Court File and Parties

COURT FILE NO.: 3851/21 DATE: 2023-05-29 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Matthew Caputo, Counsel for the Crown

- and -

JOSHUA GAUTHIER Anthony Orazietti, Counsel for the Defendant

HEARD: April 6, 2023

GAREAU J.

Reasons for Sentence

[1] The offender Joshua Gauthier was convicted of aggravated assault, contrary to section 268 of the Criminal Code of Canada on November 25, 2022 for reasons reduced to writing and released that day.

[2] A sentencing hearing took place on April 6, 2023. Prior to that sentencing hearing counsel for the offender, Donald Orazietti, brought an application dated February 21, 2023, which was adjourned to the sentencing hearing to be heard April 6, 2023. In that application the offender asks the court to enter a conviction on the offence of assault causing bodily harm rather than the offence of aggravated assault.

[3] Counsel for the offender submitted his submissions in writing dated February 17, 2023, and the court heard oral submissions from Crown counsel on this issue on April 6, 2023.

[4] As indicated in my reasons for judgment released on November 25, 2022 at paragraph 3, “By way of admissions, the defence conceded that the injuries sustained by Adam Erickson, being a fractured orbital bone to his right eye, amounted to wounding under section 268 of the Criminal Code of Canada. This essential element for the offence of aggravated assault was agreed as being established and does not have to be considered further by the court.” This admission made by the defence was not retracted or challenged by the defence at any time during the trial as the evidence unfolded. It was only after a conviction was registered against Joshua Gauthier was the issue raised by the defence.

[5] In the case at bar, the allegation is one of wounding, not maiming or disfiguring or endangering the life of the complainant.

[6] In law to “wound” has been defined as to injure someone in a way that breaks or cuts or pierces the skin or some part of the body. It must be more than some trifling, fleeting or minor injury, such as a scratch.

[7] In the case at bar, the uncontradicted evidence is that the complainant Adam Erickson suffered a broken orbital bone to his right eye and 18 stitches above his right eye as a result of the punch to his face that was given to him by the offender, Joshua Gauthier. Entered as Exhibit 1 is a photobook which at Tab 1 contains photographs of Adam Erickson at the Sault Area Hospital shortly after the incident. The injuries to Mr. Erickson’s right eye are evident in these photographs. They depict a closing of the eye, blood around the eye, and an obvious breaking of the skin surrounding the right eye. Entered as Exhibit 2 is medical documentation at the Emergency Department of the Sault Area Hospital. These documents provide medical evidence of the injuries sustained by Mr. Erickson and describe lacerations around the right eye and bleeding. As indicated in the consult note from Dr. Bodnar to Dr. Chung, the plastic surgeon, “27-year-old male who was punched in the face has a right orbital blowout fracture involving the inferior wall of the orbit.” The consult note goes on to state, “he also sustained a right triquetrum fracture and this is referred to orthopedics.” Dr. Bodnar’s consult note also describes the lacerations to Mr. Erickson’s face stating that, “He has 2 large lacerations, 1 suborbital and 1 infraorbital. The 1 below the eye is gaping and extends into the lower eyelid/upper eyelid border.” The consult note indicates that Mr. Erickson “gave consent for sutures of the face as well as splint for his wrist.” The consult note of Dr. Bodnar indicates, on page 3, that various suturing was required to Mr. Erickson’s face as a result of the injury which he sustained.

[8] In my view, even if these were not admissions made by the defence as to the injuries sustained by Adam Erickson constituting aggravated assault, there is ample evidence to support such a finding. There is clearly a breaking of Mr. Erickson’s skin, with suturing being required, and therefore a wounding. In my view, the evidence indicating the injuries sustained to the right eye of Mr. Erickson constitute an aggravated assault as defined by the jurisprudence. The injuries were significant and serious and in no way could be described as trifling, fleeting or minor.

[9] The evidence supports a finding of aggravated assault and the offender Joshua Gauthier will be sentenced on this offence. The application dated February 21, 2023 for the registration of a conviction for assault causing bodily harm rather than aggravated assault is dismissed.

[10] For the aforesaid reasons, the offender Joshua Gauthier will be sentenced on aggravated assault. Given that a conditional discharge is not available on a charge of aggravated assault, the defence advanced the position that sentence should be suspended and the offender should be placed on a period of probation for 12 to 18 months with conditions. The Crown takes the position that a conditional sentence is available to the court and that this sentence should be imposed. The Crown is suggesting a conditional sentence of 12 months followed by a probation order of 24 months. The Assistant Crown Attorney candidly admitted that prior to a conditional sentence being available for the offence of aggravated assault, he would have sought a custodial sentence of nine months but the facts of this case and the background of the offender makes a conditional sentence appropriate now that it can be imposed.

[11] As to general principles, the court is guided by the statutory provision set out in the Criminal Code of Canada to assist it in determining a fit and just sentence for the offender Joshua Gauthier. Section 718 of the Criminal Code of Canada sets out a list of principles and objectives that the court must consider when determining an appropriate sentence to be imposed. Section 718 reads as follows,

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

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

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[12] As indicated in section 718.1 of the Criminal Code, “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[13] The fundamental duty of the court is to impose a sentence that is just and fit for the offender and for the offence. As this court has observed on numerous occasions, the sentencing of an offender is not a science but rather an art. By its very nature, it is an individualized process to find the appropriate sentence for the offence to reflect the moral culpability of the offender.

[14] Counsel provided jurisprudence to the court to assist the court in determining a proper sentence for Joshua Gauthier. The cases that pre-dated R. v. Sharma (2020), 2020 ONCA 478, 152 O.R. (3d) 209, in my view, are of limited use in that a conditional sentence was not available as an option to the court and strict custodial sentences were imposed by the court. Those cases usually imposed custodial terms of more than two years for aggravated assault. Defence counsel was able to direct the court to the case of R. v. Peters, 2010 ONCA 30, from the Ontario Court of Appeal where a suspended sentence followed by a probation order of three years was upheld by the Court of Appeal on a charge of aggravated assault. In the case of Peters, the Court of Appeal placed emphasis on the fact that the offender was of first nation heritage and had entered a plea of guilt to the offence. We do not have those factors present in the case of Mr. Gauthier. What the jurisprudence, both pre and post R. v. Sharma establishes is that in the cases of aggravated assault, denunciation and deterrence are the primary objectives for the court to consider in sentencing offenders. As noted by Justice David Watt in his dissent in Peters at para. 35, “The parties share common ground that, as cases of unprovoked violence against another person, the predominant sentencing objectives are denunciation and deterrence.”

[15] The case of His Majesty the King v. Ali, 2022 ONCA 736 is a very helpful post- Sharma case decided by the Ontario Court of Appeal. In the Ali case, the offenders were convicted of aggravated assault and a sentence of 15 months in custody followed by two years probation was imposed. The Court of Appeal held that the sentencing judge committed an error in principle in refusing to impose a conditional sentence. The Court of Appeal held that the serious level of violence of the two on one surprise attack did not automatically exclude an appropriately crafted conditional sentence. The court also found that the sentencing judge erred in given that a conditional sentence may have been appropriate the judge should have determined whether it was appropriate by considering and weighing the ability of a conditional sentence to meet sentencing objectives. In the Ali case the offenders were the sole support of their families and had the support of their families and extended families. The assault was out of character for both accused, who had accepted responsibility for it and had genuinely expressed remorse. These factors are also present in the case of Joshua Gauthier.

[16] In the Ali case the Court of Appeal imposed conditional sentences of 15 months on both accused, with house arrest for the first eight months and curfew for the balance of the sentenced, followed by two years or probation.

[17] Joshua Gauthier is 40 years of age. He has no criminal record. The offence for which he is being sentenced and the actions surrounding the offence is totally out of character for him. Mr. Gauthier by all accounts is a supportive spouse and a loving father. He is gainfully employed, is a constructive member of the community and a financial provider for his family.

[18] These are all mitigating circumstances of some importance. Mr. Gauthier has the support of family members and friends as is indicated in the very positive pre-sentence report (Exhibit S-1) and the letters submitted by various members of the community (Exhibits S-2, S-3 and S-4). Joshua Gauthier expressed his remorse to the court about what had happened involving Adam Erickson, indicating that “I wish this never happened”, and I am satisfied that the remorse expressed by Joshua Gauthier is genuine and sincere.

[19] There are many mitigating factors in Mr. Gauthier’s favour. Balanced against these mitigating factors are the aggravating factors of the event itself and the outcome to Mr. Erickson. The incident occurred during a soccer game in a recreational league. People who participated in this game expected some exercise and some fun. They could not have expected to be assaulted and injured. As this court found in paragraph 64 of its reasons in this case, Mr. Gauthier’s actions were borne of frustration, were done in retaliation and as a consequence Mr. Erickson was struck in the face and suffered a fractured orbital bone to his right eye and 18 stitches above his right eye.

[20] Although specific deterrence may not be much of a factor in this case, in my view, general deterrence looms large in this case. The community must know and be assured that the court is not going to tolerate assaults being committed in recreational sporting events where people just want to have fun. Sporting events such as recreational soccer games are meant to be safe and must be kept safe, and if they are not safe the community must know that there will be consequences for individuals who act outside the rules and who break the law. Sentences imposed to deter others from committing similar offences is a sentencing principle set out in section 718 of the Criminal Code and it is a principle that this court has paid close attention to in considering a just sentence to be imposed on Joshua Gauthier.

[21] In my view, the suspended sentence suggested by counsel for Mr. Gauthier is inadequate to address the principle of general deterrence and the other principles set out in the Criminal Code and jurisprudence. A suspended sentence sends the wrong message to the community given the circumstances of the offence and the injuries sustained by Mr. Erickson and is not in the interest of the public.

[22] A conditional sentence is now available for the offence of aggravated assault and it is the sentence that should be imposed in the case at bar. It reflects the principle that in cases of violence against another person, principles of denunciation and deterrence are paramount. A conditional sentence also reflects the background and circumstances of the offender Joshua Gauthier. It will allow him to continue with his employment and support his family. It will allow him to continue to have a relationship with his spouse and children. It reflects the fact that his actions involving Adam Erickson were out of character and that he has genuinely expressed remorse for his actions. Such a sentence balances the aggravating and mitigating factors in this case and the individual background of Joshua Gauthier.

[23] Accordingly, the court is imposing a 12-month conditional sentence on the offender Joshua Gauthier on the following terms in addition to the statutory terms of a conditional sentence order:

(a) That he remain in his residence at 361 Second Avenue, Sault Ste. Marie, Ontario at all times except to travel to and from employment and attend at employment, except for medical emergencies and except for one period up to four hours each week to attend to personal errands and appointments;

(b) That the sentence be supervised by a probation officer and that the offender attend such programs and counselling as is recommended by his supervisor;

(c) That he not have any contact with Adam Erickson by any means, directly or indirectly.

[24] The conditional sentence shall be followed by a period of probation for 24 months with the following terms in addition to the usual statutory conditions:

(a) That he report within 7 days to a probation officer and be amenable to the supervision of a probation officer;

(b) That he attend such programs or counselling as recommended by his probation officer;

(c) That he not have any communication with Adam Erickson by any means, directly or indirectly, and that he not attend at Mr. Erickson’s residence or place of employment.

[25] The Crown has requested and I am imposing the following ancillary orders:

(a) DNA order;

(b) Firearms prohibition for 10 years, pursuant to section 109 of the Criminal Code of Canada.

Gareau J. Released: May 29, 2023