R. v. MK, 2022 ONSC 5710

COURT FILE NO.: 19-DV4985

DATE: 2022/10/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

C. E. MK

David Nugent, for the Crown

Rosalind E. Conway, for the offender

HEARD: September 28, 2022

Restriction on Publication

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding under section 486.4 of the Criminal Code of Canada directing that the identity of the complainant or witnesses and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way. This decision does not refer to the complainants or witnesses by names and may be published.

REASONS FOR Sentence

Roger J.

1The offender was charged with eight counts of violence against his former spouse, Ms. L: three counts of assault, three counts of assault causing bodily harm, one count of aggravated assault, and one count of sexual assault. The alleged events were said to have occurred in or about 2003, 2005, 2006, 2012, 2015, 2016, and 2017, when the two were a couple.

2The offender’s first trial, by judge and jury, ended in a mistrial when the jury could not arrive at a verdict. The Crown re-prosecuted, and this second trial was again heard before a judge and jury.

3At the conclusion of the second trial, the jury:

• convicted MK of assault causing bodily harm at count five and of assault at count eight;

• found MK not guilty of assault causing bodily harm at count two and at count four; and

• could not arrive at a verdict on the other four counts (assault at count one and at count three, sexual assault at count six, and aggravated assault at count seven).

Facts

Circumstances of the offences

Facts

4The facts relevant to count five are that in October 2015, Ms. L confronted the offender about certain messages on his phone. An argument followed and the offender threw Ms. L to the floor of their bedroom and kicked her. Ms. L felt pain at her ribs, had difficulty breathing, and went to the hospital. An x-ray report taken the next day confirms that Ms. L suffered “a couple of mildly displaced left rib fractures”. Ms. L felt pain in that area and had difficulty breathing for about three to four weeks. Ms. L testified that the offender apologized and accompanied her to the hospital.

5Count eight occurred in September 2017, near the end of the offender’s and Ms. L’s relationship. They argued and the offender shook Ms. L and pushed her onto their kitchen floor. During this incident, Ms. L lay on the floor while the offender stood over her, grabbed her shirt with his hands, and put one knee on her. At that point Ms. L’s mother and the couple’s son arrived.

6By way of context, Ms. L met the offender in 2002. She had two children from a previous relationship. She and the offender had a son in 2004, C. Both described a toxic relationship, marred by financial difficulties and related pressures and by heavy alcohol consumption. Ms. L was occasionally observed with bruises, and she was seen with a blackeye. It is not disputed that Ms. L occasionally punched the offender; and she gave him a blackeye. Ms. L and the offender separated in September 2017, shortly after the events of count eight, but still saw one another briefly after that until they finally separated.

Circumstances of the offender

Circumstances of the offender

7The offender is 49 years old. He is a self-employed construction worker. Sentencing submissions were delayed at his request, and on the Crown’s consent, to minimize interruptions during construction’s busiest season.

8The offender filed correspondence from two contractors for whom he works, indicating that he is a good and valued construction and carpentry worker. His income is said to vary, but no evidence was presented on this.

9He has a grade 12 education and completed a five-year apprenticeship in sheet metal work.

10A letter was also filed by his current spouse, Ms. B, who also testified during the sentencing hearing.

11Ms. B has been in a relationship with the offender for about four years. However, they do not reside together because she says that their respective parenting obligations conflict with this aspiration.

12In her letter, Ms. B states that she knows the offender differently from what she heard at trial. Ms. B sat through the trial, and states that what she heard does not reflect her ongoing experience with the offender. She says that she knows the offender as a good, hardworking, loving, and generous person. She says that he looks after her, that he has never raised his voice at her, and that he is close to his parents. She says that the offender is busy looking after his son, C. That he is a “simple man who likes to work and come home to spend time in his garden or garage with his dog.”

13C has lived with the offender since his parents separated, and he refuses to see his mother. C resents his mother for these charges, is protective of his father, and fears possible consequences to his father.

14Ms. B says in her letter to the court that the offender looks after and provides for C, and that C and the offender are very close. She says that the offender is responsible for the $1,900 monthly rent of his and C’s townhome. Ms. B also says in her letter that C “had a very hard time the past few years”. This did not come out at trial, where C was presented as a high-performance high school athlete.

15Ms. B says in her letter, and testified during sentencing submissions, that C is a “recovering drug addict (Coke, Xanax) and he also cut himself”. She says that C was not in a good situation when she met the offender and that he was “under the influence 24/7 for a long time”. She says that C attended rehab and is doing better, but that the ongoing situation with his parents is one of his main triggers. She worries that imposing jail on the offender could negatively impact C. She testified that C would have nowhere to go, that he might do heavy drugs, and that he cuts himself when upset. C is studying to become a plumber, and Ms. B worries about the impact a jail sentence on the offender could have on C.

16The offender has a criminal record dating to 2006 when he plead guilty to and was convicted for having care or control of a vehicle while having over 80 milligrams of alcohol in his blood.

17The offender did not testify during the sentencing hearing, and when asked whether he had anything to say, responded “no, not at this time”.

Impact on the victims

Impact on the victims

18Only Ms. L filed a victim impact statement.

19In her statement, Ms. L gives a moving account of how she has been impacted by these events. She says that she lived in constant fear for her safety throughout their relationship. She misses seeing C and loves him very much. She says that she was impacted financially by their relationship because the offender left her with debts.

20Ms. L says that she felt pain at her ribs on impact, could not breathe properly for a month, and had difficulty sleeping, all of which then impacted her daily activities.

21She says that she was angry and hurt after the offender assaulted her prior to the end of their relationship. Ms. L says that she “just could not live like that anymore,” that she was “an emotional wreck,” and that she was afraid.

22From the evidence heard during the trial, it is apparent that these events also had a detrimental impact on Ms. L’s daughter and on C.

23With regards to C, Ms. L and her mother testified during the sentencing hearing that they would gladly assist C. They said that C is always welcome to live with them, or with his aunt. Ms. L pointed out that C has a girlfriend, where he lives on occasion, whom Ms. L believes could help him should his father be incarcerated.

Parties’ positions on sentencing

Parties’ positions on sentencing

24The Crown recommends a jail sentence of six to eight months, followed by two years of probation. The Crown also recommends a DNA order, a weapons prohibition order, and a non-communication order.

25The Crown relies primarily on two decisions: R. v. Chirimar, 2007 ONCJ 385 and R. v. Outram, 2015 ONSC 1934.

26In Chirimar, following a guilty plea to two counts of assault causing bodily harm against his wife, the court imposed a jail sentence of six months, followed by three years of probation and ancillary orders.

27The Crown argues that this case is similar to the circumstances in Chirimar. The Crown says that this is also a case of ongoing abuse, with one assault occurring in 2015 and the other in 2017. Although Ms. L’s injuries were not as extensive as the injuries described in Chirimar, the Crown argues that a fractured rib is a serious injury. The Crown also argues that none of the mitigating features described Chirimar are present in this case. For example, the offender is not a youthful offender, and he did not plead guilty. Ms. L testified at a preliminary inquiry, at two jury trials, and at a sentencing hearing. The Crown points out that there is no evidence that the offender has attended any treatment, counselling, or performed any community service, as was the case in Chirimar. The Crown also points out that the offender has expressed no remorse for the harm he caused.

28In Outram, the court imposed eight months (less pre-sentence custody), followed by three years of probation and ancillary orders, following a conviction of assault and assault causing bodily harm on the offender’s former girlfriend.

29The Crown argues that the verdicts in this case (assault and assault causing bodily harm) are like those in Outram. However, that unlike the circumstances in Outram, the offender has expressed no remorse and made no efforts towards rehabilitation.

30The Crown argues that a sentence of about eight months is at the low-end of the range and reflects that the offender is employed and caring for his son. The Crown submits that a jail sentence is required to properly denounce and deter this offender, and to send the right message that violence towards domestic partners is unacceptable.

31The offender recommends that the court not impose a period of incarceration. He argues that he is concerned about the impact incarceration could have on his son. He recommends community services of 60 to 100 hours and probation for 12 to 18 months. Alternatively, if jail is ordered, he recommends that it be served intermittently. He took no position on the ancillary orders sought by the Crown and asked for six months to pay the required surcharges.

32The offender filed an email from the Ottawa Detention Centre. It indicates that offenders who receive an intermittent sentence can apply for GPS monitoring, at no cost, and if accepted serve their intermittent sentence by way of house arrest, confined at their residence from Friday at 8 p.m. to Monday at 6 a.m.

33The offender points out that his first trial resulted in a hung jury and mistrial. He points out that at his second trial he was found guilty of two counts, but found not guilty of two counts, and the jury was undecided on four of the eight counts, which, he says, explains his plea of not guilty. He spent no time in pre-trial custody and has complied with his bail conditions.

34The Crown has not decided whether to continue the prosecution of the outstanding four counts.

35The offender argues that Ms. L was violent with him, that she punched him, and that she continued to see him after he left their home. He argues that the cases relied upon by the Crown do not involve a victim also assaulting the offender on other occasions.

36The offender relies on the following decisions:

• R. v. Khanna, [1998] O.J. No. 2192 (C.A.)

• R. v. Carson (2004), 2004 CanLII 21365 (ON CA), 185 O.A.C. 298 (C.A.)

• R. v. Inwood (1989), 1989 CanLII 263 (ON CA), 69 C.R. (3d) 181 (Ont. C.A.)

• R. v. H.T., 2022 ONCJ 59

• R. v. Vicente, 2018 ONCJ 716

• R. v. J.P., 2018 ONSC 7481

• R. v. J.B., 2018 ONSC 5555

37The offender argues that in Khanna, the Ontario Court of Appeal substituted an absolute discharge in circumstances involving a turbulent relationship and violence against the offender.

38That in Carson the Court of Appeal granted a conditional discharge where the complainant had been assaultive to the offender, and both parties were police officers.

39That in Kirby the Court of Appeal considered a 90-day sentence for assault on a mother and child, in more serious circumstances.

40The offender argues as well that in H.T., a conditional discharge was granted to a female Indigenous offender, with serious substance abuse issues, convicted of three counts of assault on her girlfriend for shoving her, biting her, and punching her in the face.

41The offender submits that a conditional discharge with 100 hours of community services was granted in Vicente to an offender who had committed assault, six years apart, on his wife; he had kicked her and broken her arm but had taken her to a hospital and had been instantly remorseful.

42He argues that in J.P., 60 days of jail was imposed on an offender found guilty of three counts of assault involving pushing, kicking, and dragging the complainant by her hair; Gladue principles were considered in that case.

43Finally, the offender argues that a 90-day intermittent sentence and three years of probation were imposed in J.B. for an assault causing bodily harm where the offender struck the victim and injured her tailbone.

Legal parameters

Legal parameters

44When proceeding by indictment, assault is subject to imprisonment not exceeding five years (s. 266 of the Criminal Code, R.S.C. 1985, c. C-46), and assault causing bodily harm to imprisonment not exceeding ten years (s. 267).

45The only sentence that is unavailable to the court for these offenses is a conditional sentence for the count of assault causing bodily harm because the Crown proceeded by indictment (s. 742.1(e)). Otherwise, for that verdict, all other sentences are available, including an absolute discharge, conditional discharge, suspended sentence, intermittent sentence for up to 90 days, and incarceration. All sentences, including a conditional sentence, are available for the charge of assault.

Sentencing principles

Sentencing principles

46The fundamental purpose of sentencing is to protect society and to contribute to the 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 offenders, to separate offenders from society where necessary, to assist in rehabilitation, to provide reparations, and to promote a sense of responsibility in offenders: see Criminal Code, s. 718.

47In cases including offences against a vulnerable person, the objectives of denunciation and deterrence are particularly important considerations: see Criminal Code, s. 718.04.

48It is a fundamental principle of sentencing that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: see Criminal Code, s. 718.1.

49Section 718.2 of the Criminal Code provides that the court must also consider the following:

a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances;

b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

c) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

d) An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and

e) 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 the circumstances of Aboriginal offenders.

50Relevant to the circumstances of this case, s. 718.2(a) also provides that evidence that the offender, in committing the offence, abused the offender’s intimate partner is an aggravating circumstance, as is the abuse of a position of trust or authority in relation to the victim, and where the commission of the offence had a significant impact on the victim, considering her age, personal circumstances, health, and financial situation.

51As well, a court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims: see s. 718.201 of the Criminal Code.

52In R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 43, the Supreme Court states that “imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.” Additionally, “[i]t has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime.”: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 92.

Analysis

Analysis

53Dealing first with the cases argued by the offender, I note that Khanna involved what was described as a minor assault. That is not the case here, as Ms. L suffered “a couple of mildly displaced left rib fractures.”

54Carson involved facts that are unique. It does not involve a long-term relationship with two instances of violence, years apart, like the case at hand. The facts in Carson could be construed as the offender assaulting the victim while trying to protect her. The offender had already served the equivalent of a ten-month custodial sentence. Furthermore, in Carson, the trial judge found that the complainant inflicted serious injuries to the offender at the time of the assault, and that a harsher sentence would unnecessarily impact the offender’s employment prospects.

55Inwood involved facts that are not dissimilar with regards to the assault causing bodily harm to the offender’s wife but does not involve an additional count of assault over two years later. In that regard, it is interesting what the Court of Appeal mentioned about cases involving repeated assaults, (at pp. 188-189):

The 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. I am pointing out later that battered wives, where there are persistent or prolonged assaults, may require special consideration in determining the appropriate punishment.

56Also in Inwood, the Court of Appeal adopts an earlier citation that no matter how unhappy a relationship might be, or however great the marital stress might be, resorting to violence is not the answer. It found that a custodial sentence was required. That although of short duration, the violence was serious and merited more than a suspended sentence and a lengthy term of probation “to bring home to the public and to Inwood that such behaviour will not be tolerated” (at p. 189). The court said that a custodial term of three months should have been imposed followed by three years of probation.

57H.T. involved counts of simple assault and a Gladue report. A pre-sentence report outlined unfortunate circumstances for the offender, none of which are present in this case. J.P. also involved Gladue principles.

58Vicente involves similar charges and serious assaults where the court imposed a conditional discharge with three years of probation. However, the circumstances of the offender are quite different. In Vicente, the offender plead guilty, had the support of his wife, was instantly remorseful, apologized, and attended numerous counselling sessions. In the case before me, although Ms. L said that the offender apologized after he kicked her in the ribs, a story was then concocted to protect the offender, the offender denies that this incident occurred, and the offender took no rehabilitative step.

59In J.B., the court was concerned that J.B. could lose his employment and his residence if he spent too much time in custody and sentenced him to a further 90 days to be served intermittently. I have no such evidence here. The sentencing hearing was delayed for the offender to work uninterrupted, and I understand that he worked close to seven days per week throughout the summer. I have no evidence of his income, savings, debts, and related inability to pay his rent and other obligations should he be incarcerated and no evidence that he will not be employed following his release.

60I agree with counsel for the offender that the circumstances described in the cases relied upon by the Crown are more serious than those in the case at hand. However, I note that in Chirimar, the court would have imposed more than six months had the offender not engaged in counselling and community service.

61I agree that the lack of a plea is not, here, a relevant consideration. Out of eight charges, the offender was found not guilty of two, and the jury could not decide four, including the most serious, sexual assault.

62Similarly, I also agree that the offender’s criminal record is dated, unrelated, and has no impact.

63However, aggravating is the fact that the offender abused an intimate partner, and that the offences had a significant impact on Ms. L, as demonstrated by her victim impact statement. I appreciate that the offender disagrees with many parts of the victim impact statement; nonetheless, it still describes a significant impact. As well, the Criminal Code provides that when sentencing for an offence that involved the abuse of an intimate partner, the court shall consider the increased vulnerability of female persons who are victims (s. 718.201). Also aggravating is the fact that the parties’ son partially witnessed the assault at count eight.

64The offender in this case showed no remorse. This is not aggravating, but his continual blaming the victim for having assaulted him on other occasions and arguing that the victim continued to see him after they separated, demonstrate a lack of insight in the findings of the jury. A victim is not somewhat less of a victim because on other occasions she assaulted the offender, or because she continued to see the offender after their separation. This is not a case involving any allegation of self-defence.

65Denunciation and deterrence are of primary importance in cases of domestic violence. Still, a custodial term is not always required, but it should be normal where significant bodily harm was inflicted.

66A “couple of mildly displaced left rib fractures” is not an insignificant injury. The victim experienced pain and difficulty breathing for three to four weeks.

67In Inwood, the court imposed a sentence of three months and three years of probation. Although the circumstances of this case bear some similarity to those of Inwood, here, there is also a second assault occurring almost two years later, and the court suggested in Inwood that cases of recuring abuse should be treated more severely.

68C’s ongoing difficulties are a serious concern for this court. However, I must still arrive at a fit sentence.

69What is suggested by the offender would not be a fit sentence. Community service and probation are not sufficiently deterring considering the circumstances of this case. Similarly, an intermittent sentence would not be a fit sentence because, in all probability, it would be served at home and the offender apparently enjoys being at home and working in his garage or his garden. Sufficient specific and general deterrence, appropriate to the circumstances of this case, would be missing from any such sentence.

70I do not accept that C would have no idea where to go or that he would be more at risk should the offender be incarcerated. C is 18 years old, and he has family and a girlfriend. Ms. L and her mother would also gladly welcome him at any time, although I appreciate that C is unlikely to accept this.

71Further, I find suspect and improbable that the offender, who is presented as a caring parent, brings his son’s difficulties as a shield, yet conveniently made no plan for what would happen to C should the offender be incarcerated.

72The offender worked all summer, but I have no idea of his savings, or of his plans for what will happen to his apartment should he be incarcerated, only that his rent is $1,900 per month. I also have no evidence that the offender plans to vacate his apartment or that it will not be available to C should the offender be incarcerated.

73The risk of a detrimental impact to C should his father be incarcerated seems smaller than the risk to C of being left with the impression that what he partially witnessed at count eight does not warrant a period of incarceration.

74Considering all circumstances, I find that a custodial sentence is required.

75Using Inwood as a benchmark, it is my view that a sentence of four months of incarceration, followed by two years of probation with community service is warranted. As was said in Chirimar, “A lesser sentence would not sufficiently emphasize the relevant objectives of sentencing.” Such a sentence is appropriately denunciatory and deterring. It achieves an appropriate balancing of the sentencing objectives required by the circumstances of this case.

Disposition

Disposition

76Mr. MK please stand.

77For the reasons outlined above, I impose the following sentence:

a. 122 days in custody, concurrent on both counts five and eight; and

b. probation for a period of two years starting on the date of your release with conditions outlined below.

78The terms of probation include the mandatory terms provided at s. 732.1(2) of the Criminal Code, including that you keep the peace and be of good behaviour, that you appear before the court when required to do so, and that you notify the court, or the probation officer, in advance of any change of name or address and of any change of employment or occupation.

79The other terms of probation are the following:

a. You are to report to a probation officer within 48 hours of your release and thereafter as directed by your probation officer.

b. You are to attend, comply with, and complete any rehabilitation, treatment, and counselling as directed by your probation officer, to include, at a minimum, the Partner Assault Response Program and a substance abuse program.

c. You are to perform 70 hours of community service as directed by your probation officer, but to be completed within eight months of your release.

d. You are to sign all releases and consents, as requested by your probation officer, to confirm your participation in and compliance with the terms of this probation order including any terms of counselling, rehabilitation, and community service.

e. You are to provide proof of your attendance and completion of any counselling, rehabilitation or programs and proof of community service as directed.

f. You are to live at such address as has been approved by your probation officer.

g. You are not to posses, own, or carry any weapon, as defined in the Criminal Code.

h. You are to abstain from communicating, directly or indirectly, with Ms. L.

i. You are to abstain from being within 250 metres of the residence or place of work of Ms. L.

80I also make the following corollary orders, the first being a DNA order for the collection of required bodily fluids. The second is an order under s. 109 of the Criminal Code requiring you to abstain absolutely from the possession of any firearm, ammunition, or any other item referred to in that section, beginning today and ending not earlier than ten years after your release form imprisonment. I also make an order under s. 743.21 of the Criminal Code that you abstain from communicating, directly or indirectly, with Ms. L during the custodial period of the sentence. Applicable surcharges are payable within the next six months.