R. v. Ranspot Date:, 2017 BCPC 100

Citation: R. v. Ranspot Date: 20170308 2017 BCPC 100 File No: 242078-2-KC Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL MURPH RANSPOT RULING ON GARDINER APPLICATION OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: K. Gagnon Counsel for the Defendant: E.D. Crossin, Q.C. Place of Hearing: Vancouver, B.C. Date of Hearing: March 8, 2017 Date of Judgment: March 8, 2017 INTRODUCTION [1] THE COURT: This is my ruling on the Crown's application to introduce evidence by calling the complainant as a witness atMr.

Ranspot's sentencing hearing, in addition to the submissions of counsel. Similar applications in other cases have sometimes beenreferred to as applications for a Gardiner hearing: see R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368. [2] The application was made at the beginning of the Crown's reply submission; that is, after the Crown and the defence had made

substantive submissions on sentencing. BACKGROUND CIRCUMSTANCES The Charge [ 3 ] In February 2016, Mr. Ranspot was charged with committing an assault which caused bodily harm to Ms. Cabezas, contrary to s. 267 (

b) of the Criminal Code . This offence occurred in the early morning hours of December 31, 2015, in Vancouver, British Columbia. The plea [ 4 ] On November 9, 2016, Mr. Ranspot pled guilty to the charge of committing an assault which caused bodily harm to Ms. Cabezas, contrary to s. 267 (

b) of the Criminal Code . The Crown proceeded summarily. [ 5 ] The background facts of the offence were not read into the record when the plea was entered. The parties sought a sentencing hearing in the new year. The Crown advised that the sentencing hearing could be comfortably concluded in less than an hour. Defence counsel agreed. The sentencing hearing was set before me for one hour on January 12, 2017. Materials/submissions at the sentencing hearing [ 6 ] The parties submitted an agreed statement of facts.

Both parties made full submissions on sentencing and filed supporting documentation in the course of those submissions. Both parties addressed the purpose and principles of sentencing set out in the Criminal Code . In addition to the agreed statement of facts, the Crown submitted a victim impact statement from the complainant and a criminal record, which showed Mr. Ranspot had been convicted in 1998 of operating a motor vehicle while impaired by alcohol. That offence had taken place in 1997. [ 7 ] The defence filed a psychiatrist's report from Dr.

Pedro Paragas dated January 10, 2017, a book of documents that consisted of seven letters from friends and colleagues of Mr. Ranspot, and some information on how United States border authorities deal with misdemeanour convictions or other convictions recorded in a criminal record when a person seeks admission into the United States. Parties' position on sentence [ 8 ] The Crown submitted an appropriate sentence in the circumstances of this offence is a suspended sentence and a probation order in the range of 18 to 24 months.

The Crown sought to have a number of conditions attached to the probation order including, but not limited to, a counselling condition, a no-contact condition with the complainant and her son, an area restriction, a prohibition on the consumption of alcohol, and a no-weapons condition. Additionally, the Crown sought a DNA order and a weapons prohibition order. [ 9 ] The defence submitted an appropriate sentence in the circumstances is a conditional discharge. He agreed a probation order was appropriate, but it should be no longer than 12 months.

Defence counsel noted that the precise nature of the unlawful injury to Ms. Cabezas was unclear, but conceded it was more than trifling. [ 10 ] Defence counsel noted there was provocation. That is a logical inference flowing from the agreed statement of facts that the physical altercation between Ms. Cabezas and Mr. Ranspot began with Mr. Ranspot properly defending himself. Defence counsel acknowledged that alcohol, coupled with addiction, was at the root of Mr. Ranspot's loss of control. [ 11 ] Defence counsel submitted Mr. Ranspot immediately sought and continues to undergo counselling.

He has insight into his addiction and is well motivated to take remedial steps. He has pled guilty. He has shown and expressed deep and genuine remorse. He has also suffered embarrassment and humiliation. Crown's application to call evidence [ 12 ] Following submissions by the Crown and the defence, while in the course of reply, the Crown told the court she needed more time to make submissions, because the character of Mr. Ranspot had been raised to such a degree that the Crown needed to respond. The matter was stood down to the afternoon. [ 13 ] The Crown noted that the defence had raised evidence about Mr.

Ranspot's good character. Thus, she wanted to call evidence to rebut that good character evidence. The Crown applied for a hearing. She proposed to call the complainant, who had been in court during the sentencing proceedings, to give evidence about the context of the relationship and also to give evidence that would stand in contrast to the good character of the accused put forth by defence counsel. [ 14 ] The Crown expressed concerns about comments made by defence counsel in the course of his submissions about the complainant's veracity and her mental health. She viewed those comments to be disparaging.

The Crown also expressed concerns about inflammatory language regarding the victim's behaviour which was contained in the psychiatrist's report prepared by Dr. Paragas. [ 15 ] In particular, the Crown was concerned that Mr. Ranspot was submitting evidence to the court about the complainant without actually taking the stand himself. The Crown also expressed concerns that defence counsel had been unfair in his submissions regarding the victim impact statement. [ 16 ] Defence counsel made it clear that certain statements noted in Dr.

Paragas's report were not tendered for their truth and the court should not rely on them. Further, defence counsel expressed regret about the Crown's perception that he had been unfair. He said that was not his intention and if the Crown felt he had proceeded unfairly, he apologized. The concession by the defence did not satisfy the Crown's concerns. [ 17 ] Both parties acknowledged the agreed statement of facts had been carefully crafted. Neither of them resiled from the agreed

statement of facts. However, the Crown explained she thought that during the sentencing hearing certain characteristics were going to be emphasized and others were not going to be discussed at all. However, that is not what happened. [ 18 ] Moreover, the Crown pointed to some questions I asked during her submission regarding the injuries set out in the agreed statement of facts and how they related to the injuries detailed in the complainant's victim impact statement. Accordingly, the Crown wanted to call the complainant who could explain her injuries and the character of the accused going back in time.

THE PARTIES’ WRITTEN SUBMISSIONS The Crown's written submission [ 19 ] In its written submission, the Crown identified the facts she wishes to dispute, namely:

a) the assertion in Dr. Paragas's report that Mr. Ranspot drank "only socially" between 2007 and the date of the offence;

b) the assertion made by defence counsel in his submissions to the court that Mr. Ranspot has been "healthy since 1999";

c) the assertion made by defence counsel in his submission to this court that the events of the night of the offence were only a "momentary incident";

d) defence counsel's submission that the complainant was not Mr. Ranspot's common law partner as the term is used in s. 718.2 (a)(ii) of the Criminal Code . [ 20 ] In support of its application to call evidence, the Crown relies on the Criminal Code provisions regarding sentencing, in particular ss. 723 and 724 . The Crown also relies on Gardiner and R. v. Pahl , 2016 BCCA 234 . [ 21 ] The Crown wishes to dispute certain facts, set out above, put forth by the defence regarding Mr. Ranspot's character, and in particular his alcohol usage during the term of the common law relationship between Mr. Ranspot and Ms.

Cabezas. [ 22 ] The Crown acknowledges she anticipated the defence would raise good character evidence during the course of the sentencing hearing. However, she points out the precise facts advanced by the defence were not given to the Crown for advance assessment. In that regard, however, the Crown notes surprise is not a relevant factor in respect of an application under s. 724(3), which refers to "any fact that is relevant to the determination of a sentence". [ 23 ] The Crown submits the rules of evidence regarding rebuttal evidence in the context of a trial do not apply to a sentencing hearing.

The Crown asserts completely different rules of evidence apply and relies on ss. 723 and 724 of the Criminal Code in this regard. The Crown submits all the evidence she wishes to call to dispute the hearsay evidence proffered on behalf of Mr. Ranspot can be provided by calling one witness, namely, the complainant. Ms. Cabezas has personal knowledge regarding each of the facts in issue and is reasonably available and compellable. Mr.

Ranspot's written submissions [ 24 ] The defence acknowledges that s. 724(1) of the Criminal Code provides that a court may accept as proved any information disclosed at a sentencing proceeding and any facts agreed upon by the prosecutor and the offender.

The defence points out that s. 724(3) also provides that the party wishing to rely on a relevant fact has the burden of proving it. [ 25 ] The defence agrees with the Crown's general characterization of s. 724 as set out in the Crown's submission; namely that if a party disputes a fact put forward by the other side, the party seeking to establish the relevant fact bears the onus of proving it.

Furthermore, the onus is on a balance of probabilities, except for aggravating facts alleged by the Crown which must be proven beyond a reasonable doubt. [ 26 ] The defence submits that if a party does not wish to prove a disputed fact, the court need not rely on that fact in its reasons for sentence. It does not fall on the other side to disprove the disputed fact the other party seeks to rely on and to embark on an evidentiary hearing in that regard.

The defence submits an obvious prerequisite for the calling of any evidence regarding the proof of a disputed fact is that the party who put the disputed fact forward wishes to rely on it. If the party who put forward a disputed fact does not wish to rely on that fact, the inquiry ends. It is not open to the other side to call evidence regarding a disputed fact that is no longer being relied upon. [ 27 ] In that regard, the defence submits that Mr. Ranspot does not seek to rely on the disputed facts raised by the Crown; namely, that Mr.

Ranspot only drank socially between 2007 and the date of the offence, and that he has been healthy since 1999, or that the events of the night of the offence were only a momentary incident. The defence makes the following submissions regarding the comments identified as disputed facts by the Crown:

a) With respect to the assertion that Mr. Ranspot drank "only socially" between 2007 and the date of the offence, the defence points out this is not what is stated in Dr. Paragas's report. In that report at page 3, Dr. Paragas wrote, "He did not drink alcohol from 1998 to 2007 after he admitted using alcohol socially." The defence points out Dr. Paragas did not use the word "only" nor did he comment on Mr. Ranspot's use of alcohol between 2007 and the date of the offence. The defence submits the statement made by Dr. Paragas in his report suggests Mr.

Ranspot did not drink alcohol between 1998 to 2007, at which time he began drinking again socially. The defence says Mr. Ranspot need not and does not rely on the word "socially" or on the examples provided by Dr. Paragas in his report. That being the case, the defence says there is no need to embark upon an evidentiary hearing in this regard.

b) With respect to the alleged disputed fact arising from defence counsel's submission, namely that Mr. Ranspot "has been healthy since 1999", the defence submits it is evident from Dr. Paragas's report that Mr. Ranspot had a number of health issues related to alcohol in the 1990s, including severe depression. Defence counsel submits Mr. Ranspot resumed the practice of law in 1999, and thereafter did not suffer the kind of health issues he had suffered in the 1990s. It is in this context that he made the submission that Mr. Ranspot has been

healthy since 1999. Moreover, defence counsel submits Dr. Paragas's report speaks for itself without the necessity of his oralsubmission on this point. As such, the defence is not seeking to embark on an evidentiary hearing in relation to the use of that phrase inoral submissions.

c) As to defence counsel's oral submission that the events of the night in question were only a momentary incident, defence counsel doesnot recall using the word "only". In any event, he submits the use of this phrase in his submissions is not an assertion of a fact. It iscounsel's characterization of the circumstances of the incident as described in the agreed statement of facts. In other words, it was anincident that was not planned but arose in the latter part of the evening and in circumstances fuelled by alcohol. Defence counsel statesthis is not a characterization upon which Mr. Ranspot relies. The agreed statement of facts speaks for itself.

d) With respect to the oral submission made by defence counsel to the effect that Ms. Cabezas was not Mr. Ranspot's common lawpartner, the defence submits this point falls into a different category that engages different legal considerations. Defence counsel pointsout that the agreed statement of facts sets out the agreement of the parties regarding the relationship in the circumstances of the offencebefore the court. Whether this relationship, as a matter of fact and law, can be said to be a common law relationship, was not part of theagreement.

The Crown made no submissions in the first instance on this point, and the defence similarly made no submissions. It wasonly in reply that the Crown raised s. 718.2(a)(ii) of the Criminal Code and said it sought to rely on this

section as a statutoryaggravating fact. [28] The defence submits the Crown is seeking to prove an aggravating circumstance in reply. It is inappropriate for the Crown tosplit its case in this manner and to seek to have an evidentiary hearing in reply. The defence relies on R. v.

Coombs (1997), (SCC), 2 B.C.L.R. 1, for the proposition that although a judge has the discretion to admit evidence in rebuttal, a judge should notgenerally allow such evidence to be given when it has been in the Crown's possession before or during the presentation of the Crown'scase and clearly relevant to the case. [29] In any event, the defence submits apart from the principles relating to reply evidence, the agreed statement of facts placedbefore the court by the parties addresses the relationship.

Accordingly, it would not be appropriate at this stage for the Crown to seek toenter into an evidentiary hearing in order to establish a common law relationship when such an evidentiary hearing would go wellbeyond the agreed statement of facts. [30] All that aside, however, the defence acknowledges it has always been Mr. Ranspot's position that the relationship he had withMs. Cabezas was intimate and longstanding. At common law, assaultive behaviour in such circumstances has generally been viewed as amore aggravated circumstance than, for example, assaultive behaviour against a stranger.

Defence counsel points out that hissubmissions to this court have essentially conceded and, if that was not clear, he does concede that the circumstances of the relationshipbetween the complainant and Mr. Ranspot were such that it is an aggravating circumstance. [31] It is implied, in defence counsel's submission, that given the concession being made, there is no need to hold an evidentiaryhearing.

LEGAL PRINCIPLES Statutory provisions [32] The Criminal Code contains a number of provisions regarding the sentencing process, in particular ss. 723 and 724, which setout what the court must do in respect to submissions regarding sentence and how it ought to address issues that may arise regardingdisputed facts.

Section 723 provides: 723

(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions withrespect to any facts relevant to the sentence to be imposed.

(2) The court shall hear any relevant evidence presented by the prosecutor or the offender.

(3) The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidencethat would assist it in determining the appropriate sentence.

(4) Where it is necessary in the interests of justice, the court may, after consulting the parties, compel the appearance of any person whois a compellable witness to assist the court in determining the appropriate sentence.

(5) Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests of justice,compel a person to testify where the person (

a) has personal knowledge of the matter; (

b) is reasonably available; and (

c) is a compellable witness. [33] Section 724(3) provides: Disputed facts

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (

a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficientevidence was adduced at the trial;

(

b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; (

c) either party may cross-examine any witness called by the other party; (

d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact beforerelying on it in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previousconviction by the offender. [34] In Gardiner, Dickson J., writing for the majority, discussed the principles that apply in sentencing. A

summary of thoseprinciples follows:

a) Sentencing is part of the fact-finding, decision-making process of the criminal law.

b) It is one of the hardest tasks confronting a trial judge.

c) The stakes are high for both society and for the individual being sentenced.

d) Sentencing is the critical stage of the criminal justice system. Accordingly, the sentencing judge should not be denied an opportunityto obtain relevant information.

e) However, obtaining and weighing such evidence should be fair, accurate, and reliable, because the liberty interest of the offender is atstake.

f) Strict rules that govern the admissibility of evidence at trial do not apply at the sentencing hearing.

g) Hearsay evidence may be accepted where found to be credible and trustworthy.

h) The judge must have the fullest possible information concerning the background of the accused if she is to fit the sentence to theoffender rather than the crime.

i) The vast majority of offenders plead guilty. A guilty plea carries with it an admission of the essential ingredients of the offence and nomore. Beyond that, any facts relied upon by the Crown in aggravation must be established by the Crown beyond a reasonable doubt. [35] In Pahl, a recent case of our Court of Appeal, the court made a number of points regarding the sentencing process and disputedevidence that bear repeating, and here I will be quoting at paragraphs 53 through to 56 of the Pahl decision. I begin with paragraph 53: [53] In my view, the sentencing judge erred in principle in accepting Mr.

Pahl’s explanation for why he committed the offence as therewas no admissible evidence to support that explanation. When the factual disputes arose at sentencing, an evidentiary hearing shouldhave been held; sometimes referred to as a “Gardiner hearing”: R. v. Khalid, 2010 ONCA 861 at para. 2, 266 C.C.C. (3d) 405, leave toappeal ref’d [2013] 1 S.C.R. vii; R. v. Paterson, 2013 BCPC 5 at para. 5. As Madam Justice Conrad stated in R. v.

B.L., 2002 ABCA 44at para. 36, 163 C.C.C. (3d) 404: “If either party wants to challenge such facts, there should be a hearing where those facts should beestablished in the ordinary course.” As an example, in R. v. Tran, 2007 BCCA 405 at para. 15, 245 B.C.A.C. 171, this Court stated than[sic] if Mr. Tran wished to rely on family dependency as described in a pre-sentence report as a mitigating factor in the face of theCrown’s challenge to that fact, then Mr. Tran was required to call evidence to establish that dependency on a balance of probabilities. See also: R. v.

Dreger, 2014 BCCA 54 at para. 45, 307 C.C.C. (3d) 566. [54] Although it is clear from s. 723(5) of the Criminal Code that hearsay evidence is admissible at a sentencing hearing, such evidenceis only admissible if, as stated by Mr. Justice Dickson (as he then was) in Gardiner (at 414) it is "credible and trustworthy". Also, factualassertions counsel make in sentencing submissions are not "evidence". If factual assertions are challenged, then what is asserted must beproven through admissible evidence, which can include credible and trustworthy hearsay. [55] Counsel’s podium is not the equivalent of the witness box.

In speaking to sentence counsel make submissions, they do not give“evidence”: R. v. Cousins (1981), (NL CA), 22 C.R. (3d) 298 at 301 (Nfld. C.A.); R. v. Gobin (1993), (MB CA), 85 C.C.C. (3d) 481 at 484 (Man. C.A.). However, this does not mean that sentencing judges can never acceptinformation provided through submissions as factually accurate. [56] Sentencing judges routinely accept and act on information counsel provide to them through submissions. I agree with Mr. Pahl thatit would unduly burden the courts to require proof of every factual assertion counsel make at a sentencing hearing.

However, it is notopen to a judge to accept as fact an assertion made by counsel that is disputed and unsupported by any admissible evidence. Putotherwise, a judge is entitled to accept a fact advanced solely through submissions only if that fact is non-contentious: R. v. Asp, 2011BCCA 433 at para. 34, 278 C.C.C. (3d) 391; Cousins at 301. [emphasis in original] ANALYSIS [36] Section 724(3)24(3) of the Criminal Code permits the court to hold what is colloquially known as a Gardiner hearing wherethere is a dispute with respect to any fact that is relevant to the determination of a sentence.

The case law cited by counsel does notspecifically address the nature of the inquiry a judge should make when a party requests a hearing to address disputed facts. However,on the face of ss. 723 and 724 of the Criminal Code, it is clear that, at a minimum, before allowing evidence to be adduced, thesentencing judge must be satisfied that:

a) one of the parties has alleged a fact on which it intends to rely;

b) the fact is relevant to the sentence to be imposed;

c) the other party disputes the fact in question;

d) the court is not satisfied that sufficient evidence was adduced at trial or there was no trial and the background circumstances are not available to the court except as provided through counsel; and

e) evidence of the fact in dispute is available from a person who has personal knowledge of the matter or through hearsay evidence that originates from a source that is credible and trustworthy. [ 37 ] In the present case, the Crown applies to call evidence to dispute certain facts put forward by the defence in the course of Mr. Ranspot's sentencing hearing. The interesting feature of the present application is that the application for a Gardiner hearing did not arise until the Crown was in the course of making submissions in reply.

While it is evident there had been discussions between counsel in preparation for the sentencing hearing, for example, counsel presented the court with an agreed statement of facts, it appears the parties were unable to agree or did not turn their minds to all of the factual circumstances that might arise in a case of this nature. In R. v. Asp , 2011 BCCA 433 , the British Columbia Court of Appeal commented on the benefits of agreed statements of fact. However, the court cautioned that attention ought to be paid to how such admissions are drafted.

Admissions of fact should be clear, unambiguous, precise, and unequivocal. [ 38 ] I will now review the facts in dispute identified by the Crown and assess whether the facts so identified are relied upon by Mr. Ranspot and whether they are relevant to the determination of an appropriate sentence. The fact that Mr. Ranspot drank "only socially" [ 39 ] The Crown asserts that in Dr. Paragas's report dated January 10, 2017, it states that Mr. Ranspot drank only socially between 2007 and the date of the offence.

The defence argues there is no need to embark on an evidentiary hearing in regard to the impugned statement found at page 3 of Dr. Paragas's report for two reasons: first, Dr. Paragas did not say Mr. Ranspot drank only socially; second, and more important, Mr. Ranspot does not rely on the word "socially" used by Dr. Paragas or on the examples provided by Dr. Paragas. [ 40 ] In his report, Dr. Paragas sets out information about Mr. Ranspot's background and his addiction to alcohol. In particular, he notes that in the 1990s, Mr.

Ranspot received treatment from an alcohol addiction specialist and counselling through the Lawyers' Assistance Program. Dr. Paragas notes in his report that in June 1999, Mr. Ranspot had recovered sufficiently from his addictive behaviour to safely return to the practice of law. [ 41 ] Immediately following that statement is the following paragraph which the Crown says contains disputed facts: He did not drink alcohol from 1998 until 2007 after he admitted to using alcohol socially, drinking wine with dinner, with a friend, or on social occasions.

He denies abuse of illicit drugs. [ 42 ] I accept defence counsel's submission that the Crown misread Dr. Paragas's report. The report does not say that Mr. Ranspot drank only socially. Moreover, since Mr. Ranspot made it clear he is not relying on the word "socially" or on the examples given by Dr. Paragas in that portion of the report, those hearsay comments are not a factual assertion by Mr. Ranspot. Given that the psychiatrist's letter was tendered by Mr. Ranspot but he does not rely on the impugned wording, I see no principled basis for embarking on an evidentiary hearing on this point. The fact that Mr.

Ranspot has been "healthy since 1999" [ 43 ] The Crown disputes a statement made by defence counsel in his submissions to the court. The Crown characterizes the statement as being that Mr. Ranspot has been healthy since 1999. Defence counsel submits this characterization of Mr. Ranspot's health ought not to be the focus of this court. Instead, he submits the report from Dr. Paragas indicates that Mr. Ranspot suffered severe depression and other health issues relating to his alcohol addiction in the 1990s. Defence counsel's submission was meant to highlight the fact that after Mr.

Ranspot resumed the practice of law in 1999, he did not suffer the kind of health issues he had suffered previously. [ 44 ] I have reviewed the context of the submission made by defence counsel. He was reviewing the contents of Dr. Paragas's report, and in particular the

section which referred to the fact that Mr. Ranspot had consulted an addictions specialist in the early 1990s. The impugned segment of defence counsel's submission begins with a reference to the addictions specialist: He's well-known as an addiction specialist, and that's referenced in Dr. Paragas' report as well and he treats many lawyers for substance abuse issues. And he concluded in the late nineties that Mr. Ranspot was fit to resume practice, and since 1999 -- this is the point, really -- he has continued to practice and stayed healthy. The reference to "stayed healthy" is clearly a reference to Mr.

Ranspot. [ 45 ] In Pahl , Frankel J. writing for the court noted that counsel's podium is not the equivalent of the witness box. In speaking to sentence, counsel do not give evidence. Instead, they make submissions. Accordingly, factual assertions counsel make in sentencing submissions are not evidence. If factual assertions are challenged, then what is asserted must be proven through admissible evidence: see paragraphs 54 and 55 of Pahl . [ 46 ] Defence counsel points out that in this particular circumstance, this court ought not to focus on counsel's characterization, but on what is contained in Dr.

Paragas's report without the comment attributed to defence counsel. In other words, Mr. Ranspot does not seek to rely on the characterization about his health made during defence counsel's submissions to this court. Since Mr. Ranspot does not seek to rely on counsel's description of his health, I find it is not necessary or appropriate to allow the Crown to call evidence on this point. A momentary incident

[ 47 ] The Crown disputes defence counsel's characterization of the events on the night of the offence as "only a momentary incident." Defence counsel does not recall using the word "only", but in any event submits his use of the phrase "momentary incident" in submissions is not an assertion of fact. Moreover, it is a characterization on which the defence does not rely. Defence counsel made it clear that the agreed statement of facts arrived at by the parties sets out the circumstances of the incident. [ 48 ] The impugned statement was made during defence counsel's

summary near the end of defence counsel's submissions. At that point, defence counsel said: This was a momentary incident. The incident was out of character. The unlawful injury is unclear but more than trifling, which is conceded . . . [ 49 ] In Pahl , Frankel J. noted that sentencing judges routinely accept and act on information counsel provide to them through submissions. Further, he agreed with the appellant's submission that it would unduly burden the courts to require proof of every factual assertion counsel makes at a sentencing hearing.

However, he cautioned it is not open to the judge to accept as fact an assertion made by counsel that is disputed and unsupported by any admissible evidence. [ 50 ] I accept defence counsel's submission that his use of the term "momentary incident" was not an assertion of fact, but instead was meant to signal that the incident was not planned, but arose in circumstances fuelled by alcohol. Moreover, Mr. Ranspot does not rely on counsel's characterization. In those circumstances, I do not see the need or the utility of calling evidence on this point. Ms. Cabezas was not Mr.

Ranspot's common law partner [ 51 ] The agreed statement of facts tendered by the parties has a specific term about the relationship of Mr. Ranspot and Ms. Cabezas, namely: The complainant, Claudina Cabezas, and the accused, Michael Ranspot, had been in a relationship for approximately four years until the date of the incident underlying the criminal charge. [ 52 ] During the course of the initial sentencing submission, the Crown did not specifically refer to s. 718.2 (a)(ii). That

section provides that certain factors shall be deemed to be aggravating circumstances. One of those factors is evidence that the offender, in committing the offence, abused the offender's spouse or common law partner. However, in reply, the Crown noted that under s. 718, the fact that people are in an intimate relationship with one another is an aggravating circumstance. [ 53 ] At that juncture, I turned to defence counsel and asked whether he took any issue that s. 718.2 (a)(ii) applied in the circumstances. Defence counsel advised he did not have the jurisprudence in front of him. He noted Mr.

Ranspot was not Ms. Cabezas' spouse and they were not common law partners, in that they were not living together. [ 54 ] The Crown wishes to call Ms. Cabezas to provide testimony about the nature of her relationship with Mr. Ranspot. Defence counsel submits this issue does not engage s. 724(3) (b). He notes the parties entered into an agreement of facts which described the relationship. Whether the relationship was a common law relationship was not part of the agreement.

Moreover, the Crown made no submission in the first instance directed to the issue of whether there was a common law relationship or an assertion to that effect. [ 55 ] The issue of the nature of the relationship was certainly not raised by Mr. Ranspot. Accordingly, the defence argues it cannot be said that Mr. Ranspot relies on the fact that Ms. Cabezas is not Mr. Ranspot's common law partner. The defence submits the Crown is simply seeking to prove an aggravating circumstance in reply.

The defence says it is not appropriate for the Crown to split its case in this manner. [ 56 ] More importantly, however, defence counsel acknowledges it has always been Mr. Ranspot's position that the relationship he had with Ms. Cabezas was intimate and longstanding. He acknowledges that assaultive behaviour in such circumstances has generally been viewed as a more aggravated circumstance that assaultive behaviour against a stranger. Defence counsel concedes the nature of the relationship that existed between Mr. Ranspot and Ms.

Cabezas, whatever label is ascribed to it, is an aggravating circumstance. [ 57 ] In light of defence counsel's submission and his acknowledgment that the relationship between Mr. Ranspot and Ms. Cabezas can properly be considered as an aggravating circumstance, there is no need to embark on an evidentiary hearing on this point. CONCLUSION [ 58 ] For the reasons set out above, the Crown's application to call evidence at the sentencing hearing to dispute certain statements made by counsel in the course of submissions and other statements contained in Dr. Paragas's report is denied. (RULING CONCLUDED)