Ontario Court of Justice
Date: 2023 05 14 Court File No.: Brampton 21-16517
Between:
HIS MAJESTY THE KING
— AND —
MICHAEL BASCOE
Before: Justice Paul F. Monahan
Sentencing Submissions: May 4, 2023 Reasons for Sentence delivered orally: May 12, 2023 Reasons for Sentence released in writing: May 14, 2023
Counsel: Ms. S. Skorapada............................................................................... counsel for the Crown Mr. S. Randev............................................................................ counsel for Michael Bascoe
MONAHAN J.:
Introduction
[1] A two day trial was held before me on January 20 and February 28, 2023. On March 1, for oral reasons delivered, I convicted the defendant of one count of simple assault contrary to section 266 of the Criminal Code and one count of assault involving choking, suffocation or strangulation contrary to section 267 (c). The victim in the case was Ms. Keon Bruney. The offences occurred on or about August 2, 2021. I found Mr. Bascoe not guilty of a third count involving an allegation of assault on November 13, 2021.
[2] These are my reasons for sentence.
The Assaults on Ms. Bruney
[3] There were only two witnesses at trial: Ms. Bruney and Mr. Bascoe. I ultimately found that Ms. Bruney’s evidence was substantially accurate as to what had happened on August 2, 2021, the day of the assaults.
[4] The facts are set out in more detail in my oral reasons rendered March 1, 2023. However, briefly stated, Ms. Bruney and Mr. Bascoe were in an on and off again intimate relationship from about 2017 until 2020. They reconciled in about April or May 2021 which reconciliation only lasted a few months.
[5] Ms. Bruney explained that on August 2, 2021, Mr. Bascoe was trying to make her jealous by saying that another woman would be coming over. Ms. Bruney left the residence and then returned a short time later. She said that she telephoned him on the way back and said that no female better be there. When she arrived back, she banged on the door to his apartment. She said he came charging out and assaulted her. He threw her to the ground, and he banged her head on the ground and punched her. He also choked her. When she grabbed his shirt in self defence, he said to her that she better not damage his shirt.
[6] At trial, Ms. Bruney identified 14 colour photographs of her face and head area showing substantial bruising to her face and patches of hair missing from her head.
[7] To summarize, I found that on August 2, 2021, Mr. Bascoe viciously assaulted Ms. Bruney by punching, choking, hitting and kicking Ms. Bruney and throwing her to the floor and hitting her head against the floor and ripping parts of her hair out. She lost consciousness, briefly, due to the choking. The assault lasted about 20 minutes or slightly more. I would add that during the course of the assault in an attempt to get him to stop she told Mr. Bascoe that she was pregnant with his child which was true-she said she was only about one or two weeks pregnant at that time. She has since given birth to the child. Mr. Bascoe did not stop.
Position of the Parties
[8] The Crown seeks a 10 month jail sentence plus 2 years probation, DNA and a section 110 order for 5 years and a non-communication order under section 743.21.
[9] The defendant seeks a 12 month conditional sentence plus probation for one year. The defence has no difficulty with the DNA order, the section 110 order for five years and the noncommunication order. For reasons I will expand upon below, the defence submits that a conditional sentence would be appropriate in this case due to the significant impact that Mr. Bascoe’s incarceration would have on his two young children ages 7 and 8.
Discussion and Analysis
[10] As has been said many times, in any sentencing the court must identify and take into account the principles and objectives of sentencing as set out in section 718 and following of the Criminal Code. The court must consider the aggravating and mitigating factors of the crime, the impact on any victim, the circumstances of the offence and the circumstances of the offender. Ultimately the court must balance all of these factors and arrive at a fair and proportionate sentence. In doing so, the Court should strive to impose similar sentences imposed in other cases of a similar nature recognizing that no two cases are identical.
[11] In domestic violence cases, there can be no doubt that the primary sentencing objectives are denunciation and deterrence: see R. v. Rahaman, 2008 ONCA 1 at para 46.
[12] The aggravating features in this case are many. First, these assaults against Ms. Bruney were assaults against Mr. Bascoe’s intimate partner (see section 718.2). Second, the crime involved a prolonged beating which was entirely unprovoked. Third, the crimes involved choking to the point of unconsciousness although only briefly in terms of the unconsciousness. Fourth, Ms. Bruney was pregnant at the time, and she told Mr. Bascoe this while the assault was underway. While no victim impact statement was filed, I infer that the assaults on Ms. Bruney had a considerable impact on her both physically and emotionally although I note that he did not seek medical attention.
[13] I turn now to the mitigating features. There are not many mitigating features here. Mr. Bascoe has a criminal record although it is somewhat dated. His last conviction was in 2017 for possession of a schedule one substance for the purpose of trafficking and possession of proceeds of property obtained by crime. He received a 90 day intermittent sentence and a 12 month conditional sentence. He does have a conviction for assault with intent to resist arrest in 2003. He received a suspended sentence. In 2008, he received a $100 fine for a conviction for assault. I understand that none of these assaults involved a domestic partner. Further, the conviction for assault involving resisting arrest is now 20 years old and it should be given little weight in my view. Similarly, the assault in 2008 attracted only a $200 fine from which I infer that it was not a serious assault.
[14] My point here is that while Mr. Bascoe does have some assaults on his record, they were not domestic assaults, and they are very dated and would appear to be quite minor. He has not been in trouble with the law since 2017.
[15] It is mitigating that while Mr. Bascoe has been in trouble with the law in the past in terms of being found guilty of possession for the purpose of trafficking and possession of property obtained by crime for example, he has been employed for a number of years by the same company working in the construction business. Accordingly, he has been a contributing member of society for some time.
[16] I note that the finding of guilt in this case came after a trial in which Ms. Bruney was required to testify. As has been said many times, this is not an aggravating factor, but it leads to a circumstance where a defendant does not have the significant mitigation that comes with a plea of guilt and an acknowledgement of wrongdoing.
[17] The Crown points to a number of cases in support of the Crown’s request for a 10 month jail sentence. I will not review all of those cases, but I accept that domestic assaults of a serious nature will often attract significant jail sentences. However, the Ontario Court of Appeal, commenting on domestic violence cases, pointed out in Rahaman that “each case is different. Some cases warrant conditional sentences. Others do not.” In that case, the court upheld a nine-month custodial sentence rather than impose a conditional sentence although the Court said it was a close case. The Court noted that it involved planned conduct, the use of a knife and a confinement which lasted several hours.
[18] The defence points to the case of The Queen v. Jason Martin, 2021 ONSC 6964 where Justice Dennison reversed the trial judge who had imposed a suspended sentence for a domestic assault which involved choking to the point of unconsciousness. Justice Dennison observed that in that sort of a case, absent exceptional circumstances, a noncustodial sentence would not be a proportionate sentence. Justice Dennison imposed a 60 day jail sentence and 12 months probation in that case. I accept that serious domestic assaults will often attract jail sentences, but I do note that the Martin case came before the recent amendments in January 2023 to the conditional sentence regime under the Code. Pursuant to those amendments, Parliament significantly expanded the potential availability of conditional sentences to almost all offences, provided the requirements for such a sentence are met namely that the sentence is under two years, service in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing as set out in section 718 to 718.2.
[19] In my view, the recent amendments demonstrate that Parliament considers that conditional sentences can be appropriate even in serious cases. To appreciate this point it is necessary to look at the evolution of the conditional sentencing regime. In particular, I note that in 2007, Parliament passed an amendment to make conditional sentences unavailable for personal injury offences, but that limitation was eliminated in 2011 and replaced by an enumerated list of offences for which conditional sentences were precluded. With the recent amendments, by and large almost all those prohibited offences have now been eliminated by Parliament. The practical reality is that conditional sentences have been used in very serious cases such as possession of a loaded handgun (see R. v. Beharry, 2022 ONSC 4370) and assault causing bodily harm (see R. v. Cvetan et al (1999) 2398 (Ont.C.A.)).
The Issue of Collateral Consequences involving Mr. Bascoe’s Children and the Appropriate Sentence in this Case
[20] The central issue on this sentencing is whether Mr. Bascoe should be sentenced to a period of institutional custody or whether he should have a conditional sentence.
[21] The defence accepts that a jail sentence would normally be imposed for the type of assaults that the Court found in this case. The defence submits that in the ordinary course the appropriate sentence might be anywhere from 2 to 4 months. The defence relies on, among other things, the Martin case in which a 60 day custodial sentence was imposed for a choking to the point of unconsciousness.
[22] But the defence submits that there should be no institutional jail sentence here but rather a conditional sentence should be imposed due to the exceptional circumstances involving Mr. Bascoe’s children. Let me explain.
[23] On April 30, 2023, shortly before this case was scheduled for sentencing submissions on May 4, 2023, the defence delivered an affidavit from Alanna Tricia Buckley. Ms. Buckley made herself available for cross-examination over Zoom, but the Crown did not have any questions for her.
[24] Ms. Buckley is a 33-year-old single mother. She has three children, two of them she shares with Mr. Bascoe: two boys age eight and a seven years old. In the past, she would typically have the children during the week and Mr. Bascoe would take the two boys on the weekends. She had a similar arrangement with the father of her third child. She explains that she and Mr. Bascoe have a healthy and respectful co-parenting relationship.
[25] On March 16, 2023, Ms. Buckley was diagnosed with stage 3 ovarian cancer. She has been receiving chemotherapy treatments with an expected plan of surgical intervention to follow sometime in the future. She explains that the situation and timeline “is fluid and subject to changes” based on how she responds to the treatments.
[26] Mr. Bascoe has now taken custody of the two boys and they are living with him full time. Ms. Buckley had hoped that she would be able to take the children on the weekends but she has not felt well enough to do that. She has not seen her children in the past few weeks.
[27] Ms. Buckley explains that neither she nor Mr. Bascoe have any alternative caregivers for the children. All of Ms. Buckley’s immediate family reside in Jamaica.
[28] Mr. Bascoe does have some assistance from his own parents who have helped get the children to school. Mr. Bascoe works daily from about 6 AM to 2 PM and he picks the children up from school at the end of the day. He advises, through counsel, that his parents can’t care for his children full time. He is also very concerned with Ms. Buckley’s diagnoses and long term prognosis and what it may mean for their children.
[29] The Crown submits that the Court should not impose a conditional sentence regardless of Mr. Bascoe’s family issues and that the Court should nevertheless impose a significant jail sentence.
[30] There is considerable case law and legal commentary in this area although neither counsel referred to it. For example, in R. v. Spencer (2004), 72 O.R. (3d) 47 (C.A.) leave to appeal to the Supreme Court of Canada refused, the Ontario Court of Appeal dealt with the case of a woman with no record who had imported into Canada 733 grams of cocaine. She was a single black mother with three young children. The trial judge imposed a conditional sentence of two years less a day. The Court of Appeal said that a sentence of 3 to 5 years in custody was the appropriate range of sentence. The Court of Appeal said that a sentence of 40 months would have been appropriate but given that her conditional sentence was already complete, the court imposed a 20 month jail sentence on appeal.
[31] One of the issues in the case was the impact of the sentence on her young children. The court said at paragraph 46 “it is a grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment suffer for the crimes committed by their parents”. The Court said further that the role that the defendant played in her children’s lives could not diminish the seriousness of the crime.
[32] Importantly, the Court in Spencer did note that the long-term safety and security of the community is best served by “preserving the family unit to the fullest extent possible” and that the court should show restraint in sentencing in an attempt to preserve the family unit. However, the needs of the children “cannot justify a sentence below the acceptable range, much less a conditional sentence” (see para 45).
[33] In R. v. Nguyen, the British Columbia Court of Appeal dealt with a case where a woman had been convicted of possession for the purpose of trafficking a small quantity of high-grade heroin. The events had happened four years earlier. At the time of sentencing, the defendant had in her care a 13-year-old and a one-year-old child. The trial judge refused to impose a conditional sentence saying that it would not be a sufficient deterrent and instead imposed a one year jail sentence. The British Columbia Court of Appeal overturned the trial judge and imposed a one-year conditional sentence largely as a result of the impact that a jail sentence would have on the defendant’s children noting that she had no relatives in Canada.
[34] The British Columbia Court of Appeal in Nguyen said that the sentence must be appropriate “both to the offence and the offender” and that in crafting an appropriate sentence the “consequences of other family members should be taken seriously into account” (paras 5 and 6).
[35] Similarly, in Ruby et al, Sentencing (9th edition) at p. 33, the learned authors state that “while some cases might be so serious as to allow little room for the extension of mercy on these grounds, Courts strive to see that the impact of the sentence falls on the offender and not on the family, in so far as that is possible”.
[36] I derive from the case law that the court should give serious consideration to the impact that a sentence of incarceration on a defendant may have on the defendant’s family members. The court should show restraint and strive to maintain the family unit of the defendant where possible. This approach cannot lead the court to impose an inappropriate sentence. However, whether a sentence is appropriate or not must be judged in light of all the circumstances including the impact on the offender and their family.
[37] This was a very serious assault on Ms. Bruney. In the normal course and absent the issue of the impact on the defendant’s family, I would have been inclined to impose a period of institutional custody in the 4 to 6 months range. That is not to say that a conditional sentence would have been unavailable absent the defendant’s family issues. In my view a conditional sentence would have been potentially available even without the family circumstances of the defendant but it would be at the low end of the range of available sentences.
[38] I have also considered whether to impose a 90 day intermittent sentence but I am of the view that a conditional sentence would be more onerous than an intermittent sentence and will be more punitive and send a stronger message to Mr. Bascoe and to the community. I say that because, as I understand it, the provincial authorities in Peel are no longer dealing with intermittent sentences as they once did, requiring a defendant to remain in custody in a jail on weekends. Rather, those persons sentenced to intermittent sentences are being provided with ankle bracelets and sent home where they are monitored electronically. In addition, intermittent sentences may permit a defendant to earn remission of their sentence. On the other hand, a conditional sentence is not limited to 90 days, and can control a defendant’s movements seven days a week and any sentence imposed must be served in its entirety. A conditional sentence also carries with it the possibility that the defendant will have to serve his time in an institutional jail if he does not follow the terms.
[39] In my view the preconditions for the imposition of a conditional sentence are met here. The appropriate sentence is under two years and it can be served in the community without endangering the community. Mr. Bascoe has had a conditional sentence in the past and there is no evidence of any problem with him serving that sentence. Further, I consider that a conditional sentence is consistent with the fundamental purpose and principles of sentencing.
[40] In my view, a one-year conditional sentence plus probation for one year, a DNA order and a section 110 order for five years is a fit and appropriate sentence taking into account all of the circumstances in this case including the collateral consequences that a jail sentence would have on Mr. Bascoe’s family. The first 4 months of the conditional sentence will be on house arrest with an ankle bracelet and the second 4 months on a curfew with the final four months requiring compliance only with the statutory conditions. This sentence will send a considerable message of deterrence to Mr. Bascoe and others. Mr. Bascoe will be required to wear an ankle bracelet for the first 4 months, and this will send a significant message of deterrence and denunciation to Mr. Bascoe. There will be the usual exceptions for going directly to and from work in accordance with a schedule approved of by his conditional sentence supervisor in advance. He will also be permitted to pick his children up from school at a set time to be determined. He will be allowed four hours on the weekend to go shopping and attend other personal business. He shall also be permitted to attend medical appointments for him or his children as long as they are approved of in advance in writing by his conditional sentence supervisor. There will also be the usual exception for medical emergencies involving Mr. Bascoe or his immediate family members.
[41] The conditional sentence will be followed by probation for a year. Except through legal counsel, there will be no contact with Ms. Bruney except with her written revocable consent filed with the conditional sentence supervisor during the period of the conditional sentence and with probation during the period of probation, as the case may be. Access to his child with Ms. Bruney will be through her if she grants written revocable consent to contact her or through family court order.
[42] Those are my reasons for sentence.
Released orally: May 12, 2023 Released in writing: May 14, 2023 Signed: Justice Paul F. Monahan
