R. v. Rivard, 2019 ONCJ 658

ONTARIO COURT OF JUSTICE CITATION: R. v. Rivard, 2019 ONCJ 658 DATE: 2019 09 20 COURT FILE No.: Niagara Region 998 17 N0892 BETWEEN: HER MAJESTY THE QUEEN — AND — Terrence Rivard Before Justice J. De Filippis Heard on July 11 & August 12, 2019 Reasons for Sentence released on September 20, 2019 Ms. A. Sabbadini ............................................................................... counsel for the Crown Mr. G.

Hadfield.............................................................................. counsel for the Defendant De Filippis, J.: [1] The defendant was found guilty, after trial, of aggravated assault upon Daniel Shaver and not guilty of assault with a weaponwith respect to Tim Brozeau. For the purposes of sentencing it will suffice to note these facts: Mr. Shaver and Mr. Brozeau went to thedefendant’s home to confront him with their belief he had slashed the tires of a motor vehicle belonging to Mr. Brozeau. The defendantcame outside with a machete, waived it in the air, and told the two men to leave.

In the altercation that followed, including a briefstruggle over possession of the machete, Mr. Shaver retreated and was chased by the defendant. Mr. Shaver fell to the ground. Thedefendant raised the machete in the air and swung down at him. Mr. Shaver held his arm over his head and neck a protective gesture. The blow pierced the bone between the arm and hand. Mr. Shaver was bleeding badly and saved by the timely intervention of police andparamedics. Hospital staff described his injury as a “partial amputation”. The defendant testified that he was acting in self-defence andthat, in any event, Mr.

Shaver was unintentionally injured during the struggle over possession of the machete. In a previous decision, Iexplained my verdicts, including why I rejected the defendant’s evidence: See R v Rivard 2019 ONCJ 468 . [2] At the outset, I need to explain why these reasons for sentence are being released on a date fixed for a Charter motion. Mydecision with respect to the verdicts in this case was released on June 28, 2019. Sentencing was adjourned to July 11.

On that day, Ilearned that the Assistant Crown Attorney who had prosecuted the matter was on maternity leave and another one would be assigned toprepare for sentencing. I also learned that the defendant had spoken to another lawyer about bringing a motion to stay proceedingsbased upon unreasonable delay. On August 12, it was confirmed that the defendant would move for a stay of proceedings. On that date,I received submissions with respect to sentence and adjourned the Charter motion to September 20.

I directed that the parties exchangeand file relevant material and written submissions according to an agreed schedule, to be followed by brief supplementary oralsubmissions on the return date. I have reviewed the written material and submissions filed. On that basis, it is my tentative view that themotion to stay proceedings must fail and these reasons were drafted accordingly. The release of these reasons and the imposition ofsentence means the oral argument on September 20 failed persuade me that my tentative view is wrong. [3] My decision to dismiss the motion to stay proceedings is dealt with separately.

I return to the matter of sentence.

[4] A victim impact statement by Mr. Shaver includes the following comments: I relive the horrific attack many times every day. I remember the machete swinging down towards my head and the moment I put myarm up to block the swing to prevent my death. I remember running. I remember my blood everywhere, spurting constantly. I remembertrying to re-attach my hand as I ran and ran and the efforts of the police and then the paramedics to keep me alive….I have constant painin my right hand due to the severing of all the nerves….I have scarring all over my hand and arm.

I have had 3 surgeries so far with morein my future in order to maintain the functionality that I currently have. I have different medications for the nerve pain, ongoingphysiotherapy and am being treated for the severe anxiety and PTSD that the event has left me with. I cannot do many basic things that Iused to take for granted…. [5] I have the benefit of a presentence report. It discloses these facts: The defendant is 35 years old. His childhood wasdysfunctional. His grandmother reports that he had to raise himself and his siblings in the absence of parental role models. His motherwas an alcoholic.

He is one of five children she had with his father. The latter was incarcerated when the defendant was eight years old. His mother’s new partner was also incarcerated in the federal prison system. She had another two children with this man. When hisbiological father was released from prison the defendant came to live with him in Niagara Region. Last year his father died ofcomplications related to drug abuse. For the most part, the defendant has been employed since leaving high school, as a roofer and inconstruction. He has experimented with a variety of drugs since the age of 16.

He has not had counselling for substance abuse and doesnot believe he needs it. The mother of his child describes him as a good partner and father. His brother notes that he was a good rolemodel for him. [6] The defendant has four prior criminal convictions. Two are particularly germane for present purposes: In 2005, he was handedan effective sentence of six years for manslaughter and assault with a weapon. Crown counsel reports that the defendant stabbed thedeceased twice in the abdomen and stabbed his wife, who survived.

In 2015, he was found guilty of aggravated assault and sentenced tothe equivalent of 21 months in custody. I have been informed by Crown counsel that the defendant used a large fixed blade knife to stabthe victim and slash at his face. [7] The ultimate purpose of all sentences is protection of the public. The most important principle is that of proportionality; asentence must be proportionate to the gravity of the offence and the degree of responsibility or moral blameworthiness of the offender.

This requires a consideration of the aggravating and mitigating factors. [8] Counsel provided me with relevant case law. Both agree that R v Tourville 2011 ONSC 1677 is instructive. In that case, JusticeCode sentenced an aboriginal man to 21 months in jail after finding him guilty of using excessive force during a consent fight. The courtnoted as follows: [27] The parties have helpfully provided me with a large number of sentencing cases, dealing with the offence of aggravated assault. That offence, contrary to s. 268 of the Criminal Code, carries a maximum sentence of fourteen years imprisonment.

The cases disclose awide range of sentences. At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30 , 250 C.C.C. (3d)277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravatedassault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar roomdispute, causing serious facial lacerations to the victim. The “Gladue report” disclosed a very difficult upbringing in a violent andabusive home, leading to alcoholism and drug abuse.

By the time of sentencing, she had obtained employment and was making realprogress in counseling for her substance abuse problems. Some of these features are not dissimilar to the case at bar. [28] In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years lessa day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where theaccused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, (ON SC), [2006] O.J. No. 1248 (S.C.J.); R. v.

Basilio (2003), (ON CA), 175 C.C.C. (3d) 440 (Ont. C.A.). ………. [30] At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involverecidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of anyelements of consent or self-defence. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v.Vickerson (2005), (ON CA), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J.

No. 1198 (C.A). [9] The Crown and Defence acknowledge that the defendant has had a difficult childhood. That must be considered in thedisposition of this matter. The Crown suggests that the appropriate sentence is six years. Counsel submits that this case comes withinthe high end of the range identified in Tourville, given the defendant’s criminal record and the fact that he struck an an-armed man whohad fallen to the ground. The Defence argues that it is the mid-range identified in Tourville because this was a consent fight. [10] I cannot accept the Defence argument that this was a consent fight.

The initial meeting between Mr. Brozeau and Mr. Shaver wasnot a pleasant one; the two men came to accuse him of mischief. However, they came without weapons. Moreover, the evidence doesnot support an inference that they intended a physical confrontation. It is the defendant who brought a machete to the conversation. Inthe subsequent encounter there was a struggle over that weapon and the defendant regained control of it. Mr. Brozeau picked up ashovel that happened to be nearby and hit the defendant with it. The latter swung the machete at Mr. Brozeau and grazed his chest. Mr.Brozeau and Mr. Shaver then retreated.

Mr. Shaver fell to the ground as he fled. The defendant chased him and swung the machete downtoward his head and neck. Mr. Shaver raised his arm and the resulting blow almost severed his hand. [11] Apart from the defendant’s challenging childhood, there are no notable mitigating factors in this case. There is nothing in thepresentence report or other evidence before me to suggest the defendant understands the gravity of his misconduct or has learned fromhis past. It is troubling that this is the third serious violent offence committed by him – all involving knives.

I mention this, not topunish him again for previous convictions, but to highlight his lack of rehabilitation and the need for specific deterrence. In addition tothese aggravating factors, there is the nature of the injuries: Mr. Shaver’s hand was almost severed from his arm. He is left with apermanent and severe disability. As a result, he suffers ongoing physical pain and mental anguish.

[ 12 ] I accept the Crown’s submission that this case comes within the high end of the range identified in Tourville . The aggravating factors I have noted persuade me that the sentence advocated by the Crown is a measured response to the offence and the offender. It serves to denounce this offence and to deter this offender, and others like him from repeating it. As such it promotes public safety. [ 13 ] The defendant is sentenced to six years in the penitentiary. He will provide a sample of his DNA and be bound by a prohibition, pursuant to

section 109 of the Criminal Code , for life. Released: September 20, 2019 Signed: Justice J. De Filippis