Court Information

Ontario Court of Justice

Date: October 5, 2018

Court File No.: Central East Region: Oshawa Courthouse 18-34301

Parties

Between:

Her Majesty the Queen

— and —

Hunter Mikayla Fantinato

Before the Court

Justice: Peter C. West

Plea entered: July 12, 2018

Reasons for Sentence released: October 5, 2018

Counsel

For the Crown: B. Guertin

For the Defendant: M. Jacula

Judgment

WEST J.:

Facts and Background

[1] On March 17, 2018, Hunter Fantinato was charged with assault causing bodily harm in respect of Kimberly Sargent. On July 12, 2018, she pleaded guilty to that charge and a pre-sentence report was ordered. It was marked as Exhibit 1.

[2] The facts are quite simple. Ms. Fantinato was at the Stag's Head Bar in Oshawa on St. Patrick's Day. An argument arose between Ms. Fantinato and Ms. Sargent. Ms. Fantinato was the aggressor and was asked to leave by security. As she was leaving she grabbed a glass of beer from the table and threw it. Mr. Jacula indicated Ms. Fantinato only intended to throw the beer at Ms. Sargent, however, the glass slipped from her hand and struck Ms. Sargent in the temple and required four stitches to close the resulting laceration. The laceration bled quite profusely.

Personal Circumstances of the Offender

[3] Ms. Fantinato does not have a criminal record and is 21 years of age. Her parents separated when she was 11 years of age and divorced when she was 13. Initially Ms. Fantinato resided with her mother but did not get along with her and began acting out. At 14 her mother kicked her out of the home and she went to live with her father in Newcastle. Ms. Fantinato admitted experimenting with alcohol and drugs as a teenager. Mr. Fantinato struggles with alcohol addiction and mental health issues and he sees a psychologist. He was a police officer for 21 years and did five tours with the U.N.

[4] Ms. Fantinato left her family home at the age of 17 or 18 to live on her own and has supported herself on social assistance or being gainfully employed. She was in a long term relationship for seven years but did not know her boyfriend was suicidal until he took his life on July 15, 2017. After this Ms. Fantinato's use of alcohol got "really bad." Ms. Fantinato has resided with her mother since October 2017 and feels their relationship is "average."

[5] She graduated from high school through an alternative school. She completed her 40 hours of community service for high school. She applied to College and got accepted to a Medical Administration program but did not follow through. In February 2017 she took a course to become a security guard and obtained her license through the Ministry of Community Safety and Correctional Services. She intends to attend college in the future.

[6] She has worked for three different companies as a security guard and since June 2018 has worked with Paragon Security, which confirmed her employment with the probation officer. Brett MacNeil confirmed her employment and advised she is doing a great job. She gets paid $14.00 per hour, her attendance is excellent and has a good relationship with her supervisor and co-workers. Mr. MacNeil advised being convicted of the assault causing bodily harm would result in her termination and prevent her from keeping her security guard license.

Substance Abuse and Mental Health

[7] She began experimenting with alcohol when he was 15 years of age. By the age of 19/20 her drinking of alcohol had become problematic. She would frequent bars to drink and also used drugs. She recognizes her use of alcohol has negatively affected her employment, family and personal relationships. Ms. Fantinato expressed feelings of remorse and being unable to recall everything that had occurred where someone was injured as a result of her drinking. A number of her relatives had expressed to her concern over her level of alcohol consumption. As a result of this incident she realized she needed to "cut down" her level of consumption because it affected and interfered with her judgment. She advised the probation officer she will only consume alcohol once every one or two weeks and she will only consume five to six beer when she is with her girlfriends.

[8] Ms. Fantinato confirmed she has experimented with marihuana and cocaine. Cocaine was a problem for in the past. When she consumes alcohol she wants to use cocaine, however she has been able to stop herself as she does not want to spend the money. She reported being free from the use of cocaine since the commission of the offence.

[9] Laura Gilles of Pinewood Centre confirmed Ms. Fantinato attendance for assessment on September 20, 2018. Ms. Gilles, knowing Ms. Fantinato was coming to court for sentencing did not schedule another appointment but was willing to work with Ms. Fantinato through a probation order. She is also seeing Dr. Erica Martin, a psychologist, since April 2018, for support surrounding substance abuse, emotions and guidelines around drinking. Dr. Martin confirmed with the probation officer that Ms. Fantinato has been for six therapy sessions. Dr. Martin advised Ms. Fantinato's therapy has focused on her anger and she has "begun to understand the psychological underpinnings of her behaviours and choices." A letter from Dr. Martin was provided today, which confirmed what she told the probation officer and that she is prepared to continue to provide therapy with Ms. Fantinato.

[10] The complainant was a stranger to Ms. Fantinato. Ms. Fantinato admitted to being under influence of both alcohol and drugs on the night in question. She had consumed seven beers and one line of cocaine. She accepted responsibility for hitting the complainant in the head with her pint glass, although she only meant to throw the beer in the glass. She expressed remorse, indicating no one deserves to be hurt. She feels she needs to work on her anger, "relax" on her drinking and continue with her therapy and attend Pinewood Centre. She is amenable to community supervision and doing community service hours and attend counselling.

Support System and Character

[11] It was the view of Ms. Fantinato's friend and her father and mother this incident was out of character for Ms. Fantinato. They were all shocked she was charged with assault causing bodily harm.

[12] Ms. Fantinato expressed she wanted to become a Canada Border Services Office.

[13] Ms. Fantinato completed a one day anger management program with the Salvation Army and this was confirmed by the probation officer.

[14] Her father believes she suffers from low self-esteem and struggles emotionally and had difficulty finding appropriate coping mechanisms. Both Ms. Fantinato's friend and her parents believe she uses alcohol as her coping mechanism.

[15] It was the probation officer's opinion that Ms. Fantinato has a strong support system in place and is actively working towards addressing her mental health and addiction issues and needs. The probation officer did not believe Ms. Fantinato required additional correctional supervision to address her criminal behaviour in the community but she was someone who would be a good candidate for following the terms of a probation order.

Sentencing Principles

Restraint Principle for First Offenders

[16] An added feature in Ms. Fantinato's sentencing is she is a relatively youthful first offender. As such, it is important to consider the principle of restraint. In R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont. C.A.) at page 377, Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence:

It is the view of the Court that the sentence imposed upon the appellant does reflect an error in principle. In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate. In our view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to be imposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence. [Emphasis added]

[17] In R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.) Rosenberg, J.A. made the following comments concerning R. v. Stein, supra, (at paras. 18 and 19) as well as addressing the issues raised in sentencing a first offender:

As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now been codified in the recently proclaimed sections 718 and 718.2 of the Criminal Code. Section 718 (c) instructs that separation of offenders from society is an appropriate objective of sentencing "where necessary". Section 718.2 (d) directs that an offender should not be deprived of liberty "if less restrictive sanctions may be appropriate in the circumstances".

The principle embodied in now s. 718.2(e) was of particular significance in this case. It provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders".

[18] In R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34, the Ontario Court of Appeal held:

…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.

…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

Sentencing Principles and Objectives

[19] The determination of a proper sentence in this case calls for a consideration and balancing of the principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, as well as the aggravating and mitigating factors which exist in this case. I have set out above a number of aggravating and mitigating factors and circumstances which I must consider in determining an appropriate sentence.

[20] The overarching principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing, which include:

• a) general and specific deterrence;
• b) denunciation;
• c) rehabilitation;
• d) reparation to society or the victim;
• e) separation from society where necessary;
• f) the need to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

[21] How much weight I place on any one objective will depend on the facts of each case.

[22] Certainly in a case of assault causing bodily harm the sentencing principles of denunciation and deterrence are important, however, the principle of rehabilitation cannot be discounted or ignored, particularly when dealing with a first offender. Further, general deterrence and denunciation should not be over-emphasized (see Batisse, supra). It is only one factor the Court must consider (see R. v. Sears, [1978] O.J. No. 435 C.A.). I agree with the assessment of the probation officer, which reflects that the principle of specific deterrence is not a significant factor in this sentencing given the steps already taken by Ms. Fantinato in addressing her mental health and addiction issues. Sentencing is highly individualized (see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at paragraph 92) and must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is to be increased or reduced to account for any aggravating or mitigating circumstances. It should strive to be similar in relation to other sentences imposed on similar offenders in similar circumstances.

Sentencing Range for Assault Causing Bodily Harm

[23] The jurisprudence indicates a range of sentence for assault causing bodily harm ranging from conditional discharges to sentences in the upper reformatory, and in rare cases, low penitentiary sentences where the injuries are very serious and the Crown has proceeded by indictment. The Crown proceeded by summary conviction in this case. It is clear that any sentence must focus on the protection of the public by the imposition of a penalty that denounces this type of conduct and provides for both general and specific deterrence. At the same time, the sentence must be individualized, as well as reflect and encourage as much as possible any apparent rehabilitative prospects. The appropriate sentence is determined by the circumstances surrounding the commission of the offence, including the nature of the assault and the seriousness of the injury caused and the individual circumstances of the accused, including the accused's background, mental health issues, addictions, or lack of a criminal record, as in this case.

Conditional Discharge Jurisprudence

[24] Recently, the Ontario Court of Appeal, in R. v. Huh, [2015] O.J. No. 2514, considered the fitness of a conditional discharge with 2 years' probation for an assault causing bodily harm, where a severe beating caused brain damage in the higher executive functions, facial fractures and post-concussion syndrome. The Court adopted the reasoning in R. v. Wood, [1975] O.J. No. 290 (C.A.), at para 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." [Emphasis added] In that case the Court of Appeal held the principles of denunciation and deterrence could not be met without a period of incarceration and in the circumstances, imposed a 6 month jail sentence with probation. It is, in my view, significant that the Court of Appeal recognized there could be cases where a conditional discharge could be imposed that was not contrary to the public interest in cases of assault causing bodily harm.

[25] In R. v. Hayes, [1999] O.J. No. 938 (S.C.J.), Hill J. substituted a conditional discharge for a suspended sentences and probation where the charges involved mischief, wilful damage to property and assault with a weapon. In addressing when conditional discharges are appropriate he cited these cases at para. 32:

Discharges are not restricted to trivial matters: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.). Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: Regina v. Taylor (1975), 24 C.C.C. (2d) 551 (Ont. C.A.) at 552 per Arnup J.A. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 37 C.C.C. (2d) 182 (Ont. C.A.) at 184-5 per Martin J.A.; Regina v. Culley (1977), 36 C.C.C. (2d) 433 (Ont. C.A.) at 435 per Martin J.A. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.). While a discharge is only rarely appropriate in offences involving violence causing injuries, such a sentence is not universally unavailable in such circumstances: Regina v. Wood (1975), 24 C.C.C. (2d) 79 (Ont. C.A.) at 80 per Jessup J.A.

[26] Other cases where conditional discharges have been imposed are as follows: R. v. Pera, 2016 ONSC 2800, [2016] O.J. No. 2428 (S.C.J.), a conditional discharge was granted where the accused's actions caused a police officer to break his leg requiring extensive physiotherapy, and the accused's pre-trial custody was used in assessing whether a discharge was appropriate, the Crown had sought a conviction and a suspended sentence; R. v. Menese, [1974] O.J. No. 736 (C.A.), a conditional discharge does not mean an accused goes scot free, they are still subject to terms of probation and have to earn discharge; R. v. McGee, [2011] O.J. No. 863 (S.C.J.), a conditional discharge was granted to a first offender who dealt with alcohol issues where the assault a caused a three inch cut to the chin of a taxi driver; R. v. D'Souza, 2015 ONCA 805, at paragraphs 3-5, discharges are not restricted to trivial offences and the over-emphasis on the nature of the offence must be avoided, here an accused was granted a conditional discharge where the sentencing judge placed too much emphasis on general deterrence for a trafficking in a schedule II drug, where a first offender had made tremendous progress in overcoming an addiction to marihuana, doing volunteer work and attending university and finally, in R. v. Neundorf, [2011] O.J. No. 5241 (C.A.) an accused was convicted of abduction respecting her children in contravention of a custody order and sentenced to a 12 month conditional sentence, which was substituted with an absolute discharge on appeal where a conviction placed undue hardship to the accused's travel to the United States for employment and to see their family.

[27] I was also provided additional cases by Mr. Jacula where conditional discharges were imposed in cases of assault causing bodily harm: R. v. Cruz, 2018 ONCJ 8 (Vaillancourt J.); R. v. Adamson, 2017 ONCJ 174 (West J.); R. v. Fensom, [2016] O.J. No. 3954 (SCJ, Quigley J.) and R. v. Murphy [2007] O.J. No. 327 (SCJ, Del Frate J.). All were cases involving varying degrees of bodily harm, some quite serious and conditional discharges were granted.

Crown and Defence Positions

[28] The Crown is seeking a suspended sentence with probation for two years with conditions, as well as a DNA order as assault bodily harm is a primary designated offence. In addition, the Crown is seeking a s. 110 weapons' prohibition order for three years. Mr. Guertin submitted a conviction was necessary to impose to properly reflect deterrence and denunciation. He submitted a jail sentence would have been appropriate for Ms. Fantinato's conduct but for the steps she has taken.

[29] Mr. Jacula was seeking a conditional discharge with probation terms. The defence and Crown are in agreement as to the terms to be imposed.

Court's Analysis and Decision

Intent and Lack of Bodily Harm Intent

[30] It is my view a significant fact agreed to by the Crown is that Ms. Fantinato did not intend to throw the glass at Ms. Sargent, she only intended to douse her with beer but the glass slipped from her hand. This leads to the reasonable inference Ms. Fantinato did not intend to cause bodily harm to Ms. Sargent.

Statutory Framework for Discharge

[31] Section 730 of the Criminal Code outlines the criteria for the imposition of a discharge. A discharge cannot be imposed where the offence is one where a minimum sentence exists or where the maximum penalty for the offence is 14 years or more. Moreover, a discharge may only be granted where it would not be contrary to the public interest and would be in the best interest of the offender.

Application of Restraint Principle

[32] The fact Ms. Fantinato is a youthful first offender, where the Ontario Court of Appeal in Stein, Priest, Batisse and Dubinsky all direct sentencing judges to consider every available sentence other than incarceration for a first offender and particularly someone who is youthful. I recognize there are cases where the circumstances surrounding serious offences will sometimes require a custodial sentence to be imposed despite the accused being a first offender. However, as the above-noted assault causing bodily harm cases referred to demonstrate, there are cases where the totality of the circumstances allow for the granting of a conditional discharge where it is not contrary to the public interest.

Proportionality and Rehabilitative Efforts

[33] Further, given the circumstances Ms. Fantinato was dealing with in her life at the time of the commission of the assault, namely, her use of cocaine, her excessive use of alcohol and her unresolved or even addressed mental health issues, all of which must be considered in fashioning a proportionate sentence, it is my view a custodial sentence would be disproportionate, particularly in light of the steps she has taken to address these issues after being charged. These rehabilitative efforts reflect a positive prognosis for the future and do not support the imposition of a custodial sentence.

Public Interest Test

[34] In Ms. Fantinato's case the Crown proceeded by summary conviction so there is no minimum sentence and the maximum sentence available is only eighteen months. A conditional discharge is clearly in Ms. Fantinato's best interest. The issue which must be determined is whether granting a conditional discharge is contrary to the public interest. The issue to be determined is whether a conviction needs to be imposed to appropriately reflect the principle of general deterrence and deterrence or whether a conditional discharge can be imposed, which will adequately address general deterrence and denunciation, as well as rehabilitation.

[35] As discussed above in most cases involving violence, where injury results, the requirement of general deterrence militates against granting a discharge. However, the Court of Appeal recognized there were exceptional cases where a discharge would not be contrary to the public interest.

Exceptional Circumstances

[36] In my view this is such a case. Ms. Fantinato is a youthful first offender. The assault involved Ms. Fantinato intending to douse someone with beer she was involved in an argument with. I was not advised what the argument was about or what words were spoken by Ms. Fantinato before she tried to throw the beer or what had been said by Ms. Sargent. I was provided with photographs today, Exhibit 2, which showed the laceration was close to Ms. Sargent's hair line on her temple. I was not advised whether there was a permanent scar left as a result of the injury. Ms. Sargent did not provide a Victim Impact Statement despite the Crown's attempts to contact her to request one. The facts in this case, the nature of the assault and the injuries sustained are completely different from the nature of the assault and injuries caused in the R. v. Huh or R. v. Woods cases, which involved significantly more serious assaults and where the injuries were far more extensive and severe.

[37] Ms. Fantinato has significantly begun to address the underlying causes of her behaviour, which caused her to assault Ms. Sargent. She has been seen a psychologist for six sessions and continues to receive individualized therapy, she completed a one day anger management program with Salvation Army and has completed an assessment with Pinewood Centre. Ms. Fantinato has recognized there are mental health issues she needed to have assessed. It was always her intention to plead guilty.

Collateral Consequences and Employment Impact

[38] I am also aware that a conviction would have significant consequences for Ms. Fantinato's future employment opportunities in the security field where she is currently working. In my view the imposition of a conviction, would probably cause her to lose her security license. Further, she has an intention of pursuing a career with Canada Border Services and a conviction for this offence would bar her from pursuing this. In my view this consequence would be completely disproportionate to the seriousness of the offence she committed. The Court of Appeal in R. v. Meyers, R. v. Culley and R. v. Neundorf, supra, recognized this was an appropriate consideration in deciding whether to impose a discharge as opposed to registering a conviction. Further, the British Columbia Court of Appeal in R. v. Etienne, [1989] B.C.J. No. 1492 (C.A.) also held the effect of a conviction on a youthful first offender's future employment opportunities was an appropriate circumstance to consider in granting a discharge (two additional unreported B.C.C.A. decisions supporting this consideration were included in this judgment).

Deterrent Effect of Conditional Discharge

[39] A conditional discharge can have a similar deterrent effect on other like-minded individuals where the terms of probation imposed are identical to the terms contemplated with respect to a suspended sentence. The Ontario Court of Appeal has recognized this in R. v. Cheung and Chow, supra. Also, general deterrence is not the sole consideration in assessing an appropriate sentence and where a sentencing judge has over-emphasized deterrence the Court of Appeal has substituted a conditional discharge for a suspended sentence (see R. v. Dubinsky and R. v. Sears, supra). Community service was not one of the terms of probation suggested by either counsel; however, it is my view that the inclusion of a community service term is in the public interest as it provides a mechanism for Ms. Fantinato to give back to the community as a whole for the conduct she engaged in. Granting a conditional discharge does not mean Ms. Fantinato will go "scot-free" as a period of 2 years' probation with strict terms and a significant number of hours of community service is a significant penalty and will no doubt deter others from engaging in this type of conduct.

Public Interest Conclusion

[40] In the exceptional circumstances of this case, it is my opinion a conditional discharge is not contrary to the public interest. Informed members of the public would support the granting of a discharge to Ms. Fantinato having regard to the nature of the assault and injury sustained by Ms. Sargent and the efforts Ms. Fantinato has already undertaken to rehabilitate herself. Her loss of employment opportunities if she was convicted is an appropriate consideration in not registering a conviction and I am satisfied that an informed member of the public would consider this outcome to be appropriate in all of the circumstances of this case and that Ms. Fantinato should be given a second chance.

Sentence

[41] Consequently, I am granting Ms. Fantinato a conditional discharge and placing her on probation for a period of two years with terms and conditions.

Released: October 5, 2018

Signed: Justice Peter C. West