ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-A8882

DATE: 20131021

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GUY DESGAGNE

Michael Boyce, for the Crown

Jean-Marc Chénier and Sonya Notturno, for the Accused

sentencing decision

Justice L. Ratushny J.

[1] Mr. Desgagne has pled guilty to committing an assault causing bodily harm to Daniel Gaudreau on February 12, 2011. Mr. Desgagne was originally charged with aggravated assault however the Crown has, instead, proceeded summarily with a charge of assault causing bodily harm.

THE FACTS

[2] Before the evening of the assault, the accused and the victim knew each other, having lived together for a brief period of time.

[3] On the evening of the assault, the accused went to a warehouse owned by their mutual friend, Ken Wintle. As he commonly did, Mr. Wintle had rented out space in his warehouse that night for a band to play in his premises. Mr. Wintle and the accused consumed some alcohol together before the three band members arrived and they also shared a joint. The victim, Mr. Gaudreau, arrived at the warehouse about an hour after the accused and shortly after, the band members also arrived.

[4] One band member observed that the accused, the victim and Mr. Wintle were consuming red wine when he arrived and that all three were beginning to demonstrate slight effects of alcohol but not significant signs of intoxication. The band members described the accused that evening as high strung and energetic and the victim as quiet and keeping to himself.

[5] The band began to play at approximately 10:00 p.m. Not long after, their attention was drawn to a confrontation between the accused and the victim at the other end of the room. Dividers separated the room and all the band members could see was the top of the accused’s and the victim’s heads. They heard the sound of raised voices and the sound of what they believed to be furniture moving or falling. One band member saw the top of the heads of the accused and the victim moving back and forth. Another band member saw a lamp fall in the immediate vicinity of the accused and the victim. The band continued to play but then put their instruments down and moved toward the confrontation.

[6] When they walked around the partitions separating the room, they observed the victim lying on his back on the cement floor, his head in close proximity to or perhaps even touching the bottom of a metal door which served as the entrance to the warehouse. He was unconscious. The accused was standing either over top of or in close proximity to the victim, facing him. The accused turned around and said something to the effect that he had been hit first or that he had not started it. The accused had a bleeding lip and a cut on his chin.

[7] Mr. Wintle had also heard the argument between the victim and the accused. When he made his way towards the argument and around the dividers he saw the accused punch the victim in the face with a closed fist that he described as a “massive punch” as though the accused’s arm was a wound up spring that had let loose. It caused the victim to fall backwards and land on the floor. After that punch the accused turned around and said something to the effect of “he hit me first” in an apologetic tone.

[8] The accused and the victim agree they were arguing over rent money apparently owed by the victim to the accused. The victim has a very limited memory of the night due to the brain injury he suffered, however, he recalls poking the accused twice in the shoulder during the course of their argument. He does not recall any other physical force or blows being exchanged. The accused states that the victim threw the first punch as the argument escalated, striking the accused in his mouth area. The accused responded by pushing the victim into some furniture, causing the victim to come towards him again and to throw a second punch that again struck the accused, at which point the accused responded with the massive punch described by Mr. Wintle.

[9] The foundation for the guilty plea is the accused’s agreement that he was not acting in self defence when he punched the victim and that the force he used against the victim was excessive in all the circumstances.

[10] All the witnesses describe the accused as having been agitated in the moments after the punch that rendered the victim unconscious. He tried to pick the victim’s head up off the floor on multiple occasions. He slapped the victim in the face multiple times in an effort to wake him up. He claimed the victim was faking it. He appeared to be in disbelief that his punch could have had the effect of knocking the victim unconscious. All the witnesses encouraged the accused to step away from the victim and he ultimately did leave the warehouse while the others waited for the police and the ambulance.

[11] As the victim lay on the floor, he appeared to be shivering or convulsing. He had a deep cut to the back of his head closer to his left ear. He began to vomit blood. He was transported to the hospital and remained in critical condition and an induced coma for several days.

THE VICTIM

[12] The consequences of the assault have been devastating for Mr. Gaudreau and his family. He suffered a significant brain injury and permanent damage. He continues to suffer from short-term memory loss, complete loss of hearing in one ear and extreme difficulty walking and keeping his balance. He has nerve damage in his right hip and permanent nerve damage in his right ankle. He requires the assistance of a wheelchair or walker to get around. He has suffered several seizures, on average one to two a month, since the incident and these are a direct result of the brain injury caused by the assault. He has constant pain and discomfort in his back, hip, ankle, neck and head. His right leg swells. He requires daily medications. He is unable to drive. He is unable to work.

[13] He tried living in a retirement home but found it dreadful and now, at age 51, he lives with his parents in a one-bedroom home. He is dependent on his family for his daily living. His parents are in poor health and this is very hard on them emotionally, physically and financially. He has to be driven everywhere, including to his many medical and therapy appointments. As his mother, Carmen Gaudreau, stated in her victim impact statement, she and her husband Roger are not the same people anymore. They cannot do what a retired couple should be doing. Instead, they are taking care of their 51 year-old son who has a severe brain injury and this is like taking care of a very demanding twelve year old boy. They understand, of course, that his behaviour is not his fault.

[14] As his cousin Lorraine Gaudreau and his sister Carole Patenaude said in their victim impact statements, his life and his family is forever changed and he has forever lost his freedom to enjoy life.

THE ACCUSED

[15] The accused is 51 years of age. He has no prior criminal record. He is divorced from his wife. They have a son attending university and he pays monthly child support. His sole source of income is a disability pension as a result of a construction workplace accident in 1994 and he is no longer able to work.

[16] He has admitted to having an alcohol problem. He attended AA meetings in the past and says he maintained his sobriety for eight years but that after his wife left him in 2007 he lapsed and began drinking excessive amounts again. He attributes his behaviour with Mr. Gaudreau on the evening of the assault to his excessive alcohol consumption that evening.

[17] On June 9, 2011, 4 months after being charged with aggravated assault, police found him after he had been reported to have left a restaurant without paying. He had a strong odour of alcohol on his breath and he admitted to consuming alcohol. This was in violation of the terms of his undertaking arising out of the aggravated assault charge, to keep the peace and be of good behaviour and to not consume alcohol. He says he has not consumed any alcohol since he was granted bail in 2011. He has complied with his bail conditions for the last 2 years and 4 months.

[18] He has also admitted to using cocaine in the past, to stopping on his own and to lapsing back to using cocaine after his separation from his wife. He admits to having met some unfavourable individuals along the way as he resumed his consumption of illicit drugs.

[19] The presentence report indicates that although he “does not see his substance use as problematic he acknowledged that it impacted his life negatively and may have contributed to his offending”.

[20] He says he has been shocked by his behaviour on the evening of February 12, 2011. The warehouse was where he spent most of his leisure time and where he would play the piano and the guitar with other men. It was also a place where alcohol and drugs were available. He has not attended the warehouse since the offence. He has not sought assistance for his substance abuse issues as he claims he no longer has this issue.

[21] The presentence report states that the accused has expressed great remorse for his offence and that he is embarrassed and has not told any members of his family about it aside from his mother. He fears going to jail.

[22] The author of the presentence report comments that the accused’s history of substance abuse of both alcohol and drugs is very concerning and that “although the subject has been able to maintain sobriety in the past, he has been ambivalent about complete abstinence of substances. The subject has advised he would be willing to obtain rehabilitative services to address this issue, although he wavers in acknowledging that it has been problematic for him”.

[23] The report goes on to state, at page 6,

The subject used to spend most of his free time playing music at the warehouse with pro-criminal peers. The combination of the subject’s poor use of his leisure time and his past struggles with substance abuse issues places him at a greater risk of further conflict with the law. The subject has also suffered from depression and emotional difficulties following the end of his marriage and the present charges. His emotional state is of concern to this writer.

ANALYSIS

[24] It is an obvious and painful reality that the accused’s sentence today can do nothing to change what happened to Mr. Gaudreau. We all wish it were otherwise.

[25] The objectives that are able to be reflected in the accused’s sentence are denunciation of his actions, deterring him in the future from re-offending, deterring others from committing similar offences, assisting in his rehabilitation and acknowledging the harm done to Mr. Gaudreau and his family.

[26] A number of sentencing principles also guide the determination of the sentence to be imposed. It is a fundamental principle of sentencing in Canada that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is referred to as the proportionality principle and it is this principle that I now assess according to the facts of the offence.

[27] The accused and the victim were engaged in a fight over rent monies. They had both been drinking and had, perhaps, consumed illicit drugs although the only direct evidence of this is the sharing of a joint between the accused and Mr. Wintle. While angry and under the influence of alcohol and its well-known disinhibiting effects, the accused did not hold back when he landed his massive closed-fist punch on the victim’s face. He intended to do what he did in that he intended to hit the victim with his punch, but he did not intend its catastrophic consequences. He failed, possibly due to the effects of alcohol and anger, to factor in the elements of danger that were so obviously present in the form of the cement floor, the metal entrance door and the risks they present to a falling victim who is also under the influence of alcohol. I make these inferences as they arise out of the accused’s comments and demeanor after the victim fell to the floor. The accused was angry, reacting to punches and pushes from the victim, and when the victim fell unconscious to the floor, the accused appeared to be in disbelief, as though Mr. Gaudreau was faking his condition.

[28] When these circumstances are assessed in light of the proportionality principle, being the gravity of the offence and the degree of the accused’s responsibility for it, I conclude that the terrible harm Mr. Gaudreau suffered results from the combined effects of the accused’s alcohol consumption, his anger over the rent issue, his use of excessive force while reacting to the victim’s force, his obliviousness to the risk and his exercising of bad judgment. While the accused is certainly responsible for his actions and the harm he caused, the extent of that harm was unintended, so that the degree of his moral blameworthiness for it is somewhat diminished. As the Crown has stated, it is a tough balance to achieve a proportionate sentence in these misfortunate and tragic circumstances.

[29] Defence counsel requests a conditional sentence, a jail term able to be served in the community, in the range of 12 to 18 months including a period of house arrest, followed by one year of probation.

[30] In proceeding by way of a summary conviction offence, the Crown has allowed for the possibility of the imposition of a conditional sentence for the offence of assault causing bodily harm. The maximum penalty available is a term of incarceration of 18 months.

[31] It is the Crown’s position, however, that a conditional sentence would be inconsistent with the purposes and principles of sentencing as set out in s. 718 of the Criminal Code and with the over-arching principle of proportionality. The Crown requests a sentence of one year of incarceration followed by one year of probation.

[32] The circumstances serving to mitigate sentence are the accused’s plea, his lack of a prior criminal record at 51 years of age, his expressed remorse and his compliance with years of bail conditions.

[33] The circumstances serving to aggravate sentence arise primarily out of the serious nature of the offence, with its consequences at least partly caused by alcohol and perhaps drugs and the probation officer’s assessment of the accused as being ambivalent about complete abstinence from alcohol and illicit drugs and that he wavers in acknowledging they have been problematic for him. The accused, through his counsel, states otherwise at least regarding alcohol. That the accused has been reluctant to abstain from alcohol is borne out by his use of it in June 2011, in breach of his undertaking and his outstanding charge of aggravated assault. He now says he attends AA regularly. I agree with the Crown that in these circumstances including the accused’s history of substance abuse, that a concern remains regarding the accused’s insight into his substance abuse issues, so that specific deterrence remains as one of the sentencing objectives.

[34] While I recognize that a conditional sentence is able in some circumstances to adequately reflect the need for denunciation of a serious offence and achieve the principle of proportionality, in the present case I am unable to come to that conclusion. It has been a close balancing, but it is one that I have determined weighs in favour of incarceration and away from a conditional sentence.

[35] Mr. Desgagne, please stand at this time.

[36] In all of your circumstances and those of the offence, I have concluded that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing. Instead, I sentence you to a period of 8 months incarceration followed by 2 years probation.

[37] The primary purposes of probation are to monitor your abstinence from alcohol and non-medically prescribed drugs, to require you to attend for counselling and to require you to perform 100 hours of community service. In addition to the mandatory probation terms, the other terms of your probation are the following:

• You are to report within two working days of your completion of your term of incarceration to a probation officer and you are to continue to report as required during your two-year probationary period.

• You are to abstain absolutely from the purchase, possession and consumption of alcohol and non-medically prescribed drugs.

• You are to attend, comply with and complete all counselling as required by your probation officer including for substance abuse and emotional issues.

• You are not to have any association, communication or contact, direct or indirect, with Daniel Gaudreau or members of his immediate family.

• You are to perform 100 hours of community service work. You are to commence this work at a time as directed by your probation officer. You are to perform the community service work at a minimum rate of 10 hours per month in consecutive months and you are to complete all 100 hours prior to the expiration of 16 months of your probationary term.

• You are to sign releases and provide proof, as required by your probation officer, so as to allow monitoring of your compliance with your probation conditions.

[38] I also impose two ancillary Orders. The first is a DNA Order requiring you to submit to the taking of a bodily sample for DNA analysis and data bank storage. The second is an Order under section 109 of the Criminal Code prohibiting you from possessing any firearm or ammunition or any other item referred to in that section, for a period of 10 years commencing upon your release from incarceration.

[39] A final comment. All of the circumstances that have led to such devastating consequences have served to further underscore, for you, Mr. Desgagne, for all of us, and particularly of course for Mr. Gaudreau and his family, the fragility of life. We all know this, of course, but we have been reminded by what happened that evening of how much more fragile the threads connecting us to a healthy and happy life become when there is violence that is fuelled and perhaps fanned by alcohol and drugs, causing emotions to run high and judgment to become impaired. It is in these circumstances that Mr. Gaudreau’s life and that of his family were changed forever and it is in these circumstances that I have imposed your sentence.

Ratushny J.

Released: October 21, 2013

COURT FILE NO.: 11-A8882

DATE: 20131021

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

GUY DESGAGNE

sentencing decision

Ratushny J.

Released: October 21, 2013