Court File and Parties
COURT FILE NO.: CR-22-0044-00 DATE: 2023 10 26
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – TRISTA FORBES Defendant
Counsel: D. Noonan, for the Crown C. Levien, for the Defendant
HEARD: July 18, 2023 and Oct. 6, 2023
Judgment on Sentencing
André J.
[1] Ms. Trista Forbes pled guilty on July 18, 2023, to one count of Aggravated Assault pursuant to section 268 of the Criminal Code. The Crown seeks a term of imprisonment of nine months followed by a period of probation. Defence counsel submits that given Ms. Forbes’ antecedents and the circumstances of the offence, a conditional sentence followed by a period of probation would be an appropriate sentence.
Summary of the Facts
[2] On November 21, 2020, Ms. Forbes proceeded to the home of a female friend while accompanied by a male friend. She entered the residence and proceeded to look for her boyfriend of five years, Lindon Hunter, with whom she has two young children. She found him asleep on a couch. She woke him up and the two had an argument about his infidelity. At one point, Ms. Forbes retrieved a knife from the kitchen and stabbed Mr. Hunter in the leg and thigh. Mr. Hunter also suffered superficial wounds to his head and upper back. The injury to his thigh required five stitches.
Analysis
[3] Section 718.1 of the Code indicates that a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 lists a number of aggravating factors which a sentencing court shall consider including the following:
718.2 (a) (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
[4] Section 718.1 requires a sentencing court to consider both the aggravating and mitigating factors in determining an appropriate sentence in each case.
[5] The former includes the following:
a) Mr. Hunter was Ms. Forbes’ intimate partner;
b) The offence has elements of a home invasion in that Ms. Forbes, accompanied by another male, entered her friend’s residence without being invited to do so;
c) Ms. Forbes stabbed Mr. Hunter with a knife after waking him up; and
d) The offence required some planning given that Ms. Forbes was accompanied by a male friend;
[6] The mitigating factors include the following:
a) Ms. Forbes is a 37-year-old biracial woman who has no criminal record;
b) Ms. Forbes is a single mother of five children, three of whom live with her;
c) According to a Presentence Report, Ms. Forbes had a difficult childhood and regularly witnessed her mother being abused by her father. Ms. Forbes has been in a number of abusive relationships including her relationship with Mr. Hunter who does not give her financial support for their two children;
d) Ms. Forbes has worked in a number of low paying jobs doing housekeeping, general labour and light cleaning;
e) Three of her children, aged 5, 6, and 13 years reside with her. Mr. Hunter is the father of the two youngest children; and,
f) Ms. Forbes is gainfully employed at a company called Easy Fix Renovation.
[7] In support of her position, the Crown relies on two cases, namely R. v. Navukarasu, 2022 ONCA 273 and R. v. McClelland, 2001 ABCA 182. In Navukarasu, the Court of Appeal affirmed a custodial sentence imposed on the appellant who had slashed a girl in the forehead with a knife, after she confronted him about the theft of her boyfriend’s jacket. The Court of Appeal held at paragraph 14 that the sentence was a fit sentence in the circumstances.
[8] In McClelland, the trial judge convicted the accused of aggravated assault, breaking and entering a dwelling with intent to commit an indictable offence and possession of a dangerous weapon following a trial. The accused had enlisted the help of a friend after arming himself with a large butcher knife. The accused gained entry into the victim’s apartment and stabbed him deeply with the knife. While the injury was not life threatening, it resulted in long term harm to the victim. The accused served 20 months in pre-trial custody. The trial judge sentenced the accused to an 18-month conditional sentence. On appeal, the Court of Appeal held that eighteen months actual jail would have been a proper sentence and then substituted the conditional sentence with an aggregate period of incarceration of twelve months.
[9] The Crown submits that the facts in McClelland are, “strikingly similar” to those in this case. I disagree. In McClelland, the accused pled not guilty and therefore did not have the benefit of the mitigating effect of a guilty plea. Second, the facts in McClelland are more egregious than those in this case in that Mr. McClelland armed himself with a butcher knife before entering the apartment, and inflicted a serious wound on the victim, which, unlike this case, caused long term harm to the victim. Third, there is little information in the case about the circumstances of the offender.
[10] Similarly, in Navukarasu, the accused did not plead guilty to slashing the female victim in the forehead after stealing her boyfriend’s jacket. There is little or no information given about the accused’s antecedents. It is therefore difficult for me to conclude that the imperatives of parity dictate that I should sentence Ms. Forbes to a term of imprisonment.
[11] Is a conditional sentence appropriate, given that the appropriate sentence range, according to the Crown, is less than two years imprisonment?
[12] In R. v. Proulx, 2000 SCC 5 at paragraph 46, the Supreme Court of Canada set out the following four criteria for the imposition of a conditional sentence:
a) The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
b) The court must impose a term of imprisonment of less than two years;
c) The safety of the community would not be endangered by the offender serving the sentence in the community; and
d) A conditional sentence would be consistent with the fundamental purpose and principles of sentences set out in ss. 718.2 of the Code.
[13] Pursuant to s. 742.1(b), I must be satisfied that serving the sentence in the community would not endanger its safety. In R. v. Proulx, 2000 SCC 5, at paras 63 and 65, the Supreme Court of Canada stated that Section 742.1 applies to all offences as long as they did not carry a minimum term of imprisonment and the sentence was less than two years. See also: R v. Wismayer (1997), 33 O.R. (3d) 225 (C.A.).
[14] Ms. Forbes is a racialized single woman with five children, three of whom live with her. She witnessed domestic abuse while growing up and was in turn physically abused by Mr. Hunter. She receives no child support from him and survives based on state assistance and the limited income she earns from menial jobs.
[15] This court can take judicial notice of the plight of racialized mothers in our community, who often are on the bottom rung of the economic ladder. It is not disputed that the offence to which Ms. Forbes has pled guilty was precipitated by Mr. Hunter’s actions. These actions which revolve around his infidelity do not justify Ms. Forbes’ actions. However, at the very minimum, they situate her actions within the context of her exploited status.
[16] Ms. Forbes pled guilty rather late in the process and, according to the Crown, the plea of guilty, should not be given significant weight. I disagree because Ms. Forbes pled guilty despite the fact that Mr. Hunter never attended court for Ms. Forbes’ trial.
[17] Furthermore, I am concerned about the effects of a term of incarceration on Ms. Forbes’ employment and on the children living with her. It is in her interest, and that of her children and indeed that of the community that she maintains her employment and cares for her children.
[18] Ms. Forbes, according to the presentence report, has been in a number of abusive relationships and has not resorted to the actions which resulted in her being charged with assaultive behaviour. There is therefore some evidence suggesting that she can serve her sentence in the community without jeopardising its safety, despite her recent conviction finding of guilt on an assault charge.
[19] Based on the above, I conclude that the appropriate sentence in this case is a conditional sentence of nine months with the following terms:
[20] The compulsory terms are as follow:
a) Keep the Peace and be of good behaviour;
b) Appear before the court as required;
c) Report to your supervisor within forty-eight hours and thereafter as required;
d) Notify your supervisor in advance of any change of employment or occupation;
e) In the first five months of your conditional sentence, remain in your residence at all times except for the following:
i. To permit attendance at your place of employment and to travel directly between your place of employment and residence;
ii. With the written permission of your supervisor;
iii. To attend medical appointments or emergencies for yourself or your children; and
iv. On Saturdays between 10:00 am and 2:00 pm to purchase food and other items.
f) In the remaining four (4) months of your sentence;
i. Abide by a curfew between 9:00 pm and 6:00 am, except with the prior written approval of your supervisor; and
ii. For medical emergencies;
g) Reside at a residence approved of by a probation officer and not change residence without receiving the prior approval of your supervisor;
h) Abstain from communicating or associating, directly or indirectly, with Lindon Hunter, except pursuant to a family court order;
i) Have no weapons in your possession; and
j) Carry a copy of this Order when outside your residence and produce it upon a request from a peace officer.
[21] Following the termination of your conditional sentence, you will be on probation for one year subject to the following conditions:
Report to your probation officer and thereafter as required;
Have no weapons in your possession;
Have no association or contact, directly or indirectly, with Lindon Hunter, except pursuant to a family court order;
Seek and maintain gainful employment; and
Attend court as required.
Ancillary Orders
DNA Order (primary designated offence); and
s. 109 Order for 10 years
André J.
Released: October 26, 2023