R v Drews, 2022 ABKB 658

Court of King’s Bench of Alberta Citation: R v Drews, 2022 ABKB 658 Date: 20221004 Docket: 200055135S1 Registry: Calgary Between: His Majesty the King Appellant - and - Cary Drews Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice L.K. Harris _______________________________________________________ Appeal from the Sentencing Judgment of the Honourable Judge H. M. Van Harten [ 1 ] The Crown appeals the sentence imposed on the Respondent by the Sentencing Judge for an assault causing bodily harm contrary to s. 267 (

b) of the Criminal Code . Crown argues that the Sentencing Judge erred in law by failing to properly apply the principles of denunciation and deterrence and by placing too much emphasis on the principle of rehabilitation, rendering the sentence of 90 days to be served intermittently, plus 12 months parole, too lenient and demonstrably unfit. [ 2 ] The Respondent opposes the appeal, arguing that the Sentencing Judge made no error and imposed an appropriately individualized sentence. [ 3 ] The Complainant and the Respondent were in an intimate partner relationship for six years, although they never lived together.

On December 15 and 16, 2018 the parties were at the Respondent’s residence wrapping Christmas presents. Both were drinking alcohol. A verbal argument ensued, during which the Complainant was kicking and throwing presents and tree ornaments. [ 4 ] There are somewhat conflicting versions of what transpired next.

[ 5 ] The Respondent signed a “Statement of Admitted Facts” on August 12, 2020. Some of the facts that the Respondent admitted to include that the Respondent made a rude comment to the Complainant, and when she stood up for herself, the Respondent became very angry, and a verbal argument ensued. The argument escalated to pushing and shoving until the Respondent strangled the victim until she lost consciousness.

During the assault, the Complainant lost consciousness multiple times and therefore does not have a clear memory of the assault. [ 6 ] A Pre-Sentence Report dated October 21, 2020, was before the Sentencing Judge. The author of the report reiterates: He stated that they started shoving each other. He advised me that she was not making sense and he told her “What was the problem… what I done here”. He advised me that she threw another present and he had to duck. He stated that he was scared for her. He advised me that she had school the next day.

He stated that he had to restrain her from behind and she continued to yell. He stated that she seemed that she calmed down and he tried to go to his bedroom and “call it a night”. He states that she was still talking and yelling to no one and then she came to the bedroom. He advised me that she was spitting all over the place and punched a hole in the bedroom door. He states “It was getting ridiculous”.

He said that she tried to throw punches at him and she threw more things and ran at him in the kitchen so “I am left handed…held her hands and pushed her away…she fell over a stool into the couch…I yelled at her to stop…she ran at me again….she pushed me again and this happened two or three times…she caught me in the face and ribs and I felt I was in pain and lost my cool.” He stated “I knocked her unconscious…I picked her up as I was concerned”. He further stated that she was unconscious for about 30 seconds.

She woke up and he started to cry and said that he was sorry and then went to bed. [ 7 ] The Court also had another Pre-Sentence Report before it dated November 25, 2020. In that report the Probation Officer noted that the Respondent “appeared to minimize his actions and did place blame on the victim.” She further noted that he “did not show remorse as he did not comment on her injuries and appeared to minimize his actions.” [ 8 ] The Sentencing Hearing proceeded on April 27 and October 5, 2021.

The Respondent testified in a Gardiner hearing seeking to offer his explanation of the circumstances giving rise to the charges against him. According to the Respondent, the Complainant was attempting to hit and kick him during the argument. The Respondent put his arm around the Complainant’s neck from behind and squeezed until she lost consciousness. He then left the Complainant on the floor. When she regained consciousness, she again became belligerent, and the fight resumed. After the Complainant punched him, the Respondent punched the Complainant in the face, again causing her to lose consciousness.

He then attempted to rouse her, and once she awoke, he apologized to her. The Respondent acknowledged causing the Complainant to have a black eye and significant bruising about her face and body. [ 9 ] Crown sought a sentence of 18 months, while the Respondent sought 90 days, served intermittently.

Both parties agreed on a subsequent probation of 12 months. [ 10 ] The Sentencing Judge noted the decisions of R v Brown , 1002 ABCA 132 and R v Lemmon , 2012 ABCA 103 , but observed; The principle of general deterrence as a measure of mitigating domestic violence, what was the focus in Brown , has not been proven very effective. There is little evidence that imposing heavier sentences has deterred others from committing such violence.

The Brown Court’s conclusion was prefaced by its note (at para. 19) that [domestic violence] “is a broad social problem which should be addressed by society outside the courts in ways which it is not within our power to create, to encourage or to finance.” Since then, the advent of domestic violence courts has seen a change in sentencing practice towards the rehabilitation of the offender and, where possible the reunification of the parties and their families.

Domestic violence courts operate with the assistance of “outside “agencies such as (in Calgary) HomeFront [ 11 ] The Sentencing Judge then went on to cite R v Adams , 2009 ABQB 160 , a

summary conviction appeal in which the Court upheld a conditional discharge granted to an offender in a domestic violence case who had only a dated, unrelated single offence criminal record. [ 12 ] The Sentencing Judge noted the Respondent’s efforts to rehabilitate, attending several courses and therapy addressing domestic violence and anger management.

The Sentencing Judge found as a fact that the Respondent had made a “radical personal change”, and given the circumstances, the less restrictive sentence sought by Defence was warranted. [ 13 ] Both parties agree that I must afford the sentencing decision below considerable deference. I may only intervene where the sentence is demonstrably unfit due to an error in principle, a failure to consider a relevant factor, or an overemphasis of relevant factors: R v Hilsen , 2014 ABCA 310 ; R v Parranto , 2021 SCC 46 at para. 30 .

Sentencing Judges are to be given wide latitude as they have had the advantage of hearing and seeing witnesses, unique qualifications of experience and judgment from having served on the front lines, and normally preside near or within the community which has suffered the consequences of the offender’s crime: Parranto at para. 13 , R v Lacasse , 2015 SCC 64 . [ 14 ] The Crown argues that the Sentencing Judge in this case minimized the requirement for general deterrence and denunciation, while at the same time overemphasized the Respondent’s efforts to rehabilitate himself, and as such committed an error in principle.

While the Respondent’s rehabilitation efforts can and should be considered, they are only one factor, and the Sentencing Judge should not only focus on the Respondent and his rehabilitation efforts, but also ought to have considered the gravity of the offence and placed more emphasis on the principles of general deterrence and denunciation.

Brown actually went further than what the Sentencing Judge discusses by stating that even though there have been changes in sentencing practices in cases of domestic violence, courts still have an opportunity through sentencing to denounce domestic assault and to attempt to deter such acts. Other decisions make it clear that denunciation and deterrence principles are paramount when it comes to domestic violence crimes and when one considers the sentences

in decisions such as R v Lemmon , 2012 ABCA 103 , R v Lausberg , 2013 ABCA 72 and R v Prevost , 2019 ABCA 398 , it is clear that a 90 day intermittent sentence for a conviction of assault causing bodily harm, which included choking his intimate partner to unconsciousness, was demonstrably unfit. [ 15 ] The Respondent argues that Parranto emphasizes the need for individualized sentencing. The Sentencing Judge considered rehabilitation but that was only one portion of his decision. He properly weighed and identified all the aggravating and mitigating factors.

Clearly, rehabilitation was a key factor in this case but it wasn’t the only one considered, and rehabilitation may warrant a reduction of sentence. R v Reynolds , 2013 ABCA 382 , in which the offender received a 90-day intermittent sentence, considered much more aggravating factors than in this case and as such it is not an outlier. The Respondent pointed to the fact that he has completed his 90-day intermittent sentence, is now bound by the probation order and there have been no issues with his compliance.

The only purpose to be served by imposing further incarceration would be purely denunciation and deterrence as there would be very limited opportunity for the Respondent to continue with his rehabilitation efforts through therapy. The Respondent argues that the sentencing judge committed no error in principle and the sentence imposed was not demonstrably unfit. [ 16 ] The Court of Appeal has made it abundantly clear that domestic violence is a scourge, and that the principles of denunciation and deterrence in such cases are paramount.

I agree with Crown that Brown does go farther than what is noted by the Sentencing Judge.

The sentencing decision repeats Brown ’s discussion regarding the Court’s inability to mandate change from a social perspective, but the Sentencing Judge does not refer himself to Brown ’s statement regarding its ability to denounce domestic violence and deter recurrence through its sentencing policies. [ 17 ] The Court goes on to say at para. 22: In the case of assaults by a man against his wife or other female partner in life, two of the applicable principles are that the sentence should be shaped in the hope of furthering the rehabilitation of that man and n the hope of deterring him from repeating his conduct in the future.

However, the more important principles are that the sentence should be such as to deter other men from similarly conducting themselves toward women who are their wives or partners (what is called the principle of “general deterrence”), and that the sentence should express the community’s wish to repudiate such conduct in a society that values the dignity of the individual (the “denunciation principle”) … (emphasis added) [ 18 ] Other provinces’ Courts have made similar statements.

In R v Davidson , 2021 QCCA 545 at para. 32 the Quebec Court of Appeal states: Moreover, the Court has emphasized on several occasions the added weight that must be given to the objectives of denunciation and deterrence in the context of domestic violence.

Indeed, sentencing in these matters pursues two main imperatives: to denounce the unacceptable and criminal character of domestic violence and to enhance the confidence of the victims and the public in the administration of justice. […] Moreover, even when an accused shows encouraging signs of rehabilitation, the objective of rehabilitation should not take precedence over the objectives of deterrence and denunciation in matters of domestic violence. […] Domestic violence and the context of a home invasion are very important aggravating factors and should incite the courts to favor deterrence and the protection of society over the rehabilitation of an accused, particularly where that rehabilitation is incomplete and uncertain. […] … the objectives of denunciation and deterrence [are] of paramount importance in matters of domestic violence… [ 19 ] In Reynolds , relied upon by the Respondent, the Respondent Offender was sentenced to 90 days imprisonment on counts of being unlawfully in a dwelling house and assault causing bodily harm, and 30 days concurrent on a count of assault, to be served intermittently.

The parties had been living together in a domestic relationship. They had separated and remained friends. After a confrontation at a party, the Respondent attended the Complainant’s residence, but she refused entry. He then broke in and fell asleep on her bed. When she returned home, she demanded that he leave. The Respondent assaulted her, smothered her and choked her, resulting in swelling to her face, marks on her neck and a split lip.

It was only when she agreed to let him stay that the assault stopped. [ 20 ] The majority in Reynolds dismissed the appeal on the basis that it could discern no error of law or contravention of principle. However, in the dissenting opinion, Martin, J.A. stated that the sentence was not reflective of the appropriate sentencing objectives for such an assault, and therefore was unfit.

Martin J.A. went on to say at para 29: …choking or smothering is a serious offence that should be reflected in the sentence imposed. [ 21 ] Martin J.A. cited R v Lemmon , 2012 ABCA 103 , (also written by Martin J.A), which was also a choking/strangulation case. In Reynolds the choking was not of the same nature as in Lemmon and did not result in the same degree of injury. However, Martin J.A. would have imposed a sentence of nine months’ imprisonment. [ 22 ] Lemmon was a far more serious case with convictions for unlawful confinement, sexual assault and choking.

There was a long-term offender designation. [ 23 ] In R v Lausberg , 2013 ABCA 72 , the Respondent Offender lured the Complainant into meeting him, badgered her and then choked her to the point of unconsciousness and left her on the pavement after the Complainant had terminated their long-term domestic

relationship. The Court characterized the assault as a “very serious one”. The Court of Appeal imposed a sentence of two years less a day on each of two counts to be served concurrently. [ 24 ] In R v Prevost , 2019 ABCA 398 , the Court of Appeal had an opportunity to comment upon both Lemmon and Reynolds at paras 12-13 : The appellant’s counsel submitted that the comments in Lemmon were essentially a policy statement that choking a person for a period of time endangers that person’s life and that it would be difficult to reconcile the gravity of such an assault with a non-penitentiary sentence.

We would agree with that reading, but add that what was said in Lemmon remains common sense and sound penological policy. In this respect it is useful to recall the comments in R v Arcand , 2010 ABCA 363 at para 57 , 499 AR 1 that “the gravity of the offence is directed to what the offender did wrong. It includes two components: (1) the harm or likely harm to the victim; and (2) the harm or likely harm to society and its values.” Arcand was explaining the term “gravity of the offence” under s 718.1 of the Criminal Code .

In an assault where the victim is choked in a willful manner, it is not difficult to reinforce what was said in Lemmon . We would characterize the case of R v Reynolds , 2013 ABCA 382 , 561 AR 335 , cited by the appellant’s counsel, as an outlier. (emphasis added) [ 25 ] In Prevost , the Court noted that in its view, the sentence for six counts consisting of assault causing bodily harm, assault, mischief and breaches of orders of 30 months was “in no sense too severe”. [ 26 ] In R v Lusty , 2022 ABPC 45 , the offender choked his wife by the throat and threatened her life while holding a knife.

He had a related criminal record. The Court states at para 21; …public denunciation and specific deterrence are the primary sentencing goals in cases of intimate partner violence. Second, it is an especially relevant aggravating factor when an offender comes before the Court with a criminal record for previous intimate partner violence. Third, the best resource the Court has to offer offenders intent on rehabilitation is probation and counselling.

That is because the underlying cause of domestic violence cannot be alleviated unless or until offenders acquire insights about their own personal relationship with and to coercive control and violence. [ 27 ] The Court goes on to note, “It is in the interest of the public that Courts confirm domestic violence is criminal violence and that offenders are equally as accountable in private intimate settings as they are in public ones.

A custodial sentence reflecting time served, with this offender, committing this serious coercive violence, would not meet the public interest of denunciation.” The offender was sentenced to 360 days concurrent for the charge of assault/choking under s. 267 (

c) of the Criminal Code , together with other sentences for six other counts. [ 28 ] In R v Chernoff , 2021 ABPC 16 , the Court reviewed authorities, many of which I have considered herein, dealing with choking offences, and found that in cases of domestic assault, where the complainant is choked to the point of unconsciousness, the sentencing range would be 18 to 24 months. [ 29 ] R v Friesen , 2020 SCC 9 affirms that “all sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (para. 30). [ 30 ] It is clear from the authorities that the sentences in both Reynolds and in this case are outliers and not proportionate to the gravity of the offence and degree of responsibility of the Respondent, especially considering that denunciation and deterrence are the primary sentencing goals here.

Having said that, is the Sentencing Judge’s decision still entitled to deference, or is it demonstrably unfit due to an error in principle, a failure to consider a relevant factor, or an overemphasis of relevant factors? [ 31 ] The Sentencing Judge agrees that Brown is binding but goes on to note that the “principle of general deterrence as a measure of mitigating domestic violence has not been proven very effective” and that there is “little evidence that imposing heavier sentences has deterred others from committing such violence” (at para. 16).

The Sentencing Judge does not go on to say that despite his concerns, the objectives of denunciation and deterrence remain of paramount importance in matters of domestic violence, and that those objectives must be given added weight and the objective of rehabilitation should not take precedence. [ 32 ] Then, the Sentencing Judge goes on to refer to the mitigating factors. The Respondent entered a timely guilty plea. The pre- sentence reports were noted to be “positive”.

The Respondent pursued counselling, wrote letters of apology, gave “credible evidence for putting his offence into context” and made donations to charitable causes. He remained gainfully employed, which would be negatively affected by imposing a more onerous sentence. The Respondent was in a new relationship which by all accounts was healthy and positive.

The Sentencing Judge found that the Respondent had made a “radical personal change”. [ 33 ] I conclude that although the Sentencing Judge referred to the principles in Brown , he did not actually give effect to the Court’s directive that the more important principles in domestic violence cases are deterrence and denunciation. The Sentencing Judge failed to do so because he believed that heavier sentences (which presumably would result from giving more weight to those factors) fail to provide deterrence.

Regardless of whether this is true, the Courts have been clear that denunciation and deterrence take precedence over rehabilitation. In reading the sentencing decision this did not occur, and accordingly I find that the Sentencing Judge committed an error in principle. The error resulted in a sentence that was demonstrably unfit by being far below other examples of sentences for domestic assault involving choking. As such it was not proportionate to the gravity of offence. [ 34 ] There are mitigating factors, as outlined above. But there are also many aggravating factors.

The assault took place between intimate partners within the Respondent’s home. Not only did the Respondent choke the Complainant to unconsciousness, but he also left her on the floor following the choking. Once the argument resumed, he punched the Complainant in the face with enough force that she lost consciousness a second time. The injuries she suffered are documented in photographs. While the Pre-Sentence Reports are indeed positive in the sense that the authors felt that the Respondent demonstrated a low risk of reoffending, they also note that he tended to minimize his actions and blame the Complainant.

[ 35 ] I conclude that a fit sentence in this case is nine months plus 12 months’ probation as agreed to by the Crown and Defence. The circumstances are somewhat less severe than those in Lusty and Chernoff as the Respondent does not have a prior criminal record and did not use a weapon during the commission of the offence.

Similarly, the case of Prevost is not directly applicable as it involves convictions on six counts, rather than the one count involved here. [ 36 ] The fact that the Respondent has already completed the 90-day intermittent portion of his sentence is not a factor I take into account when assessing a fit sentence. I have relied upon the directions provided by the Court of Appeal in the cases cited above, which do not include a direction to consider whether an offender has already served his sentence imposed by the Court below.

This is the same approach taken in Lausberg . [ 37 ] I allow the appeal and set aside the decision below. I impose a sentence of nine months on the count of assault causing bodily harm plus 12 months’ probation. The Respondent is to be given credit for the 90 days he has served. Upon his release he will complete the remainder of his 12-month probation order imposed by the Sentencing Judge. Heard on the 18 th day of August, 2022. Dated at the City of Calgary, Alberta this 4 th day of October, 2022. L.K. Harris J.C.Q.B.A. Appearances: Robert C.

Marquette Alberta Justice for the Crown Katherin Beyak Roadlawyers for the Appellant