2014 QCCQ 9301, 2014 QCCQ 9301

JB4404 R. c. O’Donnell 2014 QCCQ 9301 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE « Criminal Division » N° : 455-01-012683-136 DATE : October 3 rd , 2014 ______________________________________________________________________ BY THE HONOURABLE JULIE BEAUCHESNE, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor c.

ETHAN O’DONNELL Accused ______________________________________________________________________ JUDGMENT ON SENTENCE ______________________________________________________________________ [ 1 ] On March 20 th , 2014, the accused pleaded guilty to the following charge: “On or about March 17th, 2013, in Sutton, district of Bedford, in committing an assault on Antoine Léger, did cause bodily harm to the said person, committing thereby the offense punishable on

summary conviction provided by

section 267b) of the Criminal Code .” Position of the parties [ 2 ] The Crown is of the opinion that the sentence should be imprisonment without indicating if it should be served or not in the community or intermittently. [ 3 ] Emphasis is made on the facts that the victim suffered significant injuries and needed surgery, as a consequence of this infraction fight in bar and use of weapon and that the accused pursued his assailant to take the law into his own hands by following him after the altercation and attacking him. [ 4 ] On the other hand, counsel for the accused relies a favourable presentencial report that mentions expression of remorse and important regrets and suggests that Mr.

O’Donnell is a candidate for an absolute discharge. The commission of the offense needing to be put in perspective since the accused was assaulted first with the victim’s knife and that he became an assailant afterwards. She adds that he is ready to make a charitable donation in the amount 1000$. [ 5 ] The reasons for such an order would be based on the fact that the accused is a volunteer firefighter and that he can not have a criminal record to keep his employment; he is an asset to society and his gesture was an isolated one from a person who does not have aggressive behaviours.

The facts [ 6 ] On March 17th, 2013, at around 2h30 a.m., at the Bistro bar, in Sutton, a fight occurred between Antoine Léger and the accused, Ethan O’Donnell. The altercation started as to the respective languages of the belligerents. [ 7 ] It quickly became a fist fight. Léger then pulled out a knife because he was afraid of the accused and of his friends who were intimidating. At this point, the accused screamed out “he’s got a knife” and was struck five times by it. Someone else came to help out. The accused was able to remove the knife from Léger’s hand.

[ 8 ] Léger then took off running but he was caught up not long after and held down on the ground.

At that point the accused assaulted Antoine Léger, stabbing him with his own knife. [ 9 ] The accused collaborated with the police officers and gave an incriminating statement. [ 10 ] The injuries sustained by Léger required surgery. [ 11 ] The parties have asked for a presentencial report which describes a 23 years old individual, who is in a relationship, with no criminal record, who has had regular work for some time and is a volunteer firefighter for the town of Sutton. [ 12 ] The accused has had a hard academic path because of learning disabilities (dyslexia).

It was only after hard work that he was able to succeed and obtain his h igh school diploma. [ 13 ] He has had seasonal employments since he was 12 years old, namely seven consecutive years at Mont Sutton. He quickly acquired the value of work. [ 14 ] He does not have any addiction to psychotropic or alcohol. [ 15 ] The report indicates that the accused admits his fault and regrets his behaviour.

He explains that he “freaked out” during the crime fearing for his life. [ 16 ] He feels bad towards the man that he injured and says that he never thought that the situation would degenerate to that point. [ 17 ] In hindsight, he understands that he could have acted differently to assure his security, without using that kind of violence. [ 18 ] His social analysis does not denote much criminogenic elements.

He is a stable individual in all spheres of his life and was able to abide by the conditions of his release. [ 19 ] What may have caused his acting out was his alcohol intoxicating level and his sense of self-defence which may have influenced him to use an excessive force towards his assailant. [ 20 ] The report concludes to a low risk of recurrence and no need of any specific intervention from professionals. [ 21 ] The accused says that he is ready to take responsibility for the consequences of his actions and to comply with any decision that the Court may render. [ 22 ] The victim’s written statement mentions internal bleeding after his liver was perforated. [ 23 ] After his release from the hospital, the victim alleges that he needed rest for a month an a half and that this situation has put an end to his snowboarding season. [ 24 ] It should be pointed out that Antoine Léger may have needed rest but it is not accurate to pretend that the end of his season was the consequence of the altercation since he was detained for a murder attempt following the above-mentioned event and had contravened for a second time to the conditions of his undertaking (to keep the peace and have a good conduct, interdiction to be in bars, to respect a curfew and prohibition of drinking alcohol). [ 25 ] As for the medical report, it appears that the victim had surgery because of a liver haemorrhage and that there were two lacerations due to a knife and a fracture of his eleventh rib. [ 26 ] During his testimony, Mr.

Léger mentioned five scars, a post traumatic impact and that he still wakes up sweaty reliving the event. [ 27 ] He believes that he will not be able to train again because of his pain when he does twisting motions, which he used when he did snowboarding competition. [ 28 ] His mother also submitted a letter explaining her son’s problems. The Court understands that her son lived some fears which required locking the doors, being unable to go to work alone.

She says that he has changed and that he met a psychologist on a few occasions. [ 29 ] This situation where he was stabbed, hospitalised and detained was a difficult one for all the family. [ 30 ] His cross-examination revealed that the beginning of 2013 was eventful for Antoine Léger (arrest, release, several conditions to respect). [ 31 ] On the night of March 17 th , 2013, he was arrested for three charges namely murder attempt. [ 32 ] The accused declared, at Léger’s preliminary enquiry, that he did not intend to pursue any criminal charges against him since he had already suffered sufficient consequences for his actions.

It is in these circumstances, that the charges were dropped against Mr. Léger. [ 33 ] The accused introduced as evidence, two letters and a medical report. He has worked for the same employer since March 2013 and the Court considers relevant to quote his employer: “Kubota Canada sends a survey and how the new customer ranks the sales person and the delivery technician (Ethan) and we rank first in the country out of 150 dealers.

We contact the customers directly at the end of 30 days to see how they are satisfied with their new product and without exception, all of them mentioned how great the delivery guy (Ethan) was with them. Knowledgeable, friendly,

courteous, and easy to understand. Our family business is 75 years old, I have a waiting list of people wanting to work for us and Ethan was placed above the pile for a reason when it came time to hire someone in March of 2013. I have no regret and hope he will be with us for a very long time.” [ 34 ] Similar comments were made from the security and fire services of Sutton referring to an excellent worker who is polite and courteous, working with rigour.

It is also confirmed that a criminal record would mean that he could no longer be a firefighter. [ 35 ] As for the accused, he had four lacerations of one centimeter, namely one on his scalp.

Analysis [ 36 ] The Criminal Code provides a maximum jail sentence of eighteen months for this offense. [ 37 ] The Court must apply the purpose and the principles of sentencing as mentioned in articles 718 and following of the Criminal Code . [ 38 ] The sentence may be imposed to denounce, deter and separate the offender, assist in his social reinsertion and promote a sense of responsibility in the recognition and the acknowledgement of the harm done. [ 39 ] A sentence is adequate when it is proportional to the gravity of the offense and the degree of responsibility of the offender. [ 40 ] Punishment must suit all mitigating and aggravating circumstances and be consistent with those made for similar offenses by similar offenders. [ 41 ] The mitigating circumstances are: • A guilty plea of the accused; • A favourable presentencial report; • His young age; • Sincere regrets; • Stability in all spheres of his life, namely in his work; • The fact that he is an asset to society and has no previous convictions; • The fact that it is an isolated gesture, extemporaneous with no planification and that he is not the instigator of the assault; [ 42 ] The aggravating circumstances are : • The use of a knife; • The fact that he chased the victim after the initial altercation; • The seriousness of the consequences on the victim. [ 43 ] The Crown refers the Court to decisions in similar matters, namely Therrien [1] and Normandeau [2] . [ 44 ] Therrien was a 42 years old man who had punched his victim in the face causing many fractures (lower spine, nose and left orbit) for which the victim kept some important after-effects, namely double vision. [ 45 ] This individual had previous convictions related to violence.

He was sentenced to twelve months imprisonment to be served in the community. [ 46 ] As for the defence, it is submitted that judgments in Taylor [3] and Craig [4] should be considered. [ 47 ] As for Taylor, the court granted a conditional discharge to an accused while imposing one hundred and fifty hours of community work given his age and that he had a permanent job.

The victim in this file was hospitalized and had sustained two fractures of the jaw that required surgery. [ 48 ] It was also specified that his accomplice, David Grenier, originally accused of assault causing bodily harm who plead guilty to common assault was sentenced to a pecuniary penalty. [ 49 ] In Craig, the Court granted a conditional discharge to a 43 years old individual, who was a police officer for 21 years, who had been an investigator for a squad dedicated to fight organized crime. He had slapped a hitchhiker in the face, who did not respect his authority.

He also committed other assaults (grabbing his throat and pushing him hardly against a fence). [ 50 ] It is important to mention that there was no bodily harm involved. [ 51 ] Article 730(1) of the Criminal Code provides that and absolute discharge may be ordered if it is in the real interests of the accused without being contrary to the public interest.

[ 52 ] To establish that it is in his real interest, the accused needs to prove the harmful consequences of a criminal record considering his employment, his reputation, his probability of rehabilitation, consequences that would be incommensurate considering the offense committed. [ 53 ] On the other hand, public interest should take into account the general and specific criterion of dissuasion of crimes of same nature, while considering the frequency of this type of crime and their reprobation in the community. [ 54 ] As part of the analysis of the public interest, it is important that the accused might assure his subsistence, the one of his family and remain an asset to society. [ 55 ] In some cases, a well informed public, knowing that absolute and conditional discharge are ordered or confirmed for different type of offenses [5] , would agree that the accused may benefit from an absolute discharge taking in consideration the circumstance of the offense and the situation of the accused [6] . [ 56 ] The fact that the victim first provoked the accused must be taken into consideration.

In these circumstances [7] , other courts have pronounced absolute and conditional discharges. [ 57 ] In Tajer [8] , the Court makes an exhaustive analysis and lists several cases regarding assault.

In this particular decision, the Court refused a conditional discharge to an accused who had hit an individual and broke some of his teeth; he was sentenced to imprisonment for fourteen days in order to denounce and deter this type of unprovoked assault. [ 58 ] As the probation officer wrote in the presentencial report, it is an isolated incident and the delinquency displayed was situational and associated to an excessive consumption of alcohol.

Decision [ 59 ] The Court understands that the accused’s work as a volunteer firefighter is not his main source of income and agrees that firefighters serve the public interest. [ 60 ] But emphasis needs to be placed on the fact that the victim who was stabbed twice, needed surgery.

On the basis of denunciation of such a conduct, an absolute discharge should not be granted in the present file. [ 61 ] However, a conditional discharge may be appropriate under the circumstances considering the above-mentioned principles of sentencing. [ 62 ] It is in the best interest of the accused and not contrary to the public interest to grant a conditional discharge. [ 63 ] FOR THESES REASONS, THE COURT : [ 64 ] GRANTS a conditional discharge; [ 65 ] ORDERS that the accused be under probation for a period of one year under the following conditions: • Keep the peace and be of good behaviour; • Appear before the court when required to do so by the court; • Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; • Perform 100 hours of community service, within twelve months under the supervision of approbation officer , sign the assiduity card on each presence, sign and respect the working

schedule of the probation officer; • Abstain from communicating or attempting to communicate in any manner with Antoine Léger, directly or indirectly; [ 66 ] ORDERS, under subsection 487.051 of the Criminal code , the accused to give a sample of bodily substances that is reasonably required for the purpose of forensic DNA analysis, which should be done by the Brome-Missisquoi SQ within 30 days. [ 67 ] EXEMPTS the accused of the payment of the costs and the victim surcharge.

__________________________________ JULIE BEAUCHESNE, J.C.Q. M e David St-Georges, Avocat de la poursuite M e Mireille Leblanc, Avocate de la défense