Court File and Parties
COURT FILE NO.: 182AP-21
DATE: 2022/10/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Lisa Temple
Appellant
Mr. Yih for the Respondent/Crown
Mr. P. Dinis, for the Appellant
HEARD: September 29, 2022
APPEAL ENDORSEMENT
[1] The appellant pled guilty to single count of assault with a weapon upon her partner as a result of an altercation in their home. At the sentence hearing, the Crown sought a suspended sentence with probation. The defence sought a conditional discharge.
[2] The appellant and her partner were separated for approximately three months at the time and were still residing in the same residence at the time of the incident. During an argument, the appellant grabbed the barrel of an inoperable gun which had been used to prop open a window. The appellant swung this metal barrel and stuck her partner twice before her partner took it away from her. Her partner received a small cut to his pinky finger and his lip. Soon after her partner asked the appellant to leave the home the appellant punched her partner repeatedly in the face. In addition, the appellant possessed a knife and rubbed the blade of the knife on the boot that the complainant was wearing. No other damage or injury to the complainant was caused. The parties remained separated since the incident some months earlier.
[3] The appellant had no prior record, had separated from her partner after a twelve-year marriage, and was the mother of four children between the ages of three and eleven years of age. The appellant’s former spouse was supportive of her and acknowledged that the appellant had also been supportive during their relationship during which her partner was in the Canadian military.
[4] The appellant’s counsel at this appeal hearing narrowed the issue. Counsel submits the sentencing justice erred on the basis that he made the sex of the offender an inappropriate sentencing factor that invoked a stereotype based on the sex of an offender. In doing so, Counsel submits the hearing justice erred in improperly considering applicable factor being the sex of the appellant. Counsel requests that on the basis of the alleged error, there should occur a hearing de novo and grant a conditional discharge.
[5] The Crown submits that the sentencing justice made no error and that the Crown made no submissions to invoke any improper stereotypes.
[6] The law is well-settled. The appellate court will intervene only when the sentence imposed is manifestly outside the acceptable range or the sentencing justice erred in principle or erred in considering the applicable factors. See R. v. Lacasse, 2015 SCC 64. It is also important to be mindful that “it has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime… . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.” See R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R 500 at para. 92.
[7] The central issue at the sentencing hearing was that of a conditional discharge. The sentencing justice properly summarized the facts and commented that the barrel of the gun was of no moment in the circumstances. He characterized the barrel as a chunk of metal that was used to assault her partner. The sentencing justice expressly addressed that the fundamental purpose of sentencing was to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by the imposition of just sanctions.
[8] The sentencing justice then considered and articulated the mitigating and aggravating factors. He observed an assault on a domestic partner was a statutorily aggravating feature and he characterized this as a relatively serious offence involving the use of a weapon in an assault upon an intimate partner. He expressly referred to the sentencing principles that were engaged and the requirements of general and specific deterrence as well as the key requirement of denunciation, the appellant’s rehabilitation, the restraint principle since the appellant was a first offender, and the overall principle of proportionality that required weighing the offender’s moral blameworthiness against the gravity of the offence. He found that the appellant was entirely to blame, lost control of her emotions and engaged in violence with a weapon to inflict harm
[9] He then proceeded specifically address and articulated the statutory requirements of granting a discharge. He stated that a discharge is not restricted to trivial offences and that a discharge may be refused where the offence is particularly prevalent in the community or a result of the nature of offence itself. The sentencing justice expressed consideration of defence counsel’s argument of the factor of the stressors in military family life, however, he found that the facts of the case took the case itself out of consideration for the imposition of a conditional discharge. He contrasted this case from a simple case of losing control and lashing out. Rather, the appellant picked up a weapon, employed it to effect on her partner, struck and left modest injury, and then continued to punch her partner in the face.
[10] The sentencing justice considered various potential penalties and stated that a jail sentence would not be out of the range of appropriate sentences. He referenced that offences of this by a male could be sentenced to jail. He mentioned this in the context of also stating specifically that the “fact that this is an assault perpetrated by a female upon a male is no cause for the departure from the general principles of sentencing.” In the context of the sentencing justice’s reasons as articulated, it cannot be found that the sentencing justice made the sex of the offender a sentencing factor nor improperly invoked a stereotype that would amount to an error in principle.
[11] The sentencing justice gave proper consideration and found that “the facts of the case itself take the matter of consideration for the imposition of a conditional discharge.” This was, as he was entitled to find, a serious case of domestic violence and not a simple case of losing control and lashing out. In this case the initial assaults with a weapon caused modest injury and were followed by continued punches to the face and other sustain assaultive conduct toward an intimate partner. There was no error in principle.
[12] As a result of the analysis and findings made, the sentencing justice committed no error. The appeal is dismissed.
Released: October 13, 2022
McArthur J
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Lisa Temple
REASONS FOR JUDGMENT
McArthur J
Released: October 13, 2022