Court of Appeal for Ontario

Date: 2021-09-17 Docket: C68324

Before: Hoy, Trotter and Paciocco JJ.A.

Between: Her Majesty the Queen, Respondent And: Allister McLaughlin-Coward, Appellant

Counsel: Allister McLaughlin-Coward, acting in person Michael Crystal, appearing as duty counsel Avene Derwa, for the respondent

Heard: September 10, 2021 by video conference

On appeal from the sentence imposed on April 27, 2020 by Justice Iona M. Jaffe of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of one count of aggravated assault. He was sentenced to 6 years’ imprisonment, less 17 months’ credit for time spent in pre-sentence custody (“PSC”), and another 4 months as a result of the harsh conditions of confinement. He applies for leave to appeal his sentence.

[2] The appellant attacked his former partner’s husband, the victim, with a knife. The appellant and his former partner had a daughter together 14 years earlier. The appellant was frustrated about not being able to see her. One afternoon, he showed up unannounced at the home of his former partner and the victim, demanding to see his daughter. His former partner told the appellant that he must follow the formal access procedures.

[3] When the victim intervened, the appellant threatened him. The conflict soon turned physical. The appellant was armed with two knives. He stabbed the victim multiple times. The police arrived shortly after and saw the appellant using a screwdriver to puncture the tire of the family’s vehicle. In the course of his arrest, the appellant yelled at the victim, “I hope it hurt.”

[4] The appellant gave an inculpatory statement to the police at the scene in which he explained that he believed his daughter was being exploited. He told the police that he did not intend to kill the victim, but he knew that it could have happened. He said he wanted to hurt the victim.

[5] The victim sustained serious injuries. The sentencing judge noted:

He was stabbed twice in the stomach. One stomach wound was one centimeter in length and the other was five centimeters. The larger of those two stab wounds eviscerated the victim’s abdominal contents. The victim also sustained five stab wounds in the back and one on the left side of his neck. The victim required surgery and spent three days in hospital.

[6] The appellant entered a plea of guilty to the offence.

[7] At the time, he was 41 years old. He had prior convictions for assault with a weapon in 2008, for which he received a suspended sentence, and possession of a weapon in 2017, for which he received a suspended sentence (after spending 75 days in PSC).

[8] The Crown submitted that the appellant should receive a sentence in the range of 5 to 6 years’ imprisonment, whereas counsel for the appellant sought a sentence of 15 to 18 months.

[9] The sentencing judge provided thorough reasons for sentence. She identified general deterrence and denunciation as the primary objectives in sentencing the appellant. In doing so, she relied on the victim’s injuries, the fact that the appellant armed himself with two knives, the appellant’s related criminal record, and that part of the scenario occurred in front of his daughter. The sentencing judge characterized the attack as “unprovoked and vicious”, which left the victim seriously injured.

[10] On the other side of the equation, the sentencing judge took into account the mitigating value of the appellant’s guilty plea. She also considered the detailed information about his life circumstances in the Pre-Sentence Report (“PSR”) and the challenges he has faced over the years. At the time, the appellant denied any alcohol or substance abuse. However, he was medicated for anxiety and depression.

[11] In her reasons, the sentencing judge expressed concern about the appellant’s insight into the gravity of the offence. In his discussions with the author of the PSR, he seemed to suggest that his actions were justified on some level (i.e., for the protection of his daughter). He made similar comments to the sentencing judge when asked if he had anything to say before his sentence was imposed.

[12] On appeal, the appellant submits that the trial judge misunderstood his attitude in court. He acknowledges that he showed little emotion at the time. He explained that he was under stress as a result of the conditions of his pre-sentence custody and that he was trying to be strong for his daughter. The appellant says that he was remorseful then, as he is now.

[13] There is no indication that the sentencing judge formed her impressions about the appellant’s lack of insight based on his emotional presentation. Her observations were based on the appellant’s statements to the author of the PSR, and his words prior to being sentenced. During the hearing of the appeal, the appellant made similar statements, focusing on his concern for his daughter, rather than the impact of his offence on the victim.

[14] We see no error in the trial judge’s treatment of this factor. It was a finding that was open to her to reach on the record. She did not improperly treat the appellant’s lack of insight as an aggravating factor; instead, she merely found that she was limited in her ability to give effect to the appellant’s rehabilitative potential by virtue of his attitude towards his conduct. In the circumstances, the trial judge was correct to focus on general deterrence and denunciation. The sentence imposed properly reflects the application of those principles to this case. It cannot be said that the sentence is unfit.

[15] In conclusion, we note that the author of the PSR recommended that the appellant take rehabilitative and/or counselling programs directed at: substance abuse, anger management, counseling through a mental health professional, and “additional counselling as directed.” At the appeal hearing, the appellant expressed a willingness to follow this rehabilitative path and we encourage him to do so.

[16] The application for leave to appeal sentence is allowed, but the appeal is dismissed.

“Alexandra Hoy J.A.”

“Gary Trotter J.A.”

“David M. Paciocco J.A.”