Travis Watkins Appellant And: Her Majesty the Queen Respondent, 2021 NLSC 127

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Watkins , 2021 NLSC 127 Date : October 07, 2021 Docket : 202104G0101 Between: Travis Watkins Appellant And: Her Majesty the Queen Respondent Before: Justice Peter N. Browne On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 1319A00467 dated the 24 day of November, 2020. Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: September 28, 2021

Summary: The Appellant appealed his sentence of seven months’ imprisonment consecutive for assault under

section 266 (

b) of the Criminal Code on the basis the sentencing judge erred in principle by creating a judicial category of intimate partner assault for the purposes of sentencing and by relying on a medical journal without notice to the parties. The appeal was allowed on the basis the sentencing judge erred in principle by exceeding the maximum allowable sentence under section 787(1). In view of

section 11(

i) of the Charter, the Appellant, or anyone else in his position, could not receive a sentence greater than six months. Accordingly, the sentence was reduced to five months’ imprisonment consecutive.

Appearances: Derek J. Hogan Appearing on behalf of Travis Watkins Brenda Duffy Appearing on behalf of Her Majesty the Queen Authorities Cited: CASES CONSIDERED: R. v. Watkins, 2020 NLPC 1319A00467; R. v. M. (T.E.), (SCC), [1997] S.C.R. 948, 114C.C.C. (3d) 436; R. v. Friesen, 2020 SCC 9; R. v. Lacasse, 2015 SCC 64; Brushett v. Brushett (1993), (NL SC), 109Nfld. & P.E.I.R. 129, 343 A.P.R. 129 (Nfld. S.C. (T.D.); R. v. Leonard and Snow, 2018 NLSC 213; R. v. Leonard and Snow, 2018 NLSC213; R. v. Find, 2001 SCC 32; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 REASONS FOR JUDGMENT Browne, J.: OVERVIEW [1] Mr. Travis Watkins was convicted for having committed the offences of assault contrary to

section 266(b), breach ofundertaking contrary to section 145(5.1) and breach of a

section 810 recognizance of the Criminal Code, R.S.C. 1985, c. C-46. [2] He was sentenced to seven months’ imprisonment for the assault, two months for the breach of undertaking and one month forthe breach of the 810 recognizance for a total of ten months to be served consecutively (see R. v. Watkins, 2020 NLPC 1319A00467). [3] Mr. Watkins is appealing the sentence for the assault only. The basis upon which the appeal is grounded is that the sentencingjudge erred in principle by: (

a) creating a judicial category of sentences for assault by choking or strangling an intimate partner, contraryto the ruling of the Supreme Court of Canada in R. v. M. (T.E.), (SCC), [1997] S.C.R. 948, 114 C.C.C. (3d) 436 atparagraphs 32 - 33; and (

b) relying on a study from a medical journal without providing notice to the parties. [4] During oral argument, the Crown conceded that at the time of the commission of the offences on August 21, 2019, themaximum allowable sentence for a conviction under

section 266(

b) was six months pursuant to section 787(1). On September 19, 2019,an amendment to section 787(1) came into effect, increasing the maximum penalty to two years less a day. [5] Under

section 11(

i) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 being

Schedule B tothe Canada Act 1982 (UK), 1982, c. 11, if the punishment for the offence has been varied between the time of the commission and thetime of sentencing, the person is entitled to the lesser punishment. [6] For the reasons that follow, I conclude that the sentencing judge made an error in principle when imposing a seven month termof imprisonment for the assault, that the error of imposing a sentence beyond the maximum period allowable at the time of thecommission of the offence had an impact on the sentence.

In the result, I would allow the appeal and impose a sentence of five months’imprisonment consecutive. standard of review [7] Both the Defence and the Crown agree the standard to be applied by an appeal court is that it should only intervene if thecircumstances demonstrate the sentence is: (

a) demonstrably unfit; or (

b) there was an error in principle that had an impact on thesentence (see R. v. Friesen, 2020 SCC 9 at paragraph 26 and R. v. Lacasse, 2015 SCC 64). [8] Should the appellate court find an error in principle that had an impact on sentence then it will apply the principles ofsentencing afresh to the facts without deference to the existing sentence even if the sentence falls within the acceptable range (seeFriesen at paragraph 27). However, deference will be given to the sentencing judge’s findings of fact or identification of aggravating and

mitigating factors so long as they are not affected by an error in principle (see Friesen at paragraph 28). [9] An appellate court may not intervene on the ground that it would have put the sentence in a different range or category butmay intervene if the sentence is demonstrably unfit (see Lacasse at paragraphs 11, 44 and 51). ISSUES [10] The issues on this appeal are as follows: a. Did the sentencing judge err in principle by creating a judicial category of an assault on an intimate partner for the purpose ofsentencing? b.

Did the sentencing judge err in principle by relying on a medical journal without notice to the parties? c. Did the sentencing judge err in principle in imposing a term of seven months for an assault under

section 266(b)? d. Did any of these errors in principle have an impact on sentence and, if so, what is the remedy? Background [11] The parties accepted the

summary of facts as set out in paragraphs 13 - 17 of the sentencing judge’s decision. [12] In essence, in the early morning hours of August 21, 2019, Mr. Watkins and his girlfriend (Ms. X.) returned to his residenceafter having been at a bar. An argument ensued after Ms. X suggested inviting a person they had met earlier in the evening back toengage in sexual activity. Mr. Watkins became very upset and started calling Ms. X. various hurtful/sexualized epithets. She respondedby pouring a container of water over his head. Mr.

Watkins then grabbed her by the throat with one hand and pushed her against the walland held her there for approximately 30 seconds before letting go. Ms. X. described a sensation of not being able to talk or breathe andlosing her eyesight. [13] After this incident, Mr. Watkins followed her around the apartment and grabbed her by the throat a second time and held hisgrip for approximately 10 to 15 seconds before letting go. Ms. X. escaped from the apartment and while outside Mr.

Watkins grabbedher by the throat for the third time, this time using both hands pushing her head back and then “head-butting” her before letting go. Analysis Issue 1: Judicial category of assault on an intimate partner for purposes of sentencing [14] It is the position of Mr.

Watkins’ legal counsel that the sentencing judge erred in principle in establishing “a hard and fastrule”, thereby limiting his discretion, when he made the following statement at paragraph 112 of his decision: The judiciary must send a clear message that men who choke or strangle their present or former intimate partners will be sentenced tosignificant periods of incarceration. [15] Crown counsel asserted that this statement, when read in the context of the judge’s complete sentencing analysis, merelyconstituted a reflection of the current state of the law following the introduction of

section 267(

c) on September 19, 2019. She referred tothe fact that the judge did not define what was meant by a significant period of incarceration and, in fact, he used the same phrase earlierin his decision when referring to two cases where the court imposed a sentence of three months for assault cases involving intimatepartners. [16] In this context, the statement must be read in light of all of the factors that were before the court including the seriousness ofthe facts of this case.

I conclude that the sentencing judge was simply emphasizing the seriousness of the assault by choking andheadbutting, and the pressing concern of intimate partner violence. Therefore, I find the sentencing judge did not err in principle. Issue 2: Introduction of a medical study without notice to the parties [17] Mr.

Watkins’ legal counsel advanced the proposition that by relying on “individual studies off the shelf” without providingcounsel with notice and the right to address them, the court runs the risk that a decision will be influenced by material that is not based ona balanced review of available research (see Brushett v. Brushett (1993), (NL SC), 109 Nfld. & P.E.I.R. 129, 343A.P.R. 129 (Nfld. S.C. (T.D.)). [18] Pursuant to sections 724(1) and 726.1, the court may rely upon facts agreed to by the prosecutor and the offender and anyrelevant information placed before it.

In the instant case, counsel referred this Court to the fact the study referenced by the sentencingjudge involved a survey of two women’s shelters and a hospital in the United States and thus was not capable of judicial notice because:(

i) it was so notorious or generally accepted as not to be the subject of debate; or (ii) capable of immediate and accurate demonstration byresort to readily accessible sources of indisputable accuracy (see R. v. Leonard and Snow, 2018 NLSC 213 at paragraph 10 citing R. v.Find, 2001 SCC 32 at paragraph 48). [19] In response, the Crown conceded that courts are limited in taking judicial notice except in the instances cited by Mr. Watkins’counsel more commonly known as the “Morgan criteria”.

However, she argued that in the context of the sentencing judge’s analysis, thisarticle was merely being used as a “backdrop” to the large number of judicial decisions he cited from across Canada where femalevictims were subjected to choking by a male accused.

[ 20 ] I accept the position of Mr. Watkins’ counsel that where a judge intends to rely on a study regarding the incidence of a crime he/she/they should provide notice to the parties. However, while I find this constitutes an err in principle, I do not find that it had an impact on the sentence imposed by the judge as I also accept the Crown’s position that it was relied upon solely for the purpose of providing the social context. Issue 3: Imposition of a term of seven months’ incarceration under

section 266 (b) [ 21 ] At the time of the commission of the offence, the maximum term of imprisonment for a

summary conviction offence of assault was six months. To the credit of Crown counsel, this important distinction was brought to the attention of this Court and Defence counsel during the course of oral argument of this appeal. [ 22 ] The state of the law meant that the maximum period of incarceration available to the sentencing judge under

section 266(

b) for Mr. Watkins would have been six months as per section 787(1): 787(1) General penalty – Unless otherwise provided by law, everyone who is convicted of an offence punishable on

summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both. [ 23 ] In addition to the wording of section 787(1) in effect at the time of the commission of the offence,

section 11(

i) of the Charter applies to Mr. Watkins’ circumstances.

Section 11(

i) states as follows: 11 Any person charged with an offence has the right (

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. [ 24 ] Between time of the commission of the offence (August 21,2019) and the time of his sentencing ( November 20,2020) the maximum sentence for an offence under

section 266 (

b) had increased from six months to two years less a day. Therefore, by imposing a sentence of seven months, the sentencing judge erred in principle and that error had an impact on Mr. Watkins’ sentence (see Tran v. Canada (Public Safety and Emergency Preparedness ), 2017 SCC 50 at paragraph 37 ).

Issue 4: What is the remedy? [ 25 ] As noted in paragraphs 27 - 28 of Friesen , where an appellate court finds that an error in principle had an impact on sentence, it will apply the principles of sentencing afresh while deferring to the sentencing judge’s findings of fact or aggravating/mitigating factors so long as they were not impacted by the error in principle. [ 26 ] Mr. Watkins’ counsel, in both written and oral submissions, acknowledged that an assault on one’s intimate partner is a statutorily aggravating factor (see

section 718.2(a)(ii)) and that the extent of the assault itself was an aggravating factor. However, the sentencing judge failed to consider the principle of proportionality by not recognizing that Mr. Watkins was youthful, steadily employed and had a good work ethic. In his opinion, a fit sentence would have been four months consecutive based on the range of sentences provided to both the sentencing judge and this Court.

It is worth noting that neither counsel was able to cite a decision that fell within the same factual matrix as this case. [ 27 ] Crown counsel, following her concession regarding the maximum sentence available to the Court, submitted that a fit sentence warranted a period of incarceration closer to the maximum due to the following considerations:

(1) Mr. Watkins had a prior assault conviction (non-intimate partner); (2) he was on a peace bond at the time of the offence; (3) he did not enjoy the mitigating factor of a guilty plea; and (4) most importantly, the facts of the case are at the more serious end of the spectrum of assault. [ 28 ] In examining this case from a fresh perspective, I am persuaded by the factors put forward in the Crown’s submission as appropriate considerations for a fit sentence.

In so doing, I also note that during the sentencing hearing in Provincial Court the Crown suggested an appropriate sentence would be five months consecutive whereas the Defence suggested the range fell somewhere between four to six months to be served conditionally based on the recommendation of the Pre-Sentence Report that Mr. Watkins was a candidate for community supervision. [ 29 ] The facts of this case are quite egregious. Mr. Watkins does have a prior criminal record which includes one prior conviction for assault.

The seriousness of this assault, including the harm caused by the three incidents of choking as well as the head-butting, raises the factors of denunciation and deterrence as primary considerations. The potential for greater harm loomed large had Ms. X. not escaped Mr. Watkins’ apartment. All of which place the case in the category for a lengthier sentence despite the mitigating factors noted by Mr. Watkins’ counsel. [ 30 ] I agree with the position of Mr. Watkins’ counsel that a fit sentence must be based on the fundamental principle of proportionality as set forth in

section 718.1 of the Criminal Code . Built into the principle of proportionality is the notion of parity (i.e. offences should be compared with similar sentences committed in similar circumstances) but ultimately the sentence must be determined on an individual basis (see Lacasse at paragraph 53 ). [ 31 ] In reviewing the range of sentences provided to the Court by counsel and cited by the sentencing judge in his reasons, there were no decisions which contained facts similar to this case.

Several of the cases that were cited as being comparable, based on the seriousness of an assault upon an intimate partner, carried a sentence of four months but were also accompanied by a guilty plea. [ 32 ] Having considered all of the circumstances, I conclude that a fit sentence in this case would be a period of five months’ imprisonment consecutive.

Conclusion [ 33 ] In the result, I would allow Mr. Watkins’ appeal and reduce the sentence for assault from seven months’ imprisonment consecutive and impose a sentence of five months’ imprisonment consecutive. _____________________________ Peter N. Browne Justice