COURT FILE NO.: CR-16-50000082-0000 DATE: 20171123 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ANNA LA FORCE Accused

Counsel: Michael Wilson, for the Crown Raymond Boggs, for the Accused

Heard: October 27, 2017

B.A. ALLEN J.

REASONS FOR DECISION

BACKGROUND

[1] On July 14, 2017, I found Anna La Force guilty of aggravated assault and assault with a weapon. I found her not guilty of unlawful entry into a dwelling place.

[2] The background to this case involves a dispute between two women over a man, Calvin Banfield, they were both dating. That dispute developed into a physical altercation on July 23, 2014 between Ms. La Force and a friend, Allison Robinson, of the other woman, Luisa Botelho.

[3] Ms. La Force burst into Mr. Banfield’s apartment where Ms. Robinson and Ms. Botelho were awaiting Mr. Banfield’s arrival. Ms. La Force slapped Ms. Botelho forcefully on the side of her head. At this point Ms. Robinson began defending Ms. Botelho from Ms. La Force by blocking her from reaching Ms. Botelho.

[4] Ms. Robinson saw that Ms. La Force had scissors in her hand. Ms. La Force was trying to get to Ms. Botelho in the washroom. Ms. La Force bit Ms. Robinson’s right shoulder and stabbed her in her left shoulder with the scissors. Ms. Robinson grabbed the scissors from Ms. La Force and called for Ms. Botelho to get the scissors and take them away which Ms. Botelho did. The scissors were a weapon of opportunity. They were on the premises. Ms. La Force did not bring them with her.

[5] After Ms. La Force and Ms. Robinson fell to the floor, Ms. La Force bit her on her right ribcage and then bit her on her right thumb. When Ms. Robinson attempted to get up Ms. La Force bit her on her right breast. When Ms. Robinson leaned over Ms. La Force, Ms. La Force bit her left breast.

[6] Ms. Botelho called 911. The recording of that call was played in court. Clearly discernible were Ms. Robinson’s blood curdling cries for help. Ms. Robinson wept on the witness stand as she testified about Ms. La Force’s vicious and unrelenting attack. I called a recess to allow her to calm down.

[7] Ms. La Force does not deny stabbing Ms. Robinson with scissors and biting her. She asserts that by her actions she was simply trying to defend herself. The photographic evidence graphically depicts the nature and extent of the wounds. The wounds include:

• an injury to her right shoulder caused by a bite;
• an injury to the right side of her right arm caused by Ms. La Force;
• an injury to the underside of her left forearm caused by the scissors which required 16 stitches;
• injuries to her elbow and wrist caused by the scissors;
• an injury to her left shoulder caused by Ms. La Force stabbing, which required two stitches; and
• injuries to her left and right breasts, right ribcage and right thumb caused by Ms. La Force’s bites.

[8] I rejected the defence of self-defence. I found that Ms. La Force’s stabbings and bitings were not directed to defending herself but rather to forcing Ms. Robinson to release her so she could go and attack Ms. Botelho who she regarded as her true foe. I observed, and Ms. La Force conceded, that Ms. Robinson played a mediating role during the altercation. Ms. Robinson suggested the two women focus their attention against Mr. Banfield, the actual cause of the contention. She tried to keep the other two women apart.

ABOUT MS. LA FORCE

[9] I did not receive a pre-sentence report. I did however receive two letters of support, one from Mr. Banfield and the other from a longtime friend. Mr. Banfield is not likely to be impartial as he testified in support of Ms. La Force and is in a relationship with her. The support letters’ portrayals of Ms. La Force are similar in that they describe her as a quiet supportive person and suggest she is more apt to settle a dispute than engage in one.

[10] Perhaps the authors of the letters do not know Ms. La Force as well as they think they do. The attack was not a one-off situation. There was a pattern of violence, threats and aggression directed at Ms. Botelho prior to the attack before the court. As well, the attack on Ms. Robinson was prolonged and multi-faceted. Ms. La Force did not give up when she no longer had the scissors. She took to biting Ms. Robinson on her arms and breasts in spite of Ms. Robinson’s screams for help.

[11] I do not find the support letters of much value.

SENTENCING PRINCIPLES

[12] Section 718 of the Criminal Code sets out the principles that underlay the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.

[13] The fundamental purpose of sentencing is to foster, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: to denounce unlawful conduct; to deter the offender and other potential future offenders from committing offences; and, if necessary to separate offenders from society. Rehabilitation, reparations to the victim and a sense of responsibility for the offender’s wrongdoing are also recognized goals.

[14] The principles of proportionality and parity also guide the determination of a fit sentence. A sentence should be proportional to the gravity of the offence and the degree of responsibility or moral blameworthiness of the offender: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.). Section 718.2(b) addresses the necessity for parity in sentencing, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[15] The principles of general and specific deterrence and denunciation are the focus of sentencing for aggravated assault.

SENTENCING FOR AGGRAVATED ASSAULT

[16] The Crown cites a decision of this Court where Code, J. provides a useful summary of the ranges of sentencing for aggravated assault imposed in varying fact situations: R. v. Tourville, 2011 ONSC 1677, [2011] O.J. No. 1245, at paras. 27 – 32, (Ont. S.C.J.).

[17] At the bottom end of the range is an exceptional case that is clearly distinguishable from Ms. La Force’s case. An aboriginal offender, with no adult record, pleaded guilty to aggravated assault with a broken beer bottle which resulted in facial lacerations to the victim. A Gladue Report disclosed a violent upbringing leading the offender to drug and alcohol abuse. The offender received a suspended sentence and three years’ probation: R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.).

[18] At the mid-range are cases with high reformatory sentences of between 18 months and two years less a day. The accused in the three cited cases were first offenders, the assaults had elements of consent and excessive force was used. The injuries in each of the three cases were on the more serious end of the spectrum than the case before me, ranging from serious permanent injuries to life threatening injuries. One case involved possession of a knife for a dangerous purpose resulting in the slashing of the victim: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.) (Note: URL for Chickekoo is not directly available, using Pakul as a placeholder for Ont. C.A. if no specific link is found); R. v. Moreira, [2006] O.J. No. 1248 (Ont. S.C.J.); and R. v. Basilio, 175 C.C.C. (3d) 440 (Ont. C.A.).

[19] At the high end of the range are cases where four to six years’ imprisonment have been imposed. These cases generally involve repeat offenders with serious prior criminal records, or involve unprovoked or pre-meditated assaults with no evidence of consent or self-defence: R. v. Scott, [2002] O.J. No. 1210 (Ont. C.A.); R. v. Thompson, [2005] O.J. No. 1033 (Ont. C.A.); R. v. Vickerson (2005), 199 C.C.C. (3d) (Ont. C.A.); and R. v. Pakul, [2008] O.J. No. 1198 (Ont. C.A.).

AGGRAVATING AND MITIGATING FACTORS

[20] Section 718.2 of the Criminal Code provides that a sentence shall be increased or reduced to take into account any relevant aggravating or mitigating circumstances related to the offence or the offender. This provision sets out a non-exhaustive list of examples of possible aggravating factors to consider.

[21] In 2007 the law mandated that the conditional sentence provisions in the Criminal Code do not apply to offenders who have committed a “serious personal injury offence”. Aggravated assault is one such offence for which a conditional sentence is not available and requires a term of imprisonment. The length of a custodial sentence is therefore at issue.

[22] Mitigating factors can include such considerations as whether the offender has family support and responsibilities and whether they enjoy a connection to the community. Employment is also a consideration. Any expression of remorse or acceptance of responsibility by an offender for the harm done is a mitigating factor. Youthful age of an offender can also be a mitigating factor.

Aggravating Factors

• The attack was violent, lasting some 15 minutes, and involved the use of scissors as a weapon;
• The complainant sustained numerous injuries some of which required stitches and resulted in permanent scaring;
• The distress Ms. Robinson has suffered from the attack was evident by her emotional reaction to questions about the altercation;
• The attack before the court was part of a pattern of aggression by Ms. La Force against Ms. Botelho dating back three years which involved a physical attack, verbal threats in person and through texts and phone calls;
• There was an element of premeditation in that Ms. La Force threatened Ms. Botelho and attacked her before the incident before the court;
• Ms. La Force did not attack the object of her anger but rather the person who was trying to calm the dispute, a Good Samaritan. This increases Ms. La Force’s moral blameworthiness; and
• Ms. La Force admits to stabbing and biting Ms. Robinson but shows no remorse or regret. She callously insisted in testimony that Ms. Robinson’s cries for help over the 911 call were “fake”. She displays no insight into the gravity of her actions.

[23] Ms. La Force did not plead guilty as is her right. This cannot be regarded as an aggravating factor. Nor can she receive the benefit as a mitigating factor that a guilty plea could offer.

Mitigating Factors

• Ms. La Force was a youthful 21 years of age at the time of the incident;
• She has no criminal record or outstanding charges;
• She has a long term relationship with Mr. Banfield of seven years;
• Ms. La Force’s parents and siblings with whom she has a relationship live in Toronto;
• Ms. La Force has received a pre-health certificate but will not be able work in that field due to her conviction.

THE IMMIGRATION ISSUE

[24] The defence requested I consider a collateral matter, the collateral consequence of deportation which would follow a prison sentence.

[25] Under the Immigration and Refugee Protection Act, S.C. 2001, c 27 (“the IRPA”) if a person who is not a Canadian citizen is convicted of an offence punishable by a maximum term of imprisonment of at least ten years, or of an offence for which a term of imprisonment is more than six months is subject to deportation from Canada. Aggravated assault is an offence punishable by a sentence of over ten years.

[26] If a prison term is imposed Ms. La Force will face the federal deportation process.

[27] The Supreme Court of Canada has considered the collateral consequence after conviction of an offender who is not a Canadian citizen being deported. The sentencing court has the discretion to consider collateral consequences such as deportation in tailoring a fit sentence: R. v. Pham, [2013] S.C.R. 739, at paras. 17 – 19, (S.C.C.).

[28] The weight to be given collateral consequences in tailoring a sentence is fact-specific, to be decided on a case-by-case basis. The court has the discretion to consider collateral consequences in the totality of the circumstances. The basic rule, however, remains applicable, that a sentence must be fit considering the gravity of the offence and the blameworthiness of the offender. The collateral consequence cannot be given inordinate weight over general sentencing principles to skew a sentence in favour of or against deportation. The fundamental principles of sentencing, as set out in the Criminal Code, cannot be compromised because of a risk of deportation: R. v. Pham, [2013] S.C.R. 739, at paras. 17 – 19, (S.C.C.).

THE PARTIES’ POSITIONS

[29] As pointed out earlier, at the mid-range are high reformatory sentences of between 18 months and two years less a day.

[30] The Crown seeks a mid-range prison term of 20 months to two years less a day in jail for the aggravated assault charge, and concurrent to that, a 12-month sentence for assault with a weapon followed by two years’ probation. In addition, the Crown seeks a mandatory DNA order under s. 487.051 of the Criminal Code, a Criminal Code s. 109 firearms prohibition, and a no contact order under s. 743.21 of the Criminal Code prohibiting Ms. La Force from communicating directly or indirectly with Louisa Botelho and Allison Robinson during the period of her sentence.

[31] The defence seeks a 90-day intermittent period of imprisonment. As will be discussed below, Ms. La Force is not a Canadian citizen. She has permanent resident status. The suggested sentence, in the defence’s view, would minimize the possibility of deportation since it is considerably less than the six-month limit set out in federal immigration legislation. It would also allow Ms. Force to continue to make a contribution to the community, return to school to pursue another career path that her conviction would not impact and remain in her relationship with her spouse.

[32] The defence pointed to the 39-month period Ms. La Force spent on bail. Counsel’s submission was that Ms. La Force’s liberty was restricted by curfew conditions and this should be considered in fashioning a sentence.

[33] The Crown pointed out that Ms. La Force was not subject to the strict controls of house arrest. She had a curfew that required her to be at home daily between the hours of 10 p.m. to 6 a.m. But she was allowed to be out with her surety or any adult, even one of her adult friends, approved by her surety. I accept the Crown’s position that this is not a bail situation that should attract special credit on sentencing. Ms. La Force spent overnight in jail after arrest before release on bail. I will allow two days credit for her time in jail.

[34] The defence did not challenge a probation order or the ancillary orders sought by the Crown.

CONCLUSION

[35] I have carefully weighed the aggravating and mitigating circumstances and the case authorities to arrive at what I consider to be a fit sentence.

[36] I find a mid-range reformatory sentence of 20 months imprisonment for aggravated assault and a concurrent 12-months’ imprisonment for assault with a weapon is suitable in the circumstances. A period of probation is appropriate to address rehabilitative goals with a youthful person particularly in view of her apparent problem with controlling her anger.

[37] The Crown cited a number of cases with sentences around the mid-range that were either somewhat shorter or longer than 20 months. Those cases can be distinguished by important features. The victim was either a logical, due to context, though no less unfortunate, victim of the assault and/or the assault on the victim was more severe. Where there was a relationship between the parties it was either a family relationship or some other association between the parties: R. v. Perdomopena, [2011] O.J. No. 6469 (Ont. C.J.), aff’d [2012], O.J. No. 4414 (Ont. C.A.); R. v. Byford, [2016] O.J. No. 3413 (Ont. S.C.J.) and; R. v. McNeil, [2016] O.J. No. 5787 (Ont. C.A.).

[38] Ms. Robinson was a Good Samaritan. She was not the intended object of Ms. La Force’s anger. Ms. Robinson got injured bravely trying to stop her good friend from being hurt. Her injuries and scarring though plentiful were not in the severe range.

[39] I considered defence counsel’s submissions on the immigration issue. I find were I to impose a 90-day intermittent sentence or a sentence of just short of six months that such sentences would not fit the gravity of the offence. I believe 20 months’ imprisonment for aggravated assault and a concurrent 12-months’ imprisonment for assault with a weapon is suitable to circumstances where an accused has engaged in a protracted pattern of aggression and who in the end unrelentingly and viciously attacked and injured not her foe but an innocent person attempting to stop an attack.

[40] I allow two days’ credit against the 20-month custodial sentence for the time Ms. La Force spent in pre-trial custody. I impose a 12-month period of probation. I order the DNA order, s. 109 firearm prohibition and the no-contact order requested by the Crown.

SENTENCE

[41] Anna La Force, will you stand? Ms. La Force, I sentence you as follows:

a) to 20 months’ imprisonment for aggravated assault; b) to a concurrent 12 months’ imprisonment for assault with a weapon; c) two days’ credit for pre-trial custody; d) your total period of imprisonment is 20 months less 2 days credit for pre-trial custody; and e) to 12 months’ probation on the following terms: (i) You will keep the peace and be of good behavior. (ii) You will appear before the court when required to do so by the court and 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. (iii) You will 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. (iv) You will refrain from communicating directly or indirectly with Louisa Botelho and Allison Robinson. (v) You will refrain from attending within 100 metres of Louisa Botelho and Allison Robinson or at any place known to be the residence or school or place of employment of Louisa Botelho and Allison Robinson. (vi) You will reside at an address approved by your probation officer (vii) You will attend for and actively participate in, and to the satisfaction of your probation officer, any assessment, treatment or counselling as required by your probation officer, including for anger management and you will sign whatever consents or releases that may be required by your probation officer in order to monitor and verify compliance with said assessment, treatment or counselling and you will provide written proof of completion of said assessment, treatment or counselling to your probation officer. (viii) You will not own, possess or carry any weapons defined by the Criminal Code. f) There will be an Order made under s. 109 of the Criminal Code which prohibits you for the next ten years from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance; g) There will be an Order under s. 487.051 of the Criminal Code authorizing the taking of such bodily substances as are necessary for the purposes of a forensic DNA analysis; h) There will be an Order under s. 743.21 of the Criminal Code prohibiting Ms. La Force from communicating directly or indirectly with Louisa Botelho and Allison Robinson during the period of her sentence.

B.A. ALLEN J. Released: November 23, 2017