ONTARIO COURT OF JUSTICE

DATE: 2022 November 25 COURT FILE No.: College Park, Toronto 20-75002149

BETWEEN:

HIS MAJESTY THE KING

— AND —

DAVID HERCULES

Sentencing Judgment

Before: Justice B. Jones Heard on: September 19 and 23, 2022 Reasons for Judgment released on: November 25, 2022

Counsel: J. Spare / K. Hebert............................................................................ counsel for the Crown M. Stellato.......................................................................................... counsel for D. Hercules

Jones J.:

Introduction

[1] On March 16, 2022, I found Mr. Hercules guilty following a trial of four counts of intimate partner violence. The Crown proceeded by indictment. On June 19, 2019, he committed the offences of assault and assault with a weapon. On November 25, 2018, he committed the offences of assault with a weapon and assault causing bodily harm. The victim for all charges was Ms. M. Mulesha.

[2] A pre-sentence report (“PSR”) was ordered and the sentencing hearing was initially set for June 29, 2022. Unfortunately, the PSR was not completed on that date due to an administrative error. A new PSR had to be ordered and the sentencing hearing was adjourned to September 19, 2022.

[3] Mr. Hercules’ sentencing decision was delayed further due to uncertainty in the law surrounding the availability of a conditional sentence for his offences. On November 17, Bill C-5 received Royal Assent, ending that uncertainty.

Facts

[4] My reasons for finding Mr. Hercules guilty were previously reported at R. v. Hercules, 2022 ONCJ 112. I provide the following brief summary of my findings here.

[5] On June 19, 2019, I found that Mr. Hercules punched Ms. Mulesha in the face, choked her against the wall in their apartment, twisted her leg, and struck her while holding a cellphone in his hand on her leg, left foot, back and face. I also found that he threated to kill her. She suffered bodily harm from this assault consisting of bruising to her forehead, a small laceration over her right eye, an abrasion to her upper lip, an abrasion to her right arm, and swelling to her left foot.

[6] On November 25, 2018, Mr. Hercules hit Ms. Mulesha with a cellphone on her forehead over her right eye. She suffered a 1cm laceration and required stitches. I found this action was done with excessive force and therefore did not constitute lawful self-defence. I also found he told her to lie about what happened to her to the attending hospital staff and accepted her evidence she complied out of fear.

Victim Impact Statement

[7] Ms. Mulesha continues to be affected by the assaults. She takes a different view of relationships now and finds herself triggered by people in ways she was not before. She has lived in fear for the past four years and still feels pain when she relives what happened to her. She has ongoing safety concerns and wants no further contact with Mr. Hercules. She does want him to have contact with their son, to be arranged through a third party if necessary.

Background of the Offender

[8] Mr. Hercules is 37 years old. He has two biological siblings and three step-siblings, all of whom reside in Canada. His parents are separated. He lives with his mother and youngest step-sister. He maintains a positive relationship with his father who resides in the United States.

[9] His mother, Ms. Karen Wright, describes him as a great son, who was very helpful and assisted financially and emotionally in raising the rest of the children.

[10] Mr. Hercules is single. He has two children from two separate relationships. He has a positive relationship with Ms. S. Johnson, the mother of his eldest son. He has regular contact with that son and is positively engaged with him as a loving and active father. The mother of his second son is the victim of these offences, Ms. M. Mulesha. His younger son is only four years old and he currently does not have contact with him. Mr. Hercules feels that he cannot have a healthy relationship of any kind with Ms. Mulesha and is concerned that if he has any contact with her whatsoever that could result in further conflict. Unfortunately, for the time being, this has precluded him from having a meaningful relationship with his second son.

[11] Mr. Hercules works for a construction company. He has been assigned to a project in Sarnia where he is temporarily residing. His future goal is to start a business. He also volunteers with community housing, soup kitchens, and assists the homeless.

[12] He has no prior criminal record.

Position of the Parties

[13] The Crown seeks a jail sentence of 90 days. Mr. Spare emphasized the need for deterrence and denunciation. A message must be sent that when an offender hits a domestic partner with a weapon, causing injuries, custody will be inevitable. He also seeks 18 months’ probation, a 109 order, and a DNA order.

[14] Mr. Stellato submits that a criminal conviction could have a significant impact on Mr. Hercules’ ability to maintain his employment. His client has a good background. While the offences may justify a jail sentence, Mr. Hercules’ unique personal circumstances should produce a different outcome. He requests a conditional discharge and probation, or at least a suspended sentence and probation. He strenuously opposed a jail sentence given it has been three to four years since the offences occurred and his client has not re-offended. If I nevertheless conclude that a jail sentence is required, he submits a conditional sentence is appropriate.

Sentencing Principles

[15] Proportionality is the fundamental principle of sentencing. A sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”: Criminal Code s. 718.1.

[16] The principle of restraint must also be considered and given prominence for a first-time offender: see Criminal Code section 718.2(d). In R. v. Romano, 2021 ONCA 211, the Court of Appeal indicated that this principle requires a sentencing court to only impose a sentence of incarceration where there is simply no other reasonable alternative available and that any term of incarceration should be as short as is “reasonable given the circumstances”: see para. 64.

Intimate Partner Violence

[17] Section 718.2 (a)(ii) of the Criminal Code directs a sentencing court to treat as an aggravating factor “evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family”. The Ontario Court of Appeal has stressed that the principles of deterrence and denunciation take priority for sentencing offenders convicted of domestic violence: see R. v. Inwood at p. 181; R. v. Bates at para. 30.

[18] In Bates, supra, Moldaver J.A. (as he then was) held as para. 30:

The courts have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society. Crimes involving abuse in domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.

[19] Jail terms are not exceptional for cases of repeated incidents of intimate partner violence: see, for example, R. v. Morris, 2015 ONCJ 591. Where an offender uses a weapon or causes bodily harm to his victim, custodial sentences are commonly imposed: see R. v. Getachew, 2013 ONSC 3219 at para. 40. While physical bodily harm is a clear aggravating factor, it important that sentencing courts give due weight to evidence of psychological harm or harm that “interferes with the health or well-being” of the victim, as such harm is often “more pervasive and permanent in its effect than physical harm”: R. v. McCraw at para. 22.

Appropriateness of a Discharge

[20] Criminal Code section 730(1) establishes two requirements before a court may impose a discharge: (i) the court must be satisfied that it is in the best interests of the accused and (ii) the court must be satisfied that it is not contrary to the public interest that the accused receive a discharge.

[21] Mr. Hercules has no prior criminal record. It is in his best interests to receive a discharge. Mr. Stellato explained that a formal criminal conviction may have employment consequences for Mr. Hercules and affect his ability to travel to the United States. The latter is a particular concern given many of his work opportunities may require travel and some of his family members reside there as well.

[22] In R. v. Huh, 2015 ONCA 356, the Ontario Court of Appeal held that for violent crimes that result in injury, the principle of general deterrence will almost always preclude the imposition of a discharge: see para. 12. Similar, in R. v. Turner, 2022 ABCA 11, the Alberta Court of Appeal held that a discharge is only available in exceptional cases when an offender has committed a violent crime: see para. 37.

[23] I find it would be contrary to the public interest to grant a discharge in this case. Mr. Hercules was found guilty of multiple offences involving intimate partner violence. Ms. Mulesha suffered significant physical and emotional injuries.

[24] As stated by the Alberta Court of Appeal in Turner, it is “not in the public interest to diminish the denunciatory and deterrent features of criminal sanctions imposed upon those who assault an intimate partner”: see para. 40.

Bill C-5 and Conditional Sentences

[25] On November 17 Bill C-5 received Royal Assent. This bill amended the provisions of the Criminal Code respecting conditional sentences: see An Act to Amend the Criminal Code and the Controlled Drugs and Substances Act, S.C. 2022, c. 25, s. 14(2). Subsections 742.1I and (f) of the Criminal Code were repealed. Previously, sections 742.1I(i) and (iii) prohibited the imposition of a conditional sentence where the Crown proceeded by indictment and the offence resulted in bodily harm or involved the use of a weapon. These provisions had been directly applicable to Mr. Hercules’ offences.

[26] A conditional sentence is now lawfully available, although it was not at the time Mr. Hercules committed his offences. In these circumstances, where the sentencing provisions have changed between the time of the commission of the offence and the time of sentencing, the offender is entitled to the benefit of the lesser, or more favourable, current punishment: see R. v. Poulin, 2019 SCC 47 at para. 98; Charter of Rights and Freedoms section 11(i).

Conclusion

[27] Crimes of intimate partner violence must be denounced and offenders must be deterred from committing them. Mr. Hercules assaulted Ms. Mulesha on two separate occasions. In one case he deliberately used a weapon and both times he caused her bodily harm requiring medical attention. These assaults had a significant impact on her – both physical and psychological. They require a custodial sentence to appropriately reflect his moral culpability and the degree of harm caused to the victim.

[28] Balanced against those considerations are Mr. Hercules’ status as a first-time offender with excellent rehabilitative prospects. He has strong family support, is actively engaged with the community, has positive employment prospects, and has demonstrated a commitment to being involved in his older child’s life and hopefully in the future his younger child’s life.

[29] It has been nearly three years since Mr. Hercules’ last offence. He has been entirely compliant with his release conditions. The prolonged nature of these proceedings must be considered when determining the appropriate disposition.

[30] Mr. Hercules’ long-term rehabilitation should remain one of my primary goals. I heard no evidence that he is a threat to the safety of the community. He has not committed any further offences. Subjecting Mr. Hercules to a jail sentence now given his personal and family circumstances would serve as a detriment to his own rehabilitation and almost certainly have a negative impact on his children’s ability to have a meaningful relationship with their father: see R. v. Rockey, 2016 ONCA 891 at paras. 38-39.

[31] Furthermore Justice Minister D. Lametti, when addressing the House of Commons Standing Committee on Justice and Human Rights about Bill C-5, stated that the bill was part of the government’s efforts to address systemic racism in the justice system. The Minister specifically noted that Black Canadians are overrepresented in Canada’s correctional facilities and the legislation was intended to address this problem: see Minister’s Opening Remarks, April 8, 2022, available online.

[32] I note as well that prior to the enactment of Bill C-5, the Ontario Court of Appeal in R. v. Morris, 2021 ONCA 680, stated expressly at para. 129 that:

The use of conditional sentences when sentencing young Black offenders, in appropriate cases, also carries the added advantage of addressing, at least as it relates to the offender before the court, the ongoing systemic problem of the over-incarceration of young Black offenders.

[33] Incarcerating Mr. Hercules at this point would run contrary to Parliament’s stated intentions in Bill C-5. It would also exacerbate, rather than alleviate, the very concerns identified by the Ontario Court of Appeal in Morris.

[34] A properly constructed conditional sentence can give adequate weight to the principles of deterrence and denunciation. He will be sentenced to a global 90 day conditional sentence order followed by a year of probation.

[35] The conditional sentence order will contain the following terms:

• Keep the peace and be of good behavior;
• Appear before the Court when required to do so by the Court;
• Report (within 2 working days) to a supervisor and thereafter report when required by the supervisor and in the manner directed by the supervisor;
• Remain within the province of Ontario, unless written permission to go outside the province is obtained from the court or the supervisor;
• Reside at an address approved of by your supervisor;
• Notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change in employment or occupation;
• Attend for programming or counselling as directed by your supervisor;
• Make reasonable efforts to seek and maintain employment;
• Sign any consents or releases to enable your supervisor to monitor your compliance with the terms of this order;
• Abstain from owning, possessing, or carrying any weapon as defined by the Criminal Code;
• Have no contact, directly or indirectly, with M. Mulesha except if she provides her prior, written, orally revocable consent to your probation officer, or pursuant to the terms of a family court order;
• Do not attend within 100m of anywhere you know M. Mulesha to live, work, or happen to be, except if she provides her prior, written, orally revocable consent to your probation officer, or pursuant to the terms of a family court order.

[36] Mr. Hercules is not to leave his place of residence for the following 90 days except to travel directly, to, from or while at: (1) Employment (with proof to be provided to your supervisor upon request); (2) Medical appointments or emergencies involving Mr. Hercules or a member of his immediate family; (3) Childcare obligations for his children; (4) Legal obligations regarding compliance with this order; (5) On Saturdays between the hours of 12 and 4pm for personal amenities and appointments; and (6) With the signed, dated, written letter of permission from his supervisor.

[37] The term of probation will last from one year beginning upon completion of his conditional sentence order. The terms will be:

• Keep the peace and be of good behaviour;
• Report by telephone to a probation officer within one business day (by telephone or in person) and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision;
• Reside at an address approved of by your probation officer;
• Abstain from owning, possessing, or carrying any weapon as defined by the Criminal Code;
• Have no contact, directly or indirectly, with M. Mulesha except if she provides her prior, written, orally revocable consent to your probation officer, or pursuant to the terms of a family court order;
• Do not attend within 100m of anywhere you know M. Mulesha to live, work, or happen to be, except if she provides her prior, written, orally revocable consent to your probation officer, or pursuant to the terms of a family court order.
• Take any counseling or programming as directed by your probation officer (including the Partner Assault Response program); and
• Sign any releases necessary to permit your probation officer to monitor your compliance with the terms of this order.

[38] Mr. Hercules is ordered to provide a sample of his DNA as both assault with a weapon and assault causing bodily harm are primary designated offences: Criminal Code section 487.051(1).

[39] He is also prohibited pursuant to Criminal Code section 109 from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. He is prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapons, ammunition and explosive substance for 10 years.

[40] The victim fine surcharges are imposed.

Released: November 25, 2022 Signed: Justice Brock Jones