COURT FILE NO.: CR-21-00000659-00AP
DATE: 2021 10 20
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E N:
HER MAJESTY THE QUEEN
Enoch Guimond, for the Appellant
Appellant
- and -
JASON MARTIN
Leah Gensey, for the Respondent
Respondent
HEARD: August 16, 2021
REASONS FOR JUDGMENT
[On appeal from the Judgment of Jalali J. dated September 29, 2020]
DENNISON J.
Introduction
[1] The Respondent pleaded guilty on February 14, 2020, to choking his partner to the point of unconsciousness. She suffered a minor concussion and bruising. The Crown sought a sentence of six to nine months. The Respondent sought a suspended or intermittent sentence. Jalali J. sentenced the Respondent to a suspended sentence following a period of probation for twelve months.
[2] The Crown appeals the sentence. It is the position of the Crown that the gravity of an assault on a domestic partner to the point of unconsciousness requires a custodial sentence, absent exceptional circumstances, even for a first-time offender.
[3] There are several issues that arise on this appeal:
Was the sentence imposed manifestly unfit?
Did the sentencing judge err in principle by failing to give sufficient weight to denunciation and general deterrence, and by over-emphasizing the mitigating factors?
If the sentencing judge erred, what is the appropriate sentence?
If a custodial sentence is the appropriate sentence, should the Respondent be reincarcerated?
Background Facts
The Offence
[4] The Respondent pleaded guilty to assault causing bodily harm involving his ex-girlfriend contrary to s. 267(b) of the Criminal Code, R.S.C. 1985, c. C-46.
[5] The Respondent and the complainant had been in a relationship for three years. The complainant ended the relationship in 2016. The Respondent and complainant reconciled and resumed living together in January 2018.
[6] On May 31, 2018, the Respondent and complainant had a verbal altercation at their residence. The altercation became physical. The Respondent grabbed the complainant by the throat and slapped her around the head. She attempted to defend herself. At that point, the Respondent put his right arm around her neck, placing her in a chokehold. He choked the complainant until she lost consciousness. As far as the complainant is aware, the assault ended after she lost consciousness.
[7] The complainant sought medical treatment for her injuries. She suffered ruptured blood vessels in her right eye, soreness to her neck, minor bruising, and a minor concussion. The pictures of the complainant’s injuries were made exhibits at the sentencing hearing.
[8] After the assault, the Respondent left the residence. When he returned two days later (Sunday, June 3, 2018), the complainant told him he was no longer welcome in the residence. She reported the matter to the police the following day. The Respondent was arrested on June 5, 2018. He was held for bail and released on a surety bail in the amount of $1,000 the next day.
[9] On November 26, 2019, trial dates were set for March 16 to 18, 2020. The Respondent pleaded guilty on February 14, 2020. The sentencing was adjourned to obtain a Presentence Report (“PSR”). The Respondent was sentenced on September 29, 2020.
Submissions and Evidence Before the Sentencing Judge
[10] The Crown sought a sentence of 60 to 90 days plus 12 months probation because the assault causing bodily harm occurred in the context of a domestic relationship and the Respondent choked the complainant to the point of unconsciousness. The Crown submitted that denunciation and deterrence were paramount in sentencing the Respondent. The Crown relied on the Ontario Court of Appeal’s decision in R. v. Granger, 2011 ONCA 537. The Crown noted distinguishing factors in Granger but relied on the decision to demonstrate the importance of general deterrence in sentencing for this type of offence.
[11] The complainant did not submit a formal Victim Impact Statement. The Crown advised that the complainant indicated she did want not to be in contact with the Respondent, though she had no safety concerns. She just wanted the Respondent to get help for his substance abuse and mental health issues.
[12] In the PSR, the complainant described her relationship with the Respondent in positive terms. She noted there were issues the Respondent needed to address. She indicated they have a four-month-old son together and that she has a daughter from a previous relationship. The Respondent has always been great with her daughter and took the role of being a father very seriously.
[13] The Respondent was employed at the time of the PSR and contributed to the complainant’s finances. The complainant believed that if the Respondent addressed his problems, he would be in a better position to be the father he wants to be.
[14] In discussing the need for deterrence and denunciation, the Crown noted that in the Domestic Violence Risk Management Report, the complainant stated the Respondent laughed about his abusive behaviour. She also stated that after the assault the Respondent had asked her, “Why did you make me do that?" The Crown submits this is a classic example of blaming the victim and not taking responsibility. However, the fact that the Respondent made this statement was not proven beyond a reasonable doubt. In any event, the Crown agreed the Respondent sent the complainant a message apologizing, which showed some remorse.
[15] The writer of the PSR described the Respondent as “combative and defensive while being interviewed for the first time.” The Respondent’s grandmother attended with him for the second interview and the Respondent appeared less angry and better able to express himself. His grandmother stated that the Respondent has difficulty expressing his emotions and that “he blows up.”
[16] The Crown submitted that some mental health concerns were raised for the Respondent, but there were no details, and it was unclear what medication he was on and why he stopped taking it. The Respondent expressed a willingness to address these concerns.
[17] The Respondent’s counsel submitted that given the lack of criminal record and the early guilty plea, a suspended sentence with a period of probation would be appropriate. The guilty plea was a mitigating factor and demonstrated a significant level of remorse.
[18] The Respondent had no prior criminal record. He was 26 years old at the time of the offence. The Respondent had a positive employment history and continued to work full-time to support his child. The Respondent also has strong family support from his grandmother, who acted as his surety. The Respondent’s willingness to address any mental health and substance abuse issues was also a mitigating factor. The Respondent’s counsel suggested adding a probation term that the Respondent attend programs recommended by his Probation Officer.
[19] Counsel also noted that the Respondent had been on bail for two years without any further issues or incurring any further charges, which spoke to his rehabilitative prospects.
[20] The Respondent’s counsel submitted that sentencing was an individualized process, and the case of Granger was entirely distinguishable from the facts in this case. In Granger, the complainant expressed serious safety concerns. Mr. Granger had a criminal record and was described in his PSR as an “unrepentant angry abusive recidivist alcoholic who has been unable to sustain relationships with women.” The court also found that there were lasting effects on the complainant, and that Mr. Granger had a total lack of insight into the root causes of his behaviour and was unwilling to engage in treatment. Mr. Granger was sentenced to the equivalent of a 21-month sentence.
[21] The Respondent’s counsel submitted that the court must consider any possible sentence other than incarceration when addressing the necessary sentencing objectives, and in this case, a suspended sentence would achieve those objectives.
Sentencing Judge’s Reasons for Sentence
[22] The sentencing judge held that by pleading guilty the Respondent accepted responsibility and showed remorse. She held that his plea during the pandemic was even more significant given the time and resources it saved the criminal justice system.
[23] The sentencing judge also considered that the Respondent did not have a criminal record and that his young child has impacted his life in a very positive way. She noted that the complainant stated the Respondent took his role as a father very seriously. The sentencing judge also noted that the Respondent was willing to address any mental health concerns.
[24] The sentencing judge acknowledged that the Crown was “correct in stating that domestic abuse is a very serious crime, particularly when it involves choking and a custodial period is not outside of the appropriate range.” She then explained how the case was distinguishable from Granger, which included the following:
The Respondent did not have a criminal record; Mr. Granger did.
This case involved one incident of choking and it was not for a long period.
The Respondent pleaded guilty before any trial dates were even considered.
The PSR described Mr. Granger as “an unrepentant angry person,” which was not how the sentencing judge would describe the Respondent.
[25] The sentencing judge also considered that the Respondent had been on bail for two years with no other issues or offences, and that the Respondent has the support of his grandmother. The sentencing judge found that the Respondent spent four or five days in pre-trial custody before obtaining bail, which she described as significant for a first-time offender. Given all the circumstances, she concluded that “general and specific denunciation can be addressed by a suspended sentence followed by probation.”
Evidence Not Considered by the Sentencing Judge
[26] The sentencing judge found that there were no issues while the Respondent was on bail. Unbeknownst to the sentencing judge, the Respondent had been charged with breach of recognizance, but the charge was later withdrawn. It was, however, from the PSR that the Respondent and the complainant had their son during the period the Respondent was to have no contact with the complainant.
[27] The sentencing judge stated that the guilty plea took place before a trial date was set. This in incorrect. However, it is unclear whether this information was before the sentencing judge. It should have formed part of the record before the court.
[28] I will address the admissibility of the “fresh” evidence when considering if there were errors in principle made by the sentencing judge.
Standard of Review
[29] Appellate courts are not to intervene lightly in sentence appeals. Sentencing judges have a broad discretion to impose the sentence they consider appropriate within the limits established by law. The appellate court should not interfere if the court would only have weighed the relevant factors differently because that impairs the deference given to the sentencing judge. The sentencing judge has the benefit of observing the offender and hearing the submissions of counsel: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39 and 49.
[30] The appellate court may intervene in two circumstances. First, if the sentence is demonstrably unfit. Second, if the sentencing judge made an error in principle that impacted the sentence: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26.
[31] “Demonstrably unfit” is also referred to as “clearly unreasonable,” “clearly excessive or inadequate” or “representing a substantial or marked departure”: Lacasse, at para. 52. These various expressions reflect the very high threshold that must be satisfied before an appellate court can intervene when reviewing the fitness of the sentence.
[32] In considering if a sentence is demonstrably unfit, the reviewing court focuses on the principle of proportionality. The sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”: Criminal Code, at s. 718.1; Lacasse, at para. 53. Proportionality is determined on an individual basis considering the circumstances of the accused and the offence committed, and comparing sentences imposed for similar offences committed in similar situations. “A sentence will be “demonstrably unfit” if it constitutes an unreasonable departure from this principle”: Lacasse, at para. 53.
[33] In determining if the sentence is unfit, the reviewing court must also consider the sentencing objectives set out in s. 718 of the Criminal Code and other sentencing principles set out in s. 718.2: Lacasse, at para. 54
[34] Reviewing courts will often consider tariffs or ranges for similar crimes in considering the principle of parity. However, sentencing ranges “are nothing more than summaries of the minimum and maximum sentences imposed in the past:” Lacasse, at para. 57. The Court of Appeal has set out ranges for certain types of offences. The Court of Appeal has not provided a suggested range for assault causing bodily harm involving choking of a domestic partner.
[35] In considering if a sentence is manifestly unfit, the reviewing court must also consider that sentencing is “a highly individualized exercise” that goes beyond a mathematical calculation. It involves a variety of factors: Lacasse, at para. 58.
[36] The second basis in which the appellate court can intervene is where the trial judge made an error in principle that impacted the sentence. As explained in Friesen, at para. 26:
Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably” [citations omitted]. Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence [citation omitted]. If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit.
Issue#1: Was the Sentence Demonstrably Unfit?
[37] I agree with the Crown that the suspended sentence followed by twelve months probation imposed by the sentencing judge was demonstrably unfit for the following reasons.
The Gravity of the Offence
[38] The suspended sentence imposed by the sentencing judge is not proportionate given the gravity of the offence and the degree of responsibility of the offender.
[39] Choking to the point of unconsciousness is a serious offence. The seriousness of this conduct is demonstrated in Parliament’s decision to create a separate offence when choking is used to commit an indictable offence. Section 246(b) of the Criminal Code states:
Everyone who, with intent to enable or assist himself or another person to commit an indictable offence,
(a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance,
is guilty of an indictable offence and liable to imprisonment for life.
[40] The seriousness of the conduct is also reflected by the fact that s. 246(b) is a straight indictable offence and the accused is liable to imprisonment for life.
[41] While that offence was not charged in this case, it does not undermine the seriousness of the conduct. Choking a person to the point of unconsciousness is life threatening. Choking a little longer could result in a person’s death or other serious health consequences. As explained by the Alberta Court of Appeal in R. v. Lemmon, 2012 ABCA 103, 524 A.R. 164, at para. 28:
Rendering a person unconscious, whether by choking, strangulation or suffocation, is an inherently dangerous act that is easily capable of causing death, or brain injury with devastating lifelong consequences. See R v Horvath (1982), 1982 3838 (ON CA), 2 CCC (3d) 196 (Ont CA), R v Wallin, 2003 BCSC 809, and R v Muckle, (unreported. July 28, 2006, Alt. P.C.). The difference in the outcome, between unconsciousness, brain damage and death, may be only a matter of a few additional seconds of pressure. In the final analysis, this is an act of cruel domination met by sheer horror and often accompanied by serious physical and psychological harm.
The Importance of Denunciation and Deterrence
[42] Denunciation and deterrence are to be given paramount consideration in domestic assault cases. “Sentences imposed must promote a sense of responsibility in offenders and an acknowledgment of the harm done, not only to the immediate victim, but also to the community at large”: R. v. Rahaman, 2008 ONCA 1, at para. 46; R. v. Boucher (2004), 2004 17719 (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.), at para. 27.
[43] In R. v. Inwood (1989), 1989 263 (ON CA), 48 C.C.C. (3d) 173 (Ont. C.A.), at p. 181, the Court of Appeal for Ontario held that the principles of deterrence must be given paramount consideration in domestic assaults involving significant bodily harm. The Ontario Court of Appeal held that in the domestic context, where there is significant bodily harm, custodial terms should generally be imposed. As the court explained:
This court has acted on the principle that where there is a serious offence involving violence to the person, then general and individual deterrence must be the paramount considerations in sentencing in order to protect the public. In my opinion, this principle is applicable not only to violence between strangers, but also to domestic violence. Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are. This does not mean that in every instance of domestic violence a custodial term should be imposed, but that it should be normal where significant bodily harm has been inflicted, in order to repudiate and denounce such conduct. [Emphasis in original.]
[44] The importance of general deterrence in sentencing these types of cases was also recognized by the Court of Appeal in Granger. The Court of Appeal upheld a 21-month sentence where a domestic partner was choked to the point of unconsciousness. The court held that the “offence was a very serious one involving domestic violence. The principles of specific and general deterrence as well as denunciation warranted a sentence of the magnitude imposed”: at para. 5.
[45] I recognize there were significantly more aggravating factors in Granger than in the present case. In Granger, the appellant assaulted the complainant after he broke into her apartment. On a second occasion, during a prolonged incident, he pulled the complainant from a chair and choked her. She lost consciousness and control of her bladder. During the attack, the accused threatened her with death. Swelling and red markings were observed on her neck. At trial, the appellant was convicted and sentenced to 18 months in custody plus pre-trial custody, which resulted in the equivalent of a 21-month custodial sentence. He appealed his conviction and sentence, but the appeal was dismissed.
[46] As mentioned above, in his PSR Mr. Granger was described as an “unrepentant angry abusive recidivist alcoholic, who had been unable to sustain relationships with women.” He also had a criminal record for impaired driving, careless use of a firearm, threatening death, and breaching a recognizance.
[47] Although the factors in Granger were more aggravating, this distinction does not mean a non-custodial sentence for choking a domestic partner to the point of unconsciousness is a fit sentence.
Proportionality of the Sentence
[48] The court must also consider the proportionality of the sentence having regard to the gravity of the offence and the degree of responsibility of the offender. The Respondent accepted responsibility for his actions as demonstrated by his guilty plea and willingness to undergo treatment for his addiction and mental health issues. The Respondent also had no criminal record, which allows the court to infer that the Respondent’s serious conduct was out of character.
[49] These mitigating factors are not uncommon. A review of the jurisprudence suggests that a custodial sentence is necessary for choking a domestic partner, even where it is not to the point of unconsciousness, where the above mitigating factors are still present: R. v. Yon, 2014 ONCJ 741, at para. 48; R. v. Reynolds, 2013 ABCA 382; R. v. Pumphrey (2011), 317 Nfld. & P.E.I.R. 21; R. v. Francisco, 2005 MBCA 110.
[50] Given the importance of denunciation and deterrence, the gravity of the offence, and the degree of responsibility of the offender, a non-custodial sentence for choking a domestic partner to the point of unconsciousness, absent exceptional circumstances, is not a proportionate sentence. There were no exceptional circumstances in this case. The Respondent was a first-time offender who pleaded guilty and had the support of his grandmother. These mitigating factors are not exceptional. The sentence imposed is therefore demonstrably unfit.
Issue #2: Did the Sentencing Judge Make Errors in Principle that Impacted the Sentence?
[51] The Crown submits the sentencing judge failed to give sufficient weight to the principles of denunciation and deterrence, and merely paid lip service to these principles in her sentencing reasons.
[52] The Respondent submits that the sentencing judge was entitled to balance the various factors in this case and deference requires that this court not reweigh the factors. The sentencing judge recognized the seriousness of domestic violence and that a custodial sentence was not outside the range. The principles of denunciation and deterrence were also placed before her, and she held that the imposed sentence achieved these objectives.
[53] In assessing the sentencing judge’s reasons for sentence, the reviewing court must consider the context in which the reasons were provided. This case involved a guilty plea in a very busy courthouse. The issues were straightforward, and the sentencing judge is presumed to know the law. Nonetheless, I find that the sentencing judge erred in principle by unreasonably failing to give denunciation and deterrence sufficient weight, and this impacted the sentence she imposed.
[54] In concluding the sentencing judge erred in principle, I recognize that deference must be given to the weight a sentencing judge gives to particular factors. However, as outlined above, denunciation and deterrence are to be given paramount consideration in the sentencing of domestic assault involving significant bodily harm. The sentencing judge’s reasons suggest that she gave no, or very little, weight to these principles. Rather, she focused solely on the rehabilitative prospects of the Respondent.
[55] The sentencing judge’s reasons state that “domestic abuse is a very serious crime particularly when it involves a choking, and a custodial period is not outside of the appropriate range.” For seven pages of transcript, the reasons then review the mitigating factors relating to the Respondent and distinguish the case from Granger. The sentencing judge concludes that “in all of the circumstances, it is my view that general and specific denunciation [deterrence] can be addressed by a suspended sentence followed by probation.”
[56] The sentencing judge’s reasons provide no basis for why a suspended sentence and period of probation addresses the principles of general deterrence and denunciation. Nor is there a condition in the probation order that addresses these principles. There are also no reasons to explain why in the circumstances of this case the principles of deterrence and denunciation should not be given paramount consideration. As such, while the sentencing judge mentioned these principles in her decision, she appears to have given no, or very little, weight to them in sentencing the Respondent. This is an error in principle given the importance of denunciation and deterrence in domestic assaults involving significant bodily harm.
Other Alleged Errors
[57] Given my finding that the sentencing judge erred in imposing an unreasonable or unfit sentence and erred in principle when sentencing the Respondent, it is not necessary to address the factual errors that the Crown submits the sentencing judge made. However, I note that the factual errors do not provide a sufficient reason either individually or cumulatively to have impacted the sentence. Therefore, the factual errors would not provide a sufficient basis on their own to interfere with the sentence. The accurate facts are, however, relevant in considering anew the appropriate sentence.
[58] The sentencing judge erred in stating that the Respondent pleaded guilty before a trial date was contemplated. There was no evidence to suggest this order of events and the evidence is actually to the contrary. This was not a plea at the earliest opportunity, which may have attracted more weight as a mitigating factor than a plea given after a trial date was set. I agree, however, that the mitigating effects of a guilty plea, namely demonstrating remorse and saving the complainant from testifying, were unaffected by this error. This evidence should have been known to the trial judge as part of the court record.
[59] The sentencing judge also erred in finding that while the Respondent had been on bail for two years, “no other issues or other offences [had] arisen.” This statement is incorrect. The Respondent’s bail precluded him from having contact with the complainant. The PSR focussed on how the Respondent and complainant had a child together. Given the child was four months old at the time of the PSR, it is implicit that the Respondent had contact with the complainant during the time he was not supposed to.
Issue #3: What is the Appropriate Sentence?
[60] The Crown submits that an appropriate sentence is in the range of six to nine months imprisonment.
[61] The Respondent submits that despite any errors of the sentencing judge, an appropriate sentence is a suspended sentence. At the sentencing, the Respondent submitted that in the alternative to a suspended sentence, a 30 to 60 day intermittent sentence would be appropriate.
[62] As I have already explained why the suspended sentence was unfit, I find a non-custodial sentence is not appropriate. I find that an appropriate sentence would be 60 days in custody followed by a 12-month period of probation, minus the time spent in pre-trial custody, for the reasons set out below.
[63] The Respondent committed a serious offence. He choked his domestic partner to the point of unconsciousness. The Respondent’s conduct was life threatening.
[64] The principles of denunciation and deterrence must be given significant weight in imposing a sentence because of the seriousness of the offence in the context of a domestic relationship.
[65] There are, however, significant mitigating circumstances in this case. First, the Respondent was 26 years old at the time of the offence. He had no prior criminal record. He also pleaded guilty to the offence. I recognize his plea was not prior to a trial date being set, but it was in advance of the trial date itself, sparing court resources and the complainant’s need to testify. His guilty plea demonstrated his remorse, as did his apology to the complainant shortly after the incident.
[66] The Respondent also has the love and support of his grandmother and is employed and financially supporting his young son. The Respondent was not convicted of any offences while his charges remained outstanding. While the Respondent was charged with a breach of probation, that charge was withdrawn, and there are no details as to what constituted the breach. There is no evidence that he engaged in any further acts of domestic violence with the complainant or any other person while on bail. I also note that the complainant, unlike in many cases, did not suffer any long-term trauma as a result of the choking. She is of the view that the Respondent requires help for his alcohol and mental health issues.
[67] Many of the cases relied upon by the Crown to support a six-to-nine-month custodial sentence involve other aggravating factors, including other or more serious offences, or sentencing after trial, and are distinguishable from the facts in this case.
[68] For example, in Rahaman, the appellant plead guilty to several offences and received a nine-month sentence. The appellant was a first-time offender who unlawfully confined the complainant in her car, threatened her with a knife and choked her, though not to the point of unconsciousness. The Court of Appeal held that, although a close call, the trial judge made no error in finding it inappropriate to serve the sentence in the community: Rahaman, at para. 49.
[69] In Yon, the accused pleaded guilty to aggravated assault of his wife. He beat and choked his wife when she refused to have sex and threatened to beat her to death. The beating stopped when their five-year old child entered the room. The accused had no criminal record. The trial judge was of the view that a six-month sentence of imprisonment was appropriate: Yon, at para. 48.
[70] Finally, in R. v. O.K.S., 2019 ONCJ 482, at paras. 33-34, after trial, the trial judge imposed four months for a choking assault to be served concurrently to 27 months for sexual assault on a domestic partner. The assault consisted of pulling the complainant’s hair and choking her, but not to the point of unconsciousness. The complainant suffered a number of mental health issues following the event.
[71] When the objectives and principles of sentencing are considered as set out in ss. 718 and 718.2 of the Criminal Code, I am of the view that a sentence of 60 days less pre-trial custody and 12 months probation is appropriate.
Issue #4: Should the Court Stay the Imposition of the Sentence?
[72] A sentence is usually stayed on appeal only where the offender has effectively served a substantial part, or the equivalent, of the appropriate sentence. In R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, at para. 32, L’Heureux Dubé J. in dissent held that it was appropriate to stay a sentence of incarceration where the offender had fully served a 21-month conditional sentence. The majority upheld the original sentence. In R. v. McBean, 2007 ONCA 275, the Ontario Court of Appeal stayed the remaining portion of a 36-month custodial sentence where the offender had already served 12 months of pre-trial custody and six and a half months of a custodial sentence.
[73] In deciding whether to re-incarcerate, the court must consider a number of factors, including the impact of re-incarceration, the delay in the appellate process, the degree to which the offender’s rehabilitation will be impacted, and the potential for injustice if the sentence is already served: R. v. H.E., 2015 ONCA 531, 336 O.A.C. 363, at paras. 56-57.
[74] After considering the various factors, I am of the view that it is not appropriate to re-incarcerate the Respondent. I have come to this conclusion for the following reasons.
[75] First, this matter took some time to be heard. The Respondent was sentenced on September 20, 2020. The appeal was not heard until almost a year later. This is through no fault of the Respondent. At this point, the Respondent has completed his probation. Had the Respondent received the appropriate sentence, he would be out of custody and almost completed his probation by this point.
[76] As noted in R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at paras. 11 and 19, the principles of denunciation and deterrence can be satisfied without reincarcerating the Respondent where there is a significant period of appellate delay. In this case, the delay was not inordinately significant, but the same principle can apply. The pronouncements of this court about the importance of denunciation and deterrence in sentencing an offender for choking a domestic partner to unconsciousness, and the appropriate resulting sentence, are not diluted if this particular Respondent is not re-incarcerated.
[77] Second, I have considered the rehabilitative gains the Respondent has made. The Respondent has been a responsible contributing member of society since this offence. A letter was filed with the court demonstrating that the Respondent successfully completed the Partner Assault Response Program on December 19, 2020. His probation required him to participate in any counseling or rehabilitative programs as directed by his Probation Officer. There is no evidence that the Respondent failed to comply with any terms of his probation. He has not been charged with any subsequent offences. At this point, over three years has passed since the choking offence. There is no evidence before me that the Respondent has engaged in any similar conduct since that time.
[78] Third, I have also considered that the Respondent spent six days in pre-trial custody, which is the equivalent of nine days. This is not an insignificant period of time for a first-time offender.
[79] For the above reasons, I am of the view that reincarcerating the Respondent at this time would not serve the other principles of sentencing.
Conclusion
[80] I would allow the appeal and set aside the sentence imposed at trial. A proper sentence would have been 60 days imprisonment minus the equivalent of nine days for pre-trial custody plus twelve months probation. The Respondent should receive a sentence of a 51 days in prison plus twelve months probation. I impose this sentence and permanently stay the execution of that sentence.
Dennison J.
Released: October 20, 2021
COURT FILE NO.: CR-21-00000659-00AP
DATE: 2021 10 20
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E N:
HER MAJESTY THE QUEEN
Appellant
- and -
JASON MARTIN
Respondent
REASONS FOR JUDGMENT
Dennison J.
Released: October 20, 2021