Citation: R. v. Morris, 2012 ONCJ 51

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DWIGHT MORRIS

Before Justice H. Borenstein

Trial November 8, 18, 21 and 22, 2011

Reasons for Judgment released on December 21, 2011

Sentencing submissions January 23, 2012

Reasons for Sentence released February 2, 2012

Ms. S. Olver .............................................................................................................. for the Crown

Mr. G. Abols ........................................................................................................ for Dwight Morris

BORENSTEIN J.:

[1] Dwight Morris is charged with several offences[^1] arising out of an alleged attack upon his girlfriend Amanda Samuels. It is alleged that Mr. Morris assaulted Ms. Samuels by hitting her with a broomstick with such force that it caused the stick to break and a piece of that stick to become embedded in her hand. At the time, Mr. Morris was bound by a recognizance prohibiting him from consuming alcohol. It is alleged he breached that condition.

[2] There is no real issue that Ms. Samuels was attacked with a stick causing those injuries. The issue is whether the Crown has proved beyond a reasonable doubt that it was Mr. Morris who committed this attack and that he breached his recognizance.

[3] By way of background, the police received information that a woman called 911 claiming to be injured and in need of an ambulance. The call was made by Amanda Samuels from Mr. Morris’ apartment. Ambulance and police were dispatched to the scene.

[4] The police responded within minutes of the call. They knocked on the apartment door loudly but there was no answer. There was no sound coming from the apartment. Dispatch called back the number but there was no answer. The officers had officials from Toronto Housing attend with the master key to the apartment however their key would not unlock the apartment door.

[5] The officers then were permitted into a neighbour’s apartment. They then went onto that balcony and climbed over the balcony wall to look into Mr. Morris’ apartment. They feared for the safety of the caller. At 12:05 a.m., approximately 30 minutes after first knocking on Mr. Morris’ apartment door, the officers announced their presence and broke into Mr. Morris’ apartment through the balcony door.

[6] The officers asked Mr. Morris where the female was and he allegedly replied that he was alone. Mr. Morris accused the officers of breaking into his apartment because he was black. The officers explained they were there in response to a 911 call. Mr. Morris allegedly replied that he did not know what they were talking about.

[7] The officers searched the apartment and found Ms. Samuels in the washroom with the lights turned out. She had a piece of wood sticking through her hand which was wrapped in a towel. The wood was embedded in her palm and was almost exiting out the back of her hand. Pieces of a broken stick were found in a closet on top of a pile of clothes.

[8] The paramedics advised Ms. Samuels that she needed to go to the hospital. Mr. Morris yelled out that she was not going. Ms. Samuels refused to go to the hospital without Mr. Morris. The police arrested Ms. Samuels under the Mental Health Act. The paramedics sedated her and took her to the hospital. Mr. Morris was arrested. Ms. Samuels told the police that Mr. Morris did not do anything to her. She was upset that they arrested him. She would not give the police a written statement and would not sign a hospital release to release for her records of this visit. She was not called as a witness for the Crown.

[9] I heard from the officers who attended the apartment, ambulance personnel, someone from Toronto Housing and the doctor who treated Ms. Samuels. I heard from Mr. Morris and Ms. Samuels who testified in the defence case.

[10] Constables Anthony Rutherford and Jason Keefer were the two police officers who responded to the 911 call. They both testified. There were some minor discrepancies in their evidence regarding the events at the apartment but nothing material and nothing that caused me to be concerned about their credibility or reliability. This includes, for example, the issue of whether the shoe rack was or was not broken. I am aware of the contradictions in their evidence, elicited in cross-examination. Not every contradiction is important, especially with respect to non-material aspects of the case. This comment applies in this case.

[11] Let me now focus on the salient evidence as to what occurred once the officers entered the apartment.

P.C. Rutherford

[12] P.C. Rutherford testified that, as he entered through the balcony door, he saw Mr. Morris. P.C. Keefer had seen a knife on the bed and shouted “knife” to P.C. Rutherford.

[13] P.C. Rutherford asked Morris where the female was and Morris replied “I don’t know what you are talking about.” Morris then asked: “Why did you boot my door in, because I am black?” Rutherford told Morris about the 911 call. Morris replied that he did not know what he was talking about. Rutherford asked Morris if anyone else was in the apartment. Morris said he was alone. Rutherford asked Morris if a female had been in the apartment earlier and Morris told him that he did not know what he was talking about.

[14] Morris conceded the issue of voluntariness with respect to those statements.

P.C. Keefer

[15] P.C. Keefer opened the apartment door to let the ambulance personnel into the apartment. P.C. Keefer began looking around the apartment when one of the paramedics advised that there was a female in the washroom. P.C. Keefer escorted the female from the washroom. Her hand was covered with a towel. P.C. Rutherford confronted Mr. Morris about his comment that he was alone and arrested and handcuffed Mr. Morris. Morris was then seated on the bed.

[16] A paramedic then placed Ms. Samuels on the bed as well as he feared she might faint or fall. It was a bachelor’s apartment.

[17] The paramedics advised Ms. Samuels to go to the hospital but Morris kept telling her not to go the hospital. She refused to go to the hospital without Mr. Morris. P.C. Rutherford asked Mr. Morris why he was opposed to Ms. Samuels going to the hospital in the ambulance. Mr. Morris replied that the officers broke into his apartment because he was black. Mr. Morris was angry about the officers breaking into his apartment. P.C. Rutherford smelled alcohol coming from Mr. Morris’s breath and Mr. Morris’s eyes were bloodshot. P.C. Rutherford had seen beer bottles on the balcony. The paramedics were concerned that Ms. Samuels might suffer nerve damage or possibly lose her hand. A decision was made to arrest Ms. Samuels under the Mental Health Act for her own safety. She resisted and was forcibly sedated.

[18] P.C. Rutherford testified that he saw a bump on Ms. Samuels’ head. In cross-examination, he conceded that he could not see that bump in a photograph taken at the hospital. P.C. Rutherford could not say whether the bump occurred while Ms. Samuels was being forcibly sedated.

[19] Constable Keefer testified that they were knocking and trying to get into the apartment for half an hour before they kicked in the rear balcony door. As they entered, P.C. Keefer saw Mr. Morris walking toward the bed. P.C. Keefer asked Mr. Morris why he did not answer the door. P.C. Keefer opened the door for the others to enter the apartment while P.C. Rutherford stayed with Mr. Morris.

[20] P.C. Keefer began searching the apartment for a female. He opened a closet door and saw broken sticks lying on top of pile of clothes. They looked like pieces of a broken broomstick.

[21] A paramedic yelled that a woman was in the washroom. P.C. Keefer went into the washroom and found Ms. Samuels. She was shaking and appeared to be in shock. She would not show P.C. Keefer her hand but, eventually, when she did, he saw a piece of wood embedded in her hand.

[22] P.C. Keefer told Ms. Samuels that she needed to go to the hospital. Mr. Morris yelled “she isn’t going to the fucking hospital”. P.C. Keefer asked Ms. Samuels a few more times but she kept refusing to go. Mr. Morris was continually saying that she was not going to the hospital and she would not go. P.C. Keefer asked the paramedics what would be the worst case scenario if Ms. Samuels was not treated. They told her Ms. Samuels could lose her hand. P.C. Keefer decided he would apprehend Ms. Samuels under the Mental Health Act if she continued to refuse to go to the hospital. He asked her a few more times and brought her into the bedroom. Ms. Samuels was placed on the only bed in the apartment in case she passed out. Ms. Samuels continued to refuse to go to the hospital saying she wanted Mr. Morris to go with her. P.C. Keefer told her she could not refuse. They tried to sedate her but she resisted and struggled. She was taken to the ground in order to sedate her. Once Ms. Samuels was sedated, she was walked out and placed on the stretcher. P.C. Keefer testified that he saw swelling on Ms. Samuels’ face. He also testified that Mr. Morris’ eyes were red and he had a strong smelled of alcohol. P.C. Keefer had seen beer bottles on the balcony. He did not notice any in the apartment but was not looking for them.

911

[23] The 911 recording was made an exhibit. The out-of-court comments heard on the 911 tape are not being considered for the truth of their contents. It is a piece of circumstantial evidence that provides some context. Ms. Samuels tells the operator the address and says that a piece of stick was stuck through her hand. She then is heard yelling at a male for help and then says to him “want to go to jail? I am asking fucking and I will tell them exactly what happened and they will jail you son of a bitch” The phone was disconnected. The operator called back but there was no answer.

Dr. Sharamshi

[24] Dr. Sharamshi was the emergency room physician working that night. He testified that he extracted a piece of wood from Ms. Samuels hand that night. He did not note or notice any bruising to Ms. Samuel’s face but he was focussed on her hand.

[25] Anthony Smith and Derek Yantha were the two paramedics on scene. They remained in the hallway until P.C. Keefer opened the door from inside Mr. Morris’ apartment.

Anthony Smith

[26] Mr. Smith testified that, upon entering the apartment, he saw the washroom door open. As he was looking through the door into the washroom, he saw the reflection of two eyes in the mirror looking back at him. He called out to the officers. He saw a piece of wood impaled in Ms. Samuels’ hand. Ms. Samuels complained about numbness. Mr. Smith was concerned about nerve damage or infection as the wood appeared to be from a dirty mop or broom.

[27] Mr. Smith told Ms. Samuels that she had to go to the hospital but Ms. Samuels did not want to go. She became increasingly aggressive with the police. Mr. Smith thought he might have to sedate her to prevent her from doing herself harm. Mr. Smith returned to the hallway outside the apartment to prepare the sedation. When he returned to the apartment, Ms. Samuels was already on the ground. He administered the sedation. He noted swelling to her upper lip and bruising to her left cheek.

Derek Yantha

[28] Derek Yantha testified. His memory was vague and did not add much to the matters in dispute in this trial.

Howard Campbell

[29] Howard Campbell, the Special Constable with Toronto Housing, testified that he attended the apartment with his partner with the master key to Mr. Morris’ apartment. The key did not work. He saw Ms. Samuels in the washroom. She was crying and upset and had a piece wood stuck in her hand. He saw a bump above one of her eyebrows and scratches to her face or neck.

[30] Mr. Campbell testified that Ms. Samuels initially walked toward the front door with a paramedic but turned back when Mr. Morris told her not to go to the hospital. He also testified that he saw broken sticks and bottles on the floor of the apartment.

P.C. Diane Woolfendren

[31] Constable Diane Woolfendren attended the scene at 12:15 a.m. She testified that she saw Ms. Samuels who seemed to be in shock and in pain. She was refusing to go to the hospital. P.C. Woolfendren saw a bump on Ms. Samuel’s head and a cut on her lip. P.C. Keefer told Samuels she needed medical attention and began to escort her to the stretcher. Ms. Samuels began to struggle and thrash about and continued to struggle as she was sedated. P.C. Woolfendren held Samuels’ arm to ensure the piece of wood did not cause further damage.

[32] At the hospital, Ms. Samuels refused to sign medical releases.

[33] That was the case for the Crown.

[34] The defence called Mr. Morris and Ms. Samuels.

Phillip Morris

[35] Mr. Morris denied assaulting Ms. Samuels.

[36] In examination-in-chief, Mr. Morris testified that, when he returned home from work, he saw Ms. Samuels on the phone calling for an ambulance. Her hand was wrapped in a towel. He asked her what happened but she did not tell him and she still has not told him what happened. She did say something like “if you don’t help me”. The police then knocked on the door. Ms. Samuels told him not to answer the door. He did not know what to do, particularly given his criminal record.

[37] The police then kicked in the balcony door and entered his apartment. He testified that he became angry and said “some things”. He testified that he told Ms. Samuels not to go to the hospital because he wanted to bring her there himself.

[38] In cross-examination, Morris testified that he paints with young people and smelled like turpentine. He did not drink any alcohol. After work, he went to the mall. He then took public transit home to his apartment.

[39] When he arrived home, Ms. Samuels told him he would go to jail if he did not help her. He said okay. He did not know what else to do. Ms. Samuels went to the washroom to tend to her hand while Morris changed his clothes. Nothing else was said until the police arrived.

[40] Mr. Morris testified that he did not see the injury to Ms. Samuels’ hand until the paramedics arrived. He later testified that he did see her injury prior to the police arriving. He testified that the injury was serious enough to require going to the hospital. He intended to take her to the hospital but the police arrived. Ms. Samuels told him not to answer the door. Ms. Samuels caused Mr. Morris to fear that he would be blamed for her injury. She also told him she would go to the hospital with him once the police left.

[41] Mr. Morris was asked twice what he said to Ms. Samuels when she told him he would go to jail. He replied that Ms. Samuels knew that the police would think he caused the injury and that is why she told him not to answer the door. He was again asked what his response was and he replied that Ms. Samuels asked him to pull up her pants because she was frustrated.

[42] Mr. Morris testified that, when the police knocked on the door, he told Ms. Samuels to let him open the door so that they could take her to the hospital. She told him not to open the door since he was now at the apartment and he could take her to the hospital.

[43] Mr. Morris gave inconsistent evidence with respect to whether he told Ms. Samuels not to go to the hospital. At one point, he testified that he never told Ms. Samuels not to go with the police. At another, he testified that he told her not to go to the hospital because he was angry that the police broke into his apartment. He also testified that he told Ms. Samuels that, “if” she did not want to go to the hospital with the police, then she should not go because he was not going with them.

[44] Mr. Morris gave inconsistent evidence with respect to whether the officers asked him if he was alone in the apartment as well as any reply he may have given. In one exchange, he testified that he never told the officer that he was alone the apartment. He testified that the police never asked him who was in the apartment. He then testified that they did ask him those kinds of questions but he did not answer. He also testified that he responded “I don’t know what you are talking about” when asked those questions.

Amanda Samuels

[45] Amanda Samuels was called as a defence witness. She also provided a written statement to the defence.

[46] Ms. Samuels testified that Mr. Morris did not assault or attack her.

[47] She testified that she was attacked in the hallway outside Mr. Morris’s apartment. The attacker attacked Ms. Samuels with a stick. Ms. Samuels raised her hands to defend herself. The stick broke into three pieces and a sliver entered her hand. The attacker fled.

[48] The attacker was facing Ms. Samuels during the attack. However, she did not see the attacker’s face nor could she say whether it was a man or woman. After the attack, the attacker fled down the hallway.

[49] Ms. Samuels picked up the broken pieces of stick and brought them into the apartment. She does not know why she brought the broken stick into the apartment. She just did not want to leave them in the hall.

[50] She called 911 and was alone when she called. She believed Mr. Morris was still at work. She called 911 in order to call for an ambulance to take her to the hospital. She did not recall saying to Mr. Morris that he better help her or he would go to jail.

[51] When Mr. Morris came home, he asked her what happened and she told him that she had been attacked by people in the apartment building. She showed him her injury. Mr. Morris wanted to take her to the hospital. They would travel by bus.

[52] Once she heard knocking on the door, she knew it would be the police together with ambulance services. She did not want to talk to the police. She only wanted an ambulance.

[53] She was asked why she did not want to talk to the police given that she had just been attacked. She replied that it was because she did not see who attacked her. She told Mr. Morris not to answer the door because Mr. Morris was going to take her to the hospital.

[54] She agreed she was in the washroom, in the dark, when the police were in the apartment.

[55] She agreed that she initially was willing to go to the hospital with the paramedics. She testified that Mr. Morris never told her not to go to the hospital. It was she who said she would not go to the hospital. She changed her mind because the police were arresting Mr. Morris. She was not prepared to go to the hospital without him.

[56] She would not give the police a written statement nor would she sign any releases to enable them to get the hospital records. She explained that she refused to do these things because the police arrested Mr. Morris when she kept telling them he did not do anything.

[57] In Ms. Samuels’ statement, she wrote that her attacker was arguing with her. The attacker was male and he also punched her in the face causing her eye and lip to swell. In that statement, she also wrote that, when she called 911, she was yelling at her attacker saying that he would be going to jail.

Submissions

[58] The defence submits that there ought to be a reasonable doubt in this case since both Mr. Morris and Ms. Samuels deny that Mr. Morris committed an assault. The defence submits they were both credible witnesses. The defence points out there was no evidence of collusion and that this is a circumstantial case.

[59] The Crown submits that both Mr. Morris and Ms. Samuels gave obviously untrue evidence which should be rejected and that the Crown has proved its case.

Findings

[60] There is no issue that Ms. Samuel’s injury constitutes bodily harm. The only issue is whether the Crown has proved beyond a reasonable doubt that Ms. Samuels’ injury was caused in an assaultive manner and, if so, that it was Mr. Morris who committed the assault. With respect to the fail to comply charge, there is no issue that Mr. Morris was bound by that condition of his recognizance on January 10, 2011. The issue is whether the Crown has proved beyond a reasonable doubt that Mr. Morris consumed alcohol that day. Mr. Morris does not have to prove anything. He is presumed innocent. If there is any doubt about his guilt on any of these charges, he will be found not guilty.

[61] Both Mr. Morris and Ms. Samuels testified that Mr. Morris did not commit this offence. If I believe either of their evidence, Mr. Morris is entitled to be acquitted. Even if I do not believe either or both, but have a reasonable doubt about their evidence, Mr. Morris will be acquitted. Even if I am not left in any doubt by their evidence, Mr. Morris still must be acquitted unless, on the basis of the evidence I do accept, I am satisfied beyond a reasonable doubt about his guilt.

[62] Since the defence called evidence, I will begin my reasons with the evidence of Mr. Morris as well as the evidence of Ms. Samuels. I completely reject the evidence of both Mr. Morris and Ms. Samuels as it relates to the assault upon Ms. Samuels. Their evidence does not raise a doubt in my mind as being truthful. I completely reject their evidence, both when assessed individually and when looked at together. Their evidence is materially inconsistent as between each other. Beyond that, their evidence is internally inconsistent with respect to material matters. It is also absurd and irrational and contrary to common sense.

[63] Turning to some of the inconsistencies between these two witnesses, Mr. Morris testified that he entered the apartment while the Ms. Samuels was still on the phone calling for an ambulance. Ms. Samuels testified that she was alone at the time, and that Mr. Morris was not in the apartment. Ms. Samuels testified that she told Mr. Morris she was attacked by people in the building. Mr. Morris testified that she has never told him what happened. Ms. Samuels testified that Mr. Morris did not tell her not to go to the hospital. Mr. Morris, although inconsistent on this point, testified that he did tell Ms. Samuels not to go to the hospital.

[64] In terms of some material internal inconsistencies, Mr. Morris was inconsistent about whether he saw Ms. Samuel’s injury before the paramedics arrived, about whether the police asked him if he was alone and his reply and about whether he told Ms. Samuels not to go to the hospital or the reasons why, to name but a few.

[65] Ms. Samuels was internally inconsistent with respect whether she was struck in the face during the attack and whether she knew the gender of her attacker.

[66] Beyond these inconsistencies, I find much of Ms. Samuels’ evidence to be inconsistent with someone who was attacked by a stranger. Some examples include:

• Picking up the broken sticks and bringing them into the apartment. I accept the sticks were in a closet.

• Although Ms. Samuels claimed she was alone when she called 911, the recording has her yelling at someone that he should help her or she would tell the police what happened. In her statement given to the defence, she wrote that she was yelling to her attacker at the time. Yelling to her attacker that he should help her or he would go to jail is inconsistent with what she describes and defies credulity.

• Her behaviour of hiding and not answering the door and hiding in the washroom. Not answering the door a darkened washroom is inconsistent with having been attacked by a stranger, particularly given that she called an ambulance.

• It defies belief that she did not know the gender of the person who so brutally attacked her while facing her.

• Her evidence about not wanting to speak to the police because she could identify her attacker does not make sense.

• Nor does her evidence that, having called an ambulance, that she would choose to take a bus to the hospital rather than go with the ambulance on scene. I reject her evidence in that regard as well.

[67] With respect to Mr. Morris, in addition to the inconsistencies referred to, his lies to the police about no woman being in the apartment and his accusation about their breaking into his apartment because he was black is inconsistent with a man who knew there was an injured woman in his apartment needing treatment.

[68] Having rejected their evidence, the issue remains whether, on the basis of the evidence I do accept, has the Crown proved beyond a reasonable doubt that Mr. Morris committed these offences? It is a circumstantial case. If I have a doubt about any other explanation for Ms. Samuels’ injuries, Mr. Morris will be acquitted.

[69] Let me state at the outset that I found the evidence of the Crown witnesses, particularly, the evidence of the officers, to be credible and reliable with respect to all material matters. In fact, their actions in climbing over a balcony wall bordered on heroic. The inconsistencies between the officers were immaterial. With respect to Mr. Campbell, while I accept his evidence as credible and reliable, I am not prepared to place any weight on his evidence that there were broken beer bottles on the floor of the apartment given the balance of the evidence called. Likewise, I would not rely on the evidence that Mr. Morris told Ms. Samuels not to tell the police anything. There was no corroboration for that evidence. Further, I would not rely upon Mr. Yantha’s evidence given his vague recollection of events which was apparent in the manner in which he testified.

[70] With those qualifications, I accept the Crown witnesses’ evidence as credible and reliable.

[71] Based on their evidence, I am satisfied beyond a reasonable doubt that Mr. Morris attacked Ms. Samuels with the broomstick causing her bodily harm. I have a doubt about whether he consumed any alcohol, although I believe it very likely that he did based on the evidence of P.C. Keefer whom I find to be credible and reliable. Nonetheless, given the subjective nature of that evidence, in the context of what the officers were investigating, I am in doubt with respect to that count.

[72] My reasons for finding that the Crown has proved the assault related offences are as follows:

[73] First, I find that Ms. Samuels was indeed injured in an attack with the broomstick. There is no suggestion in the evidence, nor was it suggested, that she caused the injuries to her hand and face herself. The injuries were not self-inflicted. The arrest under the Mental Health Act was to prevent further damage by her decision not to accompany the ambulance personnel to the hospital. The injuries were sustained in an assault by someone. To that extent, I accept Ms. Samuels’ evidence.

[74] Second, I infer that the injuries she suffered were very fresh, sustained just before Ms. Samuels called 911. That is common sense. She was still tending to her injuries when the police arrived. She would not remain with a broken stick protruding through her hand without seeking assistance. She called 911 from Mr. Morris’ apartment. That is clear from the call. She is also heard yelling at a male to help her or she will tell the police what happened. She is speaking to a male in the apartment. It would not make sense that she was yelling for help from her unknown attacker down the hall. Her evidence that she was alone in the apartment when she made the call is untrue. The police arrive minutes later and, while all was silent in the apartment, when they broke in, they found Ms. Samuels and Mr. Morris present. I infer they were trying to hide from the police and I reject their explanation. When the police entered, Ms. Samuels was still trying to hide. Mr. Morris was lying. There is no basis to infer that another male was in the apartment in that short time frame between the 911 call and the arrival of the police. Nor was it suggested that another male was in that apartment. The attack occurred in the apartment.

[75] Further, I do not accept her evidence that she picked up the sticks from the hallway and brought them into the apartment and placed them in the closet, which is where I accept they were found. That would not make sense. She was attacked inside the apartment with that stick.

[76] I also accept that the police asked Mr. Morris where the female was. That was the reason they were at the apartment. They were concerned about a female who called 911. I accept their evidence that they asked Mr. Morris that. That makes sense in the context of why they were there. Mr. Morris was wildly inconsistent on the point. I accept they asked him and that he lied to them, stating things like he did not know what they were talking about or that they broke into his apartment because he was black. That is absurd given the context.

[77] I also accept that Ms. Samuels was prepared initially to go with the paramedics until Mr. Morris began yelling at her not to go.

[78] Having regard to the fact that Ms. Samuels was attacked in her apartment, that she called 911 while someone was still in the apartment with her, and that no other male was in the apartment between the call and the arrival of the police, and that she did not inflict these injuries to herself, and that Mr. Morris was hiding and was lying to the police, I am satisfied beyond a reasonable doubt that Mr. Morris was the one who attacked Ms. Samuels. Any other potential possibility as to the cause of this attack is speculative. I am not left with any doubt. Mr. Morris will be found guilty of all three assault-related charges.

REASONS FOR SENTENCE DELIVERED FEBRUARY 2, 2012

[79] On December 21, 2011, I found Mr. Morris guilty of assaulting Amanda Samuels with a weapon, to wit, a broomstick, assault causing bodily harm, in that same attack and possessing that broomstick as a weapon for a purpose dangerous. The possession of a weapon will be conditionally stayed pursuant to R. v. Kienapple (1975), 1974 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C )

[80] A pre sentence report was ordered and the defence called the victim Amanda Samuels as well as Mr. Morris’ brother Andre Morris to testify at the sentencing hearing Mr. Morris also made some comments at the sentencing hearing.

[81] Mr. Morris is 26 years old. He was born in Jamaica and came to Canada in 2001. His father and younger brother live in Toronto while his mother and three younger sisters live in Jamaica. He has two sons but does not have any contact with them or their mothers. He was involved in a relationship with the victim, Amanda Samuels, for five years.

[82] Mr. Morris completed high school in Toronto. He has worked as a fork lift driver for almost five years.

[83] Andre Morris describes his brother as a good man. Ms. Samuels testified that both she and Mr. Morris argue when they get jealous. She is no longer interested in a relationship with him. She does not want him punished.

[84] When interviewed for the pre-sentence report, Mr. Morris denied committing the offence.

[85] Mr. Morris spoke before sentencing. He said he is trying to be a better man and wants to be forgiven for what he has done and move on with his life.

[86] Mr. Morris has a criminal record including related offences. In 2005, he was convicted of aggravated assault and failing to comply with a recognizance. He was sentenced to three years probation in addition to four months of pre-trial custody served.

[87] In 2008, he was convicted of failing to comply with a recognizance and was sentenced to one year probation in addition to 77 days of pre-trial custody served.

[88] In 2009, he was convicted of a previous assault against Amanda Samuels and failing to comply with probation. He was sentence to probation in addition to three months of pre-sentence custody served.

[89] He is now to be sentenced for these offences against Amanda Samuels.

[90] Mr. Morris spent 44 days in pre-trial custody before he was released on bail.

[91] In September, he was arrested on new charges. At his bail hearing on those new charges, the Crown indicated that it intended to bring a s. 524 application to revoke Mr. Morris’ bail on the present charges. Mr. Morris adjourned that bail hearing on the new charges which had the effect of adjourning the s. 524 application. Accordingly, he has been in custody since September on the new charges but still has bail on the charges that he is about to be sentenced for. Both counsel agree that I can apply some of the time he has spent in custody recently to this sentence even though his bail has not been revoked given the interconnection between the two.

[92] As part of Mr. Morris’ 2009 sentence, he was required to participate in anger management counselling. He did not complete that counselling due apparently to his arrest and incarceration.

[93] The Crown is seeking a sentence of nine to twelve months incarceration followed by three years probation as well as various ancillary Orders. The Crown submits that there are numerous aggravating features of this case. This was a violent and forceful attack upon a domestic partner resulting in injuries. Mr. Morris has a conviction for a prior aggravated assault and has already been convicted of assaulting Ms. Samuels. He has no insight into his violence.

[94] The defence submits that 44 days pre-trial custody is a sufficient sentence followed by probation. The defence points to the complainant’s evidence that she is not fearful of Mr. Morris and does not want him punished. The defence submits that counselling is what is required in order to best protect society.

[95] A just sentence must be proportionate to the gravity of the offence and the responsibility of the offender and must have one or more of the following objectives:

a) To denounce 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 reparation for harm done to victims or to the community; and

f) To promote a sense of responsibility in offenders, an acknowledgement of the harm done to victims and to the community.

[96] The weight to be given to those factors will vary depending on the case.

[97] The Crown alone provided cases to the Court on sentencing. (see R. v. French (2009), OJ 4717 (Ont. CA); R v Harry (2009) OJ 576 (Ont. CJ), per West, J. R. v. McCreight (2006), OJ 5288 per Brophy, J. and R. v. Rooplall (2008) OJ 3514 per Robertson, J.). I have reviewed those cases as also well as R. v. Harding (2009) OJ # 682 (Ont. Sup. Ct) per Trotter, J., R . v. Dang (2010) O.J. # 5330 (Ont. C.J.), per Schwartzl, J. and R. v. Rahaman, (2008) O,J, # 1 (Ont. CA). In Rahaman, the Court noted that, in cases of violence inflicted in a domestic relationship, the predominant sentencing objectives are denunciation and deterrence.

[98] Each of those cases relate to different factual circumstances but they all express the principle that deterrence and denunciation are the predominant sentencing objectives when sentencing individuals for domestic violence resulting in serious injuries. Rehabilitation, while still a consideration, plays a lesser role and certainly does in this case. No two people are alike and every case must be looked at individually however these general sentencing principles must be borne in mind. Moreover, a sentence should always be as minimally restrictive as possible consistent with the purposes and principles of sentencing.

[99] With those principles in mind, let me turn to the aggravating and mitigating factors in this case.

[100] By way of aggravating factors, this was an attack on a domestic partner. Ms. Samuels, like all women, have the right to be safe in their home free from abuse by their domestic partners. The fact that this is a domestic assault is aggravating. The nature of the injuries is also aggravating. Mr. Morris used a stick to attack Ms. Samuels hitting her with such force that a piece of the stick became embedded in her hand almost protruding through. The nature of the attack shows a heightened level of danger due to Mr. Morris’ failure to control his violent outbursts. While I rejected Ms. Samuels evidence that she was attacked in the hallway by a stranger whose gender she could not even identify, I accept this much of her trial evidence; that she lifted her hands to protect herself from the attack with a broomstick; that the stick broke and entered her hand almost protruding out that back. It was so deeply embedded that it remained in her hand while she hid in the washroom hiding from the police and the ambulance personnel. She was also struck in the face during the attack. The attack is aggravating.

[101] Mr. Morris’ criminal record is an aggravating feature of this sentencing. He has already committed the very serious offence of aggravated assault. Further, he has previously assaulted Mr. Samuels in 2009 for which he spent three months in jail before being placed on probation. That sentence did not deter him from committing this offence.

[102] Mr. Morris’ conduct in the apartment when the police and ambulance personnel arrived is also somewhat aggravating. Ms. Samuels was in need of medical assistance. She called for an ambulance. Yet, Mr. Morris did not answer the door when the police were knocking. When they entered the apartment, he told them he was alone and accused the officers of breaking into his apartment because he was black, all the while knowing full well that an injured woman was in the washroom. When the police found Ms. Samuels and tried to bring her to the hospital, he yelled that she was not going to the hospital. His conduct in the apartment is also an aggravating feature of this sentencing.

[103] There is not much by way of mitigation in this case unfortunately. Mr. Morris has shown no insight into his conduct. I place little weight on his comment seeking forgiveness given his comments in the pre-sentence report.

[104] There is a need to denounce this type of violent crime and to deter others who commit such violence against their partners. Beyond denunciation and general deterrence, Mr. Morris needs to be specifically deterred from committing violent offences. That is a very significant objective in this case. Mr. Morris has spent four months in custody in 2005 before being found guilty of aggravated assault. That did not deter him from assaulting Ms. Samuels in 2009. He spent three months in pre-trial custody at that time and was then placed on probation. That did not deter him from committing this attack upon Ms. Samuels. Mr. Morris must learn that, if he assaults and injures others, he will face a significant period of custody given his prior acts of violence. If he does not learn, then he must be separated from society. He is a risk to the safety of others.

[105] Balancing the principles of sentencing, I sentence Mr. Morris to one year in jail followed by three years of probation. I will reduce that sentence by four months in light of the 44 days of pre-trial custody and pre-trial custody spent in relation to the new charges and expect crown and defence counsel to ensure that the Court in relation to the new charges Mr. Morris is facing is aware of this fact. I am applying two months and 16 days of pre-trial custody from those new charges toward this sentence.

• Accordingly, Mr. Morris will be sentenced to a further eight months in jail followed by three years probation. The terms of probation are a follows:

• Report within 48 hours of your release from custody and thereafter as required;

• Reside at an address approved of by probation;

• Keep the peace and be of good behaviour;

• Advise probation of any change of name, address or occupation prior to such change;

• Come to court when required to do so by probation or by the court;

• Have no contact or communication, directly or indirectly with Amanda Samuels and not be within 250 metres of anywhere she lives, works, goes to school or you know her to be;

• Not possess any weapons as defined by the Criminal Code;

• Take and actively participate in any assessment and counselling as directed by probation and sign all necessary releases to enable probation to monitor your compliance with that term;

• Seek and maintain full time employment;

• There will also be an Order that your provide you DNA and you will be subject to a lifetime weapons prohibition.

[^1]: assault causing bodily harm, assault with a weapon, possession of a weapon for a purpose dangerous to the public peace

Reasons for Judgment released: December 21, 2011

Reasons for Sentence released: February 2, 2012

Signed: “Justice H. Borenstein”