Court File and Parties

COURT FILE NO.: CR-18-30000460-0000 DATE: 20201030

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ALDWAYNE ROWE Accused

Counsel: Leslie Zamojc, for the Crown The accused, Aldwayne Rowe, sentenced in absentia

HEARD: October 14, 2020

ALLEN J.

REASONS FOR JUDGMENT ON SENTENCING

BACKGROUND

[1] I convicted Aldwayne Rowe on December 6, 2016 under the Criminal Code for possession of a weapon for the purpose of an offence (s. 88(1)), assault with a weapon (s. 267(a)), and aggravated assault (s. 268(2)) against, the complainant, his estranged wife, Nicole Huntley in the early hours of May 28, 2017. Ms. Huntley sustained a 40-stitch wound to the right side of her face.

[2] I set an original date for sentencing for March 6, 2020 which was adjourned because Mr. Rowe failed to attend. Sentencing was subsequently scheduled to April 24th, May 21st and June 3rd. Mr. Rowe did not attend on any of the subsequent dates. Mr. Rowe did not attend an interview with his probation officer for the preparation of a pre-sentence report.

[3] The Toronto Police, with information from the Canadian Border Services Agency, concluded Mr. Rowe was likely to have departed for Jamaica. The Crown submitted that Mr. Rowe had absconded the jurisdiction to avoid sentencing and as a result would bring an application under s. 475(1)(b)(i) of the Criminal Code to have Mr. Rowe sentenced in absentia. September 14th was set to hear the Crown’s application and submissions on sentencing.

THE LAW ON SENTENCING IN ABSENTIA

[4] Section 475(1)(b)(i) of the Criminal Code sets out the jurisdiction to sentence in absentia as follows:

475(1) Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of his trial,

(a) He shall be deemed to have waived his right to be present at his trial, and

(b) The court may

(i) Continue the trial and proceed to a judgment or verdict and, if it finds the accused guilty, impose a sentence on him in his absence, or

(ii) If a warrant in Form 7 is issued for the arrest of the accused, adjourn the trial to await his appearance, but where the trial is adjourned pursuant to subparagraph (b)(ii), the court may, at any time, continue the trial if it is satisfied that it is no longer in the interests of justice to await the appearance of the accused.

[5] The first step in the s. 475(1) analysis is to determine if the court is satisfied that the accused has absconded.

[6] The sentencing judge has the discretion to either proceed with the sentencing of the offender on that day, or to adjourn and have a bench warrant issued. I adjourned the hearing on March 6th to permit a further investigation by the police into Mr. Rowe’s whereabouts. A bench warrant for Mr. Rowe’s arrest was issued. In the meantime, court proceedings were shutdown by order of the Chief Justice of the Ontario Superior Court effective March 16,2020 due to the COVID-19 pandemic and subsequent sentencing dates were adjourned.

[7] Det. Cheryl Jones filed an affidavit. Det. Jones outlines the attempts made by herself and other police officers and authorities from January 21, 2020 to October 7, 2020 to establish Mr. Rowe’s whereabouts. Det. Jones also attended at addresses Mr. Rowe was known to have lived to no avail. An officer contacted Mr. Rowe’s father who lives in Toronto who said he had no information of his son’s whereabouts. A subsequent call back to the father’s phone number found the number out of order.

[8] Det. Jones contacted Ms. Huntley who indicated she had received numerous phone calls and hang-ups from whom she believed was Mr. Rowe. Ms. Huntley indicated she had received phone calls from phone numbers with an area code in Jamaica and from a WhatsApp phone number. Mr. Rowe spoke on some calls asking to speak to his daughter. Ms. Huntley hung up on him each time. The police called those numbers to no avail. Some of the numbers were also found to be out of order.

[9] The exercise of judicial discretion in these types of circumstances is entitled to a significant amount of deference. The exercise of discretion must be reasonable: [R. v. Okereke, [2019] O.J. No. 5499, at para. 45, (Ont. S.C.J.)].

[10] I find the police made reasonable efforts to locate Mr. Rowe. It seems reasonable to conclude that Mr. Rowe fled to Jamaica. I am satisfied that Mr. Rowe has in fact absconded within the meaning of section 475 of the Criminal Code. Based on the evidence before the court, I find that Mr. Rowe has voluntarily absented himself from sentencing for the purpose and intention of avoiding the consequences of having been found guilty: R. v. Garofoli, [1990] 52 (SCC), [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161(S.C.C.)].

[11] The second step in the analysis is to determine if there is sufficient information to impose a fit and appropriate sentence.

[12] The sentencing judge must determine whether it has sufficient information before determining sentence in absence of information from the accused. These determinations are fact-driven. The Ontario Court of Justice in R. v. Kiddinar provides a useful survey of cases on this issue. If a pre-sentence report interview of the accused is available this could provide relevant information. A victim impact statement can also contain useful information. Evidence from the trial from the accused, if they testified, or from other trial evidence could also provide useful information for sentencing: [R. v. Kiddinar, [2017] O.J. No. 5463, at paras. 20 – 31, (Ont. C.J.)]

[13] Mr. Rowe does not have a criminal record and has no immigration status in Canada. Mr. Rowe came to Canada in 2012 on a temporary permit. Ms. Huntley withdrew her application to sponsor him. Rowe did not give a pre-sentence interview, but the evidence at trial gives some insight into Mr. Rowe’s circumstances.

[14] Mr. Rowe testified in his defence and called a friend to testify in support. Ms. Huntley also testified. The court therefore heard considerable evidence about Mr. Rowe and his relationship with the complainant. The court heard evidence about Mr. Rowe’s relationship with a daughter he and Ms. Huntley have in common and his relationship with Ms. Huntley’s son. As noted, Ms. Huntley provided a victim impact statement which outlines the social, psychological and financial effects the crime has had on her life and the lives of her children.

[15] I find sufficient information before the court to impose a fair and fit sentence in absentia. There has been some eight months of delay awaiting an opportunity to sentence. I believe it is no longer in the interests of justice to await the appearance of Mr. Rowe. There must be finality for the court system, the prosecutor and the complainant.

SENTENCING PRINCIPLES

[16] 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.

[17] 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.

[18] 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.

[19] The principles of general and specific deterrence and denunciation are the focus of sentencing for aggravated assault. Rehabilitation is a lesser focus.

AGGRAVATING AND MITIGATING FACTORS

[20] Section 718.2 of the Criminal Code provides for a sentence to be increased or reduced in consideration of any relevant aggravating or mitigating circumstances related to the offence or the offender. This provision contains a non-exhaustive list of examples of aggravating and mitigating factors to consider.

[21] Courts have commonly held that a position of trust or authority involves a person in the victim's life who plays a role of trust. Charges of a domestic nature with intimate partners are considered an aggravating factor on sentencing under section 718.2.

[22] Mr. Rowe was a previous intimate partner to Ms. Huntley. They were married but were separated at the time of the attack and were co-parenting their young daughter. I find the assault on Ms. Huntley by Mr. Rowe under those circumstances warrants consideration as aggravating factor.

SENTENCING FOR AGGRAVATED ASSAULT

[23] In a decision of this Court, 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.)].

[24] At the bottom end of the range is an exceptional case which is clearly distinguishable from Mr. Rowe’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.)].

[25] At the mid-range are cases with high reformatory sentences of between 18 months and two years less a day. The accused in the 3 cited cases were first offenders, the assaults had elements of consent and excessive force was used. The injuries in each of the 3 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.); R. v. Moreira, 2006 9709 (ON SC), [2006] O.J. No. 1248 (Ont. S.C.J.); and R. v. Basilio, 2003 15531 (ON CA), 175 C.C.C. (3d) 440 (Ont. C.A.)].

[26] At the high end of the range are cases where four to 6 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

[27] I considered the following aggravating factors:

• the past intimate relationship between Mr. Rowe and Ms. Huntley;

• the violent and unanticipated nature of the assault which left a 40-stitch injury on Ms. Huntley’s face;

• the lasting emotional and social impact of a large, visible scar on Ms. Huntley’s face and the financial effect of not being able to work since the incident;

• the fear engendered in Ms. Huntley about the possibility of Mr. Rowe or an associate pursuing and hurting or killing her or her son; and

• the alienation created for their daughter from her father as a result of the attack;

[28] Mr. Rowe did not plead guilty or show any remorse for his crimes. Although this cannot be considered an aggravating factor, he cannot gain the advantage that contrition might have allowed.

[29] The mitigating factors I considered are:

• Mr. Rowe, age 33 years at the time of the incident and has no criminal record;

• he is hardworking and held down three jobs at the time of the incident;

• he appeared to be a dutiful father in his co-parenting obligations, picking up for Ms. Huntley’s deficiencies in regard to access arrangements and an attendance with the daughter at the hospital on the evening before the incident;

• there is nothing on record of a history of domestic violence against Ms. Huntley; and

• the attack did not appear to be premeditated but seemed to be more of a crime of opportunity.

CREDIT FOR PRE-TRIAL TIME SERVED

[30] Under s. 719(3) and 719(3.1) of the Criminal Code, when considering sentence, a court may take into account any time the accused spent in pre-trial custody as a result of the offence. The maximum that can be credited is 1.5 days for each day spent in custody: R. v. Summers, 2014 SCC 26, 2014 CSC 26, 2014 CarswellOnt 4479 (S.C.C.)].

[31] Mr. Rowe served 518 days in pretrial custody. I will allow credit at 1.5:1. He is therefore entitled to 518 x 1.5 = 777 days or 2 years, 1 month, 2 weeks and 2 days’ credit.

IMMIGRATION ISSUE

[32] I considered a collateral matter, the collateral consequence of deportation which would follow a prison sentence.

[33] Under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 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 6 months is inadmissible in Canada and subject to deportation. Aggravated assault is an offence punishable by a sentence of over ten years. Mr. Rowe’s lack of immigration status cannot benefit Mr. Rowe on sentence. A six-year or less sentence is not compatible with the proportionality principle.

THE CROWN’S POSITION

[34] The Crown seeks a sentence on the low end of the high range of sentence of 5 years’ incarceration broken down as 5 years for aggravated assault, 6 months for weapons dangerous to be served concurrently and to have the assault charge stayed pursuant to R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729 (S.C.C.). In addition, the Crown seeks a mandatory DNA order under s. 487.051 of the Criminal Code, a Criminal Code s. 109 firearms prohibition for 10 years, and a no contact order under s. 743.21 of the Criminal Code prohibiting Mr. Rowe from communicating directly or indirectly with Nicole Huntley during the period of his imprisonment.

DISPOSITION

[35] I considered the Crown’s submissions and the relevant case authorities. I took into account the aggravating and mitigation factors. While the crime was a very dangerous and brutal act, I do recognize that Mr. Rowe led a pro-social life. He was hard working and very attentive to his young daughter. I do agree with the Crown’s submission that an aggravated assault where there is no consent or mutuality involved warrants a sentence on the low end of the higher range sentences as set out in R. v. Tourville.

[36] I find a sentence of 4 years’ (1,460 days) imprisonment for aggravated assault, 6 months concurrent imprisonment for weapons dangerous and a stay under Kienapple for the assault charge. With credit for pre-trial time served, Mr. Rowe’s prison sentence will be 1,460 days – 777 days = 683 days or 22 months and 14 days.

[37] I also impose a mandatory DNA order under s. 487.051 of the Criminal Code, a Criminal Code s. 109 firearms prohibition for 10 years, and a no contact order under s. 743.21 of the Criminal Code prohibiting Mr. Rowe from communicating directly or indirectly with Nicole Huntley during the period of his imprisonment.

SENTENCE

[38] I impose sentence on Aldwayne Rowe in absentia on the basis that he absconded to prevent the consequences of sentencing. I sentence him as follows:

a) to a 4-year imprisonment sentence for aggravated assault, concurrent 6-month imprisonment for weapons dangerous and a stay of the assault charge;

b) with 777 days’ credit for pre-trial custody the imprisonment period is 22 months and 14 days;

c) the total period of imprisonment is therefore 22 months and 14 days;

d) to a mandatory DNA 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;

e) to a Criminal Code s. 109 firearms prohibition for 10 years;

f) you are prohibited from possessing or owning any weapons as defined by the Criminal Code namely, firearms, crossbows, restricted weapons, ammunition and explosive substances.

B.A. Allen J.

Released: October 30, 2020

COURT FILE NO.: CR-18-30000460-0000 DATE: 20201030

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – ALDWAYNE ROWE

REASONS FOR JUDGMENT ON SENTENCING

Allen J.

Released: October 30, 2020