REASONS FOR SENTENCE

Introduction

[1] On January 13, 2016, a jury found Kelly Bainbridge guilty of assault with a weapon contrary to s. 267(a) and aggravated assault contrary to s. 268 of the Criminal Code. She is now before me for sentencing.

The Facts

(a) Circumstances of the Offences

[2] At trial Ms. Bainbridge admitted the essential elements of the offences she was charged with; namely, that on August 17, 2013 she poured hot oil over the head, neck and back of Akeil Morris and in doing so committed the offences of assault with a weapon; the weapon being the hot oil, and aggravated assault, in that she disfigured Mr. Morris. The only issue for the jury was whether or not Ms. Bainbridge acted lawfully in “defence of another”; namely, her son Vilroy.

[3] The jury obviously found beyond a reasonable doubt that Ms. Bainbridge was not acting in lawful defence of her son in finding her guilty of both offences. There was no dispute that Ms. Bainbridge believed on reasonable grounds that force was being used against her son and in particular that he was in a fight with Mr. Morris who was with his friend Mr. Parker. There are, therefore, two ways that the jury could have reached its verdict. First of all, the jury may have found that the Crown had proven beyond a reasonable doubt that Ms. Bainbridge did not pour hot oil over Mr. Morris for the purpose of defending or protecting her son from the use or the threat of force but rather, as the Crown submitted, she did this because she was angry at Mr. Morris and his friends. Alternatively, if the Crown failed to prove to the jury that defending her son was not her purpose, then the jury must have found that Ms. Bainbridge’s use of the hot oil against Mr. Morris was not reasonable in the circumstances.

[4] Pursuant to s. 724(2)(a) of the Criminal Code, I accept as proven the facts that are essential to the jury’s verdict of guilt. However, as it is not possible to determine what the jury found on the two outstanding issues, I must determine the facts that are necessary for deciding an appropriate sentence in this case; see: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras. 16-18; see also R. v. Roncaioli, 2011 ONCA 378, [2011] O.J. No. 2167 (Ont. C.A.) at para. 59.

[5] The witnesses who testified on these issues were Mr. Morris, Mr. Parker and Ms. Bainbridge. Neither party called Ms. Bainbridge’s son Vilroy. There was also surveillance evidence of some of the altercation.

[6] Shortly before 5:00 a.m. on August 17, 2013, Mr. Morris or his girlfriend, Kinesha Campbell, knocked on the door of Ms. Bainbridge’s apartment. Mr. Parker was present as well. They wanted to invite Vilroy to go out for beers and believed that he knew where they could buy some alcohol. They had been drinking at Mr. Morris’ apartment and the bars were now closed. Although Vilroy and his girlfriend were sleeping, Ms. Bainbridge was up for reasons that do not matter. Her other children were sleeping in another apartment in the same building with her mother. Ms. Bainbridge testified that she was going to make French fries and had just put a pot of oil on the stove to heat up. There is no dispute that this was the reason hot oil was on the stove.

[7] There was a dispute in the evidence as to what transpired when Ms. Bainbridge responded to the knock by asking who was there through a closed door. Ms. Bainbridge testified that when she refused to wake Vilroy up, Ms. Campbell called her a bitch and told her to come out and defend herself. Ms. Campbell and the others denied this although Mr. Morris fairly admitted that he could not recall what was said likely because he was intoxicated. There is no dispute that Ms. Bainbridge did not know Mr. Morris or Mr. Parker but she had previously asked Ms. Campbell not to come to her door when she believed she was dating Vilroy. Ms. Bainbridge admitted that she was very upset and very irritated at the level of disrespect but denied she was angry.

[8] Mr. Morris and his friends left but as they did so they saw Vilroy at his window. Mr. Morris testified that he went to talk to him and Vilroy asked Mr. Morris to meet him out front. Ms. Bainbridge confirmed that right after the knock on her door she heard yelling outside the windows and she saw her son running out of the apartment. She asked him not to open the door but he ran out.

[9] The location of Ms. Bainbridge’s apartment relative to the lobby of the apartment building is significant. The lobby is on the main floor of the building and her apartment was on the basement level, although it has windows above ground level. It is the second apartment from the landing at the bottom of the stairs that go from the lobby to this floor.

[10] Only Mr. Morris and Mr. Parker went into the lobby of the apartment building and Vilroy was waiting for them. A fight between Mr. Morris and Vilroy started in this area and some of it was captured on the surveillance video. This part of the altercation is relevant for two reasons. The first is that Mr. Morris and Mr. Parker both testified that Vilroy produced a knife. Mr. Parker testified that he was able to grab it and he threw it into some bushes outside. The issue of the knife becomes important for reasons I will come to.

[11] Secondly, there was a dispute in the evidence as to what Ms. Bainbridge did while this part of the fight was going on and in particular whether or not she was on the stairs or at her doorway yelling and swearing at Mr. Morris and Mr. Parker. This evidence is relevant to the theory of the Crown that she was very angry because of the early time of the knock, what happened at her door and now the fact that Vilroy had run out and was in a fight. Again Ms. Bainbridge admitted she was upset but she denied she was angry at this point.

[12] Mr. Morris testified that Ms. Bainbridge came halfway up the stairs to the lobby and was cussing and swearing although he could not remember specifically what she said. He admitted that he yelled back and told her to “shut the fuck up” and “stuff like that”. Mr. Parker who was a little further away did not see Ms. Bainbridge until the fight continued on the downstairs landing. Ms. Bainbridge admitted that she was very upset with her son and yelling and possibly swearing at him about what kind of people were coming at this time of night and for them to leave them alone. However, Ms. Bainbridge testified that she did this from her doorway, although she admitted that she might have taken a couple of steps into the hallway. Again she denied she was angry at this point. She knew Vilroy was in a fight in the lobby area but said it ended pretty quickly. There is no dispute that she did not intervene in this fight.

[13] I do not accept Ms. Bainbridge’s evidence that she was not angry at this point and find that she was not prepared to admit this because she knew it would impact on her defence. That said, in my view there is not much of a distinction between being very upset or angry. Certainly at this stage I find that Ms. Bainbridge was not upset or angry enough to get the pot of hot oil in order to punish Mr. Morris as submitted by Ms. Bellmore.

[14] Ms. Bainbridge saw Vilroy come down the stairs after the fight in the lobby area and admitted that he did not look injured. There is no dispute that Mr. Morris and Vilroy were then fighting on the downstairs landing. Whether or not there were two separate fights of one continuous fight, there is no dispute, based on the surveillance video, that at 4:59:18 Mr. Morris went down the stairs after Vilroy and at 4:59:51 you see Mr. Parker heading back up the stairs; a period of 33 seconds. This is important because it means the events on the downstairs landing occurred very quickly.

[15] Ms. Bainbridge testified that at first she did not see anyone behind Vilroy. She assumed the fight was over and was on her way back to her apartment to turn off the stove. She testified that as she was approaching the stove she heard her son scream “drop the knife” and “get off me, get off me”. She did not know how many people there were and she panicked at the mention of a knife and thought that her son could die. She testified that she just ran and it was only halfway down the hall that she realized the pot was in her hand. She testified that no thought went into grabbing the pot in the first place.

[16] Once Mr. Morris and Vilroy were on the downstairs landing, the evidence is clear that Mr. Parker was standing close by on the same level but he never got physically involved in the fight. Mr. Morris and Vilroy were exchanging punches and Mr. Morris was in control of the fight in that Vilroy was in the corner of the landing and went down and Mr. Morris was leaning over him. Mr. Morris admitted that he was in a rage and that he “blacked out” in the sense that he was not aware of his surroundings. He testified that Vilroy was fighting back and at one point bit his ear. Mr. Parker confirmed this evidence and testified that it looked like Mr. Morris was in a rage and that he was “going wild” on Vilroy and throwing punches continually.

[17] Both Mr. Morris and Mr. Parker denied Ms. Bainbridge’s evidence that Vilroy said “drop the knife”. I prefer their evidence to Ms. Bainbridge’s on this point. There is no evidence that either of them had a knife and the evidence that the knife that Vilroy had was disposed of on the lobby level was not challenged. Furthermore, Ms. Bainbridge agreed that she did not see a knife when she approached Mr. Morris with the pot and she did not see any knife wounds on Vilroy. The only evidence of injury to him was a bloody nose.

[18] Ms. Bellmore submitted that the appropriate factual finding is that Ms. Bainbridge was angry that Mr. Morris and the others had attended at her apartment so early in the morning, that Ms. Campbell had shown a lack of respect towards her, that her son had left the apartment and that she had exchanged words with Mr. Morris and that as a result she went to get the hot oil with the intention to pour it on Mr. Morris. Ms. Bellmore points out that Ms. Bainbridge did not check on whether or not her son had been injured after she poured the oil over Mr. Morris and in fact ran in the opposite direction. She submits there is strong evidence that the oil was not poured over Mr. Morris’ head for the purpose of defending her son. Mr. Owoh disagreed with this submission.

[19] Although I find that Ms. Bainbridge must have made a deliberate decision to pick up the pot of oil and take it to the downstairs landing where the fight was ongoing, I am not persuaded beyond a reasonable doubt that she did not pour the hot oil over Mr. Morris for the purpose of defending her son. Although I accept that she was very upset and angry at this point and that this factored into her actions, I find, based on what happened up to this point and on what Ms. Bainbridge would have seen of the fight before pouring the oil, that her primary purpose was to defend her son. However, to be consistent with the jury’s findings, I find that her use of the hot oil against Mr. Morris was not reasonable in these circumstances.

[20] I come to this conclusion for a number of reasons. First of all, not much had changed from Ms. Bainbridge’s perspective by the time the fight moved to the downstairs landing. She was yelling but made no effort to physically intervene in the fight in the lobby. It is true that she knew that the fight continued downstairs, but having found that she did not hear anything about a knife, there was still nothing that in my mind would provoke Ms. Bainbridge, who I note has no history of a violent disposition, to use hot oil to punish Mr. Morris for what had occurred to this point. I note she made no effort to throw the oil at Mr. Parker or at both of them. As for the fact that she ran, given that I have found that she did not hear anything about a knife, she would not have been worried about a knife wound to her son as she testified to. She also saw her son get up. The fact she ran back to her apartment is more consistent with her being scared about what she had just done.

[21] I also come to this conclusion because of what Ms. Bainbridge heard and saw of the fight on the downstairs landing before pouring the hot oil over Mr. Morris. Ms. Bainbridge did not know either Mr. Morris or Mr. Parker and although she would have observed that they were about the same size and age as her teenaged son Vilroy, I accept her evidence that she did not know if others were with them. She would have had no way of knowing if Ms. Campbell was still with them or if others were there as she never opened her door to them when they knocked. Furthermore, it seems that Mr. Parker had the door to the landing closed as she was walking down the hall and in any event the fight was in a corner that would not have been visible from down the hall.

[22] Ms. Bainbridge testified that she ran down the hall; Mr. Parker said that she walked. I expect she was walking quickly. Had she run I assume the oil could have spilled on her hand and arm. This is only significant in that it would have taken Ms. Bainbridge a few seconds to get to her apartment, pick up the pot of oil and get back to the downstairs landing. Mr. Parker’s evidence that she looked scared is also consistent with my finding as to her purpose as he did not say that she looked angry.

[23] Mr. Parker gave evidence that corroborated Ms. Bainbridge’s evidence that as she went down the hall he blocked the doorway to the landing. I accept her evidence that this action heightened her concern for her son even given she heard nothing about a knife. It also would have delayed her by a few seconds. I accept Ms. Bainbridge’s evidence that she believed Mr. Parker looked like he was helping Mr. Morris although she admitted that she did not see him strike her son and that after he blocked her path it looked like he was trying to pull Mr. Morris off to break up the fight. I note that she made no effort to attack Mr. Parker with the oil; it seems she was only trying to scare him and that did work even though she did not say anything about the oil.

[24] I am also compelled to my conclusion as to Ms. Bainbridge’s purpose in pouring the oil because of the admitted evidence of Mr. Morris and Mr. Parker. However brief, when Ms. Bainbridge crossed the threshold into the landing and saw her son, she would have seen him crouched in a corner and, as Mr. Parker observed, she would have seen that Mr. Morris was in a rage and pummeling her son hard, with closed fist punches. I accept Ms. Bainbridge’s evidence that she saw her son’s head hitting the wall. I also accept her evidence that she did not see her son biting Mr. Morris’ ear because Mr. Morris was over him although I find she would have seen him punching back.

[25] Mr. Morris and Mr. Parker suggested Ms. Bainbridge did not say anything while she had the pot in her hand but I find that impossible to believe. Given the undisputed evidence that she was yelling and swearing moments before, I find her evidence that she was yelling that they “get off my son” makes sense. However, there is no dispute that she never added: “or else I have a pot of hot oil and will throw it on you.” Mr. Parker, however, realized that Ms. Bainbridge had a pot in her hands and that this was a threat of some sort because he told Mr. Morris this and that they should leave. When Mr. Morris didn’t respond, he pulled him off Vilroy but Mr. Morris went back to the fight because he was in a “rage”.

[26] Ms. Bellmore submitted that even if Ms. Bainbridge did not pick up the pot of oil with the intent to throw it on Mr. Morris, her use of the oil was still premeditated and excessive as Ms. Bainbridge had time to do other things before she decided to pour the oil over Mr. Morris. Ms. Bellmore made a number of arguments at trial about the other options Ms. Bainbridge had including waking Vilroy’s girlfriend, yelling for help, knocking on the next door neighbour’s apartment door for help and warning Mr. Morris and Mr. Parker that she had a pot of hot oil. Given she admitted that she did not see a knife or knife wounds on her son, she should have realized that this was only a fist fight.

[27] Given the fact that the entire altercation on the downstairs landing lasted about 30 seconds, and given that Ms. Bainbridge was only on the landing for the last few seconds, I am not satisfied that Ms. Bainbridge had enough time to consider all of the other options in the way Ms. Bellmore submitted, in the fullness of the time spent on this issue at trial. Although these arguments have some merit, given how quickly this event unfolded and given the worry Ms. Bainbridge, as a mother, had for her son, even though I have found she did not hear anything about a knife, I am sure she was not calm. Mr. Parker confirmed at least that she was scared. I can see no reason why she would not have asked her neighbour for help had she felt there was time and the fact that she did not suggests to me that it did not occur to her given her state of mind at the time.

[28] I am also not satisfied that as Ms. Bainbridge was walking down the hall she formed the intention to use the oil by pouring it on Mr. Morris. I do find however, that by the time she crossed the threshold and saw Mr. Morris pummeling her son, Ms. Bainbridge decided to pour the oil over Mr. Morris even though she knew it would burn him. Clearly that was an excessive use of force in relation to the harm to her son it was intended to prevent. Given my finding that nothing was said about a knife, the fight was not life-threatening; it was a fistfight between two teenaged boys. Mr. Parker testified that Ms. Bainbridge was in the doorway of the downstairs landing for about 30 seconds but he also thought the fight downstairs was longer than a couple of minutes. In my view, in fact, Ms. Bainbridge’s decision to pour the oil over Mr. Morris was made in seconds.

(b) Impact on Mr. Morris

[29] Mr. Morris was 17 at the time of the assault. He is now 21. He suffered severe burns to the back of his head, his neck and part of his back and was treated at the hospital. Ms. Campbell then cared for his wounds until they were healed. Mr. Morris clearly suffered a great deal of pain at the time of this incident and while his burns healed.

[30] I had an opportunity to see Mr. Morris’ scar on the back of his head when he testified. There is a significant area down the back of his head where hair will not grow. Based on the pictures introduced into evidence, the back of his neck and upper back are also scarred.

[31] Mr. Morris prepared a written victim impact statement for my consideration. He states that this incident has changed his life forever. He became very depressed after the assault because he felt that he always had to wear a hat when he went out because if he did not everyone would stare at his scar. As a result he spends most of his time inside. Because of how he felt after the assault his relationship with his family suffered and he has lost contact with many of the people that care about him. He feels as though no one understands how he feels. Mr. Morris has been told by doctors that he will not be able to grow hair in the spots on his scalp that have been burned. Mr. Morris also suffered an economic loss, as he had to take a leave of absence from work because the burn on his head became infected.

[32] On a more positive note Mr. Morris does report that as a result of this incident he has learned to take life more seriously. Support from his girlfriend and good friends and the assistance of the officer in charge to make sure this matter was resolved has helped him in the process of overcoming this injury.

[33] A pre-sentence report (“PSR”) was obtained and it provides some background information with respect to Ms. Bainbridge. Ms. Bainbridge is 40 years old, single and has six children; four of whom are still dependent on her. She was born in Toronto and was raised by her mother, as her father was not in the picture. Ms. Bainbridge’s father is reported to have been a very abusive man and he passed away a couple of years ago. She told the author of the PSR that […] [^1] she did not report this to anyone. Ms. Bainbridge has essentially lived on her own since she was 16 years old.

[34] With respect to her children, Vilroy has since left home and her 17-year-old daughter will be leaving for university in September 2016. They share the same father who Ms. Bainbridge speaks highly of. Since October 2015, he has been paying $100 per month in child support. When that relationship ended Ms. Bainbridge started dating another man and her relationship with that man produced a son who is now 15 years old. Ms. Bainbridge claims that that partner was abusive and so she decided at that time that she needed to move away from this abusive relationship for a period of time, which I presume meant leaving their residence. Her children were placed in a foster home at that time and she then had to fight to get them back. Ultimately the Children’s Aid Society (“CAS”) recommended that the biological father of her second eldest son get custody of him. As a result, she did not see her son for six years and has started to see him again only in the past few years.

[35] In order to raise money to fight the decision of the CAS, Ms. Bainbridge reports that she […] began to work for an adult entertainment company. She found she was unable to do this work but told the author of the PSR […] birth of her fourth child, a son who is now 13 years old who lives with her. She is seeking child support from the father now for the first time.

[36] Between 2005 and 2008 Ms. Bainbridge moved back and forth between Canada and Dubai. When she was in Dubai she left her children with her mother. Although her mother had had difficulties with cocaine, by then she was sober. In Dubai Ms. Bainbridge met and married a man from Egypt. This relationship produced her fifth child, a daughter who is now nine years old. This marriage ended because Ms. Bainbridge discovered that her husband had serious heroin use issues. She fled Egypt and returned to Toronto with her daughter. When she was back in Toronto she became intimate with another man and produced her sixth child, a son who is nine months old whom she nurses at this time. This relationship ended because Ms. Bainbridge reports that this man also has a drug issue. She is also in the process of seeking child support from this man.

[37] Ms. Bainbridge has two older half-brothers on her mother’s side. Her brothers were raised by their great grandmother on and off until she passed away when Ms. Bainbridge was 18 years old. She was not close to her maternal grandmother as her maternal grandmother did not want any relationship with her mother.

[38] The author of the PSR reports in summary that Ms. Bainbridge was raised in a dysfunctional family and had minimal positive role models during the most formative years of her life, having to fend for herself since she was 16 years old. She claims […] She reports having been harassed at workplaces and her intimate relationships including one marriage have been turbulent. She did not have a father figure to nurture and guide her and the fathers of her children, with the exception of one, have been abusive.

[39] Ms. Bainbridge is one credit shy of receiving her high school diploma. She has scored high marks in most of her courses. Ms. Bainbridge has completed one year of computer programming and a six-month course for medical laboratory assistants at a local career college.

[40] Ms. Bainbridge started working when she was approximately 17 years old and has worked on a continuous basis since then until recently. She has worked in offices, factories and telemarketing. She worked as an Office Administrator for different Ontario ministries for a two-year period in contract positions. She has never been on social assistance for any lengthy periods of time until recently. At one point when she did not work for a three year period, she was supported by the father of her fifth child.

[41] Ms. Bainbridge worked for a telecommunication company from March 2009 until October 2011 in the Customer Service/Retention Department. She claims that she was sexually harassed there and that when she reported this, police did not take any action and so she quit and was without work for one year. Based on information obtained by the author of the PSR, the police determined that there were not enough grounds to lay charges and no action was taken. In September 2012, Ms. Bainbridge was hired by another telecommunication company but she was asked to leave in September 2014. She was on employment insurance and since June 2015 has been on Ontario Works. Currently she does not work as she is nursing her nine month old son. Once her youngest son turns two Ms. Bainbridge’s goal is to go back to work but she wonders if she will find employment because of her criminal record.

[42] Ms. Bainbridge was critical of how police dealt with her complaint that […] and then later when she was sexually harassed. When the author of the PSR followed up with the police, it appears that her complaints are not well founded. Ms. Bellmore submitted that this goes to Ms. Bainbridge’s credibility but these matters are not relevant to sentencing and in any event the facts are not clear enough to give me concerns about Ms. Bainbridge’s credibility generally that would impact on the facts that I have found for the purpose of sentencing.

[43] All collateral contacts contacted by the author of the PSR have described Ms. Bainbridge as a caring, helpful and family oriented individual. Ms. Carol Armstrong, Ms. Bainbridge’s mother, confirmed the family background to the author of the PSR. She said that she admires her daughter for doing a very good job where her children are concerned. Ms. Armstrong reports that she has been clean and sober for 12 years and has lived in the same apartment for 11 of those years but that she is currently facing physical health issues. Ms. Bainbridge reported that her mother has battled cancer all of her life and currently collects benefits under the Ontario Disability Support Program for physical and mental health issues.

[44] Mr. Trevor Armstrong, Ms. Bainbridge’s half-brother, has recently reconnected with her and his mother and now talks to them frequently. He reports that Ms. Bainbridge is an “awesome mum” and that her children love her and are the number one priority in her life.

[45] Ms. Bainbridge’s eldest son, Vilroy Edwards, spoke highly of his mother. He reported to the author of the PSR that after the offence he left the parental home and took on new employment and currently lives in another city. His newborn baby passed away and he is quite upset as a result. He is extremely concerned about his mother’s situation and his younger siblings. He questions the decision of the police officers to charge his mother.

[46] Mr. Edwin Hasselfield, who resides in the same building as Ms. Bainbridge, told the author of the PSR that although he does not know Ms. Bainbridge very well she is doing a lot for her children. Mr. Seftan Richards, who worked with Ms. Bainbridge at the same telecommunication company for about four years, reports that she is a very caring person, hard-working, very responsible and that she excelled at her work. Another former co-worker, Ms. Michelle Sowinskai, described Ms. Bainbridge as a “nice girl, family oriented” and “really dedicated to her work”. Her best friend, Ms. Amanda Sweeney, who has known her since she was three years old, described Ms. Bainbridge as the nicest person she has ever known. She stated the Ms. Bainbridge has always ensured that her children have what they need and that if the children are taken away from her it will drive her “crazy”. Ms. Sweeney confirmed to the author of the PSR that Ms. Bainbridge has not had an easy life and that she needs to “talk to somebody” about her problems.

[47] Ms. Bainbridge has no criminal record. At trial when she began her evidence she admitted the element of the offence of aggravated assault before the jury and that Mr. Morris is scarred for life. She stated that she feels horrible about this. The author of the PSR indicates that when he asked Ms. Bainbridge about the offence she stated that she would do anything to keep her children safe. Ms. Bainbridge told the author of the PSR that she feels sad that Mr. Morris was hurt but at the time she was very scared for her son and truly believed that he would be hurt. She considers herself as being “kind, gentle, honest, loving” and stated a few times “I am not a monster, I am not crazy”. The author of the PSR has concerns that despite Ms. Bainbridge’s assertions that she has a caring and protective nature, her actions indicated otherwise.

[48] Ms. Bainbridge reports that she takes great pride in her children, that she has always worked and cared for her children and would do anything to protect her children. There is no doubt that she is a good mother. I had a brief opportunity to observe Ms. Bainbridge with her two older daughters while the jury was deliberating; we were all in court informally trying to solve a technical issue with respect to an exhibit. Her daughters were well mannered, well dressed and appeared very close to their mother. From what I saw, Ms. Bainbridge has good reason to be proud of her children.

[49] At the time of the PSR Ms. Bainbridge reported being in good physical health and that there is no diagnosis of any mental health issues. She has no alcohol or drug use issues. However, in the week of February 15, 2016, Ms. Bainbridge had a fall and shattered her knee. She underwent surgery a couple of days later and is currently back at home but moving in a wheelchair, which she was still using when she attended court for her sentencing hearing. While she was in hospital her mother cared for the children. Her mother told the author of the PSR that she found this “hard”. It is not clear how long Ms. Bainbridge’s mother cared for the children but I presume it was only a matter of days.

[50] Soon after the offence Ms. Bainbridge reports that she did have a breakdown at work and when she went to the hospital she was advised that she was depressed. The author of the PSR is concerned that there could be some mental health issues, which remain undiagnosed at this time, and if community supervision is ordered suggests that an order be made that Ms. Bainbridge attend and complete a comprehensive assessment for unaddressed personal/mental health issues and follow up on medication and counselling as recommended and that that counselling address emotional issues surrounding the sexual assault and sexual harassment that Ms. Bainbridge experienced.

[51] Mr. Owoh advised me that although he has asked Ms. Bainbridge what will happen to her children if she goes to jail, she has not provided him with a response. It seemed to him that she couldn’t bring herself to talk about it.

[52] I gave Ms. Bainbridge an opportunity to address me at the conclusion of the sentencing hearing. As she spoke to me she appeared quite distraught and it appeared to me that her state of mind was consistent with the views of the author of the PSR that there may be some undiagnosed mental health issues. All she could tell me was that if I was going to send her to jail that she needed it to be over with and that she go there right away. She was ranting about her landlord, suggesting that he was responsible for the injury to her leg and that if she was not going to jail she needed to find another apartment. There are a number of references in the PSR to difficulties Ms. Bainbridge is having with her current landlord. I advised Ms. Bainbridge that because of the considerable difference between counsel as to an appropriate sentence I needed to reserve my decision.

Legal Parameters

[53] The maximum sentence for aggravated assault is 14 years pursuant to s. 268(1) of the Criminal Code and for assault with a weapon, ten years, pursuant to s. 267(a). There are no minimum sentences for these offences.

Positions of Crown and Defence Counsel

[54] It is Ms. Bellmore’s position that a period of incarceration of two and a half to three years is an appropriate sentence in this case. In addition she asks that there be a DNA order and a s. 109 order for ten years. Ms. Bainbridge spent only one day in custody. Her mother was her surety and she was not subject to strict bail conditions. In particular she did not have to reside with her mother.

[55] Mr. Owoh submitted that the appropriate sentence in this case is a 90-day jail term to be served intermittently. He took no issue with the ancillary relief requested.

Case Law

[56] I begin with a review of Justice Code’s decision in R. v. Tourville, 2011 ONSC 1677, [2011] O. J. No. 1245 (S.C.J.) where he attempted to classify the usual range for sentences for aggravated assault depending on the circumstances of the offence and the offender. To put this in context the offender in that case was a young Aboriginal first offender. Code J. concluded that the cases disclosed a wide range of sentences (at para. 27).

[57] At the bottom end Code J. referred to what he described as an exceptional case like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years’ probation on her guilty plea to aggravated assault. She was 26 years old with no prior adult record. She had used a broken beer bottle in the assault during a barroom dispute causing serious facial lacerations to the victim, which had resulted in a permanent facial scar and ongoing pain. The “Gladue Report” disclosed a very difficult upbringing in a violent and abusive home leading to alcoholism and drug abuse. By the time of sentencing, the offender had obtained employment and was making real progress in counselling for her substance abuse problems. It is Mr. Owoh’s position that Ms. Bainbridge falls at this bottom end of the range and that this is an exceptional case.

[58] Justice Code summarized the mid-range of cases where high reformatory sentences have been imposed between 18 months and two years less a day as generally involving first offenders and containing some element suggestive of consent fights where the offender had resorted to excessive force, (at para. 28). In two of the cases he referred to in this regard the complainant suffered life-threatening injuries. It is Ms. Bellmore’s position that the case at bars falls in this mid-range which she submits is really between 18 months and four years since the high end of the range starts at four years.

[59] Code J. concluded that at the high end of the range; cases where imprisonment of four to six years has been imposed, generally involve recidivists with serious prior criminal records or they involve unprovoked or premeditated assaults with no suggestion of any element of consent or self defence, (at para. 30). The case at bar clearly does not fall in the high end of the range.

[60] Justice Code held that there were a number of mitigating factors in the case before him including the fact that the offender was a 28-year-old first offender of Aboriginal heritage, he came from a very difficult background, he had never served a custodial sentence and recently had made real efforts to reform himself and that his time spent on bail had been under relatively strict terms of house arrest although he was able to go to work. Code J. was satisfied that the offender was sincerely motivated, had very supportive parents and had real rehabilitation potential.

[61] Justice Code noted that these mitigating factors would normally entitle the offender to leniency, however, the offence committed was a very serious crime of violence and the parties agreed that a custodial sentence was required to achieve denunciation and deterrence. The events leading up to the altercation were considered to be important and Code J. held that the conduct element of the offence of aggravated assault is much more significant than the mental element (at para. 7). In that case Code J. found that the offence did not arise out of circumstances that could be considered unprovoked or premeditated and that both sides in the dispute were responsible for escalating a consensual fight with verbal posturing and mutual challenges to fight. At some point the offender got the upper hand in the fight and pulled out his knife and began slashing at the victim. At this point the offender intended and caused serious bodily harm. The victim suffered multiple defensive injuries indicating that he was holding up his arms and withdrawing from the fight. In addition, the offender had committed a serious breach of his house arrest conditions although the fact he had been on house arrest was not considered a big factor as he had been able to work.

[62] Code J. concluded that the case fell at the lower end of the mid-range of sentences but that the severity and number of injuries including defensive wounds required denunciation and deterrence and suggested a custodial sentence of some significance. In the end result he sentenced the offender to 21 months’ imprisonment followed by two years’ probation.

[63] Given Mr. Owoh’s position I have reviewed Peters, the Ontario Court of Appeal decision that Justice Code noted as a case at the “bottom end” of the range. In Peters, the majority at para. 12, stated that the sentencing judge noted the theme running through some of the authorities to the effect that the objectives of denunciation and deterrence are met not only through the imposition of a term of incarceration, referring to R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 20 and 22 and R. v. Wismayer (1997), 33 O.R. (3d) 225 (C.A.), at pages 241-245. The sentencing judge had concluded that a period of incarceration would cause the offender to lose her job and quite possibly set back the progress she had made over a few years and that a period of incarceration was not necessary to meet the objectives of denunciation and deterrence and indeed that it would be counterproductive to achieving the restorative purposes that are of particular importance in the case of Aboriginal offenders. The majority of the Court of Appeal concluded that the sentencing judge was entitled to come to this conclusion in that the weight to be given to the various sentencing factors was for him to decide. The Court upheld a suspended sentence of three years with a lengthy series of probationary terms during that period.

[64] Ms. Bellmore provided a number of cases for assistance to the court. The sentences range from 18 months to five years’ incarceration but as Ms. Bellmore noted, it is difficult to find any particular pattern.

[65] Ms. Bellmore suggested that the case of R. v. Haj-Ahmed, [2006] B.C.J. No. 3478 (B.C.S.C.), has some similarities to the case at bar. In that case the complainant was asleep when the offender poured hot vegetable oil over him. The offender pled guilty to uttering a death threat and assault with a weapon. The evidence was that the offence was completely out of character for the offender. The mitigating factors included that the offender was going through a difficult time when the offence took place. The court, however, did not accept the offender’s apology as it lacked sincerity. Because the assault took place when the complainant was asleep the court noted it was a “cowardly act perpetrated on a defenceless victim” (at para. 18) and the offender was sentenced to five years’ imprisonment. The injuries in that case were more serious than the case at bar.

[66] In her submissions Ms. Bellmore stressed the fact that like the complainant in Haj-Ahmed, Mr. Morris could not defend himself in that he was taken unaware by Ms. Bainbridge pouring hot oil over him. She argued this is different than when two individuals are fighting with each other as they are both consenting to at least a fight. In this case Mr. Morris consented to a fight with Vilroy but not Ms. Bainbridge. Mr. Owoh, however, argued that the fact Ms. Bainbridge intervened to protect her son makes this case exceptional. I will come back to this submission.

[67] In R. v. Crooks (No. 2), [1996] O.J. No. 1616 (O.C.J.), the offender and the primary complainant had a dispute because the offender believed the complainant was circulating a tape recorded message that put the accused in an unfavourable light. After leaving a club the offender engaged in a verbal argument with the complainant and then threw sulphuric acid on the complainant causing extensive burns to her face, arms, torso and legs. The injuries were further exacerbated by the complainant’s medical condition and she had to undergo several operations by a plastic surgeon.

[68] The offender in Crooks was a 28-year-old single parent of three young children and had no criminal record or substance abuse problems. Her youngest child was born during the proceedings. She had been described as a nice person and a loving and caring mother. Sources indicated that she was not a violent or aggressive person. Vaillancourt J. noted the difficulty of determining the appropriate sentence. At para. 11 he noted that counsel for the accused referred to several decisions involving the offence of aggravated assault that supported her position for “a suspended sentence or a short, sharp period of incarceration coupled with probation that included a substantial number of community service hours.”

[69] Vaillancourt J. noted that these types of cases often referred to the intoxication of the offender and the spontaneity of the attack whereas the brutality of the attack and the serious injuries to the complainant in the case before him called out for a severe sentence to act as specific and general deterrence. On the other hand, the offender’s reform and rehabilitation were “meshed with the interests of three infants who needed the love and support of their mother” (at para. 17). At para. 18 Justice Vaillancourt held that the sentence should not be so great as to crush the positive prospects of the offender and put her children in jeopardy. In that case relatives were available to look after the children over the short term. The offender was sentenced to 18 months’ imprisonment plus three years’ probation.

[70] Ms. Bellmore also referred to the decision of R. v. Berry, [2015] O.J. No. 2002. In that case an offender with no previous record was found guilty of aggravated assault. While intoxicated the offender, without warning or provocation, pushed the complainant who then hit his head on the curb suffering catastrophic injuries including four skull fractures and significant financial consequences in that he was from the United States and not insured for the medical bill resulting in him losing his home and vehicle and, as a result of his injuries, he was no longer able to earn a living as a financial analyst. In that case the offender was sentenced to four months’ incarceration and two years’ probation. Morgan J. noted that because the offender had been drinking substantial amounts of alcohol his judgment was not what it should have been and his actions were “impulsive and rash”. He also found that the extent of the harm was unintended which diminished somewhat the offender’s moral blameworthiness.

[71] The other decisions referred to by Ms. Bellmore are all clearly distinguishable for one reason or another either because they are cases of domestic abuse, the offence was clearly premeditated and/or the injuries were more serious. In these cases the sentences ranged from 40 months to five years’ imprisonment.

[72] It is Mr. Owoh’s position that this is an exceptional case. He also relies on the principle of restraint. He submitted that I should make findings of fact that will allow me to put this case into the category of an exceptional case. Mr. Owoh referred to the decision of R. v. Hunter, [2015] O.J. No. 253 (S.C.J.) in support of his position. In that case the offender argued self defence which was rejected by the jury. Cornell J. imposed a suspended sentence even though the Crown had suggested a sentence of two years less a day and defence counsel had suggested an intermittent sentence. The offender, while intoxicated, smashed a beer bottle over the complainant’s head and it exploded. The offender had a related criminal record and had breached his recognizance. The complainant suffered a significant facial scar that is only partially concealed by a full beard.

[73] Cornell J. found that the offender had suffered a turbulent childhood and had “purged his addictions, jettisoned his antisocial lifestyle, abandoned his confederates and taken on spousal and parenting responsibilities” (at para. 57) and if he was incarcerated he would lose his job, his family would have no means of support and he would, to a great extent, be removed from the support of his family. Justice Cornell acknowledged that this was a very serious offence that would ordinarily call for an upper reformatory sentence but he found it was not planned or premeditated and that it was an exceptional case within the meaning of Tourville even though the offender was not Aboriginal. The offender in that case felt remorse for the complainant but also retained a feeling of unfairness about the verdict.

[74] A significant difficulty in determining a fit sentence in this case is the fact that Ms. Bainbridge is the sole caregiver for her four children, one of whom is an infant that she is still nursing. In Clayton Ruby’s text: Sentencing, Seventh Edition, LexisNexis Canada Inc. 2008 at section 5.233, the authors review some of the case law on the effect of the family in sentencing and observe that:

[w]herever possible courts avoid imposing sentences that will prejudice children or other members of the family. It should be stressed that this principle operates only where there are no other or more important aspects requiring sever or deterrent sentences.” (at p. 286)

[75] I have reviewed the cases from our Court of Appeal referred to in Mr. Ruby’s text.

[76] In R. v. Holub, [2002] O.J. No. 579 (Ont. C.A.), parents of a young child were both being sentenced for a conviction for fraud that involved defrauding hundreds of people of over $400,000. They were considered to be a continuing risk to the community. The appellant mother contended that the trial judge erred by not taking into account her pregnancy when he imposed a custodial sentence. On appeal she tendered fresh evidence indicating that a daughter was born and was now 13 months old and living at home with her parents. MacPherson J.A. on appeal, speaking for the court, noted that the fact that an offender is a sole provider or caregiver is one that can operate as a mitigating factor in sentencing, referring to the Supreme Court of Canada’s decision in R. v. Bunn (2000), 2000 SCC 9, 140 C.C.C. (3d) 505 at 517 (S.C.C.). He concluded at paras. 39 and 40 as follows:

[39] The current situation, as reflected in the fresh evidence, is, I confess, a cause for concern. The father will be serving a custodial sentence. If the mother serves an overlapping custodial sentence, a young child will be deprived of both parents at a crucial stage of her development.

[40] However, in the circumstances of this case, I conclude that Kufrin’s current situation does not justify varying her custodial sentence to a conditional sentence. Her role in the fraud and the devastating effects of the fraud on hundreds of people amply justified a custodial sentence. In this case, it is fortunate that there are maternal grandparents who are willing and able to look after the child until Kufrin is released.

[77] In Bunn the fact the offender was the sole provider and caregiver for both his wife, who suffered from multiple sclerosis and had been confined to a wheelchair for years, and their teenage daughter, was considered an important mitigating factor.

[78] In R v. Spencer, [2004] O.J. No. 3262 (Ont. C.A.), leave to appeal refused [2005] S.C.C.A. No. 4, Ms. Spencer was convicted of importing 733.4 grams of 82% pure cocaine from Jamaica. At paras. 46 and 47 Doherty J.A. stated as follows:

[46] It is a grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment suffer for the crimes committed by their parents. It is an equally grim reality that the children of parents who choose to bring cocaine into Canada are not the only children who are the casualties of that criminal conduct. Children, both through their use of cocaine and through the use of cocaine by their parents, are heavily represented among the victims of the cocaine importer’s crime. Any concern about the best interests of children must have regard to all children affected by this criminal conduct.

[47] The fact that Ms. Spencer has three children and plays a very positive and essential role in their lives cannot diminish the seriousness of her crime or detract from the need to impose a sentence that adequately denounces her conduct and hopefully deters others from committing the same crime. Nor does it reduce her personal culpability. It must, however, be acknowledged that in the long-term, the safety and security of the community is best served by preserving the family unit to the furthest extent possible. In my view, in these circumstances, those concerns demonstrate the wisdom of the restraint principle in determining the length of a prison term and the need to tailor that term to preserve the family as much as possible. Unfortunately, given the gravity of the crime committed by Ms. Spencer, the needs of her children cannot justify a sentence below the accepted range, much less a conditional sentence. (Emphasis added)

[79] No reference was made by Doherty J.A. to any other cases in support of this position. The focus of the appeal was whether sentencing practices in respect of drug importation have a differential impact on African Canadian women, whether these offenders ought to be required to prove they were personally impacted by systemic racism and gender discrimination in order for this context to be considered in sentencing and whether systemic background factors justify a non-custodial sentence for cocaine importation.

[80] What I conclude from these authorities is the fact that Ms. Bainbridge is a single mother and the sole caregiver for her four children is an important mitigating factor to be considered but it must be considered in the context of the other sentencing objectives at play in this case.

Principles of Sentencing

[81] The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code and I am guided by those principles. The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence committed and the degree of responsibility of the offender, see Criminal Code s. 718.1. Subsections 718.2(d) and (e) embody the principle of restraint in sentencing. Sentencing judges should not deprive an offender of his or her liberty if less restrictive sanctions may be appropriate in the circumstances.

[82] In R. v. Batisse, [2009] ONCA 114, the Court of Appeal dealt with the principle of restraint that applies to all offenders. In that case, at paras. 32-35 the Court stated as follows:

[32] The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused [citation omitted].

[33] Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5: ‘[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.’

[34] In serious cases and cases involving violence, rehabilitation alone is not the determinative factor – general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, 2005 ONCA 5668, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

[35] Third, parliament has codified the principle of restraint to limit the use of incarceration as a sentencing alternative ….Subsection 718.2(d) of the Criminal Code provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriated in the circumstances…” (Emphasis added)

Determination of a Fit Sentence

[83] With these principles in mind, I turn to what is a fit sentence in this case.

[84] Any range of sentence identified by the court is meant to act as a guide in sentencing. Furthermore, it is not always possible to pigeonhole a particular case into a particular category of cases or find other cases that are similar. That appears to be particularly true of an aggravated assault because, as Ms. Bellmore submitted, this offence can be committed in any number of ways.

[85] In determining where the case at bar falls within the ranges identified by Justice Code in Tourville, one of the issues I must consider is whether or not the fact that in this case Ms. Bainbridge intervened, in what appears to have been a consent fight, for the purpose of defending her son, is a distinguishing feature from the cases relied upon by Code J.

[86] Ms. Bellmore argues that this case is different from the cases where two persons are engaged in a consensual fight and one person escalates it and uses a weapon. In particular she submitted that the unsuspecting nature of the attack on Mr. Morris is a seriously aggravating factor. He was completely oblivious to the fact that he was about to be attacked with hot oil in that he was completely engaged in the fight. She argued that this is unlike the case of, for example, Tourville, where two individuals were in a consensual fight and one person took it too far. She submitted in that type of case the other person can defend against the escalation of the attack. In this case Mr. Morris was taken by surprise and the attack was unprovoked with respect to Ms. Bainbridge in that Mr. Morris was not trying to provoke her and was not fighting with her.

[87] Mr. Owoh takes the opposite view. He submits that the mid-range determined by Justice Code in Tourville is not applicable in this case as Justice Code was clearly considering cases where there was, as he put it, some element suggestive of a consent fight. Mr. Owoh submits that the fact Ms. Bainbridge’s purpose in intervening in the fight was to defend her son is a significant mitigating factor which takes this case out of the mid-range of sentence.

[88] I appreciate the distinction that Ms. Bellmore makes but for the purpose of sentencing, the fact that Ms. Bainbridge was not involved in the fight, given the fight involved her son, is in my mind not an aggravating factor. I agree with Mr. Owoh that in the circumstances of this case the fact she was a mother intervening to defend her son, albeit using excessive force, makes this case different than the conduct of an offender who escalates a consensual fight. In fact I find the fact that Ms. Bainbridge acted to protect her son but used excessive force, puts it in a range of sentence below a case of a consensual fight when one party simply decides, for no apparent reason, to escalate the fight, particularly where that party is intoxicated.

[89] Ms. Bainbridge’s conduct was provoked when, as a mother, she overreacted to her son being beaten by another teenager who was in a rage. Mr. Morris’ decision to continue fighting Vilroy is what provoked the decision of Ms. Bainbridge to pour the oil over his head. She did not know Mr. Morris or Mr. Parker and although her use of the oil was clearly excessive, in terms of her moral culpability, I see a difference between her conduct and the conduct of an offender such as the offender in Tourville.

[90] Furthermore, I do not agree with Ms. Bellmore that Ms. Bainbridge’s conduct is akin to pouring hot oil on someone who is sleeping as occurred in Haj-Ahmed. Mr. Morris very fairly admitted that he was “pummeling” her son and he knew Vilroy’s mother was aware of the fight, as he had exchanged words with her while he was fighting Vilroy in the lobby. Most importantly, as Mr. Owoh submitted, were it not for the fact that Mr. Morris was in a rage, he no doubt would have responded to the warning from Mr. Parker and left the fight rather than return to it. In that sense he was not defenceless.

[91] Ms. Bellmore also submitted that the attack with the hot oil was premeditated in that Ms. Bainbridge had to go down the hall to her apartment and pick up the pot of hot oil and return with it. She deliberately armed herself with a weapon. It was not a case where she had, for example, a beer bottle in her hand and spontaneously used it to smash it over the head of the other person.

[92] Mr. Owoh on the other hand pointed out that Ms. Bainbridge could not remember picking up the pot and she testified that she wanted to scare them away and told them to “get off my son”. He also argued that it cannot be said that Ms. Bainbridge had time to assess the situation. Her actions were not premeditated but rather reactionary. It is his position that her decision to actually throw the oil was impulsive and rash.

[93] I already considered this issue to some extent when I found certain facts that are relevant to sentencing that I have already set out. For the reasons already given, I conclude that this is not a case where Ms. Bainbridge planned the attack in advance. I have found that although she claims no memory of this, that she picked up the pot of hot oil deliberately once she knew that the fight with her son was continuing downstairs. However, I am not able to conclude that at that point she had decided to pour the oil over anyone as opposed to just using the pot of hot oil as a threat. I accept that initially Ms. Bainbridge may have simply intended to use the pot to scare Mr. Parker and Mr. Morris. That would have worked if Mr. Morris had not been in a rage. Although it is puzzling that she did not threaten to use the oil before pouring it, Mr. Parker certainly realized the threat. Had Mr. Morris not been in a rage and focused on fighting Vilroy, he would have heard the warning from his friend and left with him.

[94] I have found, however, that once Ms. Bainbridge crossed the threshold of the door into the downstairs landing and saw Mr. Morris pummeling her son, she decided to pour the oil over Mr. Morris even though she knew it would burn him. I have also found that she made that decision in seconds. I, therefore, find that Ms. Bainbridge’s action of using the pot of hot oil as a weapon was more consistent with a spontaneous reaction to what she saw and the result of a sudden loss of control once she entered the downstairs landing area and saw Mr. Morris pummeling Vilroy hard with closed fists. In terms of the issue of premeditation, I do not see this as being any different than the cases where someone involved in a fight happens to have something in their possession such as a beer bottle that they spontaneously decide to use as a weapon.

[95] Having made these preliminary findings I turn to the aggravating and mitigating factors relevant to sentence.

[96] The aggravating factors are as follows:

a) the nature and brutality of the force used is aggravating in that Ms. Bainbridge acknowledged that she knew the hot oil would burn Mr. Morris. This is a matter of common sense;

b) the fact Ms. Bainbridge did nothing to get Mr. Morris any medical help is somewhat of an aggravating factor although, on the evidence, he ran out of the building very quickly;

c) the fact Mr. Morris suffered significant burns which have caused permanent scars and in particular the location of the scar on his head has changed his life in a negative way.

[97] The mitigating factors are as follows:

a) Ms. Bainbridge’s decision to pour the hot oil over Mr. Morris was spontaneous, and was provoked by her seeing Mr. Morris in a rage and pummeling her son;

b) Ms. Bainbridge has no criminal record;

c) Ms. Bainbridge has otherwise demonstrated a non-violent character and it appears that this offence was out of character. Ms. Bellmore conceded that there is no evidence that Ms. Bainbridge has a violent disposition;

d) Ms. Bainbridge has been gainfully employed for most of her life;

e) Ms. Bainbridge is a good mother and has successfully raised five of her six children. She has done so as a single mother in the true sense of the term in that, for the most part, she has been the only caregiver and financial provider, although now that she is unemployed she is pursuing child support;

f) Ms. Bainbridge admitted all the essential elements of the offences and that she committed the offences. The only issue for the jury was whether or not she acted lawfully in defence of her son. Ms. Bainbridge cannot be penalized for insisting on her right to a trial on that issue and given that at one point it was necessary for me to exhort the jury, clearly her defence was not frivolous;

g) Ms. Bainbridge has expressed remorse; she is sorry for what happened to Mr. Morris and she feels horrible about it. It is qualified by her defence because she maintains she was protecting her son but that was her evidence at trial.

[98] I come to the issue of what will happen to Ms. Bainbridge’s four children if I impose a penitentiary sentence as requested by the Crown and whether that is a factor to be considered in this case.

[99] Ms. Bellmore submitted that when Ms. Bainbridge is incarcerated her children can be taken care of by her mother, her half-brother, their fathers or her good friend Ms. Sweeney.

[100] Ms. Bainbridge’s mother, Ms. Armstrong, would be the obvious choice and I appreciate that she cared for the children when Ms. Bainbridge went to Dubai but that was a long time ago and her mother was ten years younger and she only had custody of three children at that time. Ms. Armstrong took care of the children recently for what must have been a few days and she found that hard. As for the fathers, the only one who might be suitable, based on the information from Ms. Bainbridge, is her first partner who fathered Vilroy and her eldest daughter. I have no information that he would be prepared to care for the younger children he did not father. As for Mr. Armstrong and Ms. Sweeney, they both express concern about what will happen to the children and so presumably they are not able and/or willing to care for them for any considerable period of time.

[101] If I thought that Ms. Bainbridge had left the court in this predicament deliberately I would have a different view as obviously the court cannot be manipulated in this way. However, I do not believe that to be the case. The author of the PSR did not suggest that this issue was explored and I accept Mr. Owoh’s assessment that Ms. Bainbridge could not put a plan together as she can’t imagine not being with her children. As a result, I do not find the lack of information tactical and note that Ms. Bainbridge was begging me to send her to jail at the time of the sentencing hearing if that was the sentence I was going to impose.

[102] For these reasons, unlike Justice Vaillancourt in Crooks, I am concerned that Ms. Bainbridge’s children might end up in foster homes under the supervision of CAS if I impose a lengthy reformatory or penitentiary sentence. Furthermore, given there are four children, I expect they might not be able to go to the same foster home.

[103] In this case Ms. Bainbridge’s four children have depended on her from birth. Her connection to her children is indisputable. She is a good mother and has been the sole support for all but one of her children. Her eight-month-old son is most vulnerable as she is still nursing him. No one would suggest that he is not at an age where he needs his mother the most. Since there is no argument that Ms. Bainbridge is a good mother, there is no doubt that any prolonged absence would be detrimental to the wellbeing of her son. At the other end of the spectrum, Ms. Bainbridge’s eldest daughter will be off to university this fall. I do not know if she is staying in Toronto or going elsewhere but this is also an important time in a child’s life.

[104] I appreciate that given the brutality of the use of hot oil and the devastating injuries suffered by Mr. Morris that denunciation, general and specific deterrence are important objectives for sentencing in this case but in my view these considerations are not as important as they are in the cases of persons involved in consensual fights who are often intoxicated and the offender escalates the fight causing serious injury. Unfortunately that is not an uncommon problem as the cases demonstrate.

[105] However, the facts of this case are very unusual, if not unique, in that I have found that there was no motive to punish Mr. Morris and that Ms. Bainbridge’s action was spontaneous and made in a misguided attempt to defend her son. As a matter of general deterrence, if I grant Ms. Bainbridge some leniency to avoid my sentence prejudicing her children, I do not see that as sending the wrong message to mothers and fathers about how the court views this type of conduct. Fortunately what occurred in this case is not a problem in society that needs to be addressed. Furthermore, as Mr. Owoh submitted, for a single mother with young children, even a relatively short jail sentence is a significant deterrent.

[106] As for specific deterrence I am not concerned that Ms. Bainbridge would re-offend. She has no criminal record and there is no evidence of a violent disposition. A custodial sentence will only serve the purpose of reflecting society’s disapproval of her use of violence in this case.

[107] I have also considered whether or not Ms. Bainbridge may be suffering from a mental illness. There is no evidence that she was at the time this offence was committed but being arrested, spending one day in jail and facing the prospect of further jail time has clearly taken its toll. Although neither counsel suggested probation, to the extent that a sentence I impose permits an order for probation, that would only assist Ms. Bainbridge in dealing with the stress she has been under.

[108] Mr. Owoh submitted that much was made of the fact that the offender in Hunter had a job that he would lose if incarcerated. He submitted that taking care of children is a full-time job. Ms. Bainbridge currently has no income but she does provide stability for her young children as well as love and direction. He submitted that if Mr. Hunter could receive a lighter sentence to permit him to work, that the same applies to Ms. Bainbridge as she has a more important job; that of raising children who are dependent on her.

[109] In response, Ms. Bellmore submitted that the court in Hunter was addressing the fact that the offender had made significant strides since committing the offence to address a substance abuse problem. She was careful to add however, she was not suggesting that Ms. Bainbridge be penalized for not having such a problem.

[110] Having considered this matter further, in my view, Mr. Owoh makes a good point. The consequences to Ms. Bainbridge and her children are, in my view, every bit as important as an offender losing a job and a means to support his family if not more so. We routinely consider the fact that an offender might lose his or her job as a factor in sentencing. When an offender was unemployed at the time an offence was committed and that offender then obtains employment, we consider that a positive factor towards rehabilitation and, as such, a mitigating factor. Similarly, an offender who had an alcohol or drug problem that begins rehabilitation before sentencing is routinely rewarded for that conduct. These mitigating factors were considered in Peters and Hamilton. For these reasons I find that the fact Ms. Bainbridge is the sole provider and caregiver for four children is a factor that I can consider in giving Ms. Bainbridge some leniency on sentence.

[111] Ms. Bellmore made several submissions that would have required a reformatory sentence of some duration but given the findings of fact I have made with respect to the assault, I find that a sentence somewhat higher than the bottom end of the range as identified in Tourville is an appropriate sentence in this case. I see this case closer to the case of Peters than the mid-level cases referred to by Justice Code.

[112] Accordingly, I find that an appropriate sentence is 90 days in jail. It will be served intermittently so it does not unduly interfere with Ms. Bainbridge’s ability to continue to be the primary parent responsible for the care of her four children. I expect that an intermittent sentence will be a hardship for Ms. Bainbridge as it will take her away from her children for many weekends and it will give her a sense of what it would be like to serve an extended period of time in jail. Hopefully, however, the fact the sentence will be served intermittently will minimize the adverse impact this sentence will have on her children in that it should be easier for Ms. Bainbridge to find others to care for them on weekends.

[113] I also impose a period of probation of two years. Since Mr. Owoh has confirmed that Ms. Bainbridge consents to this, the terms will include a term, as recommended by the author of the PSR, that she see an appropriate healthcare provider to assess her mental health and that she attend for any recommended treatment and/or counselling and take all medications as prescribed by him/her and sign consents to release such information as may be required to monitor her compliance with this condition when requested by the probation officer.

[114] Finally I want to emphasize that in imposing this sentence I want Mr. Morris, Ms. Campbell and his family to know that I do not intend to minimize in any way the injury he has suffered and the impact this assault will continue to have on his life. I hope he recognizes, however, that there is nothing I can do to undo the harm he has sufferec and certainly a longer jail sentence for Ms. Bainbridge would not accomplish that.

Disposition

[115] Ms. Bainbridge, with respect to the conviction of aggravated assault I sentence you to 90 days in jail to be served intermittently. You will be on probation during the times you are not serving your sentence which be served today for processing only and thereafter on consecutive weekends until the sentence is served, commencing this Friday, April 1st at 5:00 p.m. until Monday, April 4th at 6:00 a.m. and every weekend thereafter until the sentence is complete.

[116] The finding of guilt in relation to the offence of assault with a weapon shall be conditionally stayed, pursuant to the rule against multiple convictions. A conviction shall be entered on the count of aggravated assault and the sentence I have imposed shall be applied to that count.

[117] Once you have completed your sentence you shall be released upon the terms of a probation order for 24 months on the following conditions:

(1) The compulsory statutory conditions as set out in section 732.1(2) of the Criminal Code;

(2) In addition to the compulsory conditions, it is ordered that you comply with the following optional terms and conditions as permitted by section 732.1(3) of the Code:

a) Report to a probation officer within two working days of your release and thereafter, when required by the probation officer and in the manner directed by the probation officer;

b) Remain within the jurisdiction of this court unless written permission to go outside this jurisdiction is obtained from the court or the probation officer;

c) Reside at a residence approved of in writing by your probation officer and not change your residence without the prior approval of your probation officer;

d) Abstain from owning, possessing or carrying any weapon;

e) Given your consent, see an appropriate healthcare provider to assess your mental health and attend for any recommended treatment and/or counselling and take all medications as prescribed by him/her and sign consents to release such information as may be required to monitor your compliance with this condition when requested by the probation officer;

f) Do not have any contact either directly or indirectly with Akeil Morris or Kinesha Campbell or be within 200 meters of any place you know them to live or you know them to be.

[118] In addition, as aggravated assault is a primary designated offence, I make a DNA order in Form 5.03 pursuant to section 487.051(2) of the Criminal Code authorizing the taking of a DNA sample.

[119] I also impose a weapons prohibition order pursuant to section 109(2)(a) of the Criminal Code. As this is your first conviction, that order will be for ten years.

[120] I also make the following directions. Firstly, that the Clerk provide you with a copy of the probation order and an explanation of the order if requested. Secondly, that the Clerk explain to you the substance and procedure of ss. 732.2 and 733.1 to ensure that you understand the conditions that have been imposed on you, what may occur if you violate any of those conditions, and the procedure to be followed if you wish to make an application to change any of the optional conditions of the order. Thirdly, that the Clerk certifies that the order and explanations have been given and that you have indicated your understanding of them. In the event the Clerk cannot so certify, you will be brought back before me for further directions. Please pay very careful attention to all of these conditions and this information.

SPIES J.

Released: March 29, 2016

Edited Decision Released April 4, 2016

CITATION: R. v. Bainbridge, 2016 ONSC 2119

COURT FILE NO.: CR14500008130000

DATE: 20160329

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KELLY BAINBRIDGE

Defendant

REASONS FOR SENTENCE

SPIES J.

Released: March 29, 2016

[^1]: Highly personal information with respect to the defendant has been redacted in the published version of this decision.

R. v. Bainbridge, 2016 ONSC 2119

Case Summary

REASONS FOR SENTENCE

Introduction

The Facts

Legal Parameters

Positions of Crown and Defence Counsel

Case Law

Principles of Sentencing

Determination of a Fit Sentence

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 1