COURT FILE NO.: CR-21-70000675-0000 DATE: 20240321

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HIS MAJESTY THE KING - and - JOSEPH MARCEL KOVACS

Counsel: Peter Hamm, for the Crown Benjamin Moss, for Joseph Kovacs

Heard: January 15, 2024

J.M. BARRETT J.

REASONS FOR SENTENCE

INTRODUCTION

[1] On August 4, 2023, a jury found Mr. Kovacs guilty of five of the seven charges in the indictment. Specifically, Mr. Kovacs was convicted of three counts of assault, one count of assault with a weapon, and one count of forcible confinement. All offences involve intimate partner violence against his former partner, Carla Albieru, who is the mother of his son. The offences occurred on four separate dates over a period of approximately four years, from July 2016 to May 2020. All but one occurred after Ms. Albieru ended the relationship.

[2] The sentencing hearing was delayed for reasons that are not relevant to this decision.

[3] For reasons that I will explain, I find that a sentence of two years less five days is appropriate in this case. General deterrence and denunciation are the paramount factors in the sentencing of intimate partner violence. Here, there is also a compelling need for specific deterrence. The gravity of the offences, Mr. Kovacs’ criminal antecedents, and the need to protect the public call for a sentence at the maximum end of the reformatory range. To permit the sentence to be served in the community would be inappropriate.

THE FACTS

The Offences

[4] As Mr. Kovacs was found guilty by a jury, the first step is to determine the material facts required for sentencing. This is a two-step process: R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at para. 106.

[5] First, s. 724(2)(a) of the Criminal Code, R.S.C., 1985, c. C-46 directs that I must “accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty”. This requires that I “identify any relevant factual determinations the jury has made by examining what facts were essential to the jury’s verdicts, and then apply those facts when sentencing the offender”: Aragon, at para. 106; see also R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18. Second, s. 724(2)(b) of the Criminal Code directs that I may “find any other relevant fact that was disclosed by evidence at the trial to be proven”.

[6] As is his right, Mr. Kovacs did not testify at his trial. In finding Mr. Kovacs guilty of the five charges, the jury necessarily had to accept Ms. Albieru’s testimony that she was assaulted on each of the four days. The jury also necessarily accepted Ms. Albieru’s evidence that Mr. Kovacs brandished a knife during the incident in July 2016 and that she was forcibly confined during the last incident in May 2020. As to the duration of the forcible confinement, it is implicit from the questions asked by the jury during deliberations that the confinement lasted minutes, not hours as described by Ms. Albieru.

[7] For purposes of my sentencing decision, I find that the facts are as follows:

(i) July 10 to 16, 2016 (Count 2): Mr. Kovacs was upset late one evening. The dispute quickly escalated. Mr. Kovacs assaulted Ms. Albieru by pressing her head against the headboard of their bed. He punched her with a closed fist on both sides of her head. Mr. Kovacs also slapped her in the face and threatened to kill her. Mr. Kovacs left the bedroom and went to the kitchen where he got a fruit knife. He returned to the bedroom and used the knife to slash the headboard while threatening to kill Ms. Albieru. Ms. Albieru took photographs of the slashed headboard with blood stains. Ms. Albieru sought refuge at a women’s shelter with her son. She stayed at the shelter for about one month.

(ii) March 1 to 31, 2019 (Count 4): Ms. Albieru went to Mr. Kovacs’ home in Kitchener to get his signature to allow her to travel to Romania with her son. At Mr. Kovacs’ request, Ms. Albieru entered and watched television with Mr. Kovacs. However, when she asked that he sign the travel form so that she could leave, he was angered. As Ms. Albieru headed towards the garage exit, Mr. Kovacs backhanded her. He then punched her in the face. Ms. Albieru photographed her bloody nose, swollen lips, and black eye.

(iii) July 28, 2019 (Count 5): Mr. Kovacs was invited to join Ms. Albieru and her family for dinner to celebrate her birthday. Afterwards, Mr. Kovacs accompanied Ms. Albieru back to her sister’s home. At one point, Mr. Kovacs went outside for a cigarette. Ms. Albieru joined him outside. For no apparent reason, Mr. Kovacs got angry and pushed Ms. Albieru to the ground. He then punched her in the face. Three days later, Ms. Albieru took photographs of her injuries. She sustained a black eye and bruising to her forearm and knee.

(iv) May 9 to 10, 2020 (Counts 6 and 7): On Mother’s Day of 2020, Ms. Albieru went to Mr. Kovacs’ home in Kitchener to pick up her son. On arrival, she was invited to stay for dinner. She agreed because her son had helped prepare dinner. During the course of the evening, Mr. Kovacs became angry when Ms. Albieru received a text message. Ms. Albieru left the main floor and headed upstairs to help her son gather his belongings. Mr. Kovacs followed. There, he punched her in the face and head. Ms. Albieru tried to leave but Mr. Kovacs blocked her path down the stairs. Ms. Albieru spent the night in her son’s room. She left the next day. Ms. Albieru took photographs of her injuries. The photographs show a bleeding nose, facial swelling, and broken eye vessels. Although not photographed, I accept Ms. Albieru’s testimony that she also had “goose eggs” from the blows to her head.

The Offender

[8] Mr. Kovacs is currently 40 years old. He has a grade 10 education. He works as a carpenter and operates his own renovation business. He has no known mental health or other health challenges. He is one of eight siblings. He grew up in Montreal. He has one child – a son whose mother is Ms. Albieru. His son is now 10 years old. Mr. Kovacs has shared custody.

[9] I am advised that Mr. Kovacs served three days of pre-trial custody. This flowed from the fact that Mr. Kovacs was arrested three times. For each arrest, he surrendered into custody and was released the same day. There have been no breaches of bail since his last arrest on November 13, 2021.

[10] Mr. Kovacs has a criminal record. It starts as a young offender and consists of a total of 10 prior convictions. He has one prior conviction for robbery, two assaults, one fail to appear, one possession of a controlled substance for the purpose of trafficking, and five convictions for fail to comply. His most significant sentence to date stems from his conviction for possession for the purpose of trafficking; he received a sentence of 4 months and 11 days of jail in addition to 7 months and 19 days of pre-sentence custody. Each of his prior assault convictions resulted in jail sentences. In July 2002, he was convicted of assault and sentenced to 4 months’ imprisonment. In April 2013, he was convicted of assault and sentenced to 60 days’ imprisonment to be served on an intermittent basis in addition to 30 days of pre-sentence custody. I understand that the prior assault convictions are not related to intimate partner violence.

[11] While not the subject of submissions, it would appear from Mr. Kovacs’ criminal record that he was on probation at the time of the assault with a weapon in Count 2. The probation order stems from two convictions for fail to comply on January 16, 2015, for which he received a sentence of 75 days’ jail concurrent and 18 months’ probation.

[12] Mr. Kovacs has attended courses on domestic violence and parenting. He filed a letter dated August 13, 2021, from his counsellor, Jamai Rohani. This letter confirms that from March 26 to June 16, 2021, Mr. Kovacs attended nine 50-minute individual counselling sessions at KW (Kitchener-Waterloo) Counselling Services. I understand that although these sessions all pre-date his arrest, he has attended additional sessions post-arrest. Defence counsel advised that he has confirmed this but had difficulty obtaining an updated letter.

[13] Mr. Kovacs filed three additional letters. They are as follows:

(i) Letter from Chris Kreutzkamp: Mr. Kreutzkamp is the President of Erbsville Electrical Contractors Inc. He met Mr. Kovacs for the first time in the fall of 2023 when he worked on a basement renovation project with Mr. Kovacs. He found Mr. Kovacs’ workmanship and dedication to his work to be “impeccable”. He has since offered Mr. Kovacs an opportunity to pursue a full-time position as an electrician apprentice.

(ii) Letter from Frank Kuranyik: Mr. Kuranyik is an Account Manager at TD Canada Trust. He wrote that Mr. Kovacs has been a TD client since April 2006, and has an excellent credit score. He believes Mr. Kovacs to have an “excellent” work ethic.

(iii) Letter from Father: Mr. Kovacs’ father wrote a very compelling and compassionate letter about his son. He noted that since his wife – Mr. Kovacs’ mother – passed away in December 2007, the family has struggled with many challenges. He described every day as “a battle”. Several of Mr. Kovacs’ siblings have had serious health challenges requiring hospitalization. Mr. Kovacs has been a strong support to his father and siblings throughout these challenges. His father asks the court to consider leniency, mercy, and compassion in sentencing his son.

Victim Impact

[14] Ms. Albieru testified at trial from behind a screen. That she remains impacted by the abuse was obvious from her demeanour at trial.

[15] Her victim impact statement speaks of the ongoing effect on all aspects of her life. She wrote that “it still weighs heavily on me, and there is not one day that goes by that I am not affected by it”. Even “simple tasks” are now challenging given the “deep” psychological scars that remain. She describes herself as being “devastated emotionally”. She continues to experience “intense feelings of fear, anxiety, and trauma”. Her sense of security has been “shattered”. She describes herself as “emotionally and physically exhausted” as she continues to battle “feelings of sadness, fear, and a loss of control”. She has “struggled to maintain employment due to the emotional distress and anxiety” that continues. The abuse has “hindered [her] progress and created obstacles in both [her] professional and educational pursuits.”

[16] Ms. Albieru also detailed the impact of the abuse on her son. Her son has trouble sleeping. He has nightmares. He is sad and scared.

[17] To the extent that Ms. Albieru spoke of abuse beyond the charges for which Mr. Kovacs was found guilty, I have ignored these aspects of her impact statement.

POSITIONS OF THE PARTIES

[18] The Crown seeks a global jail sentence of two years’ imprisonment. The Crown also seeks a DNA order under s. 487.051 of the Criminal Code, and a lifetime weapons prohibition under s. 109 of the Criminal Code. In support of this position, the Crown relies on the following cases: R v. Rose, 2020 ONCJ 381; R. v. Horner, 2018 ONCA 971; R. v. T.R.M., 2017 ONSC 5618; R. v. V.J., 2016 ONSC 6035; R. v. Pelley, 2015 ONCA 267; and R. v. Smith, 2011 ONCA 564. All involve offences of intimate partner violence. Notably, in Smith, at para. 86, the court stated that “a sentence of one to two years will generally be appropriate for a conviction of common assault […] committed against a spouse or domestic partner in the context of a lengthy pattern of domestic abuse”.

[19] The defence seeks a two-year conditional sentence, followed by probation. The defence is not opposed to the two ancillary orders requested by the Crown. The defence argues that a conditional sentence for the maximum duration with house arrest for the first 18 months, and a strict curfew for the final 6 months, can adequately address the need for general deterrence and denunciation. In support of this position, the defence relies on the following cases: R. v. Rahanam, 2008 ONCA 1; R. v. Martin, 2021 ONSC 6964; and R. v. Bascoe, 2023 ONCJ 206. Alternatively, if a conditional sentence is found to be inappropriate, the defence seeks a sentence of imprisonment in the range of 10 to 12 months of imprisonment.

[20] In my view, the authorities relied on by defence counsel are distinguishable. In Rahanam, the accused was a youthful first offender who was gainfully employed and pleaded guilty to offences arising from a single incident of domestic violence. In that case, the accused travelled from Toronto to Ottawa to confront his former girlfriend as she stepped off a bus on her way to work. He escorted her to his nearby car where he confined her at knifepoint over the next several hours during which time, he ripped a necklace from her neck. He pleaded guilty to assault, unlawful confinement, and carrying a weapon. The Court of Appeal for Ontario upheld the sentence of nine months’ incarceration, followed by two years of probation. In doing so, the court found that although it was a “close case”, the sentencing judge “reached the correct result” in refusing a request that the sentence be served in the community: para. 49.

[21] In Martin, a Crown appeal from a suspended sentence was allowed. The summary conviction appeal justice imposed a sentence of 60 days’ imprisonment. In that case, the twenty-six-year-old first offender pleaded guilty to one count of assault causing bodily harm. The offence arose from one incident in which he put his girlfriend in a chokehold, causing her to lose consciousness. The victim suffered ruptured blood vessels, a minor concussion, and bruising. The suspended sentence was found to be unfit as it was not proportionate to the gravity of the offence and the offender’s degree of responsibility, nor did it give paramountcy to the need for denunciation and deterrence. The court found that a non-custodial sentence was only appropriate in “exceptional circumstances”. In Martin, there were “significant mitigating circumstances”, but these fell short of establishing “exceptional circumstances”: para. 65.

[22] In Bascoe, the accused was convicted after a trial of assault and assault involving choking. The assault lasted about 20 minutes. During this time, the accused punched, choked, and kicked his girlfriend even after she told him she was pregnant. The court found that there were many aggravating factors and few mitigating factors. The court imposed a one-year conditional sentence followed by one year of probation. While the court found that the assault was “serious”, it found that an important factor of consideration was the impact of the sentence on the offender’s two young sons whose mother was undergoing cancer treatment. The court found that as the accused was the primary caregiver, a conditional sentence was appropriate given the exceptional circumstances in that case.

ANALYSIS

[23] The “fundamental purpose” of sentencing is to “protect society and to contribute […] to 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” as set out in s. 718 of the Criminal Code:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in the rehabilitation of offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.

[24] In crafting an appropriate sentence, regard must also be given to the fundamental principle of sentencing: proportionality. Section 718.1 directs that any sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 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: see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at pp. 557-59.

[25] Section s. 718.2 of the Criminal Code directs sentencing courts to consider a number of other statutory principles, including the following: a sentence should be increased or reduced to account for any mitigating or aggravating circumstances relating to the offence or the offender (s. 718.2(a)); a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (also known as the principle of parity contained in s. 718.2(b)); where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (also known as the principle of totality contained in s. 718.2(c)); and courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)). In other words, all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[26] The mitigating factors in this case are few. Mr. Kovacs has the support of his father. He is regarded by others as having a good work ethic. He has been offered an apprenticeship to train as an electrician. He has participated in counselling. He has served the equivalent of five days of pre-sentence custody. He has been on bail without incident since November of 2021.

[27] Mr. Kovacs lacks insight into his offending behaviour. While he is entitled to maintain his innocence and is entitled to have a trial, there is no evidence of any remorse. This is not an aggravating factor. Rather, it is the absence of a potential mitigating factor: R. v. Reeve, 2020 ONCA 381, 151 O.R. (3d) 65, at para. 12; R. v. F.A., 2022 ONSC 5696, at para. 48, citing R. v. Kozy (1990), 74 O.R. (2d) 545 (C.A.), at pp. 505-506.

[28] There are many aggravating factors in this case.

[29] The offences all involve intimate partner violence. Parliament has stressed the aggravating nature of intimate partner violence. Indeed, s. 718.2(a)(ii) of the Criminal Code provides that abuse of an offender’s intimate partner is an aggravating factor. Further, s. 718.201 of the Criminal Code directs that in imposing a sentence in respect of an offence that involved the abuse of an intimate partner, the court “shall consider the increased vulnerability of female persons who are victims.” And, s. 718.04 of the Criminal Code provides that primary consideration is to be given to the objectives of denunciation and deterrence if the offence involved “the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female”.

[30] The gravity of the offences is significant. The offences occurred over four years. The first incident involved the use of a weapon and threats of death. It caused Ms. Albieru to leave the sanctity of her home with her infant son and seek safety at a women’s shelter. Her home ought to have been a place of safety and security. It was not.

[31] Ms. Albieru’s flight from the family home did not stop the abuse. In the years that followed, Mr. Kovacs continued his abuse. Two of the three further incidents occurred when their young son was in the home. The abuse was degrading and sought to exert control over Ms. Albieru through their ongoing contact as co-parents. Ms. Albieru suffered multiple black eyes and swelling to her face. While the physical injuries resolved, the deeper psychological scars remain.

[32] The impact of this abuse on Ms. Albieru is significant. The psychological scars continue to impact her daily life. The absence of any permanent physical injuries is simply fortuitous. Mr. Kovacs’ son has also been impacted.

[33] There can be no dispute regarding the seriousness of domestic violence. Our courts have repeatedly stressed that deterrence and denunciation must be given paramountcy in fashioning an appropriate sentence: see R. v. Inwood (1989), 69 C.R. (3d) 181 (Ont. C.A.); R. v. Bates (2000), 35 C.R. (5th) 327 (Ont. C.A.), at para. 30. In Rahanam, at para. 46, Watt J.A., for the court stated:

In cases involving violence arising out of an existing or failed domestic or romantic relationship, the predominant sentencing objectives are denunciation and deterrence. See, R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.) at p. 488 per Simmons J.A. Further, sentences imposed must promote a sense of responsibility in offenders and an acknowledgement of the harm done, not only to the immediate victim, but also to the community at large. In cases like this, the likelihood of enduring psychological trauma to the victim from the irrational, controlling and obsessive nature of the misconduct is significant. See, Boucher, supra, at p. 487 per Simmons J.A.

[34] Also aggravating is Mr. Kovacs’ criminal record. He has three prior convictions for offences of violence, and six prior convictions for failing to comply with court orders. He was on probation at the time he committed the first offence involving Ms. Albieru.

[35] I have also considered the principle of parity. Parity means that similar offenders who commit similar offences in similar circumstances should receive similar sentences: Criminal Code, s. 718.2(b). In considering proportionality and parity, I have considered all of the cases filed by the parties. These cases reflect a vast range in sentences. At the low end of the range is four months’ imprisonment for a single incident committed by a first-time offender who also has the benefit of other mitigating factors. At the high end of the range for a single incident is a sentence in the mid reformatory range. This range reflects the fact that determining an appropriate sentence is a highly individualized process, which must take into account the purposes and principles of sentencing, as well as the aggravating and mitigating factors in each case.

[36] As this case involves four separate incidents, I must ensure that the total sentence does not exceed the offender’s overall culpability: R. v. Jewell (1995), 83 O.A.C. 81 (C.A.); R. v. Milani, 2021 ONCA 567, 157 O.R. (3d) 314, at paras. 34-43.

[37] In my view, considering all of the facts and the applicable governing principles, a maximum reformatory sentence is appropriate. This sentence reflects the totality principle. Indeed, if not for the principle of totality, the sentence for Count 2 alone would be in the range of 12 months. I reach this conclusion having regard to the similarity between Count 2 and the decision of Horner, wherein the Court of Appeal for Ontario upheld a sentence of 13 months of incarceration (less 4 months’ credit for restrictive bail terms) for a first offender who was convicted of assault with a weapon. In Horner, the accused threatened his girlfriend with a knife after being told she wanted only to be friends.

[38] A maximum reformatory sentence also permits the imposition of a period of probation during which Mr. Kovacs can be supervised and supported in the community.

[39] The next and final consideration is whether Mr. Kovacs should be permitted to serve this sentence in the community.

Conditional Sentence

[40] Pursuant to s. 742.1 of the Criminal Code, if the sentence imposed is less than two years’ imprisonment, the court may permit the offender to serve the sentence in the community provided the court is satisfied (i) this will not endanger the safety of the community and is consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (ii) the offence is not punishable by a minimum term of imprisonment; and, (iii) the offence is not an enumerated ineligible offence.

[41] The convictions for assault carry a maximum sentence of five years. The convictions for assault with a weapon and forcible confinement carry a maximum sentence of 10 years. There are no minimum sentences for any of the convictions. Consequently, a conditional sentence is an available disposition given the absence of any minimum period of imprisonment, the sentence imposed is less than two years’ imprisonment, and the offences are not one of the listed ineligible offences.

[42] Further, I am satisfied that terms could be crafted to ensure Mr. Kovacs would not endanger the safety of the community. While Mr. Kovacs has several prior convictions for failing to comply with court orders, he has been on bail for over two years without incident.

[43] A conditional sentence, however, is not consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code. A conditional sentence would not meet the paramount sentencing principles of denunciation and deterrence. Given Mr. Kovacs’ criminal antecedents, the gravity of the offences, the number of offences, and the need for general deterrence and denunciation, the community would lose confidence in the administration of justice if a conditional sentence was imposed in this case.

[44] I note that in Rahanam, the Court of Appeal for Ontario was satisfied that the trial judge reached the “correct result” in rejecting a conditional sentence order for a youthful first offender who pleaded guilty to a “one-off” incident of violence against his former girlfriend that did not result in any physical injuries. Mr. Kovacs’ circumstances bear none of the mitigating factors that were present in Rahanam. Unlike Rahanam, Mr. Kovacs is not youthful, he is not a first offender, his conduct was not a “one-off”, and he inflicted many physical injuries: at para. 27. For Mr. Kovacs, a sentence served in the community would be wholly unfit.

DISPOSITION

[45] In the result, Mr. Kovacs is sentenced to a total of two years less five days of imprisonment. This period is apportioned as follows:

• Count 2 (assault with a weapon): 9 months’ jail, less five days credit for pre-sentence custody.
• Count 4 (assault): 4 months’ jail consecutive.
• Count 5 (assault): 4 months’ jail consecutive.
• Count 6 (assault): 7 months’ jail consecutive.
• Count 7 (forcible confinement): 3 months’ jail concurrent.

[46] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(3) of the Criminal Code for life.

[47] There will also be an order under s. 487.051(1) of the Criminal Code that Mr. Kovacs provide samples of bodily substances as reasonably required for purposes of forensic DNA analysis.

[48] There is also an order pursuant to s. 743.21 of the Criminal Code that while in custody, Mr. Kovacs is not to communicate, directly or indirectly, with Carla Albieru except as may be permitted pursuant to a family court order or with her written revocable consent.

[49] Finally, following release from custody, I direct that Mr. Kovacs serve a term of probation of 18 months. In addition to the mandatory statutory terms set out in s. 732.1(2) of the Criminal Code, Mr. Kovacs is to:

i. report in person to a probation officer within two days of his release from custody and thereafter, as directed by the probation officer;

ii. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, particularly for anger management, and domestic violence, which may include the Partner Assault Response (PAR) Program;

iii. sign any release of information forms required to enable your probation officer to monitor your attendance and completion of any counselling or rehabilitative programs as directed;

iv. provide proof of his attendance and completion of any counselling or rehabilitative programs as directed by the probation officer;

v. have no communication in any way, directly or indirectly, with Carla Albieru except as may be permitted pursuant to a family court order, or with her written revocable consent; and,

vi. abstain from owning, possessing or carrying a weapon.

J. M. Barrett J. Released: March 21, 2024