2020

Counsel

A. J. Does — counsel for the Crown

M. Spratt — counsel for the defendant

Judgment

DOODY J.:

[1] I found Ms. Anderson guilty of aggravated assault after trial. This is my decision and reasons for her sentence.

Circumstances of the Offence

[2] A detailed explanation of the facts is set out in my decision of September 6, 2019. This was a case of "road rage". Ms. Anderson, who was 24 years old at the time, was driving on Ogilvie Road in Ottawa on August 7, 2018. She cut off the car driven by the complainant Linda Pelletier and abruptly stopped about 3 car lengths in front of her, causing Ms. Pelletier to apply her brakes and stop her car quickly.

[3] Ms. Anderson got out of her car and began to move toward Ms. Pelletier's car. Ms. Pelletier, who was 66 years old got out of her own car and walked, with the support of a cane, towards Ms. Anderson. She came very close to Ms. Anderson, coming into her personal space. Ms. Anderson pushed or shoved Ms. Pelletier, causing her to fall to the roadway.

[4] Ogilvie Road is a busy thoroughfare. Traffic was flowing in both directions. At the time Ms. Anderson pushed Ms. Pelletier to the roadway, the two women were standing partially in the lane beside their cars. One car travelling in the lane beside them in the same direction had to change to the turning lane to its left to avoid hitting Ms. Anderson's door when she opened it.

[5] After Ms. Pelletier fell to the ground, Ms. Anderson bent down toward her. A woman who had been a passenger in Ms. Pelletier's car got out of the car and walked over to the two women. She bent down over Ms. Pelletier. Ms. Anderson then got in her car and drove away, turning right onto the Aviation Parkway. She turned herself into police the next day.

[6] In the ensuing altercation, Ms. Anderson applied force to Ms. Pelletier and caused her to fall to the road.

[7] The altercation arose in part as a result of the actions of Ms. Anderson.

[8] Both women made annoying and perhaps dangerous traffic maneuvers while driving just prior to the altercation. Ms. Pelletier was trying to get in front of Ms. Anderson and slam on the brakes, causing Ms. Anderson to get what she called "pissed off". Ms. Anderson cut off Ms. Pelletier. She got out of her car to confront her. She was yelling obscenities at her.

[9] Ms. Pelletier testified, in evidence I accepted, that Ms. Anderson jumped out of her car and started screaming at her, calling her a "bitch" and saying she wanted her to get out of the car because she wanted to "fuck her up". She said the defendant's tone of voice was "very loud and angry".

[10] This evidence was confirmed by two other witnesses, whose evidence I accepted, who testified that when Ms. Anderson got out of her car, she was making irate motions at Ms. Pelletier, using profanities and threatening her, in a "very angry, aggressive, accusatory tone of voice." Both were speaking at the same time and were aggressively arguing with each other, being loud and calling each other names.

[11] Ms. Anderson relied on the defence of self-defence. I found that the Crown had proven beyond a reasonable doubt that the force used by Ms. Anderson was not reasonable in the circumstances. I also concluded that a reasonable person would realize that when Ms. Anderson pushed Ms. Pelletier, she was subjecting her to the risk of bodily harm.

[12] Ms. Pelletier suffered a fractured pelvis and broken pubic bone. She spent 8 days in the hospital and another 4 weeks in a convalescence home. She provided a victim impact statement which stated that she underwent significant rehabilitation therapy after being released from the convalescent facility. She was recovering from cancer at the time of the altercation, and her injury required her to attend appointments in a wheelchair, accompanied by someone because she could not walk. The hip fracture has limited her mobility and changed her life. She has sold her truck and camper trailer she had previously used for road trips because her hip pain prevents her from taking road trips. She is unable to go down the stairs to her basement to do her laundry. She cannot tend her garden. Her social life has been impacted greatly. She is isolated, sad and depressed.

Circumstances of the Offender

[13] A thorough and complete pre-sentence report was prepared.

[14] Ms. Anderson is now 26 years old and was 24 at the time of the offence. She has had a difficult life.

[15] She has a record of two prior offences – simple possession of marijuana and breach of a bail undertaking, both of which she was found guilty of in August 2015, 3 years before this offence.

[16] Her parents were both addicted to cocaine. Her father abused her mother, and that relationship ended when Ms. Anderson was 2 ½ years old. Her mother has also had issues with alcohol dependence, which affected her ability to work and led her to attend a rehabilitative treatment program. She was sometimes cared for her by her grandmother and she and her mother frequently moved, with a number of her mother's boyfriends living with them. These issues were acknowledged by her mother.

[17] Ms. Anderson's father has a lengthy criminal record. Ms. Anderson acknowledged that he sold drugs and taught her about what she calls the "criminal lifestyle" which she thought was normal. Her father died in 2016. He had started using drugs about ten years before his death and was abusive towards Ms. Anderson. She did not see him after that point.

[18] Both Ms. Anderson and her mother lived with Ms. Anderson's half-sister for a number of years after moving to Ottawa in 2000. Ms. Anderson was forced to leave her mother's home at the age of sixteen. She lived with her "street" friends. She met a man with whom she lived for four years. During this time, she worked as an exotic dancer and was forced to hand over the money she made. The man with whom she lived was extremely abusive towards her. She drank alcohol daily. She left him in 2013 and lived with another man for two years. While she lived with him, she continued to abuse alcohol regularly. She returned to live with her mother in 2015.

[19] Ms. Anderson's mother has been sober for five years. Both she and Ms. Anderson told the pre-sentence report author that they now have a good relationship.

[20] Ms. Anderson was diagnosed with Attention Deficit Hyperactivity Disorder. She had some behavioural issues at school. She dropped out of school in grade 12. She has now obtained a high school diploma.

[21] She abused alcohol almost daily from the age of 16 to 20, frequently drinking until she blacked out. She told the author of the pre-sentence report that she has not drunk alcohol since then. This was confirmed by a friend. She has used marijuana daily since she was 16 years old, with the amount increasing over the years. She now consumes about 4 grams a day. At the time of sentencing submissions, she had been accepted by Serenity Renewal, a substance abuse counselling program.

[22] Ms. Anderson worked several jobs at the same time after returning to live with her mother – as a receptionist at a car garage, cleaning houses and working for a food delivery company. In 2018, she began to work at a nursing home providing private care for an elderly man. She left this job after a year when co-employees became aware of this charge. At the time of sentencing submissions, she was working for a food delivery service.

[23] Ms. Anderson's mother told the author of the pre-sentence report that her daughter had issues with her temper from an early age. Ms. Anderson acknowledges that she has a temper. She is seeking psychological help.

[24] Ms. Anderson expressed sincere remorse for what she did – to the police officer the day after the altercation, to her friends, to the author of the pre-sentence report, and to me in court. I accept that she is very remorseful.

Analysis

[25] Defence counsel seeks a suspended sentence and a period of probation. Crown counsel submits that an appropriate sentence would be 9 months imprisonment, followed by 2 years' probation.

[26] The fundamental purposes of sentencing, as established by s. 718 of the Criminal Code, are to denounce unlawful conduct and the harm done to victims and the community caused by it; deter the offender and others from committing offences; separate offenders from society where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or the community; and promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

[27] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[28] Other relevant principles are that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)) and that courts should exercise restraint in imposing imprisonment (s. 718.2(d) and (e)).

[29] There are a number of aggravating circumstances in this case.

[30] The assault was a product of "road rage" – a driver, Ms. Anderson, who was enraged by the actions of a fellow driver, Ms. Pelletier, and reacted entirely disproportionately. I agree with Justice Minden who wrote at para. 74 of R. v. Norman, [1999] O.J. No. 1749 (S.C.J.):

In my view, when a motorist's actions cross that sometimes thin line separating stubborn, obnoxious and aggressive conduct from criminal conduct, a sentencing Court ought to denounce it in no uncertain terms. Similarly, the Court should place particular emphasis on the principle of general deterrence in order to fulfil its role in protecting the public. Violent responses to encounters with other motorists and pedestrians must be dealt with harshly particularly when the results are serious. It must be recognized that even relatively short outbursts of the kind of aggression and violence that occurred here can cause grave consequences and even unspeakable tragedy.

[31] The injuries, both physical and emotional, suffered by Ms. Pelletier were extremely serious. She continues to suffer from them some 18 months after the assault and likely will do so permanently.

[32] There are also mitigating factors.

[33] The amount of force used was at the low end of the scale. Ms. Anderson did not punch Ms. Pelletier with a fist, closed or open. She did not use a weapon. She pushed Ms. Pelletier away, causing her to fall.

[34] Ms. Anderson has been abused and mistreated throughout her life and she and her mother have both suffered significant alcohol issues. This lowers her moral culpability.

[35] She is extremely remorseful.

[36] Ms. Pelletier played a role in the exacerbation of the situation by driving irresponsibly before Ms. Anderson stopped in front of her, by getting out of her car and walking into Ms. Anderson's personal space, and by loudly and aggressively arguing with her while intruding into her personal space.

[37] Justice Code analysed the range of sentences imposed for the offence of aggravated assault in R. v. Tourville, 2011 ONSC 1677. At paragraphs 27 through 30 he described a range which started at the "bottom end" of a suspended sentence for exceptional cases, as in R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277, where the Court of Appeal upheld that sentence together with 3 years' probation for a 26 year old with no record, who had pleaded guilty, and caused serious facial lacerations to the victim after a bar room dispute in which she used a broken beer bottle. The offender was Indigenous, and the Gladue report disclosed a very difficult upbringing in a violent and abusive home, leading to drug abuse and alcoholism. The offender had made real progress in dealing with her substance abuse problems and had obtained employment.

[38] Justice Code wrote:

in the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force.

[39] He noted that:

at the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve "unprovoked" or "premeditated" assaults with no suggestion of any elements of consent or self-defence.

[40] Defence counsel relied on 4 cases: R. v. Shahcheraghi, 2017 ONSC 574; R. v. Graziano, 2009 CarswellOnt 1262 (S.C.J.); R. v. Aitas, [1998] O.J. No. 1895; and R. v. McKie, 2018 ONCJ 103.

[41] In Shahcheraghi, the defendant received a suspended sentence after having been convicted of aggravated assault. He was a bouncer at a bar and had punched the victim several times and smashed his head into a glass door. The victim suffered no permanent injuries and had fully resumed his normal routine, with no changes to his life as a result of the assault.

[42] In Graziano, the defendant had been charged with aggravated assault and assault with a weapon, but was acquitted of those charges and convicted only on the included offence of simple assault. He had kicked the defendant twice – one on his shoulder and once on the buttocks. The trial judge found that the jury had based its conviction on only those kicks, which caused no injury. He sentenced Mr. Graziano to 90 days to be served on weekends. The basis for the sentence of imprisonment was his lengthy criminal record for unrelated offences and the attitude of resistance to marijuana laws displayed throughout the trial.

[43] In Aitas, one co-accused (Mr. Aitas) received a 2 month conditional sentence following a conviction of simple assault and another (Mr. Francis) received a 9 month sentence after being convicted of assault causing bodily harm. The offences involved aggressive driving on a highway, fist fights, and car chases with 4 co-accuseds. Mr. Aitas kicked a man on the ground and became involved a second time at the police station. He had no criminal record. Mr. Francis was one of the drivers. He assaulted the victim before anything had happened to excite or endanger him or his friends. He spat on the victim. And he caused the victim a painful injury which required surgery, disrupted her education, interfered with her employment opportunities, caused her lost income and left her with emotional and physical scars.

[44] In McKie, both defendants were sentenced to 4 months in custody after being found guilty of assault with weapons. They had taken knives to a barbecue party. After the party, they confronted the victim, resulting in a struggle in which he received a cut approximately 6 inches in length which left him with a significant scar and no other permanent sequelae.

[45] In my view, these cases are distinguishable from what I have to decide. The convictions were not all for aggravated assault. The lighter sentences were either for lesser offences or in a situation where there were no permanent injuries. This case is much closer to the issues before the Court of Appeal in R. v. Rocchetta, 2016 ONCA 577. Both defendants had been charged with aggravated assault. One (Mr. Jordan) was convicted of that charge. The other (Mr. Rocchetta) was convicted of only the included offence of simple assault. Mr. Rocchetta received a suspended sentence and 3 years' probation. The Court of Appeal reduced Mr. Jordan's sentence of 21 months in prison to 9 months. The significant difference between the two was that Mr. Jordan caused a very serious eye injury to the victim when he punched him in the face, leaving him virtually blind in that eye with very little prospect that his sight would improve. Mr. Rocchetta had been chasing the victim when Mr. Jordan punched him, and then kicked and punched him as he lay on the ground. While this was an assault, it did not wound or cause bodily harm to him. The Court wrote at paras. 33 and 34:

32 Like Ryan, Jordan is a young first offender (23 at the time of the offence) and a valuable member of the community. He and Ryan have operated their own successful business since 2008. Jordan is in a committed, long-term, loving relationship. He has no history of anger control problems or substance abuse. He is truly sorry for the serious injury he caused Mr. Doan. In short, all signs indicate that this offence is an aberration. Jordan presents no danger to the community and no risk of reoffending.

33 In our view, Jordan's moral culpability cannot be meaningfully distinguished from Ryan's. Both violently attacked Mr. Doan with force that could reasonably be expected to result in significant injury to Mr. Doan. Luckily for Ryan, his assault did not cause significant injury. Unfortunately for Jordan, his assault caused a very serious life-altering injury to Mr. Doan. Both Jordan and Ryan acted spontaneously out of some misguided sense of loyalty to each other or the teenaged boy who was approached by Mr. Doan.

34 The trial judge, after thoroughly reviewing factors relevant to sentencing, correctly concluded that Ryan should receive a suspended sentence. He also correctly concluded that the very serious injury caused by Jordan's assault moved deterrence and denunciation to the forefront of the operative sentencing principles (see paras. 47-48). We agree with the trial judge that despite the many mitigating factors, a significant period of incarceration was required for Jordan because of the serious injury he caused.

[46] The Court of Appeal held that the trial judge had failed to consider the restraint principle applied to young first offenders facing a period of incarceration. This should have been one of the primary considerations in fixing the appropriate period of incarceration. Consequently, the court reduced the sentence from 21 months to 9 months.

[47] The serious injuries suffered by Ms. Pelletier require a significant period of incarceration despite the many mitigating factors I have described. The fact that the altercation arose out of a road rage situation gives further support to the necessity of deterrence and denunciation being primary considerations.

[48] Ms. Anderson is young, but she is not a first offender. Her prior substantive offence, however, was for simple possession of marijuana, not for a crime of violence. Furthermore, the mitigating factors I have described distinguish this case from that before the Court of Appeal in Jordan. Among other things, Ms. Anderson's push of Ms. Pelletier was not the same as Mr. Jordan's punching of the victim in the face. This justifies a shorter sentence than Mr. Jordan received.

[49] I sentence Ms. Anderson to 6 months in custody. She will be placed on probation for a period of 2 years following her release from custody. During her probation, she will be required to participate in counselling.

[50] I order that Ms. Anderson provide a sample of her DNA for analysis and registration, aggravated assault being a primary designated offence. I also prohibit her from possessing any of the weapons described in s. 109 of the Criminal Code for a period of 10 years. I prohibit her, under s. 743.21 of the Criminal Code, from communicating, directly or indirectly with Ms. Pelletier while in custody.

Released: January 28, 2020

Signed: Justice P. K. Doody