File No. CR13-291
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
MICHAEL SHAW
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE C.J. CONLAN
on FEBRUARY 18, 2016, at OWEN SOUND, Ontario
APPEARANCES:
M. Martin Provincial Prosecutor
B. Barrie Counsel for the Defendant
Transcript Ordered: February 23, 2016
Transcript Completed: March 06, 2016
Ordering Party Notified: March 06, 2016
THURSDAY, FEBRUARY 18, 2016
Her Majesty the Queen v. Shaw, 2016 ONSC 6946
REASONS FOR SENTENCE
CONLAN, J. (Orally):
Mr. Michael Shaw has entered a guilty plea and has been found guilty of a single count of assault on Christa Shaw, causing bodily harm to her, contrary to section 267(b) of the Criminal Code of Canada. The offence occurred on 28 October 2012 in the City of Owen Sound.
In terms of the general principles of sentencing, I am of the view that the three principles most applicable on these facts for this offender are: 1) Denunciation, the need for this Court to denounce the unlawful conduct committed by Mr. Shaw;
Deterrence, in particular, general deterrence, to send a message to those in our community that violence against one’s spouse, whether clouded or not by medication problems, is not to be tolerated; and
Rehabilitation, the important objective to get Mr. Shaw any assistance that he may require.
In determining a fit sentence, the Court must consider the aggravating and mitigating factors.
In terms of the mitigating factors, the two major ones are, first the fact that Mr. Shaw has no prior criminal record; and 2) the fact that Mr. Shaw has entered a guilty plea to the charge. It may be that this guilty plea has been entered quite some time after the offence date, but the law is clear that a guilty plea, whenever made, is a sign of remorse and is to always be treated as a mitigating factor. It saves the victims from having to endure what could be a lengthy and uncertain trial process.
In terms of the aggravating factors, there are two principal ones. First, the domestic nature of this incident. Statutorily, as per the provisions of the Criminal Code, that shall be considered an aggravating factor. Second, aggravating is the horrific nature of the facts.
We have a situation where Mr. Shaw, on 28 October 2012, engaged in a vicious, unprovoked and surprise attack on his spouse. One can only imagine what it must be like to feel, by surprise, a cable wrapped around one’s throat to the point where one cannot breathe, and soon after, loses consciousness. As offensive as it was for Mr. Shaw to choke Ms. Kopp with the cable, to add insult to injury, he then dragged her like some kind of an animal into the storage shed, presumably to finish her off. He then choked her with his hands and held her to the ground. When innocent bystanders, including Mr. Shaw’s children, attempted to intervene, together with the Good Samaritan Mr. Douglas-Strange, they received not much better treatment from Mr. Shaw. Mr. Shaw proceeded to grab Mr. Douglas-Strange by the hair and assault him. Mr. Shaw ignored the panic-stricken yells from Bradley and Haley. When Bradley tried to call 911, Mr. Shaw grabbed the telephone cord and pulled it from the wall. And then, if all of that was not scary enough, Mr. Shaw then attended at his bedroom, barricaded himself in and fired a rifle shot, which of course, could have killed himself, or could have seriously wounded or killed someone else, even if by accident. To describe these facts as horrific is certainly an accurate description. Quite frankly, Mr. Shaw is fortunate that someone present at the scene or himself was not killed.
I must take into consideration as well the report from Dr. Goger, a well-known forensic psychiatrist. Dr. Goger’s report, the crux of it, comes down to the following on page two, where the Doctor concludes:
After having reviewed the disclosure and briefly interviewing Mr. Shaw, I am of the opinion that he was suffering from considerable emotional turmoil in the time leading up to and including the alleged offences. This, coupled with the use of medication, impacted on his mental state at the time of the allegations.
That comment is not meant as a defence to the charge, but it is meant to elaborate on the circumstances that befell Mr. Shaw on the offence date, and it is something that must be considered in terms of fashioning a fit and appropriate sentence.
I have taken into consideration the victim impact statements. I agree with the Crown Prosecutor, Mr. Martin, that they were eloquently prepared and read into the record by Ms. Kopp and by Haley, and without trying to pick and choose comments from those statements, I am particularly struck by the following, first of all from Ms. Kopp’s statement when she says this:
I am not the person I was. I’m a shell of who I used to be. I am physically and emotionally unable to experience emotions like I used to. It’s different now and it scares me. I want to feel real love for people like I used to. I want to be able to truly empathize for people again. Even happiness and sadness doesn’t feel the same anymore for me.
With regard to Haley’s victim impact statement, I think that the following comment is quite poignant and summarizes her sentiments expressed to the Court today:
There is no room for hopes and faith in anyone but myself anymore because everyone else finds a way to screw you over one way or the other, and in my case, even my own family.
It’s quite sad.
The law is clear in Canada that joint submissions on sentence ought generally to be respected, particularly when they have an informed foundation as being presented by two experienced counsel as here, with the input from a highly experienced criminal jurist who was involved in the pretrial process. Quite recently in the decision of R. v. Baks, [2015] ONCA 560, the Court of Appeal for Ontario had this to say about joint submissions at paragraph two:
It is important to give effect to joint submissions where it is not contrary to the public interest to do so. This Court will always be reluctant to interfere with a sentence that, like this sentence, is the product of an informed joint submission. However, if having regard to all of the relevant factors, this Court concludes that the sentence is manifestly unfit, the Court must exercise its supervisory function.
I am not of the view that the joint submission presented here is “manifestly unfit”. In fact, I think that it is a reasonable one.
For those oral reasons, I will accept the joint submission on sentence. The prior Indictment, multi-count, has been endorsed as withdrawn by the Crown.
MR. MARTIN: Thank Your Honour.
THE COURT: The single count Indictment with the assault cause bodily harm charge is endorsed as follows: 18 February, 2016, Mr. Martin for the Crown, Mr. Barrie for the defence. On consent of the Crown, Mr. Shaw re-elects his mode of trial to Superior Court of Justice, judge sitting alone. On this single count Indictment, Mr. Shaw has entered a guilty plea to assault cause bodily harm, contrary to section 267(b) of the Criminal Code of Canada. The facts were read in, a finding of guilt is made and a conviction is registered.
The joint submission on sentence is accepted and the sentence of the Court is as follows:
A primary DNA order is issued;
A section 110 Criminal Code of Canada firearms and weapons prohibition order is imposed with a duration of seven years;
The mandatory victim fine surcharge is imposed. Mr. Shaw is granted 30 days to pay that upon his release from custody.
Next, the sentence of the Court is two years and 62 days imprisonment less 62 days credit for presentence custody for an effective sentence from today of two years imprisonment. The 62 days of presentence custody credit is calculated at 41 actual days at a rate of 1.5 to 1.
Finally, upon Mr. Shaw’s release from custody, he will be the subject of a probation order for a duration of 12 months.
Under section 732.1(2) of the Criminal Code of Canada, the following compulsory conditions apply to the probation order: Mr. Shaw shall keep the peace and be of good behaviour. Mr. Shaw shall appear before the Court when required to do so by the Court. Mr. Shaw shall notify the Court or the probation officer in advance of any change of name or address and promptly notify the Court or the probation officer of any change of employment or occupation.
Pursuant to section 732.1(3) of the Criminal Code of Canada, the following optional conditions will apply to the 12 month probation order: Mr. Shaw shall reside where directed by the probation officer and not change that residence without the prior written approval of the probation officer. Mr. Shaw shall report to his probation officer in the manner and on such schedule as directed by the officer. Mr. Shaw shall have no contact, directly or indirectly, with Christa Kopp, Haley Shaw, Bradley Shaw and Kohl Douglas-Strange except through legal counsel or except as provided by a valid family court order issued after February 18, 2016. Mr. Shaw shall not attend at any residence, place of employment or place of education known to him to be that of Christa Kopp, Haley Shaw, Bradley Shaw or Kohl Douglas-Strange. Mr. Shaw shall attend for any counselling as directed by his probation officer and not leave that counselling except with the prior written approval of the probation officer. In order to monitor Mr. Shaw’s progress with any counselling or therapy directed, Mr. Shaw shall sign any releases of information requested of him by the probation officer. Mr. Shaw shall make available to his probation officer all reports and assessments from any counselling that he attends. Mr. Shaw shall not be in possession of any weapon or firearm, explosive substance or crossbow as defined in the Criminal Code of Canada.
Mr. Shaw, I have to ask you some questions. With regard to the primary DNA order, do you understand that order?
MR. SHAW: Yes, Your Honour.
THE COURT: You have to give a sample of your DNA to the authorities. It is normally done by way of a blood sample.
MR. SHAW: Yes, sir.
THE COURT: You must comply with that order or else you could be charged with a further criminal offence, and if found guilty, one of the consequences could be a period of custody. Do you understand?
MR. SHAW: Yes, Your Honour.
THE COURT: The section 110 Criminal Code firearms and weapons prohibition order for seven years, do you understand that order?
MR. SHAW: Yes, Your Honour.
THE COURT: You must comply with that order entirely, or else you could be charged with a further criminal offence, and one of the consequences could be a jail sentence. Do you understand that?
MR. SHAW: Yes, Your Honour.
THE COURT: The victim fine surcharge, you will have to pay a certain amount of money to the government within 30 days of your release from custody. Do you understand that?
MR. SHAW: Yes, Your Honour.
THE COURT: If you do not pay the amount on time or apply for an extension, there could be consequences. Do you understand?
MR. SHAW: Yes, Your Honour.
THE COURT: Your sentence of imprisonment is two years from today. After your release from custody, you will be the subject of a 12 month probation order. You heard me outline the terms and conditions. Do you understand those?
MR. SHAW: Yes, Your Honour.
THE COURT: You must obey the probation order entirely or else you could be charged with a further criminal offence of breach of probation and likely go to jail if found guilty. In the Superior Court, you will almost certainly go to jail if found guilty of breach of probation. Do you understand that?
MR. SHAW: Yes, Your Honour.
THE COURT: If you want to apply for any amendment or variance to the probation order, it’s your responsibility to do that in speaking with the probation officer. Do you understand?
MR. SHAW: Yes, Your Honour.
THE COURT: Do you have any questions that you want to ask me about any aspect of the sentence that has been imposed?
MR. SHAW: No, Your Honour.
THE COURT: Okay, thank you. You may be seated. Counsel, did I leave anything out?
MR. MARTIN: No, Your Honour.
MR. BARRIE: No, sir. All I’d ask is if you’d be willing to make an endorsement that the Owen Sound Police Services are directed to release the firearms in their possession to Maurice Shaw, provided he provides the proper paperwork and possession licence, which I have seen; he has it with him today, but I told him that that was part of our arrangement and that he should go down, tell the police, but nothing is going to happen today because they won’t know of anything, and with an endorsement, at least, and subject to my friend’s comments, it would give them the authorization to do that.
THE COURT: Is there any objection to that?
MR. MARTIN: I take no – no, I don’t have any objection to it.
THE COURT: Okay. Thank you. Just one moment. What is the name of the person again?
MR. BARRIE: Yes, it’s Maurice. Maurice, actually - M-A-U-R-I-C-E – correct? Shaw, S-H-A-W.
THE COURT: Okay, thank you. Any firearms or ammunition in the possession of the Owen Sound Police Service shall be surrendered to Maurice Shaw upon that person presenting himself at the police station and on condition that he is lawfully entitled to possess the items.
MR. BARRIE: Thank you sir.
MR. MARTIN: Thank you.
THE COURT: Mr. Shaw, I wish you good luck while serving your sentence and afterwards in your rehabilitation, and to Ms. Kopp, Haley, Bradley and Mr. Douglas-Strange, I hope that the future brings some brighter days for you. Thank you.
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Kathy Glenn
(Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of
R. v. Michael SHAW
in the
Superior Court of Justice
(Name of Case)
(Name of Court)
held at
611 9th Ave East, Owen Sound
(Court Address)
taken from Recording
1011_crtrm#201_20160218_132205__10_CONLANC.dcr
, which has been certified in Form 1.
6 March 2016
(Date)
(Signature of Authorized Person(s))