ONTARIO COURT OF JUSTICE DATE: 2023 03 30 COURT FILE No.: Pembroke 20-1405
BETWEEN:
HIS MAJESTY THE KING
— AND —
TROY RIOPELLE
REASONS FOR SENTENCE
Before: Justice J.R. RICHARDSON Heard on: March 29, 2023 Reasons for Sentence released on: March 30, 2023
Counsel: Conor Kyte, counsel for the Crown Kathleen Kealey, counsel for the accused
RICHARDSON J.:
[1] What is the appropriate sentence for a 39 year old man who, without provocation, attacked his 67 year old uncle and knocked out two of his teeth? That is the issue I must decide in this case.
Facts
[2] On December 16, 2022, after a trial, I found Mr. Riopelle guilty of one count of Assault Causing Bodily Harm contrary to section 267 (a) of the Criminal Code.
[3] Mr. Riopelle, now aged 42 (at the time of the offence, he was 39) and Mr. Bandy, now aged 69 (at the time of the offence he was 67) are related. Mr. Riopelle is Mr. Bandy’s nephew.
[4] Despite this blood relationship, there is considerable “bad blood” between Mr. Bandy and Mr. Riopelle’s family. That “bad blood” stems from a dispute involving the inheritance of the Glenalee Mobile Home and Campground. This business, which was started by Mr. Bandy’s father, was passed on to Mr. Bandy’s two sisters, one of whom is Mr. Riopelle’s mother, thus essentially disinheriting Mr. Bandy. Mr. Bandy commenced a legal action but he was not successful. Mr. Bandy told me that he has worked at the park for much of his adult life.
[5] Despite not being successful with his legal action, Mr. Bandy continues to do some work for renters in the park. Although Mr. Riopelle’s mother has essentially barred Mr. Bandy from the part of the park that she has exclusive control over, Mr. Bandy often does work for renters in the mobile home side of the park.
[6] He was mowing the grass for one such renter when the assault occurred. He was wearing ear protection. Mr. Riopelle approached Mr. Bandy because he was angry about Mr. Bandy’s vehicle being parked on his mother’s grass. Mr. Riopelle struck Mr. Bandy with such force that he knocked Mr. Bandy off the lawn tractor that he was operating. He also knocked out two of Mr. Bandy’s teeth.
[7] Mr. Bandy had to have stitches. He also had to have a partial plate fitted. Mr. Bandy does not have dental insurance. At trial, I heard that to replace his teeth permanently, he must have implants installed. His initial trip to the dentist cost him $626. If he opts for implants, he will have to pay $8250 for the installation of them, and the cost of the implants themselves are $5132. In essence, according to the evidence at trial, he is owed $14,008.
[8] At sentencing, I received additional evidence pertaining to Mr. Bandy’s costs to replace his teeth. He is still out the initial cost of $626. The installation of the implants will now cost $8,800 and the cost of the implants themselves is now estimated at $5281. The new total is $14,707.
The PSR
[9] I ordered the preparation of a Pre-Sentence Report which was completed on March 7. It is largely unremarkable. Mr. Riopelle has never committed a criminal offence before. He grew up in a good home. He has worked as a carpenter all his life, first with his father’s company, and for the last twelve years, on his own. He also has some part time employment at Glenalee.
[10] He has been in a relationship with his partner for 12 years. He does not have any children of his own but he does actively parent her children, ages 16 and 21.
[11] Collateral contacts indicated that this behaviour is completely out of character for Mr. Riopelle. Mr. Riopelle has abstained from alcohol for about four years. There is no evidence that alcohol was ever a problem for him. Apart from smoking marihuana twice a week to assist him to sleep, he does not use any drugs.
[12] He does not have any mental health problems.
[13] When interviewed by the author of the Presentence Report, he indicated that he is remorseful and he is not the kind of person to be involved in criminal behaviour.
The Letters of Reference
[14] I received two letters of reference from people that Mr. Riopelle has done work for. Both speak glowingly of Mr. Riopelle.
The Victim Impact Statement
[15] A Victim Impact Statement was filed for Mr. Bandy. Mr. Bandy noted that he is concerned with high blood pressure and he had to be taken to hospital once because of it. He feels like he is constantly looking over his shoulder and needing to be aware of his surroundings. He has anxiety and has been yelling in his sleep. He is on medication for his anxiety.
[16] Defence counsel advised me that Mr. Bandy has now commenced a legal action against Mr. Riopelle as a result of this incident.
Submissions for the Crown
[17] The Crown submitted that this was an unprovoked attack on a man who was much more Mr. Riopelle’s senior. He submitted that Mr. Bandy, by virtue of the hearing protection he was wearing and the fact that he was operating a riding lawn mower, could not defend himself. As such, he maintained that Mr. Riopelle was deserving of a custodial sentence in the range of four to six month in order to pay appropriate heed to the objectives of specific and general deterrence and denunciation.
[18] The Crown also asked me to require Mr. Riopelle to pay restitution in the amount of $14,707 as part of a probation order. The Crown argued that the amount of restitution was readily ascertainable and should be ordered.
Submissions of Defence
[19] Defence counsel agreed with the characterization that this was an unprovoked attack. She argued that the appropriate sentence was four to six months, but indicated that the sentence could be served in the community. She also invited me to consider a longer conditional sentence if I thought that the four to six months was insufficient.
[20] She reminded the Court that Mr. Riopelle has been on conditions for two years and there has not been any reoffence. But for this offence, she maintained that Mr. Riopelle was a prosocial member of the community who is self-employed and responsible.
[21] She maintained that a conditional sentence can still give effect to the principles of denunciation and deterrence while at the same time also giving effect to the principle of restraint and the importance of Mr. Riopelle continuing to work, particularly if restitution is ordered.
[22] Defence counsel argued that the amount of the restitution should be left to be determined in the civil action. In the alternative, she argued that the principle of totality militated against the length of conditional sentence or a custodial sentence if I was of a mind to order Mr. Riopelle to pay the full amount of restitution.
Analysis
[23] In his seminal book, Clayton Ruby described the sentencing dilemma in cases of Assault Causing Bodily Harm this way:
…review of cases under this offence leads little in the way of enlightenment as to general rationales used by the courts in their sentencing dispositions. Each case appears to turn very much on his own unique set of circumstances. The problem is compounded by the increased sentencing flexibility that courts now have in responding to the causing of bodily harm.
[24] Ruby goes on to group sentencing for Assault Bodily Harm according to disposition, noting with reference to numerous authorities, that sentencing can range from Discharge all the way up to Custodial Sentence and in rare cases a Penitentiary Sentence.
[25] In R. v. Marttila, the accused was found guilty after a trial. He suffered a black eye, a deep gash across his right cheek, split lips, numerous cuts and bruises and a mark on his neck. There was evidence that the offence was racially motivated. The court imposed a sentence of 90 days (intermittent) and three years probation, stating:
Apart from the offence before me, Mr. Marttila is apparently a good man; a gentle, caring man. The offence he committed, however, was a brutal assault, tinged with racial overtones. The facts of the offence are repulsive and clearly call for me to consider the principles of denunciation and deterrence. The background of Mr. Marttila, on the other hand, makes it clear that I cannot focus on these principles to the exclusion of others, especially the principle of rehabilitation.
I must somehow craft a sentence that will make it clear that this court will not tolerate offences such as that committed here, while at the same time ensuring that the sentence does not have crushing consequences for Mr. Marttila and those dependent on him.
[26] In R. v. Gee, the accused was drunk. The victim was a cab driver who asked the accused to leave because he was intoxicated. An argument ensued in which the accused pushed the victim. The victim fell and fractured his leg. As a result of the offence, the victim underwent two surgeries and could not work for over a year. At the time of the sentencing, he still suffered from pain and had difficulty walking. The accused pled guilty to the offence. There was a positive presentence report. He had a prior record as a youth. He expressed remorse.
[27] The Court imposed a sentence of four months custody and probation. With respect to the availability of a conditional sentence, stating,
Ultimately in assessing all of the factors noted above, I am of the opinion that when a vulnerable member of the community has been subject to an unwarranted attack, which leads to significant personal injuries, then a conditional sentence of imprisonment is not warranted.
[28] In R. v. Huh, the Court of Appeal for Ontario weighed in on sentencing in cases of Assault Bodily Harm. The accused was 21 at the time of the offence. He assaulted the victim while he was severely intoxicated. It was described by the Court of Appeal as “extraordinarily violent”. As a result of the assault, the victim suffered from facial fractures, post concussion syndrome and brain damage in the higher executive function. He had to withdraw from post secondary education. The presentence report was not positive. The accused was noted to be a “multi-substance abuser in denial of his need for rehabilitation”. At the sentencing hearing, the Crown sought custody. The accused was given an adjournment to allow him time to make efforts to persuade the sentencing judge that a discharge would not be contrary to the public interest. During that remand period, he met with a social worker at the Centre for Addiction and Mental Health and completed 144 hours of community service. He participated in church activities including a mission trip to Mexico. He worked in the family business. The sentencing judge ultimately granted a Conditional Discharge with two years probation.
[29] The Court of Appeal stated:
The Crown submits that the sentence imposed in this case was manifestly unfit. We agree. The sentence was not proportionate to the gravity of the offence. The conditional discharge did not reflect the degree of violence of the respondent’s assault, the seriousness of the injuries he inflicted on the victim, or the applicable sentencing principles.
We adopt the observation in R. v. Wood (1975), 24 CCC (2d) 79 (C.A.) at para. 4 : “[i]n case 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.”
….[w]e do not agree with the respondent that no incarceration should now be imposed. This was a crime of violence that left the victim with serious and longstanding injuries. The principles of deterrence and denunciation cannot be met without a period of incarceration. The Crown has urged a period of six to eight months’ incarceration, followed by two years of probation. That appears to be at the low end of the appropriate range.
[30] Ultimately the Court of Appeal imposed a sentenced of six months imprisonment followed by two years probation, noting that “[t]his sentence plays due regard to the principles of deterrence and denunciation, but also to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission and the respondent’s commendable efforts at rehabilitation.”
[31] In R. v. Wood, the accused and the victim were guests at a house party. They were both intoxicated. The victim attacked the accused after the accused laughed when he fell down. The accused got the upper hand and punched the victim to the point of unconsciousness. The victim suffered a broken orbital bone that required plastic surgery to repair. The accused was young (19), had an alcohol problem as a result of years of family discord between his parents and had been accepted to college. Citing R. v. Huh, the Court sentenced the accused to a four month conditional sentence.
[32] In R. v. Bowers, the accused pleaded guilty to one count of assault causing bodily harm. The accused assaulted the victim over a misunderstanding about the accused’s girlfriend. He punched the victim in the face twice causing him to fall to the floor. He then picked up a barstool and threw it at the victim, striking him. The victim suffered bruising under his right eye, a laceration to the side of his head and he required nine stitches. He did not provide a Victim Impact Statement. The accused was 23. He had a prior record which included convictions for two assaults, and impaired driving. He had ADHD. He worked at a factory. He had a drinking problem. The PSR was positive. Collateral contacts indicated that he was responsible, intelligent, capable, dedicated and trustworthy. He acknowledged that he had difficulty controlling his emotions which is exacerbated by the use of alcohol. He was in compliance with his bail conditions. The Court imposed a nine month conditional sentence and two years of probation.
[33] The Crown also relied on R. v. Rego. In this case the victim and his spouse drove to a hotel that they were considering purchasing. The accused (there were two of them) and a third person ran up to the victim’s car and pulled the victim from it. As they were doing so, he fell to the ground and struck the back of his head. While on the ground the two accused kicked him in the face and threatened to kill him. He suffered a black eye and bruises to his knee and inner thigh. He has a permanent scar to his nose. He suffers from migraines. A bridge with three teeth was damaged during the attack and it would cost him $8500 to repair it. He did not have insurance. Both accused were employed and had significant community support. Neither had a criminal record.
[34] Defence sought a discharge. Crown sought between two and six months custody, or a longer conditional sentence order. The Court determined that a suspended sentence and probation was appropriate.
[35] These cases highlight Ruby’s concern about the elasticity of sentencing caselaw in cases involving Assault Causing Bodily Harm. Marttila and Rego were decided in the same jurisdiction (Niagara) albeit ten years apart. Wood and Rego were decided by the same judge albeit in different jurisdictions (Durham and Niagara). Bowers and Wood were decided in the same jurisdiction (Durham).
[36] Counsel both wisely anticipated that the real question here was whether this case warranted a Conditional Sentence or a Sentence of Imprisonment. Absent serious collateral factors, which are not present here, I do not believe that a Discharge or a Suspended Sentence is warranted on these facts. In my view, such a disposition would be incongruous with the degree of harm suffered by Mr. Bandy, the violent and unprovoked nature of Mr. Riopelle’s attack and the fact that Mr. Bandy was not able to defend himself because he was using a riding tractor and had ear plugs in and the fact that Mr. Riopelle was over twenty years younger and in my estimation, likely much stronger than Mr. Bandy. To do so would, in my view, run afoul of the clear language of the Court of Appeal in Huh.
Is A Conditional Sentence Available?
[37] A Conditional sentence is available in this case. The question is whether one should be ordered. I am satisfied that it should be.
[38] The Crown elected to proceed summarily. The maximum sentence available is eighteen months and the Crown is seeking a six month sentence. Assault Causing Bodily Harm is not one of the shrinking class of offences for which a Conditional Offences is not available. If I am satisfied that the community would not be endangered by having Mr. Riopelle serve his sentence in the community, and if I am satisfied that such a sentence does not offend the fundamental principles of sentencing set out in section 718 to 718.2 of the Criminal Code, such a sentence is available.
Does a Conditional Sentence for Mr. Riopelle Put the Community At Risk?
[39] In R. v. Proulx, the Supreme Court of Canada noted that when deciding whether serving of a sentence in the community would not endanger the safety of the community, I must consider the risk posed by the individual offender – in this case Mr. Riopelle – if his sentence is served in the community. Specifically, I must consider the risk that Mr. Riopelle will reoffend and the gravity of damage that could take place if he does reoffend. In assessing Mr. Riopelle’s risk, I must consider the following (non-exhaustive) list of factors:
a) the nature of the offence,
b) the relevant circumstances of the offence, which can put in issue prior and subsequent incidents,
c) the degree of participation of the accused,
d) the relationship of the accused with the victim,
e) the profile of the accused, that is, his [or her] occupation, lifestyle, criminal record, family situation, mental state,
f) his [or her] conduct following the commission of the offence,
g) the danger which the interim release of the accused represents for the community, notably that part of the community affected by the matter.
[40] This offence is extremely serious. Mr. Bandy suffered serious bodily harm and in light of his age, the possibility of more serious harm was very high. It was a surprise unprovoked attack committed by a stronger, sober man against a victim who was over twenty years his senior. The moral blameworthiness of Mr. Riopelle is extremely high.
[41] The parties are members of the same family which is also an aggravating factor, even if, as here, they have been estranged from one another for several years and the two sides of this dispute seem to behave little better than the Hatfields and the McCoys.
[42] On the other hand, Mr. Riopelle works and has worked all his life as a carpenter. He does not have a criminal record. He is in a stable relationship with his partner. He has positive community support as evidenced by the letters of reference. He does not suffer from any mental illness. He is not at the mercy of any addiction. His family roots and his business anchor him in the community.
[43] Since the offence he has continued to live an offence-free life. He has been subject to conditions which he has not violated.
[44] This appears to be a one-off. The only conclusion I can draw is that on the day in question, Mr. Riopelle was fed up with what he saw as Mr. Bandy’s continued unwelcome attendance to work in the park, and given at least thirty years of acrimony between his family and Mr. Bandy, he chose to make his point in an extremely violent way.
[45] I accept that he is remorseful. He indicated so in the Pre Sentence Report and he told me that he was sorry when I asked him if he had anything to say. Although I did not believe Mr. Riopelle when he told me at trial that Mr. Bandy attacked him, I am satisfied that despite the obvious incongruence of that position with remorse, Mr. Riopelle has learned something from this experience and he is unlikely to find himself in the criminal court again.
[46] Thus, I am satisfied that the imposition of a Conditional Sentence is unlikely to put the community at risk.
Is a Conditional Sentence for Mr. Riopelle Consistent with the Principles of Sentencing in Section 718 to 718.2 ?
[47] Section 718 of the Criminal Code provides that:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just and peaceful society by imposing just sanctions that one or more of the following objectives:
A) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 reparations for harm done to victims or to the community; and
F) to promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims or to the community.
[48] I have some difficulty with the issue of whether imposing a conditional sentence in Mr. Riopelle’s case would contribute to respect for the law and the maintenance of a just and peaceful society on the facts of this case.
[49] Over twenty years ago, however, in R. v. Proulx, the Supreme Court of Canada found that Conditional Sentences can meet the sentencing objectives of denunciation and deterrence. The Supreme Court touched on this in two places. First at paragraph 41, it stated:
This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this court stated in Gladue, supra, at para 72:
….in our view a sentence focussed on restorative justice is not necessarily a “lighter” punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.
A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions make reparations to both the victim and the community, all the while living in the community under tight controls.
[50] Later at paragraph 127, the Supreme Court further noted:
A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation and deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future.
[51] Contrary to public perception, abiding by a Conditional Sentence, particularly where it involves periods of home confinement, is not easy. For Mr. Riopelle it will not be easy. The sentence that I will impose will include a house arrest. He will have to pay full restitution. He will have to complete community service hours. It will be a significant restriction on his liberty.
[52] With respect to the issue of Specific Deterrence, as I have said above, I doubt Mr. Riopelle will darken the door of a courtroom again.
[53] With respect to rehabilitation, the Conditional Sentence that I will impose will include terms that will address obvious issues with anger and impulse control. These issues can be addressed in the community. He does not need to be incarcerated to receive treatment.
[54] I am satisfied he does not need to be incarcerated in order to protect the public. He will be prohibited from possessing weapons. He will have to provide a sample of his DNA. His liberty will be restricted. He will undergo counselling to address some of the issues that caused him to commit these offences.
[55] Pursuant to section 718.1, I am also satisfied that a Conditional Sentence in this case meets the fundamental principle of sentencing: proportionality. As has often been said, sentencing is an individualized and delicate process. In this case, a Conditional Sentence of the length that I intend to impose is fit in that it takes into consideration the gravity of Mr. Riopelle’s offence and his moral blameworthiness. I do not believe that the public would be well served by seeing this middle-aged otherwise law abiding and productive member of society incarcerated. It would not aid in the making of amends to the victim in that Mr. Riopelle’s inability to work as a result of imprisonment will make him more unable to make restitution to Mr. Bandy.
[56] Under section 718.2(d), “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.” This is part (but not the only part) of what is commonly referred to as the principle of restraint. Although a conditional sentence in this case will result in a serious deprivation of liberty for Mr. Riopelle, it is not the kind of total deprivation of liberty that he would experience if he was to serve his sentence behind bars. In this way, a Conditional Sentence is a less restrictive sanction.
[57] Secondly, under section 718.2(e), I must consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community”. This is another part (but not the only part) of the principle of restraint. I find that a Conditional Sentence is reasonable in the circumstances of Mr. Riopelle, in the circumstances of his offence and it is consistent with the harm that he has caused.
[58] I will therefore impose and eight month conditional sentence (four months house arrest), three years probation, restitution, a section 110 Order for period of ten years, an order for the taking of his DNA.
Released: March 30, 2023 Signed: Justice J.R. Richardson