Court File and Parties

COURT FILE NO.: CR 17-30000104-0000 DATE: 20180920 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – J. B. Defendant

Counsel: Charmaine Wong, for the Crown Justin Chan, for the Defendant

HEARD: April 23, 27 and 30 and September 17, 2018 JUDGE: A.E. LONDON-WEINSTEIN, J. (ORAL)

A. E. LONDON-WEINSTEIN, J.

Reasons for Sentencing

[1] On June 26, I found J. B. guilty of assault bodily harm following a trial without a jury. He was acquitted of charges of sexual assault, forcible confinement, assault, and another charge of sexual assault. The defence in this case is asking that I impose a sentence reflecting the time J. B. spent in custody on these charges, which is the equivalent of 18 days. (12 days where time and a half credit is afforded) and suspending the passage of sentence, imposing a period of probation.

[2] The Crown in this case asks that I impose a sentence of 9 to 12 months custody. The conviction for assault bodily harm arises within the context of the dissolution of a marriage.

[3] The crown and defence are generally in agreement that general deterrence and denunciation are the factors which must be emphasized in sentence for an assault bodily harm arising in a domestic context, but are divided as to what is the appropriate sentence.

Circumstances of the Offence

[4] The victim in this matter and the accused had been married for 15 years and the marriage was dissolving at the time of this incident. A custody battle over the children was raging, and custody swung back and forth between them even after J. B. was charged.

[5] S. B. had started dating J. B. when she was just 15 years old. He was almost a decade older. The couple had two children, who also testified in this trial, B. B. and E. B. B. B. is 17 years old and E. B. is 12.

[6] I did find as a fact that S. B. was conditioned into accepting degrading and humiliating treatment at the hands of J. B. For example, he made her strip naked out of a fear that she would infest the apartment with bed bugs. He also would pick her up and deposit her outside of the apartment when she was annoying him. He would leave her locked outside the apartment, knocking on the door entreating him to allow her to be let back into the apartment.

[7] In April of 2015 the parties separated. They continued to have a consensual sexual relationship after the separation. S. B. had added a male friend as her friend on the social media application, Facebook. J. B. was angry about this and ordered her to delete the friend.

[8] J. B. was 6’2” and weighed 140 pounds. S. B. was 4’10” in height and weighed just 80 pounds.

[9] The evidence in this trial was littered with J. B. references to S. B.’s incompetence, disorganization and general lack of reliability. She was not allowed to use the washing machine, for example, because J. B. did not think her capable of figuring out how it operated.

[10] Whenever J. B. grew exasperated with S. B. and she would not leave the apartment, he would physically pick her up and deposit her outside the apartment, leaving her locked outside to be observed whenever anyone came by in the communal hallway.

[11] Sometime in May of 2015 she admitted to him that she had developed romantic feelings for another man. After this disclosure, J. B. wanted sole custody of the children with S. B. as a mere access parent. Access was going to be solely contingent on the exercise of his discretion.

[12] S. B. testified that J. B. flew into a jealous rage upon hearing that is wife was in love with another man. He held back her arms behind her back and delivered three or four knee strikes to her tail bone area. She cried out in pain and her son heard her cries. He had also witnessed the beginning of the assault before his father sent him to his room.

[13] He then physically removed her from the apartment and once again locked her outside of the apartment. S. B. called the police and reported what happened. After interviewing J. B., the police declined to lay charges.

[14] S. B. suffered significant bruising to her backside. She was in pain and limping two weeks after the incident. She had tenderness and inflammation to her coccyx area. She had suffered a partial subluxation of the coccyx.

[15] In family court proceedings, S. B. has sole custody of the children and J. B. has not had access for some time. This trial was the first time he had seen his children in a very long time. S.B. did not submit a victim witness statement.

Background of the Offender

[16] J. B. is employed with A[…] as a subcontractor. He has held this job since December of 2017.

[17] He was born on […], 1975 in Prince George, British Columbia and is 43 years old. He is adopted, and his adoptive father is a retired police officer. He was diagnosed with ADHD as a child and his adoptive mother said this lead to tensions in the family. He has another adult daughter, who the author of the probation report was not able to contact for the report. He has a Grade 10 education.

[18] From 2001 to 2004 he worked as an assistant manager for a property management company and later worked as an assistant superintendent in 2006.

[19] He has no issues with alcohol nor does he have any issues with substance addiction generally.

[20] The author of the presentence report said that J. B. was very angry that his adoptive mother had been contacted for input. There was some discrepancy in the family information which J. B. provided to the author of the presentence report. He also said that J. B. disagreed with the court’s finding of guilt, minimized his role and shifted blame to the victim. J. B. told the author of the presentence report that he was only remorseful for not fighting more for his kids.

[21] The author of the report noted that despite his limited education, J. B. has maintained full time employment.

[22] The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just peaceful and safe society by imposing just sanctions that have the following objectives:

a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; b) To deter the offender and other persons from committing offences; c) To separate offenders from society where necessary; and d) To assist in rehabilitating offenders.

[23] Evidence that the offender in committing the offence abused the offender’s spouse or common law partner is an aggravating factor in sentence. s.718.2 Criminal Code.

[24] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[25] An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

[26] All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to aboriginal offenders.

Aggravating and Mitigating Factors in this Case

[27] J. B. showed no remorse in this case, which is not aggravating, but his continual blaming of the victim in this case, as evidenced by his comments to the author of the presentence report, is an aggravating factor and demonstrates a lack of insight which is troubling.

[28] J. B. was found not guilty of the most serious charges on this indictment, so while he cannot get credit for an early guilty plea, since he was actually acquitted of the sexual assaults in this case, it is not fair therefore, to fault him for the fact that the complainant had to endure a trial, and cross examination, and the children in this case had to testify and be cross examined. J.B. was found not guilty of most of his original charges. In all of the circumstances, I cannot say that it would be fair to even consider the lack of a plea as being a relevant consideration.

[29] J. B. co-operated with police. An agreed statement of fact was filed, eliminating the need for the crown to prove some issues and J. B. volunteered for a DNA test.

[30] J. B. has a job and despite his limited education has been able to maintain employment.

[31] J. B.’s record has two entries from 22 years ago which do not involve violence and are completely unrelated. He received a suspended sentence and probation.

[32] The children were present when this incident happened. B. B. saw part of it. Although he is not a young child, it remains an aggravating factor that he had to witness his father begin the attack on his mother.

[33] This incident was the culmination of a long period of domination and bullying by J. B. toward S. B. She was still limping two weeks after the incident.

Parity of Sentence

[34] A number of authorities were provided to me by the crown and the defence and argued fully before me. I reviewed all of them. Of course, all cases to some degree turn on their own facts, which makes sentencing such a unique exercise. It is agreed that denunciation and general and specific deterrence are the primary considerations in this case, given that it is a domestic assault. I must consider the individual circumstances of this offence and this offender. It is not in every instance of domestic violence that a custodial term should be imposed, but the court of appeal in R v. Inwood , 1989 OJ No. 428 held that it should be normal where significant bodily harm has been inflicted in order to repudiate and denounce such conduct.

Case Law

[35] In R v. Filipowicz, [2011] O.J. No. 476, Justice Feldman of the Ontario Court of Justice found the accused guilty of 3 counts of assaulting is estranged wife in a domestic context that covered several months and was marked by aggravating features of controlling and abusive behavior. The accused was callous in his treatment of the complainant and not straightforward in his testimony about the nature of his relationship with her. He was deceptive and mean spirited.

[36] He shook and pushed her wife into the bathtub which caused bruising to her breast, waist and to her tricep.

[37] In another instance he held a soiled diaper to his wife’s face with intent to denigrate her.

[38] In another instance he pulled the chair out from under her causing her to fall and hit her head on the floor.

[39] The offender in that case was a first offender with 8 days of pretrial custody. The court, weighing all of the relevant factors, imposed a 30 day sentence to be served intermittently, and a 4 month concurrent conditional sentence.

[40] Of course, a conditional sentence is not available for the offence for which I have found J. B. guilty.

[41] In R v. Gallagher, [2016] O.J. No. 6996, Justice Blouin of the Ontario Court of Justice sentenced an accused for possession of a prohibited weapon a butterfly knife and charges of uttering death threats, and assault.

[42] The victim in that case was the intimate partner of the accused. The accused choked the victim for one minute.

[43] He pulled a knife on her and put her in another choke hold and said he was going to kill her. He then punched her in her ribs. He attempted to punch her in the head.

[44] The victim fell down the stair well trying to get away and ran to the police station without her shoes. She suffered multiple bruises on the neck, left arm and left rib area.

[45] The accused had a dated record which involved alcohol and violence. He had completed an 8 session anger management session. He was sentenced to 15 days for the assault and a four month conditional sentence for threatening death, and two years’ probation for the possession of prohibited weapon conviction. In that case, the judge gave him credit for a plea which eliminated the necessity of the complaint testifying.

[46] In R v. Galapate, 2010 ONCJ 538 the crown sought 12 months imprisonment and 2 years’ probation for a first time offender who plead guilty to assault, assault with a weapon and threatening death. He grabbed a knife and threatened to kill his wife, himself and his son.

[47] The facts in that case involved the accused, upon finding out that is wife was seeing another man, punching her in the head three times and threatening to kill his wife, their son and himself.

[48] Justice Vaillancourt imposed a sentence of 90 days intermittent.

[49] In R v. Maslakovic, [2000] O.J. No. 4247 the accused received a sentence of two years less a day for administering a beating which resulted in fractured ribs, a lacerated spleen and facial bruising. I found that the injuries in this case were much more severe than the injury in the case before me and this case is therefore distinguishable for that reason.

[50] In R v. Nensi, [2001] O.J. No. 5655 the accused was sentenced for an assault, an assault bodily harm, threatening death, assault with a weapon, etc. In total there were 10 incidents which included slapping, pinching, strangulation, a nasal fracture, an injured jaw, and an incident where the accused gave the victim a head-butt. I also found this case distinguishable due to the number of incidents and the severity of the injuries. The accused received a six month sentence.

[51] In R v. Lafleur, [2005] O.J. No. 5828 the accused was sentenced for an assault bodily harm where he kicked his wife between her legs with a hard soled shoe after she had just given birth. Her injury was long term and she would possibly need surgery. The accused received a sentence of 15 days intermittent jail, and 60 hours of community service along with a five year weapon prohibition. I should note that it was extremely fair of the crown to include this case in her materials, given that it did not align with the sentence that she was requesting.

[52] In R v. Chirimar, 2007 ONCJ 385, [2007] O.J. No. 3323 the accused was sentenced for two counts of assault bodily harm. He hit is wife in the face three to four times and in another count which was based on a range of time, slapped her on three or four occasions. She was covered in bruises and injuries. He received a sentence of six months.

[53] In R v. Rooplall, [2008] O.J. No 3514 the accused plead guilty to assault bodily harm and in probation for one of those prior assaults at the time he committed the assault bodily harm. In the year previous he had threatened to kill his wife and the police officer who arrested him, for which he had received 14 days in jail. He received a sentence of 6 months, but again, this case is distinguishable due to the presence of aggravating factors such as prior convictions in relation to the same complainant, and being on probation for assaulting the complainant at the time of the assault bodily harm. It is distinguishable on its facts from the case of J. B.

[54] In R v. Zegarac, [2011] O.J. No. 6491, the accused was sentenced for an assault bodily harm and an assault. He attacked his wife while she was holding his baby and threatened to kill her. He punched her several times in the head and struck the baby. At the time of the offence he was on two probation orders. He had prior convictions for assault with a weapon, assault and utter threats against another former partner. He also had prior convictions for criminal harassment and other charges in relation to a different partner. On that basis alone the case is distinguishable from the case before me. He received a sentence of just over two years.

Analysis and Conclusion

[55] J. B. engaged in a bullying and intimidating manner toward the mother of his children. On the date in question, he became very angry at the knowledge that his wife was in love with another man. His hurt is understandable, his reaction to that hurt however, must be denounced. His behavior has already cost him his marriage, and his children. That is not a consequence of being charged, or a collateral effect of sentence, it is a direct result of his own abusive actions. His behaviour caused physical and emotional harm to his former wife to such a degree that even though this incident arose within the context of learning that his wife was in love with someone else, the emphasis must be on denunciation and deterrence as a signal to the community that protection of spouses in domestic violence scenarios is a paramount principle of sentencing in such cases.

[56] I have taken into account the personal characteristics of the accused and the circumstances of the offence. J. B. was on bail for 2.5 years without incident, demonstrating that he can follow court orders, which will ensure that the public is protected. This is an important consideration, but does not answer the need for denunciation and specific and general deterrence.

[57] The nature of this assault and the humiliating manner in which J.B. treated his wife, convince me that a period of incarceration which will adequately denounce this conduct and serve to deter others is called for.

[58] It is my view that while denunciation and deterrence are paramount considerations, rehabilitation is a lesser, but still valid consideration. I am required to not forget about the possibility of rehabilitation, even while I give greater weight to the principles of denunciation and deterrence. I have also considered the principle of restraint. If J. B. were to lose his job, it is my view that his prospects for rehabilitation would be diminished. It took him a long time to find regular and consistent employment. He has limited education and no desire to take additional training, so good jobs are hard to find.

[59] I believe that if J. B. were absent from his job for six months or more he would lose his employment. If he loses his employment, he may also lose his residence, as he works for the building in which he also rents an apartment and receives credit toward his rent.

[60] In all of the circumstances, however, I find that 18 days of custody is insufficient to adequately reflect the appropriate level of denunciation and deterrence required by the facts in this case.

[61] Given my consideration of the gravity of the offence, his very dated and unrelated record, and the fact that he has been on bail for two and a half years without incident, and all of the other factors which I have already listed, I sentence J. B. to a sentence of 108 days in custody. J.B. has already served the equivalent of 18 days, therefore, he shall serve a further 90 days in custody to be served intermittently.

[62] His sentence is to begin Friday September, 21, 2018. You are to arrive at the jail by 7 p.m. to be released Monday at 5 a.m. Your probation order starts today. You must appear at the jail to serve your intermittent sentence on time, in a sober condition, with a blood alcohol concentration of zero, and not under the influence of or in possession of any controlled substances unless you are taking that controlled substance pursuant to a lawfully obtained prescription. You will be on probation for 36 months.

[63] You are to report in person to a probation officer once only today, and after that at all times and places as directed by your probation officer or any person authorized to assist in your supervision.

[64] You must sign any releases necessary to permit the probation officer to monitor your compliance and must provide proof of compliance with any condition of this order to your probation officer on request.

[65] You are to live at a residence approved of by your probation officer and not change that address without obtaining the consent of your probation officer in advance.

[66] You are to have no contact or communication in any way, directly or indirectly, by any physical, electronic or other means with S. B. except pursuant to a family court order, or for the purpose of conducting or defending family court proceedings.

[67] Do not be within 200 meters of any place where you know S. B. to live, work, go to school, frequent or any place you know her to be. You must leave immediately any place where S. B. attends.

[68] There shall be an order for your DNA.

[69] You are not to possess any weapons as defined by the Criminal Code under s. 109 of the Criminal Code for 10 years.

[70] You are to attend and actively participate in all assessment counselling, or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for domestic violence, which may include the Partners Assault Response program.

[71] You shall sign any releases of information forms as will enable your probation officer to monitor your attendance and completion of any assessments counselling or rehabilitative programs as directed.

[72] You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

[73] You are to complete 100 hours of community service work. You must complete all of your community service hours within 18 months. You shall complete 10 hours per month, beginning in October of 2018.

[74] You shall complete the work as directed by and to the satisfaction of your probation officer.

[75] You are to maintain employment with A[…].

[76] Your term of probation is for 36 months. During that time you must follow all of the conditions I have listed, including the statutory term of keeping the peace and being of good behavior.

A.E. London-Weinstein, J. Released: September 20, 2018