Court File and Parties

ONTARIO COURT OF JUSTICE DATE: May 6, 2022 COURT FILE No.: 19-2467

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DARREN McCABE

Before: Justice Angela L. McLeod

Pretried: October and November 2019 Guilty pleas: December 8, 2021 Sentencing Hearing: April 6, 2022

Counsel: Kristine Staats, counsel for the Crown Bernard Cugelman, counsel for the accused

McLeod J.:

Overview

[1] Mr. McCabe has been convicted of one count of aggravated assault and one count of breach of an undertaking.

Summary of the Facts

[2] An Agreed Statement of Facts was filed, amended, and re-filled as Exhibit #3.

[3] On September 13, 2018, Mr. McCabe was convicted of domestic assault and mischief. A suspended sentence and 12 months probation was imposed. The complainant was a former girlfriend.

[4] In October 2019, Ms. Thomas, the victim, contacted the police alleging that she had been assaulted by Mr. McCabe. He was charged with four counts of assault and one count of forcible confinement. He was released on an undertaking with conditions including not to contact Ms. Thomas.

[5] On October 17, 2019, just three days after he was released, Mr. McCabe began to communicate with Ms. Thomas both by phone and text message.

[6] The text messages were filed as part of Exhibit #1. In part, Mr. McCabe called Ms. Thomas, a “worthless fucking autistic whore”, “bitch”, “whore”, and a “cunt”. He told her to “go kill yourself” and “fuck you bitch I’ll fucking kill you”.

[7] On March 31, 2019, Mr. McCabe and Ms. Thomas were at their shared residence. She had been living with Mr. McCabe on an intermittent basis for approximately 6 months. There were other housemates living at the residence. All parties had been drinking.

[8] Ms. Thomas was struggling with a number of mental health issues and was prescribed medication. Her frequent intoxication caused problems in the relationship. The parties would sometimes push one another.

[9] On this date, Mr. McCabe and Ms. Thomas had been in a verbal argument. Mr. McCabe punched Ms. Thomas in the face. She fell to the floor. He stood over her and told her to shut up. He wanted her to get into the shower to wash off the blood. She tried to leave but he would not let her until she had a shower. He pushed her into the shower a few times. He yelled at her for getting blood everywhere.

[10] At 3:43am, she called her mother who attended at the residence. Ms. Thomas was barely dressed, and in the snow. Police and paramedics were called to the scene.

[11] Police observed that Ms. Thomas’ right eye was swollen shut. Her nose was swollen and bleeding. After initially being denied entry by a housemate, the police entered the home and observed a pool of blood in the mudroom. Mr. McCabe was arrested.

[12] Ms. Thomas advised police that she was fearful that Mr. McCabe would kill her and her mother if she provided a statement against him.

[13] Ms. Thomas sustained severe injuries to her face for which she required surgery, including, minimally displaced fractures of the nasal bones and vomer, including a buckle type fracture at the bony nasal septum, and a blow out fracture of the right orbital floor. There was significant subconjunctival hematoma and lots of periocular bruising and swelling.

[14] Ms. Thomas was referred to a plastic surgeon. She had pain on extreme upward gaze and blurry vision. She required 2 surgeries. She continues to experience pain, vision issues and swelling. She has a bump on her nose and small scar under her eye.

Victim Impact Statement

[15] Ms. Thomas did not attend the sentencing hearing, however she requested that the Crown read her victim impact statement. It was filed as Exhibit #1a.

[16] She noted that the emotional impact has been significant. She described being fearful, isolated and self-conscious. She suffers from depression. She is afraid to engage in counselling as the process would require her to relive the events.

[17] Her physical injuries continue to cause pain and pressure in her eye related to weather changes. She continues to experience swelling and headaches on the right side. The site of her surgery remains sensitive to temperature.

[18] She lost several weeks of work. She was required to travel out of her community for surgery and treatment. Her anxiety has resulted in an inability to maintain long term employment.

[19] Ms. Thomas was 21 years of age at the time of the assault.

Circumstances of the Offender

[20] Mr. McCabe’s criminal record was filed as Exhibit #1b. In addition to the convictions of 2018, he was also convicted of ‘driving over 80’ in 2016.

[21] A PSR was authored and filed as Exhibit #2. Mr. Cugelman made extensive submissions about his client’s life, before and after the assault.

[22] In summary, Mr. McCabe lived a relatively normal life, with a normal childhood. He had plans to follow in his brother’s footsteps and work for Hydro One. He was in college when he was convicted of ‘driving over 80’. As a result, he was unable to complete his studies and his life plans took a different path. He began to be self-loathsome. He was depressed and in a downward spiral. He worked a menial job.

[23] Mr. McCabe was 24 years of age at the time of the assault.

[24] In May 2019, Mr. McCabe began a course of therapy with Gavin Hodgson. A therapy report was filed as Exhibit #4. Mr. McCabe has been attending therapy on a weekly basis, paying the fees out of pocket.

[25] In September 2021, Mr. McCabe accepted a job with a new company. He is able to use his college studies and is feeling hopeful about this position as a long term career. The position is well renumerated, and he receives health and dental benefits. He is able to provide financially for his mother, who suffers with cancer.

[26] Letters of support were filed as Exhibits 8, 9, 10 and 11. The authors all note that Mr. McCabe is a good person, who was travelling down a dark path before this incident. They all note that he seems to have turned his life around.

[27] Mr. McCabe penned a letter of apology to Ms. Thomas, which was filed as Exhibit #7. He writes of his embarrassment for his actions. He acknowledged the harm done. He understands that he should have been more supportive to Ms. Thomas in her struggles during their relationship.

Position of the Parties

[28] The Crown seeks a period of custody of 24 months, to be served in a penitentiary. This is to be followed by the maximum term of probation for 36 months. Ancillary orders should include a s. 109 order for 10 years, a DNA order and a s. 743.21 order.

[29] The Crown submits that s. 718.04 of the Criminal Code is relevant as Ms. Thomas was a vulnerable and intimate partner to Mr. McCabe. Further aggravating is that Mr. McCabe was on probation for a prior domestic assault, and this event took place a number of months later. The text messages show the demeaning and abusive nature of the relationship.

[30] The Crown acknowledges that a conditional sentence order is available but argues that it would not meet the principles of denunciation and deterrence which are paramount in this case.

[31] The defence submits that a conditional sentence is appropriate in all of the circumstances, relying heavily on the work that Mr. McCabe has done in therapy and the fact that he has been on a term of release for 3 years. Mr. Cugelman submits that the imposition of a conditional sentence would be a vote of confidence in the steps taken and the improvements garnered by Mr. McCabe.

Governing Sentencing Principles

[32] The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:

a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

b) deterring the offender and others from committing crimes;

c) separating offenders from society where necessary;

d) assisting in the rehabilitation of the offender;

e) providing reparations for harm done to the victim or to the community;

f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.

[33] The fundamental principle in sentencing, as set out in s. 718.1 of the Criminal Code, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[34] Section 718.04 of the Criminal Code mandates that “[w]hen a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.”

[35] Section 718.2 (a)(ii) of the Criminal Code mandates that evidence that the offender, in committing the offence, abused the offender's intimate partner or a member of the victim or the offender's family shall be considered an aggravating factor on sentence.

Conditional Sentence Order – Law and General Principles

[36] Section 742.1 of the Criminal Code sets out the considerations for a CSO. In summary, there are four criteria to be met:

(1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

(2) the court must impose a term of imprisonment of less than two years;

(3) the safety of the community would not be endangered by the offender serving the sentence in the community; and,

(4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[37] The first three criteria establish whether a CSO is available; the last whether it is appropriate.

[38] A conditional sentence can serve the sentencing principles of deterrence and denunciation. In R. v. Proulx, 2000 SCC 5, the court held:

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

[39] Furthermore, the court held that a CSO is both a punishment and can be as harsh as incarceration:

41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72,

in our view a sentence focused on restorative justice is not necessarily a "lighter" punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

42 Moreover, the conditional sentence is not subject to reduction through parole. This would seem to follow from s. 112(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which gives the provincial parole board jurisdiction in respect of the parole of offenders "serving sentences of imprisonment in provincial correctional facilities" (R. v. W. (J.) (1997), 115 C.C.C. (3d) 18 (Ont. C.A.) at p. 33).

Analysis

[40] The relationship between Mr. McCabe and Ms. Thomas was very unhealthy. Each was struggling with their own mental health issues.

[41] I find that Mr. McCabe’s text messages to Ms. Thomas were in fact demeaning, inconsiderate of her mental health struggles and overall, simply vile.

[42] I find aggravating the fact that once the blow was struck and the damage caused clearly understood, Mr. McCabe continued in that demeaning behaviour, standing over top of Ms. Thomas who laid on the floor, shouting at her to shut up, insisting that she take a shower to clean up and admonishing her for bleeding.

[43] In those moments, had it been a momentary loss of temper, he surely would have attempted to get her help or to comfort her. Instead, his aggression continued.

[44] To his credit he almost immediately began a course of therapy. He has continued in that course for close to 3 years. He remains committed to that process. At 27 years of age now, his letter of apology demonstrates that he has grown and matured and seems to have a better understanding of how his actions and decisions can impact those around him.

[45] The plague of domestic violence never seems to end. The courts are beleaguered with case after case. Too often, accused parties seem to attempt to minimalize their moral culpability but providing context or background narrative. In this case, Mr. McCabe does just that. His submission, simply put, is that he was in a bad place at the time, struggling with his self worth. Since that time, he has had a turn of good fortune and is now feeling much better about himself.

[46] The difficulty with that submission is that hidden within is a suggestion that depression or self loathing made him do it, made him violently and viciously attack Ms. Thomas. It is of interest that during this time the only persons that Mr. McCabe assaulted where his domestic partners.

[47] Domestic violence is not about depression or self loathing; it is about demonstrating power and control. It is about loathing of domestic partners, in this case a vulnerable, young woman. Mr. McCabe’s text messages are an exemplification of that loathing. He utilized words that are specific to the demeaning of women, ‘bitch’, ‘whore’, ‘cunt’.

[48] While Mr. McCabe has been able to move forward in life, move up in his company and move beyond his past actions, Ms. Thomas remains tethered to those days and night. She is left with physical and emotional scars. She is unable to maintain employment or relationships. The impact upon her is life altering.

[49] In R. v. Chirimar, 2007 ONCJ 385 (OCJ) Trotter J. noted at paragraph 40:

There are features of domestic violence that distinguish it from other types of violence. When the level of violence is serious, these features militate against a community-based sanction. Most profoundly, it is the experience of the courts that domestic violence almost always occurs in the home, beyond the vigilance of the public. In a public place, there is the possibility of assistance being rendered to a victim, or the police being called. These opportunities are diminished in the family home. The family home can be a place where bullying and aggression may occur, uninterrupted, and in isolation. While a conditional sentence is capable of sending a denunciatory message when punitive conditions, such as house arrest, are imposed (see R. v. Proulx, supra), the denunciatory message associated with a house arrest condition may be distorted when an offender sentenced for serious domestic violence is allowed to serve his sentence at home. 6 Of course, this is not to say that cases of domestic violence can never be met with non-custodial dispositions, including conditional sentences. The authorities, starting with Proulx, suggest otherwise. However, the case law is rife with examples of courts concluding that conditional sentences could not adequately express the principles of denunciation and deterrence. 7 In my view, the serious features of this case bring it into this category of cases.

[50] Before a conditional sentence can be considered the appropriate quantum of sentence must be established. If it be 24 months or more, then a conditional sentence is simply not available.

[51] Mr. McCabe’s prior conviction for domestic assault (noting that was for assault simpliciteur and not aggravated assault as is the case herein) resulted in a suspended sentence and probation. He has never received a sentence of incarceration.

[52] Balancing all of the factors noted above and considering the additional sentencing principles of restraint and rehabilitation, I find that the principles of denunciation and deterrence can be met by imposing a custodial sentence in the range of 18 to 24 months.

[53] Now to the question of how that custody should be served. I find that there is no minimum sentence. I find that the community would not be endangered by the serving of that sentence in the community. Lastly, I find that the paramount principles of denunciation and deterrence can be met by the imposition of a lengthy conditional sentence.

Conclusion

[54] For the offence of breach of undertaking a conditional sentence of 90 days to be followed by 24 months probation. For the offence of aggravated assault a conditional sentence of 639 days consecutive to the first sentence, for a total of 729 days or 2 years less one day. This is to be followed by 24 months probation, a DNA order, a s. 109 order for 10 years.

[55] Mr. McCabe expressed a desire to make restitution to Ms. Thomas. The Crown was unable to determine an amount. As a term of the probation, I order that Mr. McCabe make a donation to the Barrie Women and Children’s Center in the amount of $2,500.

[56] Further terms of the probation and of the conditional sentence order to be determined post submissions by counsel.

Released: May 6, 2022. Signed: Justice Angela L. McLeod