ONTARIO COURT OF JUSTICE
DATE: 2025-03-03
COURT FILE No.: Pembroke 23-37200165
BETWEEN:
His Majesty the King
— AND —
D.M.
Before Justice J.R. Richardson
Heard on January 28, 2025
Reasons for Judgment released on March 3, 2025
Counsel:
Goher Irfan — Counsel for the Crown
Vanessa Garcia — Counsel for the defendant
Introduction
[1] The issue in this case is whether D.M. should be granted a conditional discharge for two counts of assault against A.M., his former intimate partner.
[2] D.M. was charged with:
a) assaulting A.M. between April 1, 2023 and April 16, 2023, contrary to section 266 of the Criminal Code,
b) assaulting A.M. with a weapon, to wit, a hanger between January 1, 2015 and April 16, 2023 contrary to section 267(a) of the Criminal Code,
c) assaulting A.M. with a weapon, to wit, a cable wire, between January 1, 2022 and April 16, 2023 contrary to section 267(a) of the Criminal Code,
d) assaulting A.M. on January 1, 2023 contrary to section 266 of the Criminal Code, and
e) uttering a threat to cause death to A.M. between January 1, 2022 and April 16, 2023, contrary to section 264.1(1)(a) of the Criminal Code.
[3] On July 2, 2024, after a two-day trial in March 2024, I found D.M. guilty of assaulting A.M. on January 1, 2023 (paragraph 3(d) above) and assaulting A.M. between April 1 and April 16, 2023 (paragraph 3(a) above).
[4] I acquitted D.M. on the other charges, including two more serious charges of Assault with Weapon.
[5] With respect to the January 1, 2023 offence, I found that D.M. consumed a significant amount of alcohol during a New Year’s Eve party which the couple attended in Quebec. A.M. was the designated driver and drove the couple home. He was very intoxicated. The weather was bad. A.M. was driving slowly. He pushed her arm repeatedly on the drive home. The pushing caused her to veer into another lane. The pushing stopped when he fell asleep.
[6] With respect to the April 1 to April 16, 2023 offence, I found that D.M. pushed A.M. into a fridge or cupboard in the kitchen of their home. The pushing caused a bruise to A.M.’s arm that was photographed by police on April 16, 2023.
[7] At paragraphs 122 to 123 of the Trial Judgment, I noted the following about the environment at A.M. and D.M.’s home at the time this offence was committed:
It is clear that by April 2023, the relationship was over. The parties were living separate and apart under the same roof. D.M.’s drinking and smoking annoyed A.M. He called her “bitch”. She called him “asshole”. They belittled and provoked one another. They had not slept together since January. They were buying their own food and storing it in their own fridge, jealously guarding it from one another like a dog jealously guards a bone. There were discussions about ending the relationship and going their separate ways. A.M. desperately wanted him out; D.M. stubbornly refused to leave. In A.M.’s eyes, D.M. was a drinking dope-smoking loser who did not contribute. D.M., on the other hand, as evidenced by the number of times he testified that he said to himself “yeah whatever”, was at minimum, the poster child for passive aggressiveness.
The case reminds me of the 1989 movie The War of the Roses. The parties should be ashamed that they allowed this to happen. They should be ashamed that they exposed A.M.’s children to their behaviour.
The Pre-Sentence Report
[8] A Pre-Sentence Report was prepared. It is dated September 5, 2024. It reveals the following:
a) D.M. is now 46 years of age.
b) He is an only child. He was raised by his mother and his grandparents. He never knew his father. He reported a “good” childhood. He resided with his mother and his grandparents until he was 6. At that point, his mother moved out and he and his grandparents moved to Quebec. He played sports growing up.
c) When he was 16, he returned to live with his mother.
d) He did not do well in school and left after Grade 10.
e) He had several jobs until, in his 20s, he ultimately landed a job in a government office. He was employed there for about eight years. After that, he went to work for a major telecommunications company as a Network Technician and he has been so employed for 18 years.
f) He expressed concern to the author of the Pre-Sentence Report about the effect a criminal record may have on his employment.
g) He had a relationship with a woman in 2002. He has a daughter from that union. He had regular access for about ten years, until the access was terminated. He did not have any contact with his daughter after that until recently, when he reconnected with her. In submissions, defence counsel told me that his daughter is in post-secondary education in Prince Edward Island.
h) He reported meeting the victim in 2014. They dated for three years. Then they started cohabiting. He denies having contact with her since the charges arose.
i) He knows that his use of marihuana is problematic. He stated that while he does not use when he is at work or driving, he uses marihuana as soon as he gets home from work. I note that I heard evidence at trial that is consistent with marihuana use being a problem. He told the author of the Pre-Sentence Report that he is prepared to take a substance abuse program.
j) He denies a problem with alcohol. His mother told the author of the Pre-Sentence Report, however, that “when he drinks, he drinks hard and fast”.
k) At the time that the Pre-Sentence Report was completed, he was in the process of completing the Partner Assault Response Program through New Directions in Ottawa. As I will discuss below, he has now completed that program.
l) D.M.’s mother described him as a thoughtful and caring person. His cousin, C.P., told the author of the Pre-Sentence Report that he was trustworthy, hard working and dependable.
m) D.M. currently lives with his mother.
Defence Materials
[9] The matter was adjourned, on consent, for several months to allow D.M. to complete the Partner Assault Program.
[10] Defence counsel filed a report from the Partner Assault Program that serves the Ottawa area, New Directions. The report was completed December 17, 2024. It reveals the following:
a) Under the heading of Acceptance, the Report indicates:
Overall, [D.M.] took responsibility for pushing his partner on two occasions but denied or downplayed the physical effects of bruising and the potential emotional effects of being pushed and punched while [s]he was driving.
b) He admitted that the verbal exchanges between he and A.M. would frighten and scare her children, who were living with them.
c) D.M. arrived on time and participated in all twelve sessions. He was quiet during group sessions but cooperative and respectful. He completed homework assignments satisfactorily.
[11] The Crown would later submit that the report indicates that D.M. has issues with insight.
[12] The Court must be careful with respect to how it interprets this report. According to the report, the facilitator of the program scored D.M. as a Level 2, “meets minimum standards”, which is below Level 3, “Satisfactory”, and Level 4, “Excellent”. In coming to this conclusion and discussing D.M.’s level of acceptance and his minimization of intimate partner violence, the facilitator pointed out that D.M. continued to deny hitting A.M. with a hanger or a cord and telling her that he was watching crime shows to learn how to kill her.
[13] D.M. cannot be faulted for this. These allegations form the subject matter of the other charges of which I found D.M. not guilty. The presumption of innocence remaining intact, he cannot be expected to accept responsibility for those facts and he cannot be penalized for failing to do so.
[14] I expect that the program may have relied on a synopsis of the offences prepared by the police as opposed to the Judgment of this Court. If they did, they relied on unproven allegations and they should not have done so in this case.
[15] In my view it is clear from the report that D.M. accepted responsibility for the offences of which he was found guilty. That is all he can be expected to do.
[16] Moreover, the report also indicates that he admitted responsibility for other things which were not before me, including punching a wall, table or door, throwing and breaking objects when angry and trying to keep a partner away from family or friends. These are things that D.M. volunteered he has done which are over and above the charges before the Court.
[17] He also ultimately admitted two elements of his behaviour towards A.M. about which I did hear evidence: spending family money on things like alcohol and drugs and yelling and calling A.M. names.
[18] All in all, when I look at the facts of the offences of which I found D.M. guilty and the things that he admitted to the facilitator of the program, I suspect he was deserving of a higher score in the area of Acceptance. He cannot be penalized for not accepting allegations of which he was not found guilty.
[19] Defence counsel also filed a letter from D.M.’s mother, K.M. She stated that she has been battling with depression and anxiety since her partner died and D.M. has been a great help and support to her. He also assists in supporting her financially as she is on a fixed income.
[20] Defence counsel filed a letter from B.M., who is a friend of K.M. and the superintendent of the building where D.M. and K.M. reside. She confirmed that D.M. supports K.M. emotionally and financially. She stated that she has “almost daily” interaction with him. She essentially described the offences as out of character.
[21] Defence counsel filed a letter from N.M., who has been a friend with D.M. for about 15 years. They are also co-workers. He stated that D.M. was of great support to him when he lost his mother. He also reported that when they were travelling outside of Canada, he became very sick and D.M. was of great support then.
[22] Defence counsel filed a letter from C.P., D.M.’s cousin. As I have set out above, C.P. also spoke to the author of the Pre-Sentence Report. C.P. reported that D.M. was a “loving and caring friend and family member”. She considers him like a brother. He supported her through her divorce.
[23] Letters of support must be treated with caution. Intimate partner violence offences are committed in private and out of the public eye. They are committed by otherwise pro-social and upstanding citizens. This case is no different. Albeit in the context of a sexual assault case, this point was made well by Justice Antonio of the Alberta Court of Queen’s Bench in R. v. Shrivastava, 2019 ABQB 663 at para 87 where she noted that placing too much weight on “good character” can undermine the denunciative and deterrent functions of criminal sentences.
Defence Counsel Submissions
[24] Defence counsel advised that D.M. earns a gross income of $85,000 a year.
[25] Divorce proceedings with A.M., the victim, are ongoing.
[26] Defence counsel submitted that the appropriate sentence in this case is a Conditional Discharge and two years probation.
[27] Defence counsel indicated that D.M. is amenable to counselling and is prepared to do counselling for alcohol and substance abuse.
[28] Defence counsel expressed concern with the effect that a criminal record may have on D.M.’s employment.
Crown Submissions
[29] Crown counsel submitted that the appropriate sentence is a Conditional Sentence of Imprisonment for 60 days to be followed by 18 months of probation.
[30] Crown counsel submitted that these offences were more serious because they were committed in front of the victim’s children. Crown counsel also argued that D.M. should not be waiting for a probation order to get going with respect to counselling for alcohol and substance abuse.
Analysis
[31] Section 718 of the Criminal Code states:
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, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a) to denounce unlawful conduct in 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 acknowledgement of the harm done to victims or to the community.
[32] Section 718.1 of the Criminal Code establishes the fundamental principle of sentencing: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[33] Section 718.2 of the Criminal Code sets out “other sentencing principles”:
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
(ii) 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,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence,
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and
(vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[34] Section 718.201 of the Criminal Code requires the Court to craft a sentence that reflects society’s disdain for intimate partner violence offences that are perpetrated against vulnerable women. It states:
A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.
[35] The test for granting a conditional discharge is set out in section 730 of the Criminal Code. The Court must determine whether a conditional discharge is in the interests of the offender and whether it is not contrary to the public interest.
[36] A conditional discharge is almost always in the interests of the offender. A conditional discharge allows an accused person to say that they do not have a criminal record. This can have important ramifications with respect to employment.
[37] It is well developed in our law that sentencing is a delicate and highly individualized process. As my colleague Justice March has often said, “No two offenders are alike”. See also R. v. Parranto, 2021 SCC 46 and R. v. Lacasse, 2015 SCC 64.
[38] I consider the following mitigating factors:
a) D.M. has secure employment.
b) D.M. has completed a course of counselling for intimate partner violence in advance of his sentencing.
c) D.M. has insight with respect to the possible presence of a problem with marihuana and has indicated a willingness to go to treatment.
d) D.M. does not have a criminal record.
e) D.M. has good family and community support.
[39] I consider the following aggravating factors:
a) This is an intimate partner offence. A.M. was in a vulnerable position.
b) As the Crown has pointed out, although D.M. has insight with respect to the possible presence of a substance abuse problem, he has not taken any steps to address that problem.
[40] It is well established that denunciation and deterrence (both specific and general) are the paramount sentencing considerations in cases of intimate partner violence. This is essentially recognized by Parliament in the statutory provisions I have quoted from above.
[41] It is also recognized in a multitude of appellate cases from Ontario and other provinces:
- R. v. Inwood (1989), 48 CCC (3d) 173 (Ont. C.A.);
- R. v. Boucher (2004), 186 CCC (3d) 479 (Ont. C.A.);
- R. v. Rahanam, 2008 ONCA 1;
- R. v. Dustyhorn, 2019 SKCA 93;
- R. v. Butcher, 2020 NSCA 50;
- R. v. Somers, 2021 BCCA 205.
[42] While those cases involved facts that are far more violent and aggravating than the case before me, the principles expressed in them with respect to sentencing in intimate partner violence cases must be heeded.
[43] That is not to say that there can never be an intimate partner violence case where a discharge is appropriate. In R. v. Khanna, [1998] OJ No 2192 (Ont. C.A.), the Ontario Court of Appeal was concerned with a case where the offender was found guilty by a jury on one count of assault. They acquitted the offender on four other counts. The Court found it was impossible to determine the facts on which the jury convicted the offender, other than it was a very minor assault. The trial judge imposed a small fine.
[44] When the matter came on before the Court of Appeal, the victim had moved to another country to practice medicine and the offender intended to move to the United States to practice dentistry.
[45] The Court of Appeal held at paragraphs 7 and 8:
This was a minor assault which occurred in the context of a most unhappy marriage. The appellant and complainant developed an intense dislike for each other and their respective families shortly after this arranged marriage was made. Both resorted to physical violence on occasion. Apart from each other, the complainant and the appellant are both valuable members of the community. Together they are trouble for each other.
Given the present circumstances of the appellant and complainant and the jury's verdict, we think an absolute discharge is an appropriate disposition.
[46] In R. v. Daley, 1997 NSSC 26116, Moir, J. was sitting as a Summary Conviction Appeal Court where the trial judge found that it was never in the public interest to grant a discharge in an intimate partner violence case.
[47] At paragraphs 9 through 12, His Lordship made the following observations concerning the problem of intimate partner violence, observations which I note have not changed despite the passage of almost 30 years between this decision and the case before me:
In my opinion, there is no such thing as a minor assault where the parties are partners and the perpetrator is the male partner. We have all come to understand the sociological implications of male aggression against wives or female partners. We are beginning to understand the psychological effects upon children of violence perpetrated by either spouse upon the other.
At least 10% of Canadian women have been assaulted by their male partners. As of 1990, on average a woman suffered such assaults 35 times before the police were called. The prevalence of assaults upon women by their male partners lead us to recognize the profound sociological under-pinnings of this common event, that is, the use of male physical strength in the historical disadvantage of women through dominance of them by men.
Studies have shown that boys who observe their fathers assaulting their mothers are far more likely to batter their own female partners in later life. The behaviourist conclusion that spousal assault is learned, constitutes only a superficial appreciation of the psychological impact this conduct has on children. Statistics indicate serious conduct problems are 17 times more apparent in boys who observed family violence, that such are 10 times more apparent in girls who have had the experience and that in one city fifty percent of young offenders had experienced family violence. These statistics shed greater light on the implications of spousal violence in child psychology. We are coming to recognize that such violence constitutes an attack not only on who the child is but also on the very fact of the child's existence. Such profound rejection is at the heart of many childhood and adolescent disturbances.
For those reasons, it is right to say that general deterrence must be emphasized "with offences such as this".
[48] After reading this passage, one might think that His Lordship would be in agreement with the trial judge. Not so. His Lordship further stated at paragraphs 14 through 20:
Almost since Parliament established conditional and absolute discharges as an instrument for dealing with criminal conduct, appellate courts recognized that discharges are available in the right circumstances for serious criminal misconduct and are not restricted to trivial cases or to strict liability offences where there was no real criminal intent. Examples of those appellate decisions include Regina v. Fallofield (1973), 13 CCC (2d) 450 (B.C.C.A.) and Regina v. Sanchez-Pino (1973), 11 C.C.C. (2d) 53 (O.C.A.).
Section 736 of the Criminal Code holds out the possibility of a discharge so long as the accused is an individual, there is no minimum penalty and the maximum penalty is less than 14 years’ imprisonment. Those restrictions are broad enough to cover very serious offences including some which have special sociological implications. In providing for the prerequisite that the judge must be satisfied a discharge is not contrary to the public interest, Parliament did not delegate to the judges authority to carve out entire offences or categories of offence. In my opinion, each case must be assessed in the particular with much weight against a discharge where, as here, the public interest emphasizes general deterrence. I refer to the sixth principle set out in Fallofield at p. 455 of the C.C.C. text and to the first and second full paragraphs at p. 59 of the C.C.C. report of Sanchez-Pino.
To hold, as I take the Provincial Court Judge to have done, that a conditional discharge is always contrary to public interest in cases of spousal assault is, in my opinion, to decline a responsibility the elected branch of government has imposed upon the judiciary. For example: some people come to court with unfair disadvantage due to race and culture or from a materialistic environment where the frustrations of economic disadvantage lead to misconduct. The courts will look for opportunities to make the field more level. To preclude discharges for entire categories of offence is to disavow an instrument that could be used judiciously to address other important public interests. (Parenthetically, I am not suggesting that spousal assault is a particular problem of the poor or of any culture. In fact, we know that the problem is prevalent in all parts of society.)
As a further example, I note that studies have shown males who abuse are often responsive to counselling even where counselling is received under compulsion. That hopeful fact indicates that in cases where the man has a strong interest in avoiding conviction, the conditional discharge could be the best instrument to break a cycle of abuse where the possibility of avoiding a conviction would motivate a positive response under compelled counselling. Where the sociological problem may well be served by discharge, it is wrong to preclude the instrument on the very ground of that same sociological problem. (Parenthetically, my observation in this regard has nothing to do with remorse. Genuine remorse is often felt and expressed by a man after he beats his female partner, but he does it again.)
Also by way of example, there are cases, and this is one, where the facts are somewhat removed from the social problem of male control through repetitive violence. While there is no such thing in our time as a trivial spousal assault, the public interest in deterring cycles of male violence against wives or partners must be addressed in a different light where the incident was isolated, the assault was physically minor, and the victim rather than the perpetrator had been the perpetrator in the past. The rule stated by the Provincial Court Judge is preclusive of any particular assessments such as this.
These are just three examples of cases where it would be especially important to consider particular circumstances on a request for a discharge in respect of a spousal assault or, as here, on a joint recommendation for such. These are merely examples pointing out the need for pragmatic assessment of the public interest rather than determination of that prerequisite by rigid rule.
In conclusion, it was an error in principle to hold that the public interest is preclusive of a discharge in all cases of spousal assault. Rather, the social problem of assaults by men against wives or partners demands that general deterrence be given much weight in assessing the circumstances of a spousal assault to determine whether a conditional discharge is contrary to the public interest.
[49] In the case before me, I am troubled by the fact that there were two assaults. Other members of the public were put at risk by D.M.’s conduct in pushing A.M. while she was driving home on a snowy New Year’s Eve. He is lucky that this did not result in a tragedy. In the second assault, A.M. suffered bruising to her arm which was photographed by police. There was no long-term injury to her.
[50] While D.M. has started to acknowledge his offending behaviour, he has more work to do. In my view, he needs counselling for substance abuse. He has identified the use of marihuana as a problem. Alcohol was involved in the first offence. In fact, on the evidence before me he fell asleep due to the effects it had on him after committing it.
[51] These assaults took place, in the words of our Court of Appeal in Daley, in the course of a “most unhappy” relationship.
[52] This case is very close. Had I found D.M. guilty of one of the more serious assaults with which he was charged, a discharge would not be under consideration and the Crown’s submission for a conditional sentence of imprisonment might have been more favourably received.
[53] I am satisfied that the paramount sentencing principles of denunciation and deterrence do not render a conditional discharge contrary to the public interest.
[54] I am satisfied that along with the experience of being arrested, charged, having gone to trial and having awaited the outcome of this case since April 2023, the two years of probation (with counselling) which I will impose as part of the Conditional Discharge are sufficient denunciation and deterrence for D.M.’s crimes.
Released: March 3, 2025
Signed: Justice J.R. Richardson