His Majesty the King v. J.B.
Court File No.: CR-21-101409 Date: 2022-10-27 Ontario Superior Court of Justice
Between: His Majesty the King – and – J.B., Accused
Counsel: T. Holmes, for the Crown S. Safa and S. Durica, for the Accused
Heard: June 27 – 30, July 4 – 8, and September 13, 2022
The Honourable Justice I.R. Smith
Reasons for Sentence[^1]
[1] Following a trial by jury, J.B. was convicted of the offence of aggravated assault but acquitted of several other offences. All counts alleged various forms of abuse against J.B.’s former partner, A.S. It now falls to me to impose a fit sentence for the offence which the jury determined was proved beyond a reasonable doubt.
[2] The parties take starkly different positions. Counsel for J.B. proposes a sentence of 90 days to be served intermittently or a conditional sentence of 12 months. Crown counsel proposes a penitentiary sentence of 3 years. Counsel agree, however, that some period of probation should also be considered if the appropriate custodial sentence is less than two years. They also agree respecting the various ancillary orders which should accompany the sentence.
Facts
[3] My first task is to set out the facts which are express or implied by the jury’s verdict, and to make my own findings of fact where the implications of the verdict are ambiguous (Criminal Code, R.S.C. 1985, c. C-46 (the “Code”), s. 724(2); Regina v. Ferguson, 2008 SCC 6, at paras. 15 – 19; Regina v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, at paras. 14 – 15).
[4] The clearest implication of the jury’s verdict is that, on February 20, 2020, J.B. beat A.S. about the head leaving her head and face badly bruised and swollen. I will return to a fuller description of A.S.’s injuries but note now that A.S.’s evidence on this point was corroborated by startling photographs of those injuries.
[5] The following description of the events of that evening is based on the implications of the jury’s verdict, and my “own independent determination of the relevant facts” (Brown, supra, at para. 14).
[6] A.S. testified that the beating which resulted in her injuries occurred in the basement apartment which she and J.B. were then sharing in Kitchener. She said that J.B., with whom she had rekindled an intimate relationship in the fall of 2019, gradually spent greater amounts of time at the basement apartment and had been effectively living there by the winter. A.S. was challenged on this point in cross-examination and contradicted on it by the evidence of J.B.’s mother, C.P., who contended that J.B. had been living at her home with C.P. and her husband until J.B. left following a disagreement at the beginning of February, 2020. I accept C.P.’s evidence on this point, although it seems clear from the whole of the evidence that J.B. and A.S. had been spending significant amounts of time together before that date even if they had not been fully living together until early February.
[7] In either case, it is not contested that A.S. and J.B. were in an intimate relationship and, on the evening in question, had been and were living together. A.S. testified that their relationship was a troubled one and seriously affected by their mutual abuse of alcohol.
[8] On February 20, 2020, J.B. went to the LCBO to buy liquor while A.S. prepared dinner. J.B. was already drunk and A.S. wanted to be “as drunk as he was.” They got into an argument when J.B. returned home from the LCBO empty-handed. He had been refused service because he was intoxicated.
[9] At first, A.S. thought J.B. was joking when he said that he had not been served. This upset J.B. A.S. said that J.B. called her vulgar names and became aggressive. They were both using raised voices and the argument escalated quickly. Then, as she stood at the stove cooking dinner, J.B. started punching her. He used a closed fist and hit her many times. When she fell to the floor, which happened more than once, he kicked her in the ribs repeatedly. He also kicked her in the face. At one point, J.B. dragged A.S. across the floor of the apartment by her hair. At another, he smashed her head into the wall. A.S. was crying and telling J.B. to stop and to leave, points confirmed by the neighbour who lived in the apartment above A.S.
[10] A.S. said that during this ordeal she noticed that J.B.’s hand was bleeding. She thought that if she showed J.B. some compassion, he might stop assaulting her. She took him to the bathroom and attended to his injury. Photographic evidence from the apartment, and evidence from the police respecting J.B.’s injuries, lends some corroboration to this part of A.S.’s evidence. In any case, when they left the bathroom, he resumed the attack. He smashed her head into the floor and continued to kick and punch. A.S. testified that the beating lasted for over an hour, during which time he repeatedly told her to stop crying and that he did not like the sound of her voice.
[11] The attack was interrupted when J.B. noticed that his hand was bleeding again. A.S. took the opportunity to run out of the apartment to escape but noticed in doing so that the police had arrived (they had been called by the upstairs neighbour). She went back inside to warn J.B. He reacted by putting A.S. in a headlock, releasing her only when he understood that the police were coming. He went and hid in the bathroom while A.S. went outside to meet the police.
[12] A.S. told the police that J.B. had left and provided a false description of what he was wearing. She said that she had injured herself by falling down the stairs. She testified that she told these lies because she loved J.B. and did not want him to get into trouble. The police did not believe her, entered the apartment, and eventually found J.B. hiding in the bathroom.
[13] J.B. was arrested and A.S. was taken to the hospital. Later, J.B. was taken to a different hospital to attend to the injury to his hand.
[14] It is important to note here that the jury clearly rejected some aspects of the complainant’s evidence. It must be said that A.S. was a difficult witness who was emotional and combative in the witness stand. Sometimes her evidence was difficult to follow. It seems evident that the jury was doubtful of her evidence where it was not well-corroborated by other evidence – most importantly, by the photographs of her injuries.
[15] With respect to the evening of February 20, 2020, the jury acquitted J.B. of the offences of assault with a weapon and choking, suffocating or strangling (sub-sections 267(a) and (c) of the Code). A.S. testified that during the attack on her J.B. smashed a coffee cup over her head and that he shoved his fingers down her throat. These allegations were not proven to the jury’s satisfaction, and they must therefore be disregarded on sentencing. In addition, however, I disregard the evidence that is most bound-up with these two allegations (which were themselves said to have occurred one immediately after the other), in particular, that J.B. threatened A.S. with death and that A.S. started to lose consciousness.
[16] The jury also acquitted J.B. of a specific incidence of aggravated sexual assault said to have occurred earlier in February 2020, and of three charges which alleged that J.B. had been sexually assaulting, assaulting, and choking, suffocating or strangling A.S. repeatedly in the months preceding February 20, 2020. The implication of these acquittals is that the jury was not satisfied beyond a reasonable doubt that A.S. was the victim of longstanding abuse at the hands of J.B.
[17] As I have said, the photographs of the injuries to A.S.’s face and head are arresting. The jury’s verdict indicates that it accepted that the injuries amounted to wounding, maiming or disfiguring as required by s. 268 of the Code. Those injuries developed in the hours and days after the police arrived.
[18] Constable Daniel Peters testified that he attended at the apartment and could see that A.S. had a swollen forehead and bruising to one of her hands. She also had a bloody nose. Constable Sharon Gregory said that A.S. had a cut lip and an extremely swollen forehead with a “loonie-sized” bruise on the side of her head and bruises to her arms. Constable William Finch said that the injuries were “hard to miss” and that A.S.’s face was swollen, very bruised and bleeding. Constable Matthew Boniface said that the injuries – swelling to her forehead, bruising and swollen lips – were obvious.
[19] Detective Dean Hanby said that he met A.S. at the hospital. Her forehead was swollen and the right side of her face was disfigured. He testified that her face did not look like a “normal human face.” Her right eye was swollen shut and there was bruising around the left eye. It was impossible to take a statement from A.S. because she was vomiting throughout Detective Hanby’s visit.
[20] Detective Hanby met with A.S. again the next day. The bruising and swelling was worse, and her face was changing colour, having become reddish-brown all over. Detective Hanby saw A.S. again on February 29, 2020, by which time there had been some but not complete improvement. There was still swelling and significant bruising. Photographs of the injuries were taken on February 20, 2020, immediately after the incident, and on February 21 and 26, 2020.
[21] The first set of photographs shows significant swelling to A.S.’s forehead, swollen lips, and bruises at various spots on her face, the largest one appearing near the hairline on the right side of her forehead. As Constable Gregory observed, it is about the size of a loonie. There is some swelling around the eyes, especially the right eye. A.S. is a white woman and, at this stage, her skin was for the most part of normal colour for a white woman.
[22] The second set of photographs, taken the following day, are much different. A.S.’s face, especially on the right side and on the forehead, is very swollen and almost entirely bruised. The swelling and bruising around the eyes, especially the right eye, is pronounced. This set of photographs also shows a series of bruises to the arms and hands and to A.S.’s right ear and the right side of her head.
[23] The photographs taken on February 26, 2020, continue to show significant bruising around the eyes and widespread bruising, especially to the right side of the face. Large portions of the whites of A.S.’s eyes are a very bright red.
[24] I note that there are no photographs of A.S.’s torso and it seems that no x-rays were taken. Accordingly, while I accept that A.S. was repeatedly kicked in the ribs, and that she was in pain for that reason in the period following the assault, there is no other evidence of the seriousness of any injury to her ribs.
[25] With respect to her own injuries, which evidence I accept beyond a reasonable doubt, A.S. testified that she found it very upsetting to look at her swollen and misshapen head in the mirror. She said that she looked like “an alien” and was so worried that her appearance would be upsetting to her young children that she purposely did not see them until May 31, 2020, over three months after the beating.
[26] Further, A.S. testified that she was unable to see at all for a full day because both her eyes were swollen shut and that even after they re-opened her vision was impaired for a period of several months. The photographs show what should be the white parts of A.S.’s eyes as bright red. In a moment of significant understatement, A.S. described her eyes as “bloodshot.” She said that her eyes were clear of blood by summer of 2020 and that the bruising to her face, in particular the bruising around her eyes lasted for about a month and a half. A.S. also testified that she had some hearing loss in one ear that did not fully heal. She said that she was in pain and found it difficult to move while she recovered.
[27] A.S. reviewed the photographs taken of her injuries and confirmed that all but one of those injuries (as scratch from her cat) were caused by J.B. on February 20, 2020. In addition to the most obvious injuries, she noted various other cuts and bruises to her hands, arms, shoulder, ear, head and face.
[28] Fortunately, today, apart from the possibility of some hearing loss in one ear, A.S. is fully recovered from her injuries from this incident on February 20, 2020. In the witness stand, she looked nothing like the woman captured in the alarming photographs taken then.
[29] Before leaving this topic, I note that A.S. did not supply a victim impact statement for my consideration. I therefore do not have an update on her condition since the trial. I find myself unable to determine whether the hearing loss of which A.S. complained continues to affect her.
J.B.’s Background
[30] J.B. is 25 years old and was 22 years old on February 20, 2020. He has one prior criminal conviction – for causing bodily harm while driving “over 80” arising out of an incident in 2016, when he was 18.
[31] J.B. is the son of C.P., to whom I referred earlier in these reasons. J.B.’s biological father and C.P. parted ways when J.B. was one. C.P. reports that J.B.’s father had drug and alcohol issues and would have been a poor parent. J.B. has had only intermittent contact with his father over the years, a point to which I will return below.
[32] When J.B. was three, C.P. met J.P., who would become her husband in 2002. J.P. already had a son who is two years older than J.B. and later C.P. and J.P. had another son together. It seems that this new blended family has been a happy and successful one in which J.P. has become J.B.’s de facto father and J.B. has had all the benefits of a loving middle class Canadian upbringing, free of want of any kind.
[33] I am told that J.B. was a good athlete as a boy and was heavily involved in competitive sports. He participated in worthwhile community service efforts in high school, working to feed those less fortunate. These experiences led him to aspire to a life in the nursing profession and he enrolled at Mohawk College with a view to pursuing that aspiration.
[34] Unfortunately, J.B. started drinking heavily while in residence for his first year at college. He did not return the following year, deciding to work instead in the family business that C.P. and J.P. run so he could earn and save money for school. It was during that time that he was arrested for drinking and driving. I am advised that that conviction, and the resulting criminal record, prevented J.B. from being accepted to the nursing program.
[35] Instead, J.B. decided to work in the family business with a view to taking it over one day. J.B. worked well in the company at first, but then started to come in late, display a poor work ethic, and was often not at home in the evenings. Eventually, J.B. was found to be drunk while at work. J.P. drove J.B. home where J.B. and C.P. had an argument, at the end of which J.B. left home. That was in early February 2020. The evidence at trial leaves no doubt that J.B. was drinking heavily in the weeks leading up to February 20, 2020.
[36] In the letter which C.P. has prepared for the court, she asserts both that J.B.’s conduct on February 20, 2020, was out of character and that it was fueled by alcohol. She says that J.B. learned through counselling that his alcohol abuse is connected to a profound sense of abandonment felt by J.B. due to the absence of his biological father.
[37] J.B.’s parents report significant improvement in J.B.’s maturity while he has been on bail. He has been an important and reliable contributor to the family business and has been working hard to pay off debts incurred largely to pay legal fees. They report that J.B. has been completely abstinent from alcohol for the entire time he has been on bail – now roughly two and a half years. I note in this regard that C.P. and J.P., who have been J.B.’s sureties, will have had an almost wholly unobstructed opportunity to observe J.B.: he has been obliged to live with them and not to leave their house except in their company, or the company of his grandparents.
[38] In addition, C.P. and J.P. report that J.B. is extremely remorseful for the harm he has caused. They and J.B. both realize how serious this matter is. Other relatives have filed letters making similar observations. It is clear that J.B. is well-loved and supported by his kind, hard-working and decent family.
[39] There is evidence of counselling before me, most of it related to treatment for alcoholism. While on bail, J.B. attended 10 sessions with the Family Counselling Centre of Cambridge and North Dumfries and also spent a year in counselling with a social worker named Randy Smith. J.B. first saw Mr. Smith in 2016 after being arrested for drinking and driving. Mr. Smith recommended a course of counselling then, but, regrettably, J.B. did not take that advice.
[40] In 2020, however, J.B. did pursue counselling. Mr. Smith, whose reports are now somewhat stale (they are dated September 6, 2020, and January 25, 2021) and who is now retired, noted that J.B. did not initially embrace the goals of counselling but nevertheless eventually did well in treatment. An in-patient program was recommended but – so counsel advises me – not pursued for reasons related to the pandemic and given that J.B.’s extended period of sobriety made him ineligible for some programs.
[41] I do note that the counselling reports before me are not especially informative. Indeed, there is no report from the Family Counselling Centre and the letters from Mr. Smith are focused more on recommendations for future treatment than the results of his course of counselling. The only definitive finding is that J.B. “does represent a typical alcohol abuser.” Certainly, there is nothing before me that confirms the negative effects of the absence of J.B.’s biological father, although I do not doubt that such an absence could be difficult for any young person.
[42] J.B. addressed me after I heard counsel’s sentencing submissions. He offered apologies to A.S., to his family, and to the community. He said that what he did to A.S. is unforgivable and that the photographs of the injuries he caused leave him sick to his stomach. He committed to working to improving himself in the aftermath of this case.
Sentencing Factors
General principles, domestic violence and breach of trust
[43] I begin my discussion of the relevant considerations in fixing the sentence in this case with the observation that by its very definition, aggravated assault is a very serious offence. It requires proof of wounding, maiming or disfigurement, consequences of profound harm. Parliament signals the gravity of the offence by providing for a maximum sentence of 14 years in custody (see s. 268(2) of the Code).
[44] I am of course obliged to follow the principles of sentencing set out in the Code, including those set out in sections 718, 718.1 and 718.2. The latter section requires that I consider that J.B. has been found guilty of an offence involving the abuse of an intimate partner (see: s. 718.2(a)(ii)). In this respect, the authorities are clear: violence committed in a domestic context is a serious aggravating factor. In Regina v. Ibrahim, 2011 ONCA 611, the Court of Appeal found that in such cases the “sentencing principles that exert the greatest influence in determining the length of sentence and the manner in which it should be served are denunciation and deterrence.” The court went on to add the following (at para. 15):
The sentence imposed in cases such as this must also promote a sense of responsibility among spousal abusers and an acknowledgment of the harm done not only to their immediate victims, but equally to the community at large.
[45] In Regina v. Inwood, (1989), 1989 CanLII 263 (ON CA), 48 C.C.C. (3d) 173 (Ont. C.A.), more than a decade before Ibrahim, the Court of Appeal instructed sentencing judges as follows:
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.
[46] In Regina v. Brown, 1992 ABCA 132, at para 249, the Alberta Court of Appeal observed as follows:
When a man assaults his wife or other female partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live.
[47] A breach of trust is also enumerated in the Criminal Code as an aggravating factor on sentencing (see s. 718.2(a)(iii)).
[48] As my colleague Broad J. observed in Regina v. Nobbs, 2020 ONSC 7341, at para. 76, these general principles respecting sentencing in cases of domestic violence “apply with equal force to a case such as this involving a single instance of severe assault resulting in serious injury.”
[49] Mr. Safa resists the suggestion that J.B. abused a position of trust, arguing that the relationship between J.B. and A.S. was not one of long standing. I cannot accept this submission. J.B. and A.S. were engaged in an intimate relationship of roughly six months during which time J.B. was commonly at A.S.’s apartment. While it may be that J.B. had been fully living at A.S.’s apartment for only a few weeks at the time of this offence, he was living there, he was in an intimate relationship with A.S., and he assaulted her in her own home, a place into which she had invited and welcomed him, and in which she had a right to trust that she would be safe with J.B. (see Regina v. Sanchez, 2019 ONSC 5272, at para. 14). J.B. abused that trust by visiting an egregious example of domestic violence on A.S.
The nature of the attack and the injuries
[50] I have described the injuries sustained by A.S. above. They were very serious. As I have said, the photographs of those injuries are difficult to look at. The effects of the assault lasted for months after February 20, 2020. Fortunately, however, unlike many of the sentencing cases that counsel have brought to my attention, A.S. suffered no broken bones nor lost any teeth, and did not require stiches or surgery, or an extended stay in hospital.
[51] Of course, the absence of these more serious consequences of an assault do not represent a mitigating factor for J.B., they simply reflect that the attack could have been worse. In the same vein I add that the fact that A.S.’s physical injuries appear to have healed is also not a mitigating factor. As Morgan J. wrote in Regina v. Roberts, 2018 ONSC 4566 (at para. 11), “a victim’s subsequent recovery does not counter the fact that they initially suffered a particularly grievous injury” (see also Regina v. Stubbs, 2013 ONCA 515, at para. 149).
[52] I note that the attack on A.S. was especially dangerous, including as it did multiple blows with a closed fist or fists to the head and face. All of us, but especially A.S. and J.B., are fortunate that her injuries were not worse.
[53] In addition, the attack was of a sustained nature. This sets J.B.’s case apart from some cases where a single blow or a short attack caused significant injury (see, for example, Regina v. Berry, 2015 ONSC 2560). This was a beating that lasted for an extended period during which time A.S. repeatedly asked J.B. to stop and, as Ms. Holmes submitted, there were at least two pauses in the attack which might have allowed J.B. to reconsider his conduct and break off the assault and bring it to an end. The first was when A.S. took J.B. to the bathroom to attend to his injury, and the second was when A.S. attempted to leave the apartment. In both cases, after the pauses and despite A.S.’s obvious distress, J.B. resumed his attack on her. It was only J.B.’s eventual realization that the police had arrived and that he was likely in serious trouble, that caused him to stop.
[54] To this point all my references to the harm to A.S. have been to physical harm. There was, however, obvious psychological harm to A.S. That harm was evident during A.S.’s testimony at trial. She was obviously distraught about the events of February 20, 2020, which have had a lasting effect. It was clear to me that she loved J.B. – indeed at points she claimed to continue to love him – and that this beating represented a betrayal the psychic effects of which must be profound. Mr. Safa conceded in argument that even in the absence of a victim impact statement there is no doubt that this offence will have had a serious psychological impact on A.S.
Mitigating factors
[55] Turning to those factors which are said to mitigate J.B.’s sentence, I acknowledge that J.B.’s relative youthfulness at the time of the offence, and his minimal and unrelated criminal record (which includes no prior sentence of custody) are significant mitigating facts (see, for example, Sanchez, supra, at para. 21).
[56] In addition, J.B. comes from a good family that is caring and supportive. He has worked well in the family business and has good prospects to continue to grow and succeed in that employment. Moreover, to the extent that alcohol played a role in this matter, J.B. has sought counseling in that regard and is said to have been sober since he was arrested roughly 2 and a half years ago. I accept that these too are mitigating factors, although I note that a number of the cases provided to me involve offenders who had none of the benefits of a stable, financially secure, and loving family, all of which J.B. has enjoyed. I also note, as I did earlier in these reasons, that J.B. should have pursued alcoholism treatment when it was first recommended to him.
[57] I am less convinced of the strength of counsel’s other submissions respecting alleged mitigating factors. Returning again to the role of alcohol in this case, while I accept that J.B. was intoxicated at the time of the attack, it seems to me that the mitigating effect of that fact is offset by the sustained nature of the attack during which time even a drunk person ought to have realized that his conduct was outrageous. As I have said, this was not a case of a single punch thrown in anger as a result of the disinhibiting effect of liquor. It was a long and unrelenting attack.
[58] Counsel also argues that this was an offence that was out of character for J.B. Again, I accept that J.B. has no related record and that the jury was not satisfied that J.B. had abused A.S. over a period of months, but I know very little about J.B.’s character. In any case, the mitigating effect of evidence of good character provided by people who know J.B. outside an intimate relationship may be diminished where the offence in question is committed behind closed doors.
[59] The submission has been made that this offence was provoked by A.S. and that provocation is an important factor in many of the sentencing cases to which my attention has been drawn. While I accept the principle on which counsel makes this submission, I reject the suggestion that A.S. was guilty of any provocation in this case. At worst she participated in an argument about the fact that J.B. had not been served at the LCBO. There is no evidence that she attacked J.B. or even that she did very much to defend herself. Nothing she said or did could in any was justify or even mitigate the conduct of J.B. There is no gainsaying the disproportionality of J.B.’s violent response to the irritation he apparently felt as a result of the trivial disagreement he had with A.S. that evening.
[60] Mr. Safa also submits that I should treat this case, in which J.B. went to trial with a jury, as the equivalent of a case where an early guilty plea was entered. It is argued that J.B. had no choice but to go to trial given the other charges that were laid against him, none of which, as it turned out, was proven by the Crown. I do not accept this submission. Nothing prevented J.B. from pleading guilty to aggravated assault and not guilty to the remaining charges. While counsel did tell the jury in his closing submissions that the evidence established that J.B. was guilty of assault causing bodily harm – not aggravated assault – even that concession was not made until after a preliminary inquiry and after counsel engaged at trial in a searching cross-examination of the complainant – including on the facts underlying the allegation of aggravated assault. Of course, none of this aggravates the appropriate sentence. J.B. was entitled to a trial and cannot be punished for having exercised that right. However, he is not, in my view, entitled to the mitigating credit afforded to those who enter early guilty pleas and thereby demonstrate remorse, take responsibility for their misconduct, and save all concerned the costs – both financial and emotional – of a trial.
The range of sentences for aggravated assault
[61] Counsel have helpfully put before me a large collection of sentencing decisions in cases of aggravated assault. Many of those cases start with a discussion of the judgment in Regina v. Tourville, 2011 ONSC 1677, where Code J. helpfully reviews the range of sentences available for offenders convicted of aggravated assault. He notes that the case representing the bottom of the range, where a suspended sentence was imposed, involved an offence committed in the context of a barroom dispute and an offender from a First Nations community who was raised in a violent and abusive home but who had made impressive progress in her life since the offence. The mid-range of sentences was said to be between 18 months and 2 years less a day, and usually involve first offenders and elements of consent fights. The high end of the range was said to be from 4 to 6 years in custody. Cases in that range often feature offenders with serious records, attacks which were unprovoked or premeditated and with no suggestion of any element of self-defence (see Tourville, supra, at paras. 27 – 30).
[62] I note that some cases since Tourville, while generally accepting Justice Code’s analysis, note that the upper range of sentences exceeds penalties of six years and that the range of four to six years might more accurately be called “mid-range” (see, for example, Regina v. Roberts, supra, at para. 51).
[63] Ms. Holmes, for the Crown, submits that a fit sentence in this case is one that falls somewhere between the mid and high ranges described by Code J. For the following reasons, I am in agreement with this submission.
[64] First, referring to Tourville itself, while J.B. has a short criminal record and was relatively young at the time of the offence, there is nothing about the events of February 20, 2020, which suggests that the altercation was a consent fight. On the contrary, it was a one-sided attack. This takes J.B.’s case above the mid-range described by Code J., the top of which is two years less a day (Tourville, supra, at para. 28).
[65] Like the high-end cases described by Code J., there was no provocation in this matter, nor any suggestion that J.B. was at any point defending himself. On the other hand, unlike the high-end description offered in Tourville, J.B. is not a recidivist with a serious prior record. This takes J.B.’s case below the high range set out in Tourville, the bottom of which is 4 years (see para. 30).
[66] Viewed in this light, Ms. Holmes submission that three years is an appropriate sentence in this matter is a completely reasonable one. In my opinion, the reasonableness of that submission is further supported by cases whose facts are somewhat similar in nature to the facts of J.B.’s case. In this regard, while I have read all the cases put before me, I focus on those which involved convictions of men for aggravated assaults against their female intimate partners. In the summaries of those cases which follow, I do not purport to list all the relevant factors, either mitigating or aggravating, which informed the courts’ decisions, I simply highlight the features which I regard as most important in fixing the appropriate sentence in this case
• In Regina v. Sanchez, supra, Davies J. imposed a sentence of 12 months, but in that case, while it bears some similarities to this matter, the accused pleaded guilty, albeit after a preliminary inquiry, and received significant credit for doing so.
• In Regina v. Brown, 2017 ONSC 4866, a suspended sentence was imposed but, in that case, there was evidence of serious and potentially life-threatening provocation, and much less significant injuries to the complainant than in this case.
• In Regina v. D.R.C., 2016 ONSC 5169, the court imposed a 12-month sentence for an aggravated assault that was the result of a single blow. That 12-month period was part of a global sentence of 3 years and 8 months where the accused was likely to face deportation as a result of the sentences imposed.
• In Regina v. McCabe, 2022 ONCJ 217, although the accused had a prior related record, a two-year conditional sentence with 2 years of probation was imposed for an assault that was comprised of a single punch that had devastating results.
• In Regina v. Bell, 2015 ONCJ 62, the accused had a prior related record, but both the injuries and the conduct of the accused were less serious than in this case. The accused pulled the complainant off a bed by her hair. The sentencing judge found that he could not find that the accused intended to cause the injury which the victim sustained. The sentence was 19 and a half months in jail and 18 months’ probation.
• In Regina v. Yon, 2014 ONCJ 741, the injuries appear to have been similar to the injuries sustained by A.S. Here, though, the accused was reacting to being kicked by the complainant, there was an early guilty plea, and significant and compelling evidence of remorse and rehabilitative effort since the offence. The assault, while very violent, was not carried out over an extended period. Justice West concluded that an appropriate sentence was 6 months in custody before deducting credit for the conditions of the accused’s bail.
• In Regina v. Gludd, 2015 ONSC 392, the accused pleaded guilty and had signaled his intention to do so from an early stage. He had no criminal record. The complainant had sustained injuries similar to those sustained in this case. The court agreed that a sentence of 2 years less a day was a fit sentence for the aggravated assault.
• In Regina v. Nobbs, supra, the accused struck his wife 5 times in the face. She suffered a broken jaw and lost a tooth. Broad J. imposed a sentence of 2 and a half years for aggravated assault.
[67] I am satisfied that the appropriate sentence for J.B. must be greater than the sentences imposed in any of the foregoing cases. J.B. did not plead guilty, he was not reacting to provocation, he did not throw a single punch – or even just 5 punches – he acted over a sustained period, he does not face deportation, he clearly intended serious bodily harm, and while there is some evidence of remorse, it was expressed only on the date of sentencing.
[68] In the four cases to which I turn now, sentences which are greater than the appropriate sentence for J.B. were imposed.
• In Regina v. Allen-Brown, 2022 ONCJ 238, following a trial in the Ontario Court of Justice, the court concluded that a fit sentence for a single conviction of aggravated assault was one of four years (before credit for pre-trial custody and conditions of bail). The accused was 19 at the time of the offence and had experienced a very difficult childhood. He had a significant youth record. The assault was of a short duration but resulted in injuries which were similar to, but more serious than, the injuries in this case.
• In Regina v. Dockery, 2020 ONCA 2781, affirming 2018 ONCJ 797, the Court of Appeal, upheld a 5-year sentence for an aggravated assault in a domestic setting. In that case, the accused entered a plea of guilty. He had attacked his intimate partner in a bar, in a short but devastating attack, rendering her unconscious. The injuries were more serious than in the present case. The accused had a significant criminal record.
• In Regina v. Oshell, 2016 ONSC 1529, the accused pled guilty to several offences, including the aggravated assault of his domestic partner. The conduct in question was similar to, but certainly more serious than J.B.’s conduct. The complainant’s injuries were also more serious than those sustained by A.S. The accused was not young but had no criminal record. Justice Fuerst imposed an effective sentence of over five years, taking into account the accused’s pre-sentence custody,
• In Regina v. Kakekagamick (1980), 2006 CanLII 28549 (ON CA), 81 O.R. (3d) 664 (C.A.), the Court of Appeal upheld a 5-year sentence for the aggravated assault of an intimate partner. The accused was 22 and drunk at the time of the offence. He had no criminal record. The injuries were serious and included several broken bones.
[69] In these cases, various factors not present in J.B.’s case necessitated the imposition of a sentence in the highest of the ranges described by Code J. in Tourville: a significant record and/or more serious misconduct and/or more serious injuries to the complainant.
[70] Bearing these prior sentencing decisions in mind and having regard to all the factors to which I have referred in these reasons, including especially the principles of denunciation and general deterrence, a fit sentence in this case (before any deduction for pre-sentence custody or the mitigating effect of the conditions of custody or bail) is 3 years. I come to this conclusion having accounted for J.B.’s lack of related prior record and his relative youth. The sustained nature of this attack, its inherent dangerousness, the obvious intention to cause serious harm, and the significant injuries, demand such a sentence, which fits between the mid and high ranges described by Code J.
[71] As I have said, I am obliged to consider and deduct time to account for time J.B. spent in pre-sentence custody (referred to as “Summers credit”) and to consider the mitigating effect of the harsh conditions of that custody (“Duncan credit”) and of the effect of the strict conditions of J.B.’s release on bail (“Downes credit”).
[72] After his arrest, J.B. spent 13 days in jail before being released on bail. He is entitled to 20 days credit for that pre-sentence custody (Regina v. Summers, 2014 SCC 26).
[73] However, Mr. Safa argues that enhanced credit should be given for that period in custody given that it occurred at a time of considerable hardship for inmates, namely, the early days of the COVID-19 pandemic. I have been provided with no evidence of the conditions of J.B.’s confinement. Instead, I am asked to take judicial notice of the effect of the pandemic.
[74] As Doherty J.A. explained in Regina v. Marshall, 2021 ONCA 344, at paras. 50 – 53, this kind of credit, “Duncan” credit (Regina v. Duncan, 2016 ONCA 754), is unlike Summers credit in that it is to be considered as a mitigating factor in determining the fit sentence, and not as a mathematical deduction from that fit sentence. While I accept that time spent in custody during the pandemic was generally more difficult than usual, in my view, the relatively short time spent by J.B. in custody before being released on bail means that this factor has a very small mitigating effect on the appropriate sentence.
[75] Credit for strict bail conditions, Downes credit, is also to be considered as a mitigating factor rather than as a kind of mathematical deduction (Regina v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), at paras. 33 – 35). In Downes, Rosenberg J.A. instructed that each case of strict bail conditions should be considered on its own merits in recognition that the effects of house arrest, for example, will be different in every case.
[76] Here, J.B. has been on bail for 939 days during which time the conditions of his bail may be described as house arrest. Mr. Safa argues that credit of nine months should be afforded for this hardship. Ms. Holmes for the Crown argues that little or no credit should be given for this time on bail. She points out that the bail order required J.B. to live in his parents’ home, the place where he had been living before his short stay with A.S. Moreover, the terms of the order allowed J.B. to leave to the home in the company of one his parents, who were his sureties, or his grandparents. Since J.B. works in the family business which also employs his parents, that meant that J.B. could leave the house every day – or at least every business day – without difficulty to go to work with his parents. Indeed, I have been advised that J.B. worked throughout the time he spent on bail. On the other hand, I have no evidence of how the time on bail affected J.B. negatively. In the Crown’s submission, this bail arrangement had very little negative effect on J.B. and really amounted to a reversion to the state of J.B.’s life before he resumed his relationship with A.S. in September 2019: that is, he was living at home with his parents and going to work everyday to work in the family business.
[77] While there is considerable force to the submissions of the Crown, and little evidence of the impact of the terms of J.B.’s bail, I am satisfied that the lengthy time J.B. spent on bail should be reflected in the appropriate sentence in this matter. While this exercise is perhaps more art than science, I am satisfied that combined effect of the Summers credit, and the mitigating effect of the Duncan and Downes credit to which J.B. is entitled, reduces the appropriate sentence from 3 years to 2 years and 6 months.
[78] As I have found that the appropriate period of incarceration in this case is greater than 2 years, it follows that I need not consider whether the sentence should be served in the community (see s. 742.1 of the Code) nor any period of probation (s. 731(b)).
[79] Accordingly, I impose a sentence of 2 and a half years.
[80] Last, the following ancillary orders are also made:
• J.B. will supply a sample of his DNA pursuant to s. 487.051 of the Code;
• There will be a s. 109 weapons prohibition for life.
• Pursuant to s. 743.21, while J.B. is incarcerated, he will not communicate, directly or indirectly, with A.S.
I.R. Smith J.
Released: October 27, 2022
[^1]: These reasons were delivered orally on September 29, 2022.