Court Information
Ontario Court of Justice
Date: September 2, 2025
Court File No.: 23-48118181
Toronto Region
Parties
Between:
His Majesty the King
— And —
Joseph Herrington
Judicial Officer and Counsel
Before: Justice C. Faria
Heard on: June 4, 2025
Reasons for Sentence released on: September 2, 2025
Counsel:
- Ellen An, counsel for the Crown
- Marcus Bornfreund, counsel for the defendant Joseph Herrington
Reasons for Sentence
Faria J.:
I. Introduction
[1] On April 7, 2025, I found Joseph Herrington guilty of assaulting his intimate partner at the time, Janice Wu. The matter was adjourned for the preparation of a Pre-Sentence Report (PSR).
[2] Submissions were heard and supporting material filed on June 4, 2025. As counsel for Mr. Herrington made several submissions without supporting documents, the Defence filed further material on June 24, 2025, and the Crown responded with material of its own.
[3] These are my reasons for sentence.
I. Facts
[4] On Sunday September 24, 2023, Mr. Herrington was a passenger in the family van, while Ms. Wu drove to a grocery store to pick up items for dinner with another family with whom their eldest daughter had had a sleepover. Their other two children were in the back seat.
[5] While on the way to the store, in the store, and on the drive back home, Mr. Herrington berated Ms. Wu. He was furious the gas light in the car was on. He criticized how she parallel parked. He yelled and insulted her. He did not want to go to dinner with her and demanded to be dropped off at home. Ms. Wu drove him back home. Once she parked the car, Mr. Herrington reached over and took the keys from the van, and Ms. Wu's purse, and went inside the home with both.
[6] Ms. Wu followed in pursuit of her van keys and purse, leaving the children in the van.
[7] Inside the home, Ms. Wu took Mr. Herrington's house keys from a bowl to negotiate getting her possessions back. An altercation erupted.
[8] Mr. Herrington became enraged and chased Ms. Wu around the kitchen island. He swung at Ms. Wu with a closed fist but made no contact. He kicked at her but made no contact. He then lunged at her and grabbed her. He would not let go. She tried to push him off. The assault was interrupted by a neighbour knocking at the door who heard the dispute and came to Ms. Wu's aid.
II. Joseph Herrington
[9] Mr. Herrington is about to turn 48 years old. He was 45 when he committed the offence. He has no criminal record.
[10] He is the eldest of two boys and grew up in a small town in Ontario. He described his mother as having "narcissistic traits" which was "manipulative and confusing" for him growing up. His parents used physical discipline and argued. He stated to the PSR author that he grew up with the same behaviour as that on the offence date.
[11] He grew up working in the summers as a teenager. He obtained two undergraduate degrees, and a Masters degree. He was a consultant for 20 years with one company and 5 years with another. He now works for a "big real estate developer" since 2023.
[12] Mr. Herrington stated he has no alcohol issues, and in fact has a "very healthy" relationship with alcohol as he only drinks two to three times a week with dinner. He has no physical or mental health concerns. He has a group of supportive friends with whom he socializes.
[13] Mr. Herrington is a volunteer Level 3 certified officiator at the Toronto Swim Club (TSC) where 2 of his 3 children swim competitively. He filed supporting documentation regarding the TSC family participation policy, his deck logs, his official certification, future swimming events as well as pictures of himself with his children at swim meets.
[14] He was with Ms. Wu for 17 years and they have 3 children. He noted that everyone could see the "contempt and disdain" in the relationship. He recognizes his children see the "mood" and "vibe" to be better since the offence. He admitted their relationship was "not healthy with lots of yelling."
[15] He is no longer involved with Ms. Wu and has moved on to another relationship. Joy Savage, his new partner since June 2024, spoke glowingly of Mr. Herrington to the PSR author, and did the same when she read her character letter to the court. She has noticed none of the negative characteristics Ms. Wu testified to in Mr. Herrington and feels very safe with him, as does her 10-year-old daughter who already loves Mr. Herrington.
[16] Since his arrest, Mr. Herrington has been going to counselling with psychotherapist Noah Casey. A letter dated November 22, 2024 notes the work he did in 21 sessions to understand healthy boundaries, though he maintained at the time, he had never transgressed physical boundaries during his arguments with his spouse. Mr. Herrington worked on non-violent communication, meditation, mindfulness, and his grief over the dissolution of his relationship.
[17] In a letter dated May 1, 2025, Noah Casey notes 22 sessions completed. This more recent letter no longer states that Mr. Herrington never transgressed physical boundaries. This second letter also adds descriptors such as "dramatic improvement" (pg. 1) and "marked" improvement (pg. 2) and that Mr. Herrington "fully grasps the sanctity of physical boundaries" (pg. 3). Mr. Herrington's significant improvement must have been made during the one additional session between letters, and after the finding of guilt.
[18] Mr. Herrington expressed remorse to the PSR author, his psychotherapist, in a letter to Ms. Wu he read to the court, and to the court during his allocution.
[19] He continues to co-parent his 3 children with Ms. Wu pursuant to arrangements they have made.
III. Victim Impact
[20] Ms. Wu provided an articulate and thorough victim impact statement that illustrated the impact of Mr. Herrington's violence in the context of coercion and control that dominated not only the day of the offence but permeated throughout her life. She addresses the emotional, psychological, physical, financial, familial, and community impact of Mr. Herrington's behaviour.
[21] In particular, Mr. Herrington's condescending, sharp, and aggressive tone of that day seems to have been the norm, as was his belittling criticism. This led her to live in a state of chronic fear and self-doubt. His controlling behaviour, intimidating physical presence and unpredictability has caused her to remain triggered and unsure as to how he will respond to the smallest things when interacting with her and the children.
[22] She stated his anger, verbal aggression, and control, created an unsafe emotional environment for her, and her children with long-term psychological effects. She was clear that she believes Mr. Herrington does not understand the magnitude of the impact of the abuse he inflicted on her and she still has safety concerns for herself and the children.
[23] Her fears are more attenuated when she spoke to the PSR author stating that she does not have any fear for her and the children's safety, but rather "emotional fear is still in play" for herself given the extent of verbal abuse and threatening behaviour that she endured.
IV. Position of the Parties
[24] The Crown recommends a 2 month Conditional Sentence Order, a probation order with terms to protect the victim, a DNA order, and a weapons prohibition to reflect the denunciation and deterrence required for the context and impact of this offence.
[25] The Defence emphasizes the counselling Mr. Herrington has taken, and the impact a conviction would have on his ability to participate in his children's swimming competitions to submit that a Conditional Discharge and probation is more appropriate. The ancillary orders were not disputed.
V. Legal Principles
[26] Sections 718 to 718.2 provide the sentencing judge with guidance.
[27] Every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[28] The sanction that the court imposes should have one or more of the following objectives:
- to denounce unlawful conduct
- to deter the offender and other persons from committing offences
- to separate offenders from society, where necessary
- to assist in rehabilitating offenders
- to provide reparations for harm done to victims or to the community
- to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community
[29] The principles of restraint and parity also apply.
VI. Analysis
[30] I must take aggravating and mitigating factors into account.
[31] The numerous aggravating factors include:
i. The assault was perpetrated on an intimate partner which is a statutorily aggravating factor.
ii. The victim was in a position of vulnerability at the time of the assault. The van she was driving was the family van, the destination was for a family event, she needed the van keys and the identity in her purse to enable her to drive the van literally and responsibly.
iii. The assault was committed in the context of coercive control. Mr. Herrington took the keys from the van she was driving thereby limiting and controlling her freedom and ability to leave with the children. His taking her purse and her essential, private, and personal belongings including her wallet and identification was a demonstration of this coercive control.
iv. The assault occurred in the family home where the victim is entitled to expect safety and sanctity rather than violence and trauma.
v. The assault occurred in the context of a dispute that was loud enough, disturbing enough and threatening enough that the neighbour believed Ms. Wu was in danger and required intervention.
vi. The context of the assault was all about power and control as Mr. Herrington took both the keys to the van Ms. Wu was driving and her purse.
vii. The two children were subject to Mr. Herrington's rage just prior to the assault and had to be protected from his rage just after. The two children were in the van during Mr. Herrington's yelling and berating Ms. Wu for some time prior to the assault. They had to be left alone in the van for their own safety, while Ms. Wu went into the home to try to get the car keys back. Although there is no victim impact statement from them, the events as described by Ms. Wu during her testimony, then the neighbour who had to keep Mr. Herrington from the children before the police arrived lead to the conclusion they were impacted by the offence.
viii. The assault had a significant impact on the victim. Ms. Wu's victim impact statement was compelling in its articulation of the pervasive, wide-ranging, long lasting, and insidious physical, emotional, and psychological harm intimate partner violence inflicts on the victim, the children, the family, and the community by using the specifics of her experience. To be clear, it is the impact of Mr. Herrington's assault on Ms. Wu, and the assault alone, that is considered aggravating in this case.
[32] Although not an aggravating factor, it is a concerning consideration that Mr. Herrington's behaviour is long-standing. He participated in the Partner Abuse Response (PAR) program in 2018.
[33] In that report, Mr. Herrington appeared amenable to accepting responsibility "for the abusive/violent behaviours he exhibited toward his wife". He was able to discuss his behaviours at the time, including admitting to picking Ms. Wu up with his arms "around her neck" and throwing her on the couch. He wanted to make changes and advised he was seeing a therapist one on one back then to achieve those changes. Neither the PAR program nor his personal counselling in 2018 were effective enough to prevent Mr. Herrington's violence in 2023.
[34] The numerous mitigating factors include:
i. Mr. Herrington has no criminal record, and is a first-time offender.
ii. He has a strong employment history, supportive friends, and volunteers for TSC. He has a pro-social history.
iii. He is committed to rehabilitation as demonstrated by his counselling sessions with a psychotherapist both since his arrest, and in 2018.
iv. He demonstrated remorse in his letter of apology to Ms. Wu and during his allocution to the court.
[35] "The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision" stated the Supreme Court of Canada in R. v. Lacasse. This is a challenging task in every case, including this one.
[36] Domestic violence, now known as intimate partner violence, has been a plague in our society for a very long time. It is a grave social problem in Canadian society. As Justice Wilson stated for the majority in the Supreme Court of Canada decision of Regina v. Lavalle (1990), 55 C.C.C. (3d) 97 (S.C.C.) at p. 112:
"The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomenon in recent years has revealed both its prevalence and its horrific impact on women from all walks of life"
[37] The Ontario Court of Appeal addressed the prevalence of domestic violence in R. v. Inwood (1989), 48 C.C.C. (3d) 173 (Ont. C.A.) and again in R. v. Bates (2000), 146 C.C.C. (3d) 321 (Ont. C.A.), particularly emphasizing the principles of denunciation and deterrence in numerous cases since.
[38] The Criminal Code recognizes the vulnerability of women and girls, the majority of whom are the victims of intimate partner violence, and specifically identifies their vulnerability in ss. 718.2 and 718.2.1. The issues of intimate partner violence are particular considerations in interim release orders, weapons prohibition orders, and most recently, as of April 8, 2025, via the new s. 810.03, a specific "Domestic Violence" peace bond.
[39] The horror of intimate partner violence was once again recently documented in the Nova Scotia Mass Casualty Inquiry Report (March 2023).
[40] In support of her position for a Conditional Sentence order to reflect the principles applicable in this case, the Crown relied on: R. v. Boyle, 2022 ONCJ 402, R. v. Chirimar, 2007 ONCJ 385, R. v. Dunlop, 2014 ONCJ 44 and R. v. Mputu, SCJ court file # 24-10000008, a summary conviction oral decision by Justice Dunphy. In each case, the offender was sentenced to either a jail term or a conditional sentence.
Mr. Boyle was found guilty of numerous offences, caused more injuries, but was only 21, and had significant hardships. He was sentenced to 60 days jail intermittent.
Mr. Chirimar inflicted bruises and abrasions all over his wife's body, the assaults perpetrated in front of their child and the call of a neighbour ended the abuse that had been going on for months. He pled guilty to assault causing bodily harm, he was only 24, with no criminal record, went to 20 individual counselling sessions and additional group counselling. He expressed remorse and a conviction would negatively affect his status in Canada. He was sentenced to 6 months in jail.
Mr. Dunlop struck his intimate partner with a cordless telephone, caused distress requiring medical attention and was intoxicated at the time. He pled guilty and had a criminal record at the time. He had a difficult life, frail health, had community support and had completed 300 hours of volunteer work. He was sentenced to 4 months in jail.
Mr. Mputu assaulted his pregnant wife in view of their 9-year-old daughter. The dispute was about a spoon and occurred in the kitchen. He had no criminal record, showed remorse after trial and a conviction would affect his employment.
[41] In each case, the jurist reviewed the seriousness of assaults perpetrated within the intimate partner relationship and the paramount consideration for denunciation and deterrence which the Crown relies on in this case.
[42] However, Mr. Herrington emphasizes the rehabilitation efforts he made, and the possible negative effect that a conviction may have on his ability to participate as an official and a volunteer in two of his children's competitive swimming careers, to support a conditional discharge in this case.
[43] I reviewed the material filed and find that though a criminal record may curtail Mr. Herrington's volunteering in some way, it would not be an impediment to his children's swimming participation, nor their swimming success.
[44] It is always in the best interest of an offender to be conditionally discharged. It is the second prong of the test this court must consider pursuant to s. 730 (1). The issue is whether a conditional discharge is not "contrary to the public interest".
[45] I find it would be contrary to the public interest to discharge Mr. Herrington for having assaulted Ms. Wu. He chased her around the kitchen island in her own home, swung at her with a closed fist, tried to kick her, and then lunged and grabbed her without letting go. This after having taken her keys and her purse while the children were in the car after an afternoon of criticizing and yelling at her in an intimidating and belittling fashion. Their size and height difference exacerbated his assault. He was intentional and well aware of the purpose and effect of his conduct, his tactics, his pattern of coercive control and his violence that afternoon.
[46] Counsel submitted that saddling Mr. Herrington with a criminal record will not benefit society. Indeed, the burden and stigma of a criminal conviction does not benefit society. However, a criminal conviction may be what is required to reflect society's denunciation of the offence an offender has committed. That is the case here. A conditional discharge would be contrary to the public interest and would not adequately reflect the principles required.
[47] The Crown's recommendation of a Conditional Sentence as a reflection of the denunciation and deterrence required is a reasonable one, particularly given that Mr. Herrington's conduct is long-standing, and his previous counselling attempts to deal with it before this assault failed.
[48] However, I find that a conviction, in this case, is sufficient to reflect the required principles of deterrence and denunciation while adhering to the principle of restraint for a first-time criminal offender.
VII. Sentence
[49] Mr. Herrington, I sentence you to a Suspended Sentence and a 3-year probation with terms.
[50] I will also order:
(1) A DNA sample be taken today.
(2) A weapons prohibition for 5 years.
(3) The victim fine surcharge is to be paid within 90 days.
Released: September 2, 2025
Signed: Justice C. Faria