ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

COURT FILE NO.: 0507/12 (Milton)
DATE: 2014 02 21

B E T W E E N:

HER MAJESTY THE QUEEN

A. A. Khoorshed, for the Applicant/Appellant

Applicant/Appellant

• and -

JOSHUA BARILKO

J. Barilko, in person

Respondent

HEARD: February 19, 2014

REASONS FOR JUDGMENT

[on appeal from a sentence imposed by
Flaherty J. on November 19, 2012]

HILL J.

INTRODUCTION

[1] After a trial, Mr. Barilko was found guilty of assaulting Maria Cicekci. The assault occurred on December 18, 2011 in the presence of their young son. Although the Respondent and Ms. Cicekci were never married, they had been in a domestic relationship for some years.

[2] When the assault occurred, the couple were separated. Their 8-year-old son, Adonis, resided in his mother’s home with the Respondent exercising parental access.

[3] At trial, the Crown submitted that a fit sentence would be a suspended sentence for an unspecified probationary term with conditions including that Mr. Barilko attend a counselling program in Halton, Caring Dads, designed for offenders who have exposed a child to domestic violence. Defence counsel argued at trial that, in light of the six (6) days of pre-sentence custody, an absolute discharge would be an appropriate disposition.

[4] The trial court imposed an absolute discharge.

BACKGROUND FACTS

[5] This appeal was unfortunately considered to have been perfected and was listed for hearing without compliance with the Criminal Proceedings Rules for the Superior Court of Justice (Ontario). Specifically, the Crown failed to follow the direction of Rule 40.08(17)(b)(c) requiring either an Agreed Statement of Facts or, if agreement could not be reached, a filing of the transcript of the trial evidence. Accordingly, it is necessary for this court to attempt to reconstruct the evidence based only upon the Reasons for Judgment and for Sentence as well as the submissions of counsel.

[6] On December 18, 2011, at about 7:00 p.m., the complainant arrived by car at the Respondent’s apartment in Burlington to pick up Adonis following an access visit with his father. She was early for the pick-up. She honked her vehicle horn, also described as leaning on her car horn.

[7] The Respondent brought his son from the building and placed him in the rear seat of the car. The complainant took this opportunity to announce that, contrary to the Respondent’s expectations, Adonis would not be spending overnight on Christmas with the Respondent. The trial court described this as “inappropriate” conduct if not “provocation” on the complainant’s part. This declaration upset the Respondent. He became angry and slammed the car door and punched the window with his fist. The complainant was rude toward the Respondent as was her custom. A verbal argument ensued with name-calling. The complainant used foul language.

[8] Apparently through the open front passenger door the Respondent spit at the complainant with the spittle striking the sleeve of her jacket. The trial judge found this action to be an assault established by the prosecution beyond a reasonable doubt.

[9] In the course of his Reasons for Judgment, the trial judge observed that he “did not find the complainant to be particularly credible” and further voiced his concern that “the complainant not only had an opportunity to influence the evidence that her son gave, both in court and on the video, but did so.”

[10] According to the Respondent’s submissions, he complied with his bail pending trial requirements. He now exercises regular access with his son without incident and fulfils his child support obligations. He has married.

[11] In his factum, the Respondent notes that his “child was truly the only blameless person in this incident” and unfortunately “a pawn in the estranged relations between his parents”.

REASONS FOR SENTENCE

[12] Although the trial court entertained submissions as to sentence, no right of allocution was extended to the Respondent to speak personally to the issue of sentence as mandated by s. 726 of the Criminal Code.

[13] The trial judge concluded that “the behaviour of both parties … was pretty inappropriate and was bound to lead to a violent argument, at least a verbal argument, bad feelings and problems with access in the future.”

[14] While the trial judge observed that the Respondent could benefit from the Caring Dads Program, with a component of counselling respecting domestic partner abuse, the court did not compel his attendance by a sentencing order.

[15] The court considered that the goal for the future should be an operational access regime permitting Adonis to have the benefit of an ongoing relationship with both parents.

[16] Having regard to the punishment of six (6) days in custody over the Christmas period in 2011, and without seeing his son, an absolute discharge was an appropriate sentence.

THE RESPONDENT

[17] Mr. Barilko is currently 44 years of age.

[18] He is an actor and a member of ACTRA.

[19] The Respondent has a prior criminal record:

June 1991 assault causing bodily harm $200 fine

June 1998 fraud over $5000 suspended sentence/

3 years’ probation

August 2002 - assault 30 days’ imprisonment

• uttering threats (with 5 days of pre-

• fail to comply with recognizance sentence custody)/ 2

years’ probation/ 10-

year weapons

prohibition

March 2010 uttering threat suspended sentence

& 12 months’ probation

[20] The trial court was informed that the 2002 incident was a domestic matter. The 2010 matter involved the current complainant.

POSITIONS OF THE PARTIES

The Crown

[21] On behalf of the Applicant/Appellant, Mr. Khoorshed submitted that a conviction was necessary in this case for a number of reasons including the commission of the assault in the presence of a young child, the aggravating feature of an assault of a “spouse or common-law partner” (s. 718.2(a)(ii)), and the need for a sentence complying with the “jump up” principle given the Respondent’s history of criminality in domestic context situations including with the current complainant.

[22] It was argued that apart from the imposition of a disposition which failed to message the general deterrence and denunciation necessary in a domestic abuse case, the sentencing court overemphasized the best interests of the Respondent’s son and failed to promote rehabilitation in not ordering participation in the Caring Dads counselling program as a term of a probation order.

The Respondent

[23] Mr. Barilko submitted that the sentence imposed at trial ought not to be disturbed as it fell within the range of a fit sentencing disposition considering all of the circumstances.

[24] The Respondent submitted that the trial judge had the benefit of full sentencing submissions, considered and weighed the relevant facts and principles, and exercised his broad discretion to impose a fit sentence.

[25] Mr. Barilko noted the six (6) days spent in jail, the absence of any recurring problems in the 2 ¼ years since his arrest, and the current circumstances of honouring child support and exercising parental access without incident.

THE SENTENCE REVIEW

[26] A review of trial court sentencing dispositions is highly circumscribed on appeal. Sentencing is a highly discretionary function. Appellate intervention is permissible in limited circumstances only where the sentencing court proceeds on an error in principle, fails to consider a relevant factor, engages in overemphasis of appropriate factors or imposes a disposition which is a substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes: see The Queen v. Shropshire (1996), 1995 47 (SCC), 102 C.C.C. (3d) 193 (S.C.C.), at pp. 209-210; The Queen v. M.(C.A.) (1996), 1996 230 (SCC), 105 C.C.C (3d) 327 (S.C.C.), at pp. 374-375; R. v. Lu, 2013 ONCA 324, at para. 37 (leave to appeal refused, [2013] S.C.C.A. No. 313); R. v. Ramage (2010), 2010 ONCA 488, 257 C.C.C. (3d) 261 (Ont. C.A.), at paras. 67-73.

[27] Violence again women remains a systemic social problem. The courts have long said that general deterrence and denunciation are paramount in sentencing offenders for such criminality. As a result, custodial dispositions are commonly and quite properly meted out to underline the message of intolerance for such behaviour. Indeed, they should be “normal” especially where “significant bodily harm has been inflicted”: R. v. Inwood (1989), 1989 263 (ON CA), 48 C.C.C. (3d) 173 (Ont. C.A.), at p. 181.

[28] That said, in these cases, a discharge is a legally available sentencing disposition in appropriate circumstances. The cases filed by the Crown before the trial judge in the sentencing hearing in this case exhibited facts which were clearly more serious in terms of the degree of violence and/or the duration of the offender’s assaultive actions. It is important to recognize this distinction: R. v. Mullin (1990), 1990 2598 (PE SCAD), 56 C.C.C. (3d) 476 (P.E.I. C.A.), at p. 490. There is no rule that “in every instance of domestic violence a custodial term must be imposed”: Inwood, at p. 181; Mullin, at p. 488. Indeed, there are authorities in the domestic assault context recognizing that a discharge may well fall within the range of a fit sentence depending on the totality of case-specific circumstances: Mullin; R. v. Carson (2004), 2004 21365 (ON CA), 185 C.C.C. (3d) 541 (Ont. C.A.) (leave to appeal refused, [2004] S.C.C.A. No. 260).

[29] Although there is authority for the proposition that s. 718.2(a)(ii) of the Code, making it a deemed aggravating feature of a crime where the facts involve “abuse” of a “spouse or common-law partner”, includes a former or ex-spouse or domestic partner (see R. v. O.F.B., 2006 ABCA 207, at para. 11), I do not read the provision that broadly. In my view, s. 718.2(a)(ii) is meant to focus upon abusive conduct within an ongoing domestic context of full or partial co-habitation. That said, these circumstances might nevertheless be said to have the “flavour of a domestic situation”: Mullin, at p. 487. The invocation of physical conflict in any period of separation from a former partner is to be deplored as it not only violates the security of the person and personal integrity of another but also because it is the antithesis of civil behaviour and tends to prolong the negative features of a relationship break-up often to the disadvantage of a child of the union.

[30] In a case such as the present, where there is pre-sentence custody, it is important to recognize that days spent in jail are properly “deemed part of the punishment following” a finding of guilt on the part of the offender: R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 41.

[31] In R. v. Hayes, [1999] O.J. No. 938, I observed that:

Discharges are not restricted to trivial matters: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.). Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: Regina v. Taylor (1975), 1975 1447 (ON CA), 24 C.C.C. (2d) 551 (Ont. C.A.), at 552. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 1977 1959 (ON CA), 37 C.C.C. (2d) 182 (Ont. C.A.) at pp. 184-5; Regina v. Culley (1977), 1977 1965 (ON CA), 36 C.C.C. (2d) 433 (Ont. C.A.), at p. 435 per. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.).

[32] Further, in considering whether a discharge ought to be considered as within the appropriate range of sentence, these principles obtain:

(1) a discharge is available even where there has been a finding of guilty after a trial: R. v. Meneses, 1974 1659 (ON CA), [1974] O.J. No. 736 (C.A.), at para. 12

(2) any notable passage of time since the date of the offence together with post-sentence law-abiding behaviour on the part of the offender may favour leniency: R. v. MacDonald, 2013 ONCA 295, at paras. 4-5.

[33] The presence of a prior criminal record is an aggravating factor in sentencing (R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, at para. 28; R. v. Taylor, 2004 7199 (ON CA), [2004] O.J. No. 3439 (C.A.), at paras. 39-40) and particularly where the prior convictions are for related offences: R. v. Andrade, 2010 NBCA 62, at para. 24. A significantly relevant gap in a criminal record is worthy of consideration: R. v. Nembhard, 2010 ONCA 420, at paras. 3-6; R. v. MacLeod, 2004 NSCA 31, at para. 25; R. v. Ashberry (1989), 1989 7230 (ON CA), 47 C.C.C. (3d) 138, at p. 145 per Dubin C.J.O. dissenting in the result (leave to appeal refused, [1989] S.C.C.A. No. 136). The “jump” principle of imposing progressively more severe sentences upon an offender requires the court to consider the current offence on its own and in relation to the types of offences for which he or she has been sentenced in the past and the sanctions previously imposed: R. v. Catenacci, 2012 ONCA 187, at para. 1; R. v. Yeck, 2011 ONCA 768, at para. 6. There is no invariable rule that a present sentence must be no shorter than a previous disposition: R. v. Vincent, 2010 ONCA 332, at para. 3.

[34] In the present case, Mr. Barilko had a dated conviction (2002) for assaultive behaviour in a domestic context. While remote in time, it was not entirely irrelevant given the 2010 conviction for uttering a threat to the complainant in this case. The Respondent did not appear before the sentencing court as a first offender and the record raised concerns in particular as to specific deterrence and public protection.

[35] As a general rule, an offender who pleads guilty is deserving of a discount, more or less, in the sentence to be imposed. Public acceptance of responsibility, remorse, sparing a complainant having to testify, and a saving of court time and resources factor into some mitigatory impact on the sentence to be imposed. Of course, an offender who is found guilty after a trial is not to be punished for exercising his or her right to a trial. In the present case, through the trial process the Respondent raised a doubt as to whether the alleged assault involved an attempt or actual pulling of the complainant’s hair.

[36] Justice Flaherty entertained full sentencing submissions from counsel for the parties. As an experienced jurist, he well-knew the overarching principles of sentencing and where within the range of domestic-related criminal incidents the present case fell. The sentencing court was entitled to consider, not as an excusal or justification for Mr. Barilko’s actions, the factor of provocation on the part of the complainant (see, Mullin, at p. 490). The Respondent’s conduct was not premeditated and, despite being in the presence of the couple’s son, was on any account a minor assault.

[37] In considering the option of an absolute discharge, the sentencing court was also entitled to consider the following:

(1) the probation order following the 2010 conviction was successfully served

(2) the 11-month period of the judicial interim release order expired without incident

(3) there was no victim impact statement before the court raising serious concerns regarding the Respondent

(4) the Crown at trial did not seek a custodial disposition

(5) Mr. Barilko served six (6) days of pre-sentence custody across the 2011 Christmas period

(6) the outstanding criminal charge negatively impacted on the Respondent’s parental access with his son.

[38] While this court may have seen fit to impose a conditional discharge or a suspended sentence including a probation term with a condition compelling participation in counselling, that is not the test for appellate intervention: R. v. May, 2011 ONCA 74, at para. 8. On the whole of the record, it cannot be said that the learned trial judge erred in principle or imposed a manifestly unfit sentence.

[39] In addition, and in any event, given Mr. Barilko’s present circumstances and the passage of over two (2) years since the assault and 1 ¼ years since his sentencing this is not an appropriate case in which to now impose a different sanction upon the Respondent. On the latter point, there was undue delay on the part of the Crown, not by Mr. Khoorshed personally, in perfecting this appeal (nearly 2 months in filing the transcript after being notified that it had been completed and then over 5 ½ months more to file the Appeal Book and its 8-page factum).

CONCLUSION

[40] Leave to appeal is granted. The appeal is dismissed.

Hill J.

DATE: February 21, 2014