Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 08 01 COURT FILE No.: Brampton 3111 998 22 2322

BETWEEN:

HIS MAJESTY THE KING

— AND —

M.A.

Before: Justice G.P. Renwick Heard on: 01 August 2024 Reasons for Judgment released on: 01 August 2024

Counsel: J. Ng, for the Crown A. Kenawy, counsel for the Offender M.A.

Reasons for Sentence

RENWICK J.:

Introduction

[1] Following a three-day trial, I rejected the Offender’s evidence and I was not left in any reasonable doubt that the Offender had struck the complainant, his wife at the time, about her head and face, with open hands as he tried to interfere with her breathing by covering her mouth and holding her neck, until she almost passed out.

[2] The prosecution seeks a six-month sentence of imprisonment followed by probation for two years and ancillary Orders (DNA sampling and a weapons prohibition).

[3] The Offender seeks to serve a jail sentence in the community (one year), with probation (one year), and he takes no issue with the ancillary orders sought.

[4] In these reasons, I will explain the governing principles, the particular moral blameworthiness of this offender, and how I arrived at an appropriate sentence in this matter.

Governing Sentencing Principles

[5] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code 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.

[6] 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. 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. [1]

[7] In R. v. Hamilton and Mason, 2004 ONCA 5549, Doherty J.A. of the Ontario Court of Appeal stated 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…

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. [2]

[8] The Court 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. [3]

[9] Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [4]

[10] In R. v. Proulx, 2000 SCC 5, the Supreme Court spoke about the principle of restraint when considering imprisonment:

Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e). Section 718.2(d) provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances", while s. 718.2(e) 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". Further evidence of Parliament's desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(c) qualifies the sentencing objective of separating offenders from society with the words "where necessary", thereby indicating that caution be exercised in sentencing offenders to prison... [5]

[11] The Supreme Court has instructed that section 718 requires a sentencing judge to consider more than simply denunciation, deterrence, and rehabilitation. The court 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 by an offender, while attempting to rehabilitate or heal the offender. [6]

[12] Although the rehabilitation of the Offender is a secondary consideration in the overall calculus of an appropriate sentence in this case (behind denunciation and deterrence), it is still a factor I must consider.

Positions of the Parties

[13] In addition to ancillary orders, the prosecutor seeks six months of imprisonment and 24 months of probation.

[14] The Offender seeks a conditional sentence of imprisonment for one year, or any other appropriate period. He seeks probation for a similar length of time. He does not oppose a DNA Order and a weapons prohibition.

Mitigating and Aggravating Features

[15] There are several mitigating factors.

[16] It is mitigating that the Offender is a first offender, now aged 43 years. While this does not mitigate the seriousness of the offence or the moral culpability of the Offender, it does underline the need for penal parsimony and forbearance.

[17] The Offender is a contributing member of the community. He has always worked to support his family, until, as a result of the complainant’s departure from Canada in October 2023, he became sole caregiver of their four children (aged 7-17 years). Since the complainant’s return to Canada in June 2024, the Offender has recently become re-employed as an electrician, where he works six days a week.

[18] The Offender has tried to repay his community and improve himself. He has completed 85 hours of volunteer work at two local benevolent organizations. He has taken 12 hours of individual cognitive behavioural therapy to understand the nature of intimate partner violence, emotional regulation, relationship boundaries, and stress management.

[19] Although the Offender has been on bail for 29 months, this is hardly a mitigating factor. During his testimony he admitted that he had maintained contact with the complainant, within several weeks of his arrest, initially through their son. Then, he had direct communications with the complainant until 10 days before he testified. He says that he communicated with the complainant to convince her to come home for the sake of their children. It is mitigating that there have been no further charges while on bail.

[20] The author of the pre-sentence report found the Offender to be “polite” and “forthcoming.” The Offender does not suffer any substance addictions (he abstains completely from alcohol and drugs) or mental health concerns.

[21] It is also important to note that the pre-sentence report is favourable. The Offender has a supportive family in Syria, with whom he maintains daily contact. He has friends and is close with his community, which he values and serves. He is well-regarded.

[22] On the basis of the pre-sentence report, I find that the Offender is likely to benefit from and be amenable to community supervision, if warranted. [7]

[23] The aggravating features include the following: i. In the course of an argument, the Offender struck his then-wife multiple times after throwing her onto their bed and mounting her; she was struck with his open hands on her face and head as he insulted her, prevented her escape, covered her mouth (to end her screaming), and held her neck; this violence lasted for several minutes; ii. The complainant had recently endured surgery and was recovering; iii. The complainant suffered difficulty breathing during the attack and she almost lost consciousness; iv. The complainant’s injuries included soreness to her throat, difficulty vocalising, and generalised pain and discomfort, including to her then-recent surgery site (lower abdomen); the assault left blood on her mouth; v. The complainant has suffered significant emotional harm; vi. The parties were intimate partners. One expects protection from an intimate partner, not domination and violence; and vii. The couple’s youngest son, then aged 4-5 years, was present for the start of the argument and remained in the home when the violence occurred.

Discussion

[24] The parties rely on jurisprudence suggesting a range for this offence, in similar circumstances, of 60 days to six months imprisonment. Courts have been very clear that deterrence and denunciation are paramount in sentencing intimate partners for violent encounters.

[25] For decades, it is clear that, “Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are.” [8]

[26] On a continuum of intimate partner assaults this offence is mid-way toward the most serious extremity for assault simpliciter. It involved a protracted violent event, which the complainant attempted to avoid by going to their bedroom. The Offender followed her for the purpose of the assault, which lasted for several minutes and was significant enough that the complainant thought that she might be killed. The complainant felt compelled to call out for help. This only prompted a more violent response: the Offender put his hand on her mouth to silence her while holding her neck with his other hand to control her. The effects of the assault upon the complainant appear significant. [9]

[27] I find that the Offender is of good character (this is demonstrated by his work history, his trade qualification, his parenting, his volunteer work, and his completion of counselling, and amenability to community supervision). This offence is out of character for him. It occurred during a seventeen-year marriage with no prior history, during the stress of a global pandemic. He is an excellent candidate for rehabilitation. On the basis of his background, his character, his experience going through the judicial process, his connection to his community, his family support, and his recent counselling, I find that this Offender is unlikely to re-offend.

[28] In my view, there is a significant need for the sentence to denounce and deter this crime in the strongest of terms. The parties agree that imprisonment, in some form, in the low reformatory range (if served in a facility) is appropriate.

[29] Given the mitigating and aggravating factors, I would attribute the appropriate range of sentence between 2-4 months of custodial imprisonment. The need for restraint exists, in recognition of the Offender’s prior unblemished character and likely employment consequences. If the Offender is imprisoned in a custodial setting, he will lose his employment and his children will suffer the loss of an important care-giver and economic provider. This consideration militates toward a conditional jail sentence, if appropriate.

[30] Theoretically, a conditional sentence of imprisonment can include deprivations to approximate a prison sentence. In some cases, conditional imprisonment may even be more onerous.

[31] I have considered and rejected the submission that an appropriate sentence for this Offender requires custodial imprisonment for the following reasons: i. This offence did not involve choking. I found that the Offender held his hand on the complainant’s mouth, to stop her screaming, and he held his other hand on her neck to control the complainant. These circumstances had the effect of impairing the complainant’s breathing, but the Offender relented and left the room before she passed out; ii. This offence seems entirely out of character for this Offender on the evidence I have accepted; and iii. The Offender has taken steps to begin his rehabilitation (counselling) and repay our community for this offence (volunteer work).

[32] In my view, this is an appropriate case for a Conditional Sentence Order for the following reasons: i. The Offender has never been to jail. As a result, this sentence is a significant one for this Offender; ii. The Offender is employed in a skilled trade. This demonstrates the ability to contribute gainfully to the community (pro-social behaviour) and a capacity for normative compliance: the Offender can follow legislation (by-laws or safety codes); iii. The Offender is co-parenting four children; iv. The Offender is paying the mortgage on the family home; v. The Offender is assessed as a good candidate for community supervision; vi. The Offender is at a low risk to re-offend; and vii. The Offender has already begun his rehabilitation (community work and counselling).

[33] I am satisfied that a properly crafted conditional sentence can adequately punish the Offender, deter him and other like-minded individuals, and adequately denounce this offence in strong terms.

The Sentence Imposed

[34] The Offender will serve a conditional sentence of imprisonment for 12 months with the following terms:

1. Keep the peace and be of good behaviour;
2. Appear before the court when required;
3. Report to a Conditional Sentence Supervisor by 02 August 2024 at 4:00 p.m. in person or by calling 905-457-6887, and thereafter as required, in the manner directed, and not less than once per month for the duration of the Conditional Sentence Order;
4. Reside where approved by your Conditional Sentence Supervisor;
5. Remain in Ontario unless prior written permission to go outside the jurisdiction is obtained from the court or your Conditional Sentence Supervisor;
6. Notify the court or your Conditional Sentence Supervisor in advance of any change of name or address, and promptly notify the court or your Conditional Sentence Supervisor of any change of employment or occupation;
7. For the first four months of this conditional sentence you will observe a condition of house arrest, to be in your residence at all times except: i. For the purpose of travelling to, from, and while at your place of employment; ii. For the purpose of travelling to, from, and while attending your personal medical appointments; iii. For the purpose of travelling to, from, and while attending a place of worship, on one day each week for a period of not more than four hours; iv. For the purpose of seeking emergency medical treatment for yourself or any of your children while they are in your care; v. For the purpose of shopping for necessities or banking, on a day designated by your Conditional Sentence Supervisor, not to exceed 4 hours; and vi. For any other purpose approved in advance and in writing by your Conditional Sentence Supervisor;
8. For the second four months of the conditional sentence you will maintain a curfew to be in your residence from 9:00 p.m. until 6:00 a.m., except for the purpose of seeking emergency medical treatment for yourself or any of your children while they are in your care;
9. For the duration of the Conditional Sentence Order, you are prohibited from having contact, either directly or indirectly, with the complainant (your ex-wife, H.A.), except through legal counsel or family court proceedings;
10. For the entire duration of the Conditional Sentence Order, you are prohibited from attending at or within 50 m of any place you know or find the complainant (your ex-wife, H.A.) to be, including her residence, place of education, place of employment, place of worship, or any other place you know or find her to be, except for the purposes of attending family court proceedings;
11. For the entire duration of the Conditional Sentence Order, when you are inside your residence, you will present yourself to the front door within 10 minutes, upon the request of any peace officer between the hours of 6:00 am and 9:00 pm;
12. For the entire duration of the Conditional Sentence Order, when you are outside of your residence, you must carry a copy of the Conditional Sentence Order and any written exceptions approved by your Conditional Sentence Supervisor and produce these documents to any peace officer who requests your identification;
13. For the entire duration of the Conditional Sentence Order, you will take any counselling that is directed by your Conditional Sentence Supervisor;
14. For the entire duration of the Conditional Sentence Order, you will sign releases of information in favour of the Conditional Sentence Supervisor to permit him or her to monitor your employment and attendance, participation, and completion of counselling; and
15. For the entire duration of the Conditional Sentence Order, you are prohibited from possessing any weapons.

Probation

[35] Following the Conditional Sentence Order, you will be on probation for 18 months with the following terms:

1. Keep the peace and be of good behaviour;
2. Attend court when required;
3. Notify your Probation Officer in advance of any changes of name, address, or occupation;
4. Report to a Probation Officer within 1 week following the completion of your Conditional Sentence Order by calling 905-457-6887 from 9am to 5pm and thereafter as required, in the manner directed by a Probation Officer;
5. You are prohibited from having contact by any means with the complainant (your ex-wife, H.A.), except through legal counsel or family court proceedings;
6. You are prohibited from attending at or within 50 m of any place you know or find the complainant (your ex-wife, H.A.) to be, including her residence, place of education, place of employment, place of worship, or any other place you know or find her to be, except for the purposes of attending family court proceedings;
7. You will take any counselling that is directed by your Probation Officer;
8. You will sign releases of information in favour of the Probation Officer to permit him or her to monitor your attendance, participation and completion of counselling; and
9. You are prohibited from possessing any weapons.

Ancillary Orders

[36] On consent, there will be a DNA Order.

[37] By 5:00 p.m. on 06 September 2024, you are required to arrange an appointment with Peel Regional Police to attend 7750 Hurontario Street, Brampton to provide a suitable sample of your deoxyribonucleic acid (“DNA”) for the purposes of uploading to the national database.

[38] I Order that the taking of your DNA will be done in private, in a manner that protects your bodily integrity and employs all required safety protocols. If you refuse to provide your DNA voluntarily, I am directing the police to take your DNA by force.

[39] Your DNA will be taken in hygienic conditions in one of three ways: i. One or more hairs will be plucked from your head; or ii. A buccal swab will be taken from your mouth; or iii. Droplets of your blood will be taken by using a sterile lancet to prick your finger.

[40] There will be a s. 110 Order for five years prohibiting you from possessing the enumerated items (firearms, ammunition, explosives, etc.).

Conclusion

[41] The assault upon the complainant by her then husband, the Offender, was serious. The effects upon the complainant were significant. However, the Offender was of prior good character and he has begun his rehabilitation.

[42] In these circumstances, a conditional sentence of imprisonment is appropriate to condemn this offence and deter any repetition or similar conduct by others.

[43] I wish that you become fully rehabilitated and continue to contribute to your family and our community, Mr. M.A., for your sake and the general public.

Released: 01 August 2024 Justice G. Paul Renwick