Court File and Parties
COURT FILE NO.: CR-17-50000511-0000 DATE: 20180727 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – ANDREW MITCHELL
Counsel: Brady Donohue, for the Crown Paula Rochman, for Andrew Mitchell
HEARD: June 21, 2018
B.P. O’marra, J.
RULING ON DISPUTED FACTS ON SENTENCE FOLLOWING JURY VERDICTS
[1] On May 24, 2018 Andrew Mitchell was found guilty on Counts 7 and 11 of an indictment as follows:
Andrew MITCHELL, stands further charged that he, on or about the 1st day of November, in the year 2016, in the City of Toronto, did break and enter a dwelling house situated at 41 West Oak Crescent, with the intent to commit an indictable offence therein, contrary to Section 348(1)(d) of the Criminal Code.
Andrew MITCHELL, stands further charged that he, sometime between and including the 1st day of November, in the year 2016 and the 2nd day of November in the year 2016, in the City of Toronto, did in committing an assault on Sandra SEWELL cause bodily harm to her, contrary to section 267(b) of the Criminal Code.
[2] He was found not guilty on 9 other counts. All of the counts relate to allegations wherein his former girlfriend was the complainant.
[3] The complainant testified that she received various injuries in separate incidents at various locations that occurred between September 13 and November 2, 2016. Andrew Mitchell testified and admitted that he may have unintentionally caused some of the injuries to the complainant. He denied that he had the necessary criminal intention for any of those injuries.
[4] On June 21, 2018 I heard submissions from both counsel as to what the factual basis for sentence should be. These are my brief reasons related to that issue.
DISPUTED FACTS ON SENTENCE AFTER JURY VERDICTS
[5] Aggravating facts on sentence that are not admitted must be proven beyond a reasonable doubt. Criminal Code s. 724(3)(e).
[6] The failure to prove an alleged aggravating fact beyond a reasonable doubt does not permit the trial judge to assume a version of facts most favourable to an accused. R. v. Smickle, 2013 ONCA 678 at para. 18.
[7] The Supreme Court of Canada addressed the issue of disputed facts on sentence after jury verdicts in R. v. Ferguson, 2008 SCC 6 at paras. 16 - 18 inclusive:
16 This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.
17 Two principles govern the sentencing judge in this endeavor. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict [page 107] rejected by the jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).
- Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A. R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.
[8] At paragraph 20, the court added that it is appropriate for the trial judge to consider the legal instructions to the jury in this process.
[9] Where the basis of the jury’s verdict is unclear, the sentencing judge should make his or her own independent determination of the facts, consistent with the jury verdict. R. v. Roncaioli, 2011 ONCA 378 at para. 59. The sentencing judge is not obliged to assume that the jury took “the most lenient path to conviction”. R. v. Nelson, 2014 ONCA 853 at para. 56.
POSITION OF THE PARTIES
[10] The Crown submits that sentencing should be based on the following injuries to the complainant: a black eye, an injury to her hand and a concussion. The defence submits that the black eye is the only bodily harm that should be factored in.
ANALYSIS
[11] The parties are not far apart on the contentious issue of the specific bodily harm related to count 11. The trial proceeded on the basis that the Crown alleged injuries caused on that count occurred when the complainant was punched and elbowed as she was restrained in a car. I am satisfied that it is reasonable and fair for me to find that the complainant suffered a black eye, an injury to her hand and a concussion related to that incident.
[12] On count 7 the verdict of guilty necessarily supports a finding that Andrew Mitchell entered the complainant’s residence without consent and with the intention of committing an indictable offence. There was no specific indictable offence mentioned and it was not necessary to do so. The complainant testified that she was assaulted and threatened by Andrew Mitchell after he entered. The jury were entitled to consider that evidence related to his intention when he entered. I am satisfied that it is reasonable and fair for me to find that the complainant on this count was subjected to some level of violence and/or threats without any specific bodily harm being caused.
RESULT
Based on the stated facts I will receive any evidence and submissions related to sentence when we reconvene on this matter on August 3, 2018 at 10:00 a.m.
[13] I am grateful to both counsel for their assistance on this matter.
B.P. O’MARRA, J. Released: July 27, 2018