Her Majesty The Queen v. Geyan Singh
COURT FILE NO.: 85/12
DATE: 20140611
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty The Queen v. Geyan Singh
BEFORE: K.L. Campbell J.
COUNSEL: Kim Walker, for the Crown, respondent
Sevag Yeghoyan, for the accused, appellant
HEARD: May 12, 2014
ENDORSEMENT
[Summary Conviction Appeal]
A. Overview
[1] The appellant, Geyan Singh, was tried by Mr. Justice P. Downes, of the Ontario Court of Justice, on two assault-related charges allegedly committed against his girlfriend, Avanelle Small. At the conclusion of the trial, Downes J. acquitted the appellant on one of the charges and convicted him of the other. The appellant was found guilty of the offence of “assault with a weapon,” which was allegedly committed against the complainant in her Toronto apartment on the night of September 20, 2012. In the result, the appellant was sentenced to four months imprisonment, followed by an 18 month term of probation. The appellant now appeals against both his conviction and sentence.
B. The Factual Background
1. Introduction
[2] The complainant and the appellant have known each other since approximately 2000, and they started dating in the summer of 2009. At that time, the 37-year-old complainant was living in an apartment in Toronto with her 14-year-old daughter. The 34-year-old appellant was living with his parents in Oshawa. The complainant was four feet, eleven inches tall, and weighed 165 pounds. The appellant was six feet, two inches tall, and weighed 265 pounds.
[3] The complainant described their relationship as largely “typical” in that they would spend time together when they could. The appellant visited her apartment approximately three times a week, and they often spent parts of weekends together. For the most part they “got along,” but there were some issues between them. The complainant, for example, described the appellant’s drinking as a “huge problem.” She testified that the appellant would become argumentative when he was drinking, and “he drank all the time.” Sometimes she felt like she was a “prisoner in [her] own home.”
[4] The appellant testified that his relationship with the complainant was good for the first couple of years, and then they started arguing. The complainant would falsely accuse him of “cheating” on her, and he would try to defend himself. He found this frustrating, and he would get annoyed, but he tried to “keep [his] cool.” The appellant denied having any problem with alcohol. He explained that, after an accident in 2004, wherein he suffered serious injuries to his legs and back which required multiple surgeries, the medications that he was required to take effectively prevented him from consuming any significant quantity of alcohol.
[5] As to the events of the night of September 20, 2012, the complainant and the appellant provided very different versions of the relevant events.
2. The Complainant’s Version of Events
[6] According to the complainant, on the evening of September 20, 2012, the appellant arrived at her apartment at approximately 7:00 p.m. He had been away on vacation for the past two weeks, and it was their first evening together after his return. The appellant brought a bottle of rum with him and started drinking shortly after his arrival. This drinking continued throughout the evening. The complainant testified that, due to his drinking, the appellant was moody and temperamental, and he was trying to “pick a fight” with her. The complainant did not feel well that night. She had a headache. She did not consume any alcohol. She wanted “no part” of any argument with the appellant.
[7] The complainant testified that, eventually, things became confrontational and they became involved in an argument in her bedroom. The appellant seemed jealous as earlier he had accused her of “cheating on him” with a man at work. This was not the first time the appellant had accused her of infidelity. As the argument escalated, the appellant called her names, made insulting remarks about her mother, called her daughter names, and accused her daughter of stealing from him.
[8] The complainant testified that, at one point, the appellant threw a cigarette lighter at her, but missed. When she tried to run, the appellant grabbed her by her shirt, and hit her twice on the back of her neck with his fist. When she was able to get out of her bedroom, she spoke briefly to her daughter, who had been in the living room and had heard the commotion. They told each other that they wanted the appellant to leave.
[9] At some point thereafter, the appellant went out to the kitchen and the complainant returned to her bedroom. The complainant heard a cupboard door open and a glass break. When she went into the kitchen, the complainant saw the broken glass on the floor in the corner and the appellant reaching for a beer glass from the cupboard. The complainant testified that, at that point, she told the appellant: “You’re not going to do this. You’re going to stop drinking. You’re going to sober up, so that you can leave.” When the complainant then reached for the beer glass, which at that point was on the kitchen table, the appellant grabbed it first, lifted it up, and smashed it over the complainant’s head. She fell to the floor, bleeding from her head injury. The appellant walked away.
[10] When she noticed that she was bleeding, the complainant called to her daughter to summon an ambulance. When her daughter seemed too “shaken” and “panicked” to make the call, the complainant made the 911 emergency call herself.
[11] The complainant testified that as she was calling for the ambulance, the appellant retrieved his things and left the apartment. As he was leaving, he told her that he had cut his hand.
[12] When the paramedics arrived, they took the complainant to the hospital. While they were in the ambulance, the paramedics removed a piece of glass that was stuck in her face. When they arrived at the hospital, the complainant was treated for her injuries. She received nine stitches to repair the injuries she suffered.
[13] The photographic evidence entered at trial revealed that the complainant’s main injury was the large gash that she suffered to the right side of her head, above her ear. The photographic exhibits also showed other miscellaneous scratches, scrapes and abrasions that the complainant suffered to the right side of her head, neck and face. The complainant also suffered a large gash in the vicinity of her jaw bone under her right ear, where the shard of glass was removed by the paramedics.
[14] In cross-examination it was suggested that the complainant had thrown a beer mug at the appellant, which had cut his hand, and that when she became scared about the amount of blood from his injury, she pre-emptively called the police. Defence counsel also suggested that the complainant had caused her own injuries, to make it look like the appellant had hit her. The complainant denied all of these suggestions, and maintained that her injuries had been caused by the appellant, as she had described.
3. The Appellant’s Version of Events
[15] As I have indicated, the appellant provided a very different version of events in his testimony. He denied that he ever hit the complainant.
[16] The appellant testified that he arrived at the complainant’s apartment at approximately 8:00 or 8:30 on the evening of September 20, 2012. After visiting for a time, the appellant helped the complainant’s daughter with the dishes, and helped to clean up the apartment. He also took the complainant to the nearby “Shopper’s Drug Mart.” Later, the complainant’s mother dropped by briefly to give the complainant a TTC Metropass. The appellant denied that he was drinking that day.
[17] According to the appellant, after her mother’s visit, the complainant was in a very bad mood. She was very agitated and angry with the appellant. She accused the appellant of cheating on her while he was away on vacation. While the appellant denied this alleged infidelity, the complainant became more and more angry.
[18] The appellant testified that when he went to the door to put his shoes on and leave the apartment, the complainant tried to hit him with a glass. At first, in his examination-in-chief, he testified that he thought that she threw the glass at him. However, after expressing some uncertainty in this regard, the appellant testified that the complainant was standing only about two feet away from him at the time, and that she was still holding onto the glass when she struck him with it. In cross-examination, he reverted to saying that the complainant “threw the glass” at him, but then again confirmed that she was “still holding he glass” when she hit him with it.
[19] In any event, according to the appellant, when the complainant tried to hit him with the glass, he blocked it with his right hand. The glass broke and cut his fingers. He was bleeding very badly. The appellant then went into the bathroom, where he wrapped his fingers in toilet paper. Later he wrapped his fingers in tape.
[20] The photographic evidence of these injuries showed that the appellant suffered two cuts to the side of his index finger, and another cut to a knuckle on his pinky finger – all on his right hand. During his testimony the appellant also pointed to small scars on the middle and ring fingers of his right hand, which were also the result of the complainant hitting him with the glass. According to the appellant, the only medical treatment he received for these injuries was a tetanus shot from his family doctor.
[21] The appellant testified that he only remained in the complainant’s apartment for a couple of minutes after she struck him with the glass – just long enough to tend to his cut fingers – then he left. According to the appellant, after the complainant struck him with the glass, he did not say anything to her, nor did he physically retaliate in any way. He simply left the apartment as he did not feel safe being with her. The appellant testified that when he left the apartment, the complainant was not injured in any way.
[22] The appellant denied that he struck the complainant that night – or at any other time for that matter. In cross-examination, the appellant denied the suggestions made by the Crown that he had smashed a beer glass over the complainant’s head, and that this was the cause of the injuries to the fingers on his right hand.
C. The Reasons for Judgment at Trial
[23] At the conclusion of the trial, after hearing the submissions of counsel, Downes J. delivered oral reasons for judgment. In these reasons, the trial judge accurately summarized, in considerable detail, the important testimony of the complainant and the appellant.
[24] Downes J. also articulated the heavy burden on the Crown to prove the alleged guilt of the appellant beyond a reasonable doubt. Further, the trial judge indicated that, as the appellant had given evidence, he was obliged to apply the formula articulated in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758. Downes J. made it clear that there was “no onus on the defence, at any stage, to prove anything,” and indicated that, while he was presented with “two very different versions of events,” it was important not to reduce the case to a simple “credibility contest” between the two key witnesses.
[25] After outlining the arguments that were advanced on behalf of the appellant, Downes J. rejected the testimony of the appellant, accepted the testimony of the complainant, and concluded that he was satisfied beyond a reasonable doubt as to the guilt of the appellant in relation to the charge of “assault with a weapon.” More particularly, the trial judge stated that he believed and accepted the evidence of the complainant regarding the alleged incident on September 20, 2012 “without reservation.” Downes J. also rejected the testimony of the appellant as “less than convincing,” and delivered in a manner that was “rehearsed and unbelievable.” The trial judge rejected “completely” the defence suggestion that the complainant’s head wounds were “self-inflicted.” Indeed, Downes J. found as fact that the appellant had assaulted the complainant with the beer glass, which the appellant had used as a weapon on this occasion.
[26] The trial judge acquitted the appellant, however, in relation to the other assault allegation. While Downes J. concluded that it was “highly probable” that the earlier incident took place as described by the complainant, he was obliged to find the appellant not guilty of that offence as he had a “reasonable doubt” on the issue.
D. The Appeal Against Conviction
1. Introduction
[27] The appellant advances four grounds of appeal against conviction. More particularly, he contends that: (1) the verdict reached by the trial judge is unreasonable and not supported by the evidence; (2) the trial judge misapprehended important aspects of the evidence; (3) “prejudicial statements” by the trial judge created a reasonable apprehension of bias; and (4) the “fresh evidence” tendered on appeal is such that there should be a new trial. For the following reasons, I see no proper basis to interfere with the appellant’s conviction.
2. The Reasonableness of the Verdict
[28] The standard of appellate review regarding the reasonableness of the verdicts is well-settled. The task of the appellate court is to determine, on the whole of the evidence, whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. This process requires more than simply determining whether there is any evidence in support of the verdict. It requires the appellate court to thoroughly review, analyze and, within the limits of appellate disadvantage, weigh the evidence, and consider, through the lens of judicial experience, whether judicial fact-finding precludes the conclusion reached by the trier of fact. The appellate court is not permitted, however, to simply retry the case, or give effect to any vague unease or any lurking or reasonable doubt it may have based on its own review of the record. See: R. v. Melo, 2013 ONSC 4338, [2013] O.J. No. 2953, at paras. 36-41, and R. v. Costache, 2013 ONSC 4447, at para. 41, and the authorities cited therein.
[29] In my view, applying this standard of appellate review, it cannot be said that the verdict reached by the trial judge is an unreasonable one that is not supported by the evidence.
[30] This case was not complex. The evidence was incontrovertible that, on the night of September 20, 2012, the complainant suffered injuries to the right side of her head, face and neck. At around the same time, the appellant suffered injuries to his right hand. Most of the injuries were lacerations – precisely the kind of injuries one might expect from broken glass. The parties gave widely divergent accounts of how these injuries were suffered. The complainant described how, during an argument, the appellant smashed a beer glass over her head, causing her head injuries and the appellant’s hand injuries. On the other hand, the appellant denied striking the complainant, and testified that when he left her apartment that night, she was not injured in any way. The appellant explained his own injuries by testifying that, as he was preparing to leave the apartment, the complainant either threw a glass at him or tried to hit him with a glass, and when he blocked it with his right hand, he suffered his injuries.
[31] In these circumstances, it was open to the trial judge, who had the great advantage of actually seeing the witnesses and hearing them give their evidence, to conclude that the complainant was testifying truthfully, the appellant was not, and the Crown had established that the appellant had committed the offence of assault with a weapon beyond a reasonable doubt. It is important to appreciate that the testimony of the complainant explained, in a perfectly coherent and reasonable way, all of the injuries suffered by both parties. However, based upon the appellant’s testimonial denial that he ever struck the complainant, and his evidence that she was uninjured when he left her apartment, defence counsel was placed in the unenviable position of having to argue both that: (1) the injuries suffered by the complainant must have been either self-inflicted or caused by someone else after the appellant left the apartment; and (2) the complainant invented her testimony that it was the appellant who had inflicted her physical injuries. In these circumstances, it is hardly surprising that the trial judge accepted the credible testimony of the complainant, and rejected the inherently far-fetched and unbelievable evidence of the appellant.
[32] Moreover, as the trial judge accurately observed in his reasons for judgment, it was also legally open to him, in all of the circumstances of this case, after considering the entirety of the evidence, to find that the Crown had established beyond a reasonable doubt the alleged guilt of the appellant on the charge of assault with a weapon. See: R. v. D.(J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.), at para. 53; leave denied: [2007] S.C.C.A. No. 69; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 31-32, 48-51, 64-68; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 23-24, 30; R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (C.A.), at paras. 3-9; R. v. Hoohing, 2007 ONCA 577, [2007] O.J. No. 3224, at paras. 11-16; R. v. Mends, 2007 ONCA 669, [2007] O.J. No. 3735, at para. 18; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 13, 19; R. v. Menow, 2013 MBCA 72, 300 C.C.C. (3d) 415, at paras. 16-28.
[33] Further, the reasons for judgment provided by the trial judge as to why the appellant is guilty of the offence of assault with a weapon are legally adequate. Viewed from a functional and context-specific approach, and read in their entirety, against the background of the evidence adduced and the live issues in this case, the reasons provided by Downes J. adequately explain why the appellant was convicted, provide public accountability for the verdict, and permit effective appellate review of the decision. See: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24-28, 46-52, 55; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 31; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at paras. 12-16, 19; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at paras. 19-23; R. v. R.EM., at paras. 15-57; R. v. Dinardo, at paras. 24-35; R. v. S.(A.J.), 2011 ONCA 566, 106 O.R. (3d) 586, at paras. 12-13; R. v. S.(T.), 2012 ONCA 289, 284 C.C.C. (3d) 394, at paras. 45-46, 75-80.
[34] In my view, the conviction of the appellant on the charge of assault with a weapon was a verdict that a properly instructed jury, acting judicially, could reasonably have rendered in light of all of the evidence in this case. Judicial fact finding does not preclude the verdict reached by the trial judge. It is not for me to now simply retry the case on appeal and reach a different verdict. In the result, this ground of appeal fails.
3. No Misapprehension of the Evidence
[35] The appellant contends that the trial judge misapprehended the evidence. For example, the appellant complains that while the evidence indicated that the appellant had been on vacation in Trinidad, the trial judge indicated in his reasons that the appellant had been on vacation in Jamaica. Even assuming, without deciding, that the arguments advanced by the appellant all have some factual basis in the trial record, in my view none of the alleged misapprehensions of the evidence justify appellate intervention with the verdict in this case.
[36] As the authorities have made clear, not every misapprehension of the evidence will justify appellate interference with the verdict. Rather, to justify appellate interference with a conviction on the basis of a misapprehension of the evidence, an appellant must meet a “stringent standard” by establishing some link or nexus between the misapprehension of the evidence and the core elements of the judge’s reasoning process that resulted in the appellant’s conviction. In other words, where such arguments are advanced, the appeal court must determine: (1) whether the alleged misapprehension of the evidence has been established; and (2) whether any misapprehension of the evidence was so substantial or essential to the reasoning process of the trial judge that it led to an unreasonable verdict or caused a miscarriage of justice. See: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 538-541; R. v. Wadforth 2009 ONCA 716, 247 C.C.C. (3d) 466, at paras. 79-81; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Cazzola, 2012 ONSC 7129, at para. 21. The appellant has not met this threshold legal standard in all of the circumstances of the present case.
4. No Reasonable Apprehension of Bias
[37] The appellant contends that comments by the trial judge, made after hearing the submissions of counsel but before delivering his oral reasons for judgment, created a reasonable apprehension of bias on the part of the trial judge. I disagree.
[38] After hearing the closing arguments, the trial judge indicated that he was going to recess for “five minutes” before he delivered his decision. He indicated that he meant this proposed recess time “literally” and explained why he needed this brief recess. When he returned to court, the trial judge explained that the trial had been “relatively brief” and that the evidence was “very fresh in [his] mind,” and that he was in a position to provide oral reasons for judgment in the case.
[39] There is nothing in any of these comments that could possibly create any reasonable apprehension of bias on the part of the trial judge. See: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-395; R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 26, 31, 109-115.
[40] The mere fact that the trial judge was able to reach a decision quickly – after hearing all of the evidence and the submissions of counsel – cannot possibly give rise to any reasonable apprehension of bias. Judges need not reserve judgment to avoid reasonable perceptions of bias. Being efficiently decisive is not inconsistent with fair and impartial judicial decision-making.
5. The Tendered Fresh Evidence is Not Admissible
[41] On appeal, the appellant tendered some “fresh evidence” affidavits. In their cumulative effect, these affidavits suggest that, prior to trial, the appellant told his defence lawyer that the complainant had fallen during the course of their argument on September 20, 2012, when she had tried to strike him, and that the appellant thought that it was “likely” that the complainant had suffered her injuries during this fall. This evidence also suggests that, when told of this, trial counsel for the appellant advised him that, if he gave that testimony, he would risk being convicted.
[42] As Charron J. stated in R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 7, the criteria for the admissibility of fresh evidence are well known: (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. In my view, the tendered “fresh evidence” does not meet this standard of admissibility.
[43] First, the evidence now tendered by the appellant was clearly available at the time of trial and could have, if admissible, formed part of his trial testimony. With the advice of counsel, however, the appellant elected not to provide this evidence to the court. Tactical decisions not to present available evidence at trial usually prevent such evidence from being tendered on appeal if the accused is ultimately convicted. In such circumstances, the appellant is simply unable to meet the “due diligence” component of the test for the admission of fresh evidence (i.e. the appellant cannot show that, with the exercise of due diligence, the tendered fresh evidence could not have been adduced at trial). The important interest of ensuring some finality in criminal cases requires that strategic decisions as to the introduction (or not) of available evidence generally prevents the admission of untendered evidence on appeal when the strategic decision at trial proves unsuccessful. See: R. v. M.(P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont.C.A.), at pp. 409-411; R. v. Smith (2001), 2001 CanLII 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont.C.A.), at paras. 70-71, leave denied: [2002] S.C.C.A. No. 156.
[44] Second, the tendered evidence in this case is not such that, if believed, it could reasonably, when taken with the other evidence, be expected to have affected the result in this case. I am assured by defence counsel on appeal that this evidence from the appellant as to how the complainant may have suffered her injuries, does not arise from any first-hand knowledge the appellant has as a result of anything he personally heard or saw on the evening of September 20, 2012. Rather, his speculation that the complainant “likely” suffered her injuries during a fall is no more than that – surmise and conjecture on the part of the appellant. Indeed, it is difficult to understand upon what basis this speculative opinion by the appellant would even have been admissible at trial.
E. The Appeal Against Sentence
[45] The appellant contends that the four-month term of imprisonment imposed upon him by the trial judge is harsh and excessive. Prior to being released on bail pending the determination of his appeal, the appellant served 20 days of this jail sentence. The appellant argues that this is sufficient, and that he need not now be re-incarcerated. The appellant also complains about the term of his probation order that requires him to perform 96 hours of community service.
[46] Sentences imposed by trial judges are entitled to great deference. In the absence of some error in principle, a failure to consider a relevant factor, or an over-emphasis of appropriate factors, the sentence imposed by a trial judge should not be interfered with on appeal. Indeed, sentences imposed at trial should only be altered on appeal when they are clearly unreasonable, demonstrably unfit, or a substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes. See: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at paras. 46-50; R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paras. 89-94; R. v. W.(G.), 1999 CanLII 668 (SCC), [1999] 3 S.C.R. 597, at paras. 18-19; R. v. M.(L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at paras. 69-73; R. v. S.(H.), 2014 ONCA 323, at para. 23.
[47] I can see no proper basis that might justify appellate interference with any aspect of the sentence imposed by the trial judge. There are many factors which support this conclusion, including the following:
The Nature of the Offence: The trial judge appropriately considered the nature and gravity of the offence committed by the appellant. He described the offence as an “alcohol-fuelled act of violence” by a “manifestly larger and more powerful” man, committed in “flagrant disregard” for the presence of the complainant’s young daughter. Downes J. noted that after the complainant told him to stop drinking and sober up so he could leave the apartment, the appellant struck her over the head with a beer mug. According to the trial judge, this “brutal, vicious” and serious assault could have resulted in far more serious injuries than it did.
The Physical Injuries to the Complainant: The trial judge appropriately considered the injuries suffered by the complainant as a result of the offence. In this regard, the trial judge noted that when the “heavy” beer mug shattered as it came into contact with the complainant’s head, shards of glass cut her cheek and she suffered a “significant gash to her head.” These injuries left the complainant with permanent scarring to her face.
The Victim Impact Evidence: As the trial judge noted, in her victim impact statement the complainant outlined the psychological impact of the offence, describing the betrayal she felt by this act of violence by the appellant in the face of their decade-long friendship. The complainant indicated that she thinks about the incident “every day,” unable to forget about what happened. The trial judge also noted that the offence traumatized the complainant’s daughter.
The Personal Circumstances of the Offender: The trial judge properly took into account the fact that the appellant was a mature first offender with no prior criminal record. Downes J. also noted that the appellant was 34 years old, with a grade 11 education, and lived with his parents.
The Offence was Out of Character for the Appellant: The trial judge considered the various letters of support that were filed on behalf of the appellant, which portrayed his better qualities and suggested that the offence was out of character. In this regard, Downes J. specifically noted that the appellant had been performing volunteer work for a charitable organization, Redemption Reintegration Services. The trial judge accepted that the appellant had made positive contributions to his community in this regard.
The Appellant’s Health Care Issues: The trial judge properly took into account the appellant’s ongoing health care concerns, including the fact that he has been diagnosed as suffering from fibromyalgia and chronic pain issues, and is on medication in relation to these difficulties. Downes J. concluded, however, that these medical issues did not provide the level of mitigation that should result in a non-custodial sentence. The trial judge also observed that there was no evidence that these medical issues could not be properly addressed by the correctional authorities. See: R. v. S.(H.), at paras. 37-38.
Sentencing Principles – Violence Against Intimate Partner: The trial judge properly considered the relevant and operative sentencing principles. In particular, Downes J. concluded that the principles of denunciation and deterrence must be paramount sentencing considerations in this case. Viewing the relationship between the appellant and the complainant as a type of “domestic relationship,” Downes J. noted that “violence against a partner, particularly in her own home, must be met with a response that signals the courts and society’s repudiation of such conduct.” The trial judge suggested that the “betrayal and exploitation” involved in acts of violence in these similar circumstances are comparable.
Rehabilitation Prospects – Community Supervision and Support: The trial judge fairly acknowledged that in light of the appellant’s status as a “mature, first-time offender” with reasonable prospects for rehabilitation, there ought to be a term of probation imposed upon the appellant, during which time he could be “supervised and supported in the community.” Further, there was nothing inappropriate about the decision of the trial judge to require the appellant, as a term of the probation order, to perform 96 hours of community service.
The Positions of the Parties: The trial judge considered but rejected the position advanced by the appellant that he should be given a suspended sentence or a conditional sentence. The trial judge concluded that a non-custodial sentence would trivialize the gravity of the offence and send the unacceptable message that this type of conduct will be treated with leniency by the courts. Acknowledging that conditional sentences can, in the right circumstances, meet the sentencing objectives of denunciation and deterrence, the trial judge concluded that such a sentence was not sufficient in the circumstances of the present case. Instead, Downes J. accepted the position advanced by the Crown, which he described as “measured and generous.” The trial judge indicated that, without this submission, he would have had little difficulty imposing an even greater term of imprisonment on the appellant.
Sentence Within the Appropriate Range: In my view the four-month term of imprisonment imposed upon the appellant was well within the appropriate range of sentence in all of the circumstances of the present case. In this regard the decision in R. v. Inwood (1989), 1989 CanLII 263 (ON CA), 48 C.C.C. (3d) 173, 69 C.R. (3d) 181, remains instructive. In that case a five-judge panel of the Court of Appeal for Ontario considered, in the context of a Crown appeal, the fitness of a suspended sentence for an offence of assault causing bodily harm. This offence involved a single act of domestic violence by a mature offender against his wife. (The accused was also convicted of an assault on their infant child, for which he received a sentence of 30 days imprisonment). The offender had a relatively minor criminal record. The physical injuries suffered by the complainant, as a result of the beating she endured at the hands of the accused, healed quickly and were not permanent. Howland C.J.O., delivering the judgment of the court, held that “a custodial term of three months should have been imposed” by the trial judge in relation to this offence. However, given the passage of time, the court did not increase the sentence. See also: R. v. Chirimar, 2007 ONCJ 385, [2007] O.J. No. 3323, at paras. 14-21; R. v. Bytqi (2004), 2004 CanLII 14964 (ON CA), 186 O.A.C. 114, [2004] O.J. No. 1938 (C.A.).
[48] In my view, the sentence imposed upon the appellant by the trial judge was entirely fit, and I see no justification for any appellate interference with that sentence.
F. Conclusion
[49] In the result, the appeals against both conviction and sentence are dismissed. An order shall issue accordingly.
Kenneth L. Campbell J.
Released: June 11, 2014