R. v. Lucas, 2019 ONCJ 954

CITATION: R. v. Lucas , 2019 ONCJ 954 DATE: November 22, 2019 Information No. 4821-998-18-75000233-00 ONTARIO COURT OF JUSTICE IN THE MATTER OF THE FAMILY LAW ACT, R.S.O 1990, c. F.3 HER MAJESTY THE QUEEN v. DEXTER LUCAS IDVC REASONS FOR S E N T E N C E BEFORE THE HONOURABLE JUSTICE S. CLARK on November 22, 2019 at Toronto, Ontario APPEARANCES: C. MULLALY Counsel for the Crown L.

RIVA Counsel for Dexter Lucas R E A S O N S F O R S E N T E N C E CLARK J. (Orally): The defendant, Dexter Lucas, was found guilty after trial in the Integrated Domestic Violence Court (IDVC) here at 311 Jarvis Street, in the City of Toronto, of assault with a weapon and uttering a death threat.

In essence, the Court made a finding that during a verbal argument between he and his wife in their apartment, and in the presence of their almost 17-year-old daughter and 15-year-old son, the defendant obtained a knife from a kitchen drawer and pointed it at the complainant, telling her that he wanted to, or was going to kill her, and then followed her to a bedroom. As the complainant and their son closed the door to prevent the defendant from advancing, he thrust the knife blade into the door, while verbally threatening that he would kill her and her family.

The date of the offences was November 1st, 2017, now more than 2 years ago. The trial took place on May 10th and June 14th, 2019. Judgment was rendered on July 12th, 2019. Sentencing was adjourned, thereafter, so that Mr. Lucas could properly prepare to make appropriate submissions on sentence and to consider whether he wished to retain counsel to make representations on his behalf. Mr. Lucas is now represented by Ms. Riva, who had some involvement in the trial, in a limited capacity, to cross-examine the complainant. I am grateful for Ms. Riva being able to assist Mr. Lucas.

She has an appreciation and understanding of the history, context, and dynamics of this particular situation. The Crown, Ms. Mullaly, in her usual capable manner, asks the Court to consider registering a formal conviction, and impose a custodial sentence in the intermittent range, between 30 and 60 days, followed by a period of probation with meaningful terms. She submits that this would address the seriousness of these offences committed in a domestic context, and give effect to the paramount sentencing

principles of deterrence, both specific and general, and denunciation. Alternatively, if a non-custodial sentence is to be considered, a criminal conviction should be registered. The Crown is opposed to any form of discharge. Although a case could perhaps be made for it being in the best interest of the defendant, it would be contrary to the public interest to do so. The defence, on the other hand, presents a compelling case for the Court to consider a non-custodial disposition and impose a conditional discharge and a period of probation between 12 and 24 months.

This is a difficult sentencing exercise in having to reconcile the competing sentencing principles, and apply them to an otherwise responsible individual, with no prior criminal antecedents, who has committed serious offences. As part of the mandate of this integrated domestic violence court, following the "one Judge to one family" model, or approach, I am possessed of certain information pertinent to the history and dynamics of this relationship and family.

I also recognize, and am mindful, that the analysis in this sentencing exercise today, should be focused on the defendant, of course, and indeed the complainant, who has attended court today, so that it is understandable and will resonate with their respective abilities, sensibilities, and level of comfort with the English language. Both parties are originally from the Philippines. Their first language is Tagalog. Much of what follows in this sentencing, I acknowledge, may be somewhat "over their heads". I say this with no disrespect.

However, given the importance of this case in this "specialty" court, it is necessary to craft a principled and measured sentence, capable of withstanding scrutiny by other courts and adding to the body of sentencing case law in domestic matters. I will, therefore, err on the side of saying more than less about whether the discharge provisions are appropriate in these circumstances. No one sentencing principle necessarily trumps the others. In each case the weight to be placed on the individual objectives varies depending on the facts and circumstances of the offences, and the circumstances of the offender.

In this case, there is no dispute that deterrence and denunciation are of particular importance. Sentencing is a delicate and individualized process. Each case turns on its own unique facts. In other words, there is no "one size fits all" sentence for any particular offence or offences. Sentencing is also a very human process. In determining the appropriate sentence, the court must consider the circumstances of the offender; the circumstances of the offences; the positions taken by both counsel; and the fundamental purpose and principles of sentencing set out in sections 718 through 718.2 of the Criminal Code .

The fundamental purpose of sentencing is to contribute to respect for the law and to impose just sanctions that have the objectives of denunciation, deterrence, and certainly rehabilitation as the primary considerations, and to also promote a sense of responsibility in the offender. The fundamental principle of sentencing is that punishment should be proportionate to the gravity of the offence or offences, and the degree of responsibility of the offender. I must say that they are both on the higher end of the scale in these particular circumstances.

The gravity of the offence refers to the seriousness, in a generic sense, as reflected by the potential penalty that could be imposed by Parliament. The degree of responsibility refers to the offender's culpability or moral blameworthiness. The principle of proportionality is rooted in notions of fairness and justice. The court must also have regard to any aggravating and mitigating factors. Although proportionality is the fundamental principle in sentencing, it is not the only one to be considered.

When considering the discharge provisions, the court has a broad, albeit a judicial discretion to grant a discharge if it considers it to be in the best interest of the offender and not contrary to the public interest. I am hard pressed to find a scenario or situation where it would not be in the best interest of an individual to receive a discharge. The problematic component of the test is whether or not it is contrary to the public interest to do so.

As an aide in determining public interest, the court asks itself whether deterrence of others would in any way be diminished by failure to impose a formal conviction? Put another way, a court may conclude that a suspended sentence is no greater a deterrent to an individual involved in matters of this nature. Public interest, of course, can depend, in part, on how meaningful any proposed terms in a probation order may be. There is no doubt that violence against women remains a systemic social problem.

The courts have continuously stated that general deterrence and denunciation are paramount in sentencing offenders for such criminality. The aggravating factors in this case include the fact that this was assaultive and threatening behavior, which occurred within this intimate relationship, in their own residence where family members are entitled to feel safe and secure from any risk of harm. Domestic assault is also a statutorily aggravating factor. As indicated, the moral blameworthiness in this matter is rather pronounced. This was conduct that was not at the lower end of the spectrum. Although Mr.

Lucas did not have present ability to effect his intended purpose by threatening Mrs. Lucas' parents, these words were of "cold comfort" to her, as he was brandishing a knife at the time he uttered them. These offences were completely unprovoked. They were committed in the presence of the children. Thankfully they were not really young. However, the impact of this on teenagers, one could infer, was not insignificant. This is a breach of a socially recognized and valued trust. Spouses or partners are as much entitled to protection from assaults and threats as are persons outside the family unit.

Although custodial sentences do not automatically follow every case of domestic assault, the court should give very careful consideration to this. The courts are well aware of the damage to society in general, and to women in particular, caused by the tragic cycle of domestic abuse. Public opinion on this point has been galvanized. One would have to be both ill-informed and insensitive to the realities of life not to recognize the fact that women have, for far too long, been left vulnerable and unprotected.

Offences involving domestic abuse are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected, not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of an offender. Violence in a domestic situation is often symptomatic of a lack of insight, and the presence of underlying character or personality traits, which make the repetition of the offence something of a real risk. The gravity, and indeed the tragedy, of domestic violence can hardly be overstated.

In many circumstances the offender uses the sanctity of the family home as a refuge in which to perpetrate and perpetuate continuing violence in secret. This fuels the need to severely denounce this conduct as completely unacceptable to our way of living. The court is, of course, duty bound to consider the mitigating factors in this case as well. The victim impact statement is neither a mitigating nor aggravating factor. It is neutral, but of great significance. I have placed appropriate weight on the contents of this statement as it bears on the facts and circumstances of this incident.

I have heard much about whether or not Mr. Lucas expresses remorse in this matter. It is also a neutral factor in the sense that I cannot consider this aggravating just because one maintains that certain things did or did not happen. It does have an impact, however, on the extent to which rehabilitation is, or can be, afforded more weight than some of the other sentencing principles. Given the nature of this integrated court I am aware of the resolution of the family issues without the necessity of going to trial. I have had some involvement in that sphere as well. To me, this demonstrates that Mr.

Lucas does have an appreciation of the “bigger picture” in trying to keep what is left of the harmony of the family intact. Rehabilitation of the union between husband and wife, may not be particularly bright. However, I am certainly cognizant that there will be ongoing involvement by both parents with the care and upbringing of the children. Being aware of how the family law issues have been resolved has allowed me to have somewhat of a “bird's eye view” of the dynamics of this family. I am also very mindful of the potential collateral consequences that may flow from imposing a formal conviction.

There was evidence in the trial about the jeopardy that Mr. Lucas may find himself in from an immigration standpoint. One of the lines of cross-examination, by Ms. Riva, was whether there was a motive or agenda by Mrs. Lucas to have the defendant deported. So, I recognize that it is a very live issue in this case. By way of mitigation, Mr. Lucas has no prior criminal record or criminal antecedent. There are a number of letters of support which have been submitted on his behalf. The attendance of his employer today speaks volumes about him.

It is somewhat ironic, in that all of the positive characteristics identified in his employer's letter about Mr. Lucas being hard working, reliable, kind, and supportive, were traits that were not exhibited by his behaviors with his own family on the date of the offences. I also take into account the fact that two years have passed since this incident took place. There have been no breaches of Mr. Lucas' bail terms. I do accept that there is strong rehabilitative potential for Mr. Lucas. His apology to the court today was short, but heart-felt.

Although it goes contrary to some of the evidence presented at trial, I have no reason to believe that Mr. Lucas is not sincere in his statement to the court. I hope that it will resonate with Mrs. Lucas in that regard. In all of the circumstances I am not going to impose a custodial sentence. I must say, however, that it was a very close call. There is no doubt that a custodial sentence could well have been imposed. Moving down the continuum to consideration of a criminal conviction by way of a suspended sentence versus the discharge provisions, I err on the side of leniency.

I am satisfied that deterrence, both general and specific, would in no way be diminished if the court did not impose a criminal conviction. The emphasis will be placed on the probationary terms. I am satisfied, therefore, that it is in Mr. Lucas' best interests, having regard to his very significant prosocial antecedents. I am also satisfied that with appropriate terms and conditions, some of which will be therapeutic in nature, it is not contrary to the public interest to do so. Mr. Lucas, if you would now please stand, sir.

I am imposing a conditional discharge concurrent on both of the charges on which you were found guilty. You will be placed on probation for a period of 12 months, with terms that you report to the probation office within three working days and thereafter as required; to have no contact direct or indirect with Mrs. Lucas except through a valid family court order; and to take counselling as directed. Both PARS and anger management would be very helpful. I think there is a real need here from a rehabilitative standpoint to raise Mr. Lucas’ level of awareness and insight.

You will also not possess any weapons over the period of probation. I decline to make a

section 110 order. It is really not necessary or

required in the circumstances. I am taking this as an isolated incident at least in terms of a weapon being part of the history of the events here. Because it is a primary designated offence, a DNA will be made. I do not know if this can be done in this courthouse today. To the extent it can it will be taken under the usual procedural and medical safeguards. Alternatively, Mr. Lucas will have to present himself within the next seven business days where otherwise directed. Thank you