Court Information
Date: March 7, 2018 Information No.: 16-15006853 Ontario Court of Justice
Her Majesty the Queen v. Shalone Roline
Before: The Honourable Justice Rondinelli Location: Toronto, Ontario
Appearances
Crown: M. Atkin Defence: C. Wood (on behalf of Ms. Szpulak)
Reasons for Sentence
RONDINELLI J. (Orally):
After a trial held before me, Ms. Roline was found guilty of assault causing bodily harm and assault with a weapon. The assault with a weapon count was stayed on the basis of the Kienapple principle.
The Crown submits that the circumstances associated with this offence usually attracts some form of custodial sentence. However, due to Ms. Roline's personal circumstances dealing with abusive relationships in the past, a suspended sentence plus two years of probation would satisfy the sentencing principles of denunciation and general deterrence. The Crown further submits that a discharge would fail to meet these principles, especially in light of a glass being used to hit Mr. Gingras over the head in a bar setting and the impact the harm has had on Mr. Gingras, both physically and psychologically.
It cannot be said that the Crown's position is an unreasonable one. In R. v. Hugh, 2015 ONCA 356, the Court of Appeal made clear at paragraph 4, "In cases of violence resulting in injury the requirement of general deterrence to the public militates in almost every case against the grant of a conditional discharge, notwithstanding considerations personal to the accused".
It is important to note however, the assault bodily harm in that case was much more violent in nature and the injuries far more severe than the case before me.
The defence on the other hand submits that an absolute discharge is an appropriate disposition, mainly due to the potentially significant collateral consequences that a criminal conviction would have on Ms. Roline's employment opportunities and travel restrictions.
I agree with the Crown that the use of a glass to strike Mr. Gingras in a vulnerable part of his body is an aggravating factor. I also agree that the fact that the assault took place in a public setting like a bar raises the level of seriousness of the offence. And when I consider the victim impact statement of Mr. Gingras, it is clear that this incident has lingering effects on him that go beyond the physical scar.
These aggravating factors of course must be balanced in conjunction with the mitigating factors.
Ms. Roline is a relatively young first time offender. Since the incident Ms. Roline has shown positive progress in her rehabilitative efforts. She has completed a number of community service hours and has partaken in some counselling. In addition she currently has two jobs while at the same time putting in much effort to grow her swimwear business. All this points to Ms. Roline being a positive contributor to society in the future.
However, a criminal record could pose some significant obstacles in such a future, including employment and travel restrictions. The travel restrictions could further hamper her continued relationship with her father, who lives in the United States and who cannot travel to Canada due to his own immigration issues. And although the defence submitted that an absolute discharge would be an appropriate disposition in this case, it was unable to provide any cases in which an absolute discharge was imposed for an offence of assault causing bodily harm after a trial.
This came hardly as surprise to me since an absolute discharge in circumstances where there is some form of violence would rarely, if ever, meet the principles of denunciation or rehabilitation without a guilty plea and significant signs of remorse and meaningful reparation to the complainant.
The real question is whether this case calls for a suspended sentence or a conditional discharge. It is clear that a conditional discharge is in Ms. Roline's best interest, but is it contrary to the public interest?
In my view, a conditional discharge would not be contrary to the public interest having regard to the need to deter others from engaging in behaviour similar to that engaged in by Ms. Roline. Deterrence can be achieved in ways other than imposing a formal conviction.
In Ms. Roline's case, she has been exposed to the inherent public humiliation that stems from the criminal proceeding. She has had these proceedings hanging over her head for a long while, has been on bail terms during that period and will be bound by terms of probation.
In my view, any reasonable member of the public fully apprised of the circumstances of this offence and this offender would come to the realization that Ms. Roline has not gotten off easy.
Disposition
Consequently, I am granting Ms. Roline a conditional discharge, placing her on probation for a period of one year with the following terms:
Keep the peace and be of good behaviour.
Abstain from communicating directly or indirectly with Richard Gingras.
Appear before the court when required to do so by the court.
Notify the court or probation officer of any change of name, address or employment.
Report to probation within 48 hours and thereafter as required by the probation officer.
Ancillary Orders
As far as ancillary orders, the DNA order will issue as this is a primary offence, however I decline to make a section 110 prohibition order. In my view a section 110 prohibition order is not desirable in the interests of the safety of society having regard to the circumstances of the offence that did not involve the use of a conventional weapon and the significant rehabilitative strides that Ms. Roline has made in the interim.
Victim Fine Surcharge
The victim fine surcharge is to be paid within six months.
Matter Concluded