2023 NBPC 01, 2023 NBPC 01

CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT Sentencing Hearing Date: December 2 nd , 2022 Decision Date: January 18 th , 2023 Docket No.: 159176 Neutral Citation: 2023 NBPC 01 HIS MAJESTY, THE KING - and - JAMES CRAWFORD Decision of the Honourable Judge Scott A. Brittain Provincial Court of New Brunswick APPEARANCES: Melanie MacAulay, on behalf of His Majesty, The King Timothy Murphy, on behalf of the Accused DELIVERED ORALLY INTRODUCTION 1 . In a single count Information laid before this Court on February 14 th , 2022, James Crawford (“Mr.

Crawford”), who is 84 years- old, was charged with committing indictable assault causing bodily harm against his wife of 59 years, Ms. Fredericka Lane Crawford (“Ms. Crawford”), contrary to

Section 267 (

b) of the Criminal Code of Canada (the “ Criminal Code ”). 2 . Mr. Crawford is deaf. He suffered a complete loss of his hearing late in life at age 74 owing to the cumulative effect of industrial occupational noise exposure over his lengthy career. He worked for more than 50 years as a high-pressure welder and pipefitter, mostly in Western Canada. Mr. Crawford had to retire when his hearing failed. 3 . Mr. Crawford cannot communicate via American Sign Language and he does not read lips.

His only means of communicating is through the use of technology or via the exchange of handwritten notes, though he is still fully capable of expressing himself verbally. Mr. Crawford participated fully in all stages of these proceedings with the benefit of the voice to text function on the Microsoft Teams software platform, arrangements for which were made between Court Services, the Crown and Mr. Crawford’s legal counsel. 4 . With the Crown’s consent, Mr. Crawford entered a guilty plea to the lesser and included offence of

summary assault causing bodily harm against Ms. Crawford on October 12 th , 2022. A Pre-Sentence Report was ordered and a Victim Impact Statement was requested from Ms. Crawford. Given Mr. Crawford’s hearing disability, the Court directed counsel to prepare an Agreed Statement of Facts for the next appearance date.

5 . Mr. Crawford’s guilty plea on the lesser and included offence of

summary assault causing bodily harm, as supported by the Agreed Statement of Facts reviewed and signed by Mr. Crawford on December 2 nd , 2022, was accepted by this Court on that same date. Accordingly, this matter proceeded immediately on that date to a Sentencing Hearing where the Crown and counsel for Mr. Crawford made what can fairly be described as widely divergent sentencing submissions to this Court. 6 .

Owing to the significant delta between the sentencing submissions of counsel, the fact that a considerable amount of case law was provided in support of the respective positions advanced by counsel and, most notably, given Mr. Crawford’s hearing disability, this Court reserved its decision on sentencing so that written reasons could be prepared and provided to counsel and to Mr. Crawford. These are those written reasons for decision. THE FACTS 7 .

The Court relies upon and incorporates by reference into this decision the Agreed Statement of Facts, which was marked as Exhibit C-1 at the Sentencing Hearing; however, a somewhat detailed overview of the facts is in order to provide context for the reasoning of this Court in imposing what it concludes to be a fit and appropriate sentence in the circumstances of Mr. Crawford, having regard to the facts and the law and also taking into consideration the submissions of counsel at the Sentencing Hearing. 8 .

On January 4 th , 2022, Blackville RCMP received a report of an ongoing intimate partner altercation at the residence of Mr. and Ms. Crawford at 86 Main Street in Blackville, New Brunswick (the “Crawford Residence”). The call was received from a Ms. Hallihan, an employee of a nearby Home Hardware that Ms. Crawford had contacted a few days before to fix a drafty window at the Crawford Residence. 9 . While speaking with Ms. Hallihan on the phone on the morning of January 4 th , 2022, Ms. Crawford could be heard engaging in the background with someone she only referred to as “Jimmy”. Ms. Crawford asked Ms.

Hallihan if Home Hardware could come to fix the window on another day because “Jimmy” was very agitated. Ms. Crawford explained further to Ms. Hallihan that if repairmen from Home Hardware were to attend that day to carry out the repair, as scheduled, she feared she might “catch a beating from Jimmy”. While still on the phone with Ms. Hallihan, Ms. Crawford started yelling “Jimmy! No! Stop! Let go!” followed by repeated calls for help. By this point, Ms. Hallihan had placed Ms. Crawford on speaker phone so her co-workers could also hear what was transpiring. 10 . Concerned about Ms.

Crawford’s well-being and recognizing the Crawford Residence was nearby, repairmen from Home Hardware immediately left to check on Ms. Crawford. Mr. Crawford met the Home Hardware repairmen outside the Crawford Residence upon their arrival a few minutes later and told them to “fuck off and leave”. 11 . Blackville RCMP were called by Ms. Hallihan at approximately the same time and, upon arriving at the Crawford Residence, Constable Dallas Delisle (“Constable Delisle”) observed some small blood stains on Ms. Crawford’s white sweater and a worsening lump/bruise around her right eye. A visibly upset Ms.

Crawford pleaded with Constable Delisle to leave. 12 . A series of 21 photographs taken by Constable Delisle, which were marked as Exhibit C-2 at the Sentencing Hearing, were taken of Ms. Crawford’s injuries as they were observed on January 4 th , 2022. Mr. Crawford was found by Constable Delisle in a bedroom at the far end of the hallway of the Crawford Residence and was placed under arrest for assault. Mr. Crawford briefly attempted to resist arrest but, soon after, cooperated and was transported to the Blackville RCMP detachment for processing. 13 . Ms.

Crawford initially declined to provide a statement to the RCMP but ultimately changed her mind. According to her statement, which is included in Exhibit C-1 and, therefore, forms part of the Agreed Statement of Facts, she contacted Home Hardware to arrange for them to attend at the Crawford Residence to fix the window “on another day” on the morning of January 4 th , 2022. She explained to the representative of Home Hardware, presumably Ms. Hallihan, that “my husband is very upset with me for calling”, “it will be very difficult for me if he sees you here” and “I’ll be in touch with you at a later date”.

According to Ms. Crawford’s statement, when the repairmen from Home Hardware showed up at the Crawford Residence they stopped at one of the windows to check something, Mr. Crawford observed them, went to the front door and told them to “get the so and so off the property”. 14 . After the Home Hardware repairmen left, Mr. Crawford grabbed Ms. Crawford by the throat and shook her. Ms. Crawford screamed at her husband “Jimmy, you gotta stop! You can’t be beating me like this. You gotta stop!”. In her words, she was scared “…and then it started.

Bang, bang, bang and mostly around my head, my shoulders, and then all of a sudden I’m on the floor in the corner and he’s kicking the living daylights out of me now. He was in his stocking feet. He didn’t have any boots or shoes on but he just kicked me.” 15 . Mr. Crawford then “roared at me to get up and I couldn’t get up. I knew I was hurt but I had to try. I knew I couldn’t stand up from the position I was in, so I used the chair and the sink and I got up.” When Ms. Crawford managed to return to her feet after the first stage of what ultimately became an extended assault, Mr.

Crawford, again using her words, “got me by the throat and threw me right across the floor” which caused her to hit her head on a cupboard door. 16 . At this point, Mr. Crawford continued the assault on his wife by administering another series of kicks to her. Ms. Crawford’s statement indicated “he came at me with his legs apart like this just boom, boom, boom, kicking me like a crazy person and I roared at him ‘you’ve got to stop!’”. A knock at the door temporarily interrupted the ongoing assault. Ms. Crawford explained that Mr.

Crawford answered the door and was asked “Jimmy, is everything okay?”, to which he responded “yes”. The same person then asked Ms. Crawford if she was okay and she answered “yes, I am fine. I am okay”. The person at the door then left and, according to Ms. Crawford, “he was no more down the steps and Jimmy went at me again and he grabbed the toaster. I heard the toaster coming off the counter and, bang, he hit me with the toaster across my head”. This lengthy assault finally concluded after Mr. Crawford administered a few more “head punches” to his wife. 17 .

Exhibit C-2 shows a considerable amount of light to moderate bruising on various parts of Ms. Crawford’s body, including above and below her left eye, on her hands and feet, on her left arm above the elbow, on her neck, above her right breast, on the back of her

right shoulder and across her lower back. Darker and more extensive bruising covered much of her left buttock. As earlier noted, Ms. Crawford was wearing a white sweater at the time of the assault and two or three small blood stains are visible on the breast and shoulder areas of same. It should be noted that when the RCMP arrested Mr. Crawford he was found to have a minor cut on his wrist that was bleeding. None of the photographs of Ms. Crawford’s injuries comprising Exhibit C-2 show any blood or lacerations, so it is unknown whether the small blood stains found on her sweater came from her or from Mr.

Crawford’s wound. MR. CRAWFORD’S BACKGROUND 18 . As is noted in the Introduction to this decision, Mr. Crawford is 84 years-old and has been married to Ms. Crawford for 59 years. He graduated from high school in the late 1950s and became a high-pressure welder and pipefitter. As is evidenced by the Prior Defendant History Report submitted on consent at the Sentencing Hearing and marked as Exhibit C-3, Mr. Crawford stands before this Court without a Criminal Record. 19 . A Pre-Sentence Report, dated November 23 rd , 2022, was prepared regarding Mr. Crawford (the “PSR”) and it is very positive.

The PSR confirms that Mr. Crawford is not an indigenous man. In addition to his hearing disability, as already described, the PSR also notes that Mr. Crawford suffers from cataracts in both eyes resulting in a slight impairment of his vision. Mr. Crawford has lived in Blackville, New Brunswick for his entire life, travelling extensively for work throughout his lengthy career. He and Ms. Crawford have one child together, a daughter named Susan Brophy (“Ms. Brophy”). She lives next door to the Crawford Residence. Ms. Brophy has two daughters with whom Mr. Crawford shares a very close and positive relationship.

He derives particular enjoyment from assisting one of his granddaughters in taking care of her livestock. 20 . Becoming completely deaf at an advanced age owing to industrial occupational noise exposure has had a negative impact on Mr. Crawford’s activities of daily living and his enjoyment of life. Before losing his hearing, one of Mr. Crawford’s biggest passions was music. He played saxophone, clarinet and fiddle in a well-known local band and regularly gave of his talent to raise funds to assist many local causes and people in need. Mr.

Crawford’s longstanding record of engagement in his community has extended to a variety of other meaningful pursuits. For example, he was a volunteer firefighter for over 25 years and, for this service, he was awarded the “Fire Services Exemplary Medal” by the Governor General of Canada. 21 . Mr. Crawford reports no mental health issues or related diagnoses, such as depression, but acknowledges that his struggles with hearing loss have had an adverse impact on him. He has also been experiencing a period of declining physical health in recent years. Five years ago, Mr.

Crawford fell from a roof and broke six ribs, punctured his lung and ruptured his spleen. He had his spleen removed as a result of this serious accident and endured a long and difficult recovery. More recently, Mr. Crawford has undergone certain cardiac procedures, including angioplasty. Ms. Brophy participated in the preparation of the PSR and, with the close lens she has on her father’s health, she indicated that Mr. Crawford is in a gradual state of physical decline. 22 . It is important to emphasize while on the topic of surveying Mr.

Crawford’s mental and physical health that there is no indication in the PSR and, more broadly, no medical or other evidence in the record before this Court that Mr. Crawford suffers from any form of dementia or other related medical condition that would assist this Court in understanding whether factors of that nature may have caused or contributed to the aberrant, serious and prolonged assault he perpetrated against his wife. 23 . As for whether Mr. Crawford has any history of addiction issues, he was unequivocal in noting that he has never consumed alcohol or non-prescribed drugs.

In identifying options for Mr. Crawford should this Court seek to have him pursue intimate partner violence or anger management programming as part of his sentence, Probation Services was very direct in acknowledging that Mr. Crawford’s hearing disability coupled with his visual impairment would present some challenges in that regard. This is the case because such programming is only offered via remote/virtual platforms from Moncton, New Brunswick. 24 . In addressing the Court at the conclusion of the Sentencing Hearing, Mr.

Crawford demonstrated contrition for his actions of January 4 th , 2022, apologized to Ms. Crawford, adding that he is not a man who often apologizes, and stated to the Court that no incidents of this nature will happen again. MS. CRAWFORD’S VICTIM IMPACT STATEMENT 25 . Ms. Crawford provided a Victim Impact Statement but declined to have it read in Court. In it, Ms. Crawford explains that she was “devastated by what took place” on January 4 th , 2022, and that the period during which she and her husband were separated following these events was particularly difficult for her. Ms.

Crawford has been assisted by counselling post-assault and, since being reunited with Mr. Crawford under the same roof, she reports that “my husband makes me happy, content, also satisfied. I believe this will never happen again. If I didn’t believe this I wouldn’t be back home”. THE ISSUE 26 . The single issue this Court must decide is what is a fit and appropriate sentence for Mr. Crawford. THE SUBMISSIONS OF THE PARTIES

Position of the Crown 27. The Crown recommends that Mr. Crawford be incarcerated for “a minimum period of 12 months”, arguing that neither a SuspendedSentence nor a Conditional Sentence Order (a “CSO”) would achieve the objectives of sentencing in view of the circumstances andcontext of this case. In making this recommendation, the Crown acknowledged the strong mitigating factors of an early guilty plea andthe absence of a Criminal Record. On the other side of the ledger, the Crown rightly emphasized the severity of the prolonged andviolent assault against Ms.

Crawford together with the fact that this assault involved the abuse of an intimate partner, which is a statutoryaggravating factor under

Section 718.2(a)(ii) of the Criminal Code. 28. In addition to the period of incarceration sought by the Crown, it also seeks a supervised probation order for a period of 24 monthsand a lifetime weapons prohibition under

Section 110 of the Criminal Code. The Crown’s basis for seeking the latter discretionary orderof such a duration is grounded in the fact that Mr. Crawford was earlier subject to a 10-year weapons prohibition order made in Januaryof 2012 in conjunction with an Absolute Discharge imposed on a firearms-related conviction. 29. In revisiting the contents of Exhibit C-1 at the Sentencing Hearing, the Crown argued that certain comments of Ms.

Crawford in herwitness statement support the conclusion that this was not her first encounter with intimate partner violence at the hands of her husband.To the extent that such a position was advanced by the Crown, the Court takes this opportunity to very clearly state that there is nothingin the record before it that supports such a conclusion. If an invitation to reach such a conclusion was indeed made by the Crown to thisCourt, it is respectfully declined. 30. It should also be noted, as will be highlighted later in this decision, that the Crown consented to Mr.

Crawford pleading guilty to thelesser and included offence of

summary assault causing bodily harm after originally having charged him on an indictable basis. This isnoteworthy given the difference in the maximum term of incarceration that can be imposed by this Court: 10 years for indictable assaultcausing bodily harm versus two years less a day for the lesser and included

summary offence. It also bears mentioning that CSOs are nota sentencing option available in cases of indictable assault causing bodily harm but they are available for the lesser and includedsummary offence. 31. The Crown cited several decisions to anchor its sentencing recommendation. I will briefly consider these authorities in chronologicalsequence. 32. In R. v. Inwood, (ON CA), [1989] O.J.

No 428 (CA), an appeal of a sentencing decision was pursued by the Crownin circumstances where a suspended sentence was imposed for an assault causing bodily harm on an intimate partner and a one-monthcustodial sentence was imposed for an assault on their infant son together with a lengthy probation order. The accused, a middle-agedman, had a history of intimate partner violence, as was evidenced by the testimony of five former intimate partners called by the Crownat trial.

The assaults in question were protracted, with the accused’s intimate partner having sustained a series of injuries, includingbruising in several areas, swelling and lacerations while the infant son’s injuries were more superficial and ultimately found by the trialjudge to fall short of causing bodily harm. The trial judge characterized what had transpired in these assaults as the functioning of a "sickmind and a twisted personality".

The Court of Appeal of Ontario concluded that a three-month period of incarceration to be followed by aterm of probation for three years would have been an appropriate sentence in the circumstances of the assault by the accused against hisintimate partner and his infant son but declined reincarcerating the accused owing to a variety of considerations including the significantprogress he had made between serving the originally-imposed custodial sentence and the date of the appeal. 33. The Crown next referred this Court to the decision of Justice LaVigne in R. v. Bernard, 2005 NBQB 254 (Q.B.).

Following a findingof guilt after trial on a single count of indictable assault causing bodily harm against the accused’s intimate partner, Justice LaVigneimposed a sentence of six months incarceration. The accused, a 25-year-old indigenous man, had an extensive Criminal Record, whichincluded at least three recent convictions for assault. Moreover, he was subject to a probation order at the time of this assault. The detailsof the assault were summarized by Justice LaVigne at paragraph 23 as follows: 23. Mrs. Gagnon was injured as described in my previous decision in this matter.

She was punched in the face several times and herhead was banged against the wall and against the floor. She suffered a black eye, scratches and bruises. 34. In reaching her sentencing decision, Justice LaVigne quoted at length from paragraphs 21 and 22 of the decision of the Court ofAppeal of New Brunswick in R. v. Bérubé, (NB CA), [1999] N.B.J. No. 291 (CA), where Justice Drapeau (as hethen was) emphasized that sentencing in the context of intimate partner violence “must express society’s intolerance for this type ofviolence by means of appropriately severe sanctions”.

The “paramount considerations in imposing the sentence” in cases of intimatepartner violence, wrote Justice LaVigne at paragraph 34, are “general and individual deterrence as well as denunciation…this objectiveis applicable to all incidents of domestic violence”. 35. Turning to R. v.

Trecartin, 2017 NBQB 71 , 2017 NBQB 071 (Q.B.), which involved nine indictable counts primarilydirected at an intimate partner, including assault with a weapon, this decision was cited by the Crown for the discrete purpose ofgrounding the position that the absence or relative absence of serious physical injuries does not dampen or otherwise diminish the lastingand pervasive psychological wounds caused by intimate partner violence.

As Justice Christie observed at paragraph 36: “The visiblesigns of injury are no more significant than the invisible psychological damage that can be done…The cuts may heal and the bruises fade- but the sense of self-doubt, the fear, the anxiety and lingering uncertainty of chances missed may never go away for her”. 36. Supporting its submission that the advancing age and poor health of Mr. Crawford are not mitigating factors or otherwise a barrier tothe imposition of a sentence which would include a period of incarceration in this case, the Crown cited R. v.

G.L.C., 2013 NBPC 9 (PC),aff’d 2014 NBCA 21 (CA) and R. v. Dedam 2016 NBQB 223 (QB) (see, in particular, paragraph 50). Position of the Defence 37. Counsel for Mr. Crawford submits that this Court ought to impose a Suspended Sentence accompanied by a 24-month supervised

probation order. In making this submission, the advancing age, hearing disability, visual impairment and overall deteriorating physicalhealth of Mr. Crawford were heavily emphasized; however, as was pointed out by this Court at the Sentencing Hearing, Mr. Crawfordcommitted the assault causing bodily harm on his wife just over a year ago. Accordingly, there is some incongruity in portraying Mr.Crawford as an aged and severely disabled man who can barely function and is in the final stage of his life when he so recently did whathe did to Ms. Crawford. There is no indication in the record before this Court that Mr.

Crawford’s health has rapidly deteriorated in theintervening period between the date of the assault against his wife and today’s date. 38. Next, Mr. Crawford’s solicitor cited the decision of Justice Riordon in R. v. A.J.G., [1995] N.B.J. No. 529 (Q.B.) to emphasize thatthe age and health of the accused, who was 76 years-old at the time of sentencing, are indeed relevant sentencing considerations.

Atparagraphs 18 and 19, Justice Riordon observed that “His age, his health…are all matters that must be considered…He, I think, hascertain medical considerations that I must keep in mind and all of these conditions must be considered” in fashioning a fit and appropriatesentence. 39. The decision of the Court of Appeal of British Columbia in R. v. Swope, 2015 BCCA 167 (CA), is also relevant on this point.Beginning at paragraph 32, the Court of Appeal of British Columbia had this to say: [32] I turn, then, to the matter of Mr. Swope's age and health.

I acknowledge that, in sentencing an elderly offender, a court must becognizant of the fact that the limited life expectancy is a factor in gauging the severity of the sentence. In R. v. C.A.M., Lamer C.J.,speaking for a unanimous court, said: [74] … [I]n the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should bemindful of the age of the offender in applying the relevant principles of sentencing.

After a certain point, the utilitarian and normativegoals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimationof the offender's remaining natural life span.

Accordingly, in exercising his or her specialized discretion under the Code, a sentencingjudge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender's expected remaining life spanthat the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value. [33] It might also be acknowledged that subjective experience of time in prison is likely to differ with the age of an offender.

Aperson whose health and life are rapidly slipping away may well consider time in jail to be particularly harsh, as their last opportunitiesfor liberty are lost. [34] The importance of the offender’s anticipated lifespan, as a sentencing consideration should not, however, be overstated. AsFinch J. (as he then was) said for the majority of this Court in R. v. Shah (1994), (BC CA), 94 C.C.C.(3d) 45 at 50: [E]ven where there is a risk that an accused may not outlive the time he is required to serve, the compassion that would evoke is not acontrolling or decisive factor in deciding on the appropriate sentence.

It is one of many factors to be taken into account in sentencing. 40. In R. v. JEB, 2014 ONSC 1921 (SCJ), a 78-year-old accused in poor health was found guilty of several historical sexual assaultsinvolving a minor. There were repeated events over a span of seven years during which time the victim ranged in age between four and11 years-old. These events happened some 35-40 years before. Justice Quigley declined to follow the Crown’s recommendation that aperiod of incarceration in the order of 18 to 24 months was appropriate, instead choosing to impose an 18-month CSO accompanied by a36-month probation order.

In imposing this sentence, Justice Quigley emphasized that this was exceptional and that a period ofincarceration would normally flow from such serious indictable charges but for the accused’s old age and poor health. 41. Finally, counsel for Mr. Crawford relies on R. v. G.V., [1996] N.B.J. No. 317 (Q.B.) to ground the position that a SuspendedSentence with a lengthy period of probation would meet the ends of justice in this case. Before Justice Riordon in R. v.

G.V. was thesentencing of an elderly offender in poor health with no criminal record who had committed acts of sexual touching towards two of hisgrandsons several years before. APPLICABLE LAW 42. The Supreme Court of Canada has recognized that the fitness of a sentence imposed can establish or diminish the credibility of thecriminal justice system in the eyes of the public. 43. The task is governed by the provisions of the Criminal Code but it involves the exercise of a broad discretion by the courts inbalancing all the relevant factors in order to meet the objectives being pursued in sentencing.

The purpose and principles of sentence, asset out in the Criminal Code, allow for “sentence individualization" and guide the sentence this Court must impose.

Section 718 describes the fundamental purpose of sentencing. It reads: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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: (

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 rehabilitating 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 acknowledgment of the harm done to victims or to the community. 45 .

Section 718 provides further that the imposition of a just sentence requires sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender. 46 . Before considering the circumstances of the offence and the offender, I will briefly address the objectives and principles of sentencing and highlight those that are predominant in this case. 47 . The objectives described in

section 718 may have predominance in a set of circumstances dictated by the offence, the offender or both. This Court is required to attribute to the objectives of denunciation and deterrence their proper predominant influence in the crafting of a just sentence. 48 . Deterrence is subdivided into specific and general elements. Specific deterrence is designed to convince the offender before the Court not to re-offend. The circumstances of the offender and the prospects for rehabilitation must be considered.

A court must look at the individual, his record and attitude, his motivation and his reformation and rehabilitation. 49 . General deterrence is aimed at persuading others who may be inclined to commit the same offence from so doing. If this is the aim, the sentencing court must consider the gravity of the offence, the incidence of the crime in the community, the harm caused by it either to the individual or to the community and the public attitude toward it. 50 . The separation of an offender from society is sometimes necessary. The application of the objective must be read in concert with

section 718.2(e), which essentially requires that imprisonment be the sentence of last resort. 51 . The maintenance of a just, peaceful and safe society, as is mandated by

section 718, can often best be achieved by the rehabilitation of offenders. As the Supreme Court of Canada has held, “Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world” ( see R. v. Lacasse , 2015 SCC 64 at para. 4 ). 52 . The Criminal Code also holds that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is a codification of the proportionality principle and is found at

section 718.1. 53 . Other principles are important in crafting an appropriate sentence here. First,

section 718.2(

b) states that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." This is a codification of the parity principle. 54 .

Section 718.2(

a) indicates that a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender."

Section 718.2 also dictates that: (

d) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

e) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

f) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. 55 . These are the principles that inform the sentencing of Mr. Crawford by this Court. It should be emphasized that denunciation and deterrence, both specific and general, are always key drivers in the identification and imposition of a fit and appropriate sentence in the context of intimate partner violence. ANALYSIS 56 .

I begin my analysis by inventorying the aggravating and mitigating factors that are present in this case. The aggravating factor working most strongly against Mr. Crawford is that the assault causing bodily harm that he perpetrated against his wife of 59 years falls squarely within the ambit of the abuse of an intimate partner, which is a serious statutory aggravating factor under

Section 718.2 (a)(ii) of the Criminal Code , as was emphasized by Justice LaVigne in R. v. Bernard and Justice Drapeau (as he then was) in R. v. B érubé . 57 . The specific details of this assault are also highly aggravating . In addition to having occurred within the confines of the marital home and within a longstanding relationship of trust, the fact that this assault was prolonged, violent and entirely unprovoked is also aggravating. This assault transpired over several minutes and across several rooms within the Crawford Residence. Moreover, it continued after it was temporarily interrupted by an individual who came to the front door of the Crawford Residence to specifically

inquire about whether everything was alright. Indeed, the Agreed Statement of Facts confirms that before this individual had even left the front steps of the Crawford Residence, Mr. Crawford had picked up where he left off by hitting his wife with a toaster and administering further “head punches” to her before this highly disturbing series of events finally came to an end. 58 . There are also significant mitigating factors that work strongly to the benefit of Mr. Crawford. He entered a plea of guilty at an early stage to the lesser and included

summary offence, thereby taking responsibility for his criminality and avoiding the necessity of a trial and its accompanying consumption of limited public resources. His plea of guilty also means that Ms. Crawford was spared from the further trauma of having to take the stand against her husband and revisit these devastating events from a psychological perspective. Moreover, it is also strongly mitigating that Mr. Crawford has no Criminal Record. Finally, it should also be emphasized that Mr.

Crawford has been a productive and contributing member of society throughout his entire life and that he has expressed contrition for his criminal actions directed toward his wife. 59 . Counsel for Mr. Crawford submits that the advancing age, hearing disability, visual impairment and deteriorating physical health of his client also rise to the level of being mitigating factors.

Though this Court is not prepared to go so far as to accept these as mitigating factors in the conventional sense, I readily acknowledge that these dimensions and dynamics are all very relevant sentencing considerations for the reasons explained by the British Columbia Court of Appeal in R. v. Swope and by Justice Riordon in R. v. A.J.G. Sentencing judges take each accused as they find them and it is not lost on this Court that Mr. Crawford is an elderly man in declining physical health with more than one disability. Accordingly, these realities have been factored into the crafting of Mr.

Crawford’s sentence. 60 . Before delving into an examination of the sentencing principles most applicable to the circumstances of this case, to the extent that they haven’t already been canvassed, it is important for this Court to address the fact that the Crown consented to Mr. Crawford entering a plea of guilty to the lesser and included charge of

summary assault causing bodily harm. I earlier canvassed two important considerations arising from this, namely: (1) the significant difference regarding the maximum term of incarceration that can be imposed (10 years for indictable assault causing bodily harm versus two years less a day for the lesser and included

summary offence), and (2) the fact that a CSO is available as a sentencing option in cases of

summary assault causing bodily harm. 61 . Indeed, counsel for Mr. Crawford addressed this latter point explicitly in argument, observing that his client’s plea of guilty to the lesser and included

summary offence was intended, among other things, to “preserve certain sentencing options”. I don’t say this to be critical of the Crown but consenting to an accused pleading guilty to the lesser and included offence of

summary assault causing bodily harm only to then strenuously press for the sort of sentence that the Crown might more reasonably be expected to ask for had a trial proceeded and a finding of guilt been entered by this Court on the initial charge of indictable assault causing bodily harm is a practice that is best avoided. 62 . The most relevant authority cited by the Crown in support of its sentencing recommendation is R. v. Bernard ; however, the circumstances of that case are readily distinguishable on nearly every level relative to the circumstances currently before this Court involving Mr. Crawford.

I will highlight a few of these differences: a. Mr. Bernard was found guilty after trial of indictable assault causing bodily harm against his intimate partner, while Mr. Crawford entered a plea of guilty with the Crown’s consent to the lesser and included offence of

summary assault causing bodily harm against Ms. Crawford at a very early stage in the proceedings; b. Mr. Bernard was 25 years-old at the time of the assault, while Mr. Crawford is 84 years-old; c. Mr. Bernard had an extensive Criminal Record, punctuated by at least three recent assault convictions, while Mr. Crawford does not have a Criminal Record; d. Mr. Bernard was robust and otherwise in good physical health, while Mr. Crawford is elderly, deaf, has a slight visual impairment and is in a state of gradually declining physical health; e. Mr. Bernard is indigenous. Mr. Crawford is not. f. Mr.

Bernard, having many more aggravating factors than Mr. Crawford working against him and far fewer mitigating factors than Mr. Crawford working in his favour, was sentenced to six months incarceration by Justice LaVigne taking into consideration the very same principles that guide this Court’s sentencing of Mr. Crawford: less than half the period of incarceration sought by the Crown in the case before this Court. The only common ground between Mr. Bernard’s circumstances and those of Mr.

Crawford is that they were both originally charged by the Crown under the same provision of the Criminal Code and that their respective criminal conduct arose in the intimate partner context. 63 . As is consistently noted in the case law, denunciation and deterrence, both specific and general, are the sentencing principles that figure most prominently in cases of assault against an intimate partner. As earlier discussed, there is no record before this Court

evidencing a history of intimate partner violence in the 59-year marriage of Mr. and Ms. Crawford. In Ms. Crawford’s Victim Impact Statement, she reflects upon how difficult her period of separation from her husband was after the assault took place and states “I believe this will never happen again. If I didn’t believe this I wouldn’t be back home”. Finally, there is no indication in the record before this Court that any instances of intimate partner violence have occurred between Mr. and Ms. Crawford since they resumed living together in the Crawford Residence several months ago. 64 .

The sentence to be imposed on Mr. Crawford must send a strong message of denunciation that intimate partner violence is insidious in all forms and the consequences of same will be commensurately severe. The sentence should also be sufficiently severe that it deters Mr. Crawford from committing any future assaults of a similar nature against his wife while also conveying to the broader community in no uncertain terms that this sort of criminality will not be treated lightly by this Court. 65 . In crafting what this Court has determined to be a fit and appropriate sentence, I have considered that Mr.

Crawford is an 84-year-old deaf and visually-impaired man in declining physical health. Mr. Crawford appears to be somewhat frail and the PSR objectively outlines verified details regarding his gradual deterioration. Though perhaps stoic about the mental health implications brought on by his hearing disability, as communicated in the PSR, it is not a significant leap for this Court to conclude that completely losing one’s hearing at an advanced age and being unable to continue to work or to communicate without considerable difficulty would be a challenging set of circumstances to navigate.

Moreover, many of the activities that Mr. Crawford gained enjoyment from for the duration of his entire adult life, including his musical pursuits, also ended with the onset of his hearing loss. 66 . This Court is quick to point out that none of these challenges and difficulties explain away Mr. Crawford’s highly aberrant and serious intimate partner violence against his wife. It would, however, be both artificial and contrary to the principles of sentencing to suggest that these factors regarding Mr.

Crawford ought to simply be ignored or that they are otherwise irrelevant to the crux of the sentencing exercise, which ultimately comes down to a determination of whether Mr. Crawford ought to serve a custodial or community- based sentence. 67 . This Court has considered the proportionality, parity and totality principles as well as Mr. Crawford’s rehabilitative potential in arriving at what it concludes to be a fit and appropriate sentence in the circumstances of this case. The sentence that this Court has arrived at for Mr.

Crawford accords with what has been imposed in similar cases, recognizing that there are many aspects of this case that can fairly be described as unique or as outliers. Suffice it to say, and thankfully so, there is a dearth of reported sentencing decisions in Canada involving acts of intimate partner violence perpetrated by elderly and disabled offenders in states of declining physical health. 68 . I disagree with the recommendation of the Crown that a period of incarceration is appropriate in this case, let alone the request of “a minimum period of 12 months”.

Similarly, I reject the submission of counsel for Mr. Crawford that a Suspended Sentence ought to be imposed given the serious aggravating factors earlier considered, notably the troubling details of this protracted assault causing bodily harm which happened in the intimate partner context. 69 . In reaching these conclusions, I emphasize that CSOs as a sentencing option were introduced by Parliament in 1996. In 2000, the Supreme Court of Canada set out the principles that should guide sentencing judges in assessing whether this type of sentence is appropriate in R. v. Proulx , [2000] 1 S.C.R. 525 . 70 .

It is important to consider the reason for the introduction of CSOs, as was described by author Clayton Ruby in the eighth edition of his leading text, entitled “Sentencing”, at paragraph 15.2: …in Proulx the Supreme Court recognized that, through the enactment of the conditional sentence provisions, “Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison” and that this problem must be remedied.

In sending this message to the courts, Parliament was influenced by many reports in regard to over-incarceration, and “mandated that expanded use be made of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society. 71 . Imposing this type of sentence in an intimate partner violence case is admittedly problematic in that the offender would potentially be allowed to serve a sentence in the very home in which the offence was committed.

Additionally, it is an irrefutable fact that most cases of intimate partner violence occur in the home environment. 72 . As was earlier noted, however, sentencing is by its nature an individualized exercise. Accordingly, the fact that an offence involved intimate partner violence should not preclude this type of sentence in the right circumstances (see, for example, R. v. W.E.S ., 2018 BCPC 23 (PC) ). I find such circumstances to be present in this case. CONCLUSION 73 . In conclusion, this Court finds that a fit and appropriate sentence in the case of Mr.

Crawford, having considered the circumstances of the offender and the offence, the applicable law and the submissions of counsel, is a CSO for a period of nine months to be followed by a 24-month supervised probation order. I will address the specific terms of each momentarily, but let me first note that in arriving at this sentencing decision, this Court is satisfied that Mr. Crawford’s service of his sentence in the community would not endanger the safety of the community and that it is consistent with the fundamental purpose and principles of sentencing that were earlier canvassed. 74 .

Addressing the terms of the CSO first, Mr. Crawford shall be subject to a period of house arrest for 24 hours per day, seven days per week for the first five months of the CSO. He shall serve such period of house arrest at the Crawford Residence, which is situated at 86 Main Street in Blackville, New Brunswick. My reference to the Crawford Residence, for the purpose of this CSO, includes the residence- proper as well as the parcel of land upon which the residence is situated but does not include the immediately adjacent residence of his daughter, Ms.

Brophy, or the parcel of land upon which his daughter’s residence rests. 75 . In addition to the compulsory conditions of the CSO mandated by

Section 742.3(

a) through (

e) of the Criminal Code , Mr. Crawford

shall be permitted to leave what I have described as the Crawford Residence during the period of house arrest only in the following circumstances: a. To attend to a medical emergency or to attend a medical appointment involving himself or an immediate member of his family; b. To attend any meetings with his Conditional Sentence Supervisor or his solicitor; c. To attend any treatment or counselling program deemed appropriate by his Conditional Sentence Supervisor, having regard to the limitations imposed by his hearing disability and visual impairment; d.

To attend to his personal business for a period of four hours on one day each week, being each Saturday between the hours of 12:00pm and 4:00pm or during such other four-hour period on a weekly basis as may be agreed to in advance by his Conditional Sentence Supervisor, and e. To present at the door of the Crawford Residence should any member of law enforcement attend at same to confirm compliance with the terms of this CSO. 76 .

The terms of the CSO for its final four months of duration shall be the same as those outlined above but the period of house arrest shall be substituted with a curfew that shall be in effect between the hours of 10:00pm and 6:00am daily. 77 . As for the accompanying Probation Order, which shall follow the term of the CSO, it shall be supervised and for a duration of 24 months, the conditions of which shall be as follows: a. To keep the peace and be of good behaviour toward Fredericka Lane Crawford, and b.

To attend any treatment or counselling program deemed appropriate by his Probation Officer, having regard to the limitations imposed by his hearing disability and visual impairment. 78 . In addition, this Court exercises its discretion to impose a lifetime weapons prohibition on Mr. Crawford pursuant to

Section 110 of the Criminal Code , as requested by the Crown. 79 . That concludes the sentencing decision of this Court. Let me be very clear in warning you Mr. Crawford, that anything short of full compliance with the terms of the CSO and supervised probation order could result in serious consequences for you, including a term of incarceration. Prison is not a place where anyone wants to be let alone an 84-year-old man with a hearing disability and a visual impairment who suffers from declining physical health. I hope that you have learned from your very serious and aberrant actions and I wish both you and Ms. Crawford well going forward. Brittain, PCJ