Court File and Parties

COURT FILE NO.: CR-16-1341 DATE: July 5, 2018

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Caitlin Downing for Her Majesty the Queen

- and -

JOSEPH COUVIEAU Adrian Cleaver, for the Accused Accused

DATE HEARD: June 29, 2018

REASONS FOR SENTENCING

James, J.

[1] This is the sentencing disposition for Joseph Couvieau who was convicted on March 2, 2018 of two counts of assault and two counts of fail to comply with a probation order.

The Circumstances of the Offence

[2] This is a case of domestic violence. The offender was found guilty of assaulting the victim on two occasions while they were living together.

[3] The first assault for which Mr. Couvieau was found guilty occurred December 27, 2014 and involved a chest bump that knocked the victim backwards into a bathroom door that had a nail protruding from it. The nail made a mark near the base of the victim’s neck.

[4] The second assault occurred on August 5, 2016. This incident involved a head butt administered by the offender during the course of a prolonged argument. The victim suffered a black eye and facial bruising.

[5] Mr. Couvieau was on probation at the time of these assaults. The probation arose from a conviction for domestic assault involving a different victim. He has seven prior convictions for failure to comply with probation orders. His convictions for breach of probation in this case brings the total to nine.

Circumstances of the Offender

[6] The offender in this case is almost forty years old. He is currently employed by Ed’s Salvage and Auto Parts. He is the father of two children, each by a different mother, but has not played an active role in their lives. He has a Grade 10 education.

[7] According to his PSR, his mother was an alcoholic and his parents separated when he was five or six years old. He reports having spent six or seven years in foster care following his parents’ separation and lived with his father and older sister at times. He has a lengthy criminal record that includes about four prior domestic assaults and three driving while disqualified convictions and two for uttering threats.

Parameters of the Offences

[8] Upon conviction for assault pursuant to an indictment, an offender is liable to a maximum penalty of imprisonment for 5 years. There is no minimum penalty.

[9] Upon conviction for failure to comply with a probation order pursuant to an indictment, an offender is liable to a maximum penalty of imprisonment for four years. There is no minimum penalty.

Crown Position

[10] Crown counsel submits that an appropriate overall sentence would be twenty four months imprisonment composed of twelve months consecutive for each assault and twelve months concurrent for each of the related breach of probation convictions.

Defence Position

[11] Defence counsel says that three to six months would be proportionate in the circumstances of this case. At the high end of the range, Mr. Cleaver submitted nine to twelve months imprisonment would be appropriate. At the low end of the range, an intermittent sentence of ninety days could be combined with a conditional sentence of up to two years as well as probation.

Mitigating Factors

[12] The applicable mitigating factors, that is, factors that tend to reduce what an otherwise appropriate disposition would be, include the following considerations:

a. He is employed. In fact, the court was provided with a reference letter from his employer reporting that he is a valuable and exemplary employee; b. He supports his elderly father; and, c. The physical injuries sustained by the victim were not long-lasting.

[13] I do not accept the suggestion that the fact that there were no bail breaches while awaiting trial is a mitigating factor. While it is true that onerous bail terms can be taken into account in determining an appropriate sentence, a person on bail should be expected to comply with his or her court-ordered bail conditions.

Aggravating Factors

[14] The applicable aggravating factors, that is, factors that tend to increase what an otherwise appropriate disposition would be, include the following considerations:

a. It is particularly significant that the assaults in this case were of a domestic nature. Partner abuse is a scourge that cannot be tolerated; b. Mr. Couvieau has a lengthy criminal record that includes a history of similar anti-social behavior. The victim in this case is the fifth woman Mr. Couvieau has assaulted; and c. Also aggravating is the fact that Mr. Couvieau was still on probation from a previous domestic assault when these offences were committed. He seems to have trouble getting the message that prior sentencing judges have tried to convey to him. At this point there is a demonstrated need to separate Mr. Couvieau from the community for a significant period of time to help him understand that he must take a new path. If he can’t be part of the community without hurting people then he will be separated for increasingly long periods of time.

Victim Impact Statement

[15] The Criminal Code provides that a sentencing court should have regard for any victim impact statement from the victim. In this case Ms. Leclaire prepared a statement and it was filed with the court. The victim impact statement shows that the victim was deeply affected by the consequences of her association with Mr. Couvieau. Her statement indicates that she is recovering from her experience but this does not take away from the stress, and self-doubt and unhappiness that Mr. Couvieau caused her. I think it is fair to say that the victim impact statement was as much about their dysfunctional relationship as it was about the assaults themselves.

Principles of Sentencing

[16] Denunciation and deterrence are the controlling sentencing principles. In this case, considering Mr. Couvieau’s prior domestic assaults, specific deterrence is especially significant. The sentence imposed on Mr. Couvieau must convey the message that if he continues to abuse domestic partners, he will pay a very heavy price.

Case Law

[17] In R. v. Menary, 2012 ONCA 706, the offender was initially sentenced to 18 months’ incarceration following his conviction for assaulting his former domestic partner and breaching his probation by contacting the victim. He had a horrific criminal record including five prior convictions for assaulting domestic partners. He had been non-compliant with previous probation orders. The victim suffered no physical injuries. His longest previous custodial sentence was about 50 days. The Court of Appeal reduced the sentence to 12 months and made the probation convictions concurrent to the assault offence.

[18] In R. v. Pelley, 2015 ONCA 267, also a domestic assault case, the offender was originally sentenced to three years imprisonment following a plea of guilt. The Court of Appeal agreed that the offender’s lengthy criminal record, the domestic context of the offences and the fact that the offender was on probation were factors that required a stiff sentence. The defence at trial proposed a two year sentence which the court said qualified as a stiff sentence and reduced the period of imprisonment by a year.

Reasons

[19] The circumstances in this case lead me to the following considerations. Firstly, a conditional or an intermittent sentence would not adequately reflect the governing principles of denunciation and deterrence. Secondly, rehabilitation, while always a consideration, is not a significant factor here because we are not dealing with a youthful first offender who made an isolated mistake. Thirdly, Mr. Couvieau has a significant criminal record. He has a pattern of hurting his domestic partners. He has gone to jail for this behaviour in the past. Fourthly, he regularly ignores court orders. It appears that they mean nothing to him. Certainly the previous probation orders do not seem to have been effective at curbing his anti-social tendencies. On this last point, it is common to make probation convictions concurrent to the primary offence but I do not intend to do so here because Mr. Couvieau has been slow to take the lesson.

Sentence

[20] Mr. Couvieau, will you stand up please. On count 4, the more serious of the two assaults, I sentence you to a period of imprisonment of 357 days. This includes a credit of 8 days for your actual 5 days of pre-trial custody. On count 2, the chest-bumping incident, I sentence you to 6 months imprisonment concurrent to count 4. On counts 6 and 7, the breach of probation convictions, I sentence you to 30 days’ imprisonment on each count. In the Pelley case, supra, the Court of Appeal expressed the breach of probation counts as being concurrent to each other but consecutive to the other counts. My intention is to do likewise. This equates to a global sentence of 14 months’ incarceration in total.

[21] In addition, your imprisonment shall be followed by a period of probation for three years. In addition to the statutory conditions, you shall report and reside as directed by your probation officer. You shall have no contact, either directly or indirectly, with Tammy Leclaire. You shall not be within 150 meters of any place where she resides, works, attends school, worships or is known to be. You shall attend and complete such counseling, therapy or treatment as may be directed by your probation officer. You shall not possess or consume any drugs listed in the Controlled Drugs and Substances Act except pursuant to a valid prescription. I am not going to include an alcohol prohibition as a condition.

[22] You will be subject to a weapons prohibition for 10 years.

[23] You will be required to provide a sample of your DNA.

[24] The victim fine surcharge of $800 shall apply subject to a reasonable time to pay.

Mr. Justice Martin James

DATE RELEASED: June 29, 2018