COURT FILE NO.: 14-12667
DATE: 2019/08/30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Applicant
– and –
DYLAN CHARLAND Respondent
Moiz Karimjee, for the Crown
Robert B. Carew, for the Appellant
HEARD: July 19, 2019
On appeal from the decision of the Honourable Madame Justice Julie Bourgeois of the Ontario Court of Justice on June 18, 2018.
REASONS on appeal
maranger j.
On June 18, 2018 Justice Julie Bourgeois of the Ontario Court of Justice sentenced Dylan Charland to a 90 day term of imprisonment to be served intermittently, followed by a period of probation for two years.
Dylan Charland was convicted of assault causing bodily harm against Matthew Monkhouse following a 4 day trial held on June 5,6,7 and December 4, 2017.
The reasons for conviction were delivered on January 12, 2018. A sentencing hearing was held on April 4th and May 30th, 2018.
The Crown appeals the sentence imposed and asks this court to impose a further 90 days jail for a total of 6 months imprisonment. The position advanced was that Justice Bourgeois committed three distinct errors of fact and law in her reasons for sentence, thus disentitling her to deference or in the alternative the sentence was demonstrably unfit and appellate intervention is warranted.
For the reasons that follow I would dismiss the appeal.
Background to appeal:
- The following are the relevant facts leading up to this appeal:
- The assault occurred on September 20th, 2014.
- The last day of the sentencing hearing was on May 30, 2018.
- Dylan Charland and his friend Connor (17) at the time both assaulted Matthew Monkhouse.
- They both erroneously believed that Mr. Monkhouse together with his friends broke into and stole from vehicles in their neighborhood.
- The victim’s two friends were in fact breaking into and stealing items in vehicles in the area on the evening in question. Mr. Monkhouse was not.
- Mr. Charland administered 6-7 punches to Mr. Monkhouse’s facial area while he was on the ground Connor punched and kicked him until Charland told him that that was enough.
- Mr. Charland initiated the 911 call to the authorities shortly after the assault.
- At the sentencing hearing the Crown asked for 12 months Jail, the Defence asked for a suspended sentence and probation; alternatively 90 days intermittent
Grounds of Appeal:
- The Crown argued that the following 3 errors were committed by the trial/sentencing Judge: 1) She misapprehended the extent of the victim’s brain injury 2) Treated the 911 call by Charland as a mitigating factor 3) Erred in her understanding and application of the sentencing principle of proportionality and erroneously understood the seriousness of the offence only in a generic sense and not a case specific sense
Extent of the injury:
- The trial/sentencing judge was alert to the extent of the injury as an overall issue, her comments on what was presented to her at the trial and sentencing hearing on the subject were reasonable. In her reasons she indicated:
“There is no updated medical record to guide the court and the prognosis as to Matthew’s future and his complete healing, but one can clearly conclude to the long-lasting impact of the offence after almost 4 years on Matthew and his family”
- The Crown did not present updated medical evidence at the sentencing hearing relying on somewhat dated medical evidence instead. In particular Dr. Goulet who followed the victim up to June 2015. In her reasons she carefully explained:
“The extent of that injury and prognosis is unclear to this date, but he was treated by a brain injury specialist here in Ottawa, Dr. Goulet, between October 2014 and June 2015 as mild concussion. Dr. Goulet explained that, by definition, a concussion is a traumatic brain injury. He testified that the MRI did not disclose any bleeding and did not disclose any injury deemed to be significant at the time”
- Justice Bourgeois specifically referenced the extent of the victim’s injuries and the difficulties the family suffered in the aftermath as aggravating factors in her reasons for sentence. Her factual findings are free of error.
The 911 Call:
- The behavior of the accused post offence including the 911 call in all the circumstances could be considered a mitigating factor. In the context of what occurred here, namely the erroneous belief that the victim was involved in criminal activity and was being apprehended allows for this interpretation. I give no effect to this ground of appeal.
The seriousness of the offence the principal of proportionality/ Fitness of sentence
- The judge’s reasons read as a whole show no such error in the application of any sentencing principles. In cogent and well thought out reasons she crafted a sentence that while on the low end of the spectrum was one that was within her discretion. It is a case where she is entitled to deference particularly as the judge who conducted the trial proper and concluded with a finding of guilt. Therefore the appeal is dismissed.
Mr. Justice Robert L. Maranger
DATE: August 30, 2019
COURT FILE NO.: 14-12667
DATE: 2019/08/30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Appellant
- and –
DYLAN CHARLAND Respondent
REASONS ON APPEAL
Mr. Justice Robert L. Maranger
Released: August 30, 2019