Court File and Parties
Court File No.: Halton 16-994 Date: 2018-02-01 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Eve Willow Black
Before: Justice D.A. Harris
Heard on: January 17, March 30, April 26, June 13, October 10, November 22 and December 6, 2017
Reasons for Sentence released on: February 1, 2018
Counsel:
- Mary Ward, counsel for the Crown
- Ryan Gibson & Kathy Jalali, counsel for the defendant Eve Black
Reasons for Sentence
HARRIS J.:
Introduction
[1] Following her trial I found Eve Black guilty of assault causing bodily harm to her nephew Jeremy McCafferty.
[2] Crown counsel had elected to proceed summarily.
[3] Ms. Black is before me today to be sentenced.
[4] Crown counsel suggested that I should sentence her to imprisonment for between 21 and 30 days, followed by probation for two years.
[5] Counsel for Ms. Black suggested that I impose a suspended sentence with probation for 1 year, or alternatively, a conditional sentence of imprisonment.
[6] Both agreed that I should make a DNA order and impose a weapons prohibition.
[7] I find that imprisonment for 21 days followed by probation for two years is the appropriate sentence here.
[8] My reasons for this are set out as follows. I will first review the law regarding conditional sentences of imprisonment and the fundamental purpose and principles of sentencing. I will then address the facts underlying the offences, the impact on the victim and the background of Ms. Black. I will conclude with an analysis of all of those factors.
Conditional Sentence of Imprisonment
[9] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.
[10] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."
[11] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. Her liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.
[12] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:
the offender must be convicted of an offence that is not specifically excluded by the legislation;
the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
the court must impose a term of imprisonment of less than two years;
the safety of the community must not be endangered by the offender serving the sentence in the community; and
a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
[13] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
[14] In Ms. Black's case, the first four prerequisite criteria have been satisfied.
[15] Her offence is not excluded pursuant to section 742.1 where, as here, Crown counsel proceeded summarily.
[16] It is not punishable by a minimum term of imprisonment.
[17] Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years.
[18] Finally, I find that Ms. Black serving her sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. She had no prior criminal record. She has not been in any further trouble since being charged. I am satisfied that, with the appropriate safeguards in place, there is no danger that she would return to crime following the imposition of a conditional sentence.
[19] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
Fundamental Purpose and Principles of Sentencing
[20] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[21] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.
[22] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.
[23] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:
The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.
[24] He went on to state that:
The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.
[25] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.
[26] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.
[27] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".
[28] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."
[29] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.
[30] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.
[31] I must also note that the Supreme Court of Canada expressly said in R. v. Proulx, supra that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.
[32] I also note that:
there need not be any equivalence between the duration of the conditional sentence and the jail term that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.
[33] I can therefore impose a conditional sentence that is longer in duration than the jail term that I might otherwise have imposed.
[34] Before applying these principles, I must take into account the facts underlying the offences, the impact on the victim and the background of Ms. Black.
The Offence
[35] I found the following to be the facts in this case.
[36] Mr. McCafferty and two other men were seated in Mr. McCafferty's car waiting out of the wind for food to cook on an outdoor barbecue grill.
[37] Ms. Black approached the driver's side of the car, shouting derogatory things at the men. She had a bottle of beer in her one hand. Mr. McCafferty rolled down the window beside him so that he could speak to her. Suddenly she began punching him in the head. Then she struck him over his right eye with the beer bottle.
[38] This caused a cut that definitely qualified as bodily harm.
Victim Impact
[39] No Victim Impact Statement was filed in this case.
[40] Mr. McCafferty was not interviewed for the Pre-Sentence Report.
[41] His evidence at trial, however was that he suffered a serious cut just above his right eye. This was confirmed by the photograph entered as an exhibit.
Background of Ms. Black
[42] I received a Pre-Sentence Report and several medical letters which provided me with the following information.
[43] Ms. Black is now 46 years old.
[44] She is the youngest in a sibling of six. Both of her parents are deceased. She has no ongoing contact with any of her siblings. She claims that one older brother sexually abused her and was charged and convicted for this. I was not provided with any corroboration of this claim but accept that it very well might be true. It was clear from her evidence throughout the trial that Ms. Black very much believes this and in fact was angry at her nephew Mr. McCafferty for allegedly disclosing this event to others.
[45] Her early childhood was stable. Her parents were caring and supportive, however, strict and restrictive regarding associations outside the family. Her parents provided for all her physical and emotional needs and she completed all developmental milestones age appropriately.
[46] When she was 29, she became pregnant with her daughter, now aged 16. She never married the father. He has not seen his daughter for more than 13 years. He has since married and lives in Sault Ste. Marie. He has not supported his daughter for years.
[47] She dated one man for a while but they stopped seeing each other. He committed suicide in 2005.
[48] Her last boyfriend committed suicide in 2014.
[49] She is not in a relationship now.
[50] Ms. Black quit school when she was 16 years old. She completed her grade 12 equivalence through correspondence. She also graduated from Liaison College for cooking.
[51] She worked at a number of jobs over the years. A number of these ended because of her being harassed or her having conflicts with management. She has not worked for some time.
[52] Ms. Black says she has never had an issue with alcohol. I note however comments to the contrary from other sources in the Pre-sentence Report. I also note that she was intoxicated at the time that she committed this offence.
[53] Ms. Black claims to be suffering from Post-Traumatic Stress Disorder (PTSD). The only reference to this in the medical materials filed with this court, however, is based on the version of events provided by Ms. Black and rejected by me.
Analysis
[54] In cases like this, involving unprovoked violence causing bodily harm, the predominant sentencing objectives are denunciation and deterrence.
[55] Probation is primarily rehabilitative.
[56] A conditional sentence on the other hand can be punitive and is capable of providing significant denunciation and deterrence.
[57] Actual imprisonment will obviously also satisfy the need for denunciation and deterrence.
[58] I accept that there may be cases involving an assault causing bodily harm where a conditional sentence of imprisonment, or even a suspended sentence and probation might be appropriate, I find that this is not one of those cases. Neither a conditional sentence nor a suspended sentence would be consistent with the fundamental purpose and principles of sentence set out in the Criminal Code.
[59] This was a serious unprovoked assault, with a weapon, which caused bodily harm.
[60] That is a sufficiently aggravating factor that I have concluded that a sentence of imprisonment is appropriate here.
[61] There are very few mitigating factors which might lead me to impose something less.
[62] Ms. Black has no prior criminal record and she has complied with the terms of her bail since October, 2015. That however is the full extent of the mitigating factors present here.
[63] She has shown absolutely no remorse for her actions. She continues to accuse her victim of assaulting her. She claims her lawyer did not do things right and insists that she did not have a fair trial.
[64] Further she has absolutely no insight into what she did or of her being responsible for this.
[65] Accordingly, I cannot find any reason to mitigate an otherwise fit sentence on this basis.
[66] Her counsel suggested that jail would be problematic with all the medical people she needs to see and all the medication that she needs to take. She needs weekly injections. She is in constant pain.
[67] This however is not a mitigating factor in this case. The status of an offender's health may be a relevant consideration on sentencing, but in this case there was no evidence put before me that her medical conditions could not be properly treated while she was incarcerated. The Ontario Court of Appeal has repeatedly pointed out that correctional authorities are bound by statute to provide such medical care.
Sentence
[68] For all of the above reasons, I sentence Ms. Black to imprisonment for 21 days, followed by probation for two years.
[69] The terms of the probation will require that Ms. Black:
(1) keep the peace and be of good behaviour;
(2) appear before the court when required to do so by the court;
(3) notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;
(4) report in person to a probation officer within two working days of her release from custody and after that, at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in her supervision;
(5) cooperate with her probation officer. She must sign any releases necessary to permit the probation officer to monitor her compliance and she must provide proof of compliance with any condition of this order to her probation officer on request;
(6) not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Jeremy McCafferty, Wayne Griffin or Shane Lewis;
(7) not be within 20 metres of any place where she knows them to live, work, go to school, frequent, or any place she knows them to be;
(8) attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer, for anger management; and for substance abuse; and for alcohol abuse; and for any other program directed by the probation officer.
[70] I also make the following two ancillary orders.
[71] Assault causing bodily harm is a primary designated offence and I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Ms. Black of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.
[72] Further, pursuant to section 110 of the Criminal Code, for the next five years Ms. Black is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.
[73] Ms. Black will have six months following her release to pay the victim fine surcharge.
Released: February 1, 2018
Signed: Justice D.A. Harris