Court of Appeal for Ontario

Date: 2020-02-19 Docket: C67313

Before: Hoy A.C.J.O., Feldman and Gillese JJ.A.

Parties

BETWEEN

Her Majesty the Queen Respondent

and

Timothy James Shepherd Appellant

Counsel

Amy Ohler for the appellant Hannah Freeman, for the respondent

Heard and orally released: February 13, 2020

On appeal from the sentence imposed by Justice Anderson of the Ontario Court of Justice on July 31, 2019.

Reasons for Decision

[1] The appellant pled guilty to assault causing bodily harm and was sentenced to a period of incarceration of two years, less a day. He appeals his sentence.

[2] He makes two main arguments. First, he argues that, in finding in the course of the Gardner hearing that his attack on his spouse was unprovoked, the trial judge improperly considered that he had a propensity for violence and should have accepted his evidence that the attack was provoked. The appellant submits that the trial judge’s finding that the attack was unprovoked impacted the sentence imposed. Second, in imposing sentence, the trial judge mistakenly considered that the appellant had been previously convicted of assaulting his spouse.

[3] We reject these arguments. First, at p. 9 in the reasons for judgment for the Gardner hearing, the trial judge specifically indicated that evidence of propensity to violence played no part in his analysis. Moreover, the trial judge’s assessment of the appellant’s credibility is entitled to deference. There is no basis to interfere with his rejection of the appellant’s version of events.

[4] Second, what the trial judge considered as an aggravating factor in sentencing the appellant was that he “was on probation for an offence that related at least to the complainant and a significant offence that related to the complainant”. The appellant acknowledges that, at the time he committed this assault, he was on probation for an offence committed in 2015 as a result of a disturbance at the complainant’s parents’ residence at the time that the complainant was living there with their children. The trial judge correctly described the offence as relating to the complainant.

[5] As the trial judge described, the assault was significant and the bodily harm substantial. On the appellant’s own version of events, he “snapped” and got “carried away” and became the aggressor. In our view, the sentence imposed in this case of domestic violence would have been fit, even if the assault were provoked, as the appellant submits.

[6] With regard to the materials prepared for his parole hearing that the appellant handed up to the panel today, which speak to his prospects of rehabilitation, we note that the trial judge specifically considered that the appellant has family support, is intelligent, has employable skills, and was working on his mental health concerns. He noted the importance of rehabilitation in the appellant’s life.

[7] Accordingly, the appeal is dismissed.

“Alexandra Hoy A.C.J.O.”

“K. Feldman J.A.”

“Eileen E. Gillese J.A.”