2018 MBPC 29, 2018 MBPC 29

Cite #2018 MBPC 29 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Sara Minshull, ) for the Crown - and – ) ) Garron Scott ) ) ) Leonard Tailleur, ) For the Accused ) ) Judgment delivered: ) August 8, 2018 Krahn, A.C.J. Introduction [ 1 ] I convicted Garron Scott after trial of assault cause bodily harm, uttering threats to kill and forcible confinement. This is my decision as to the appropriate sentence on these charges. The Crown seeks a sentence of 10 years and counsel for Mr.

Scott seeks a sentence of 18 months incarceration which he has already served if given enhanced credit for his pre-sentence custody. Circumstances of the Offence [ 2 ] I delivered my reasons for decision orally at the conclusion of the trial. The evidence of Carmen Galvin, which I accepted, can be summarized as follows: [ 3 ] Carmen Galvin had been in a relationship with Mr. Scott since May 2016. The night before the matters which gave rise to his convictions, the two consumed alcohol at Ms. Galvin’s apartment and then went out to some drinking establishments. They arrived back at Ms.

Galvin’s apartment in the early morning hours of March 31, 2017. They had some more liquor to drink. They began to argue and Mr. Scott struck Ms. Galvin in the jaw with a closed fist in the kitchen area of the house. She testified, he punches me “like I’m a dude.” She testified she was punched repeatedly throughout the incident. [ 4 ] They progressed to the bedroom where Mr. Scott further assaulted Ms. Galvin by choking her with some object and with his hands. Ms. Galvin testified she almost “blacked out” and was struggling to breathe. She said Mr.

Scott’s face was right in her face and “his face was crazy.” He threw her against a closet where her ribs hit the closet wall. He punched her many times. At one point he went to the bathroom and ran water into the bathtub. He then put her into the bathtub. Initially she was sitting in the bathtub when he pushed her back to put her head under the water but he found the water was not deep enough. He then flipped her over, placed his knee on her back and pushed her face under water while Ms. Galvin struggled to breathe.

He told her “someone did that to him when he was a kid”, asked her “how it made her feel and did she want him to do it again”. He threatened to kill her because he did not want her to go to the police. Ms. Galvin pleaded with Mr. Scott not to kill her because her children would suffer. Mr. Scott responded by saying “she did not love her children and said they did not love her”. Mr. Scott allowed Ms. Galvin to get out of the bathtub, drained it and then ran water into it again. He allowed Ms. Galvin to get dressed but would not let her leave the apartment.

He told her he would “have to kill her because she was going to go to the police” and he “would end up going to jail”. He threatened to put her into the bathtub again. [ 5 ] Sometime between 6:30 and 7:00 in the morning they were sitting in the living room. Mr. Scott had control of her phone and said he would pretend he was her in order to communicate with her employer and fabricate reasons why she would not be at work that day. He began to read her previous text messages with her boss and became jealous. He continued to punch Ms. Galvin as he read texts that enraged him. Ms.

Galvin was afraid for her life and plotted how she might be able to escape her apartment. She removed her slippers so that she would not slip. She bolted for the door while he was focused on her phone. She managed to get out of the apartment and down a length of the hallway as Mr. Scott gave chase. He caught her and got on top of her and choked her again. She testified that throughout the night she had not fought back but in the hallway she did. She thought she was fighting for her life. She screamed and bit him on the hand, “really hard.” Mr. Scott bit her two fingers leaving broken skin.

As they were struggling outside the door of one of the neighbouring apartments, the neighbour said something from inside the apartment which appeared to spook Mr. Scott. Mr. Scott got up, returned to the apartment and within minutes left with a knapsack, a hood pulled up and sunglasses on. The neighbor helped Ms. Galvin

by calling the police. [6] The police took photos of Ms. Galvin’s injuries that day. The photographs show bruises on Ms. Galvin’s face, throat, arms,back, an abrasion on her knee and broken skin on her fingers. Ms. Galvin testified her whole face was black and purple for a few weeks. She missed two weeks of work. She testified the mark on her throat lasted for months. [7] I accepted the evidence of Ms. Galvin as to what happened and rejected the testimony of Mr. Scott. Mr. Scott testified that itwas Ms.

Galvin who had “lost control” and was hitting him, and that all he did was try to control her by holding her arms, pushing heraway and slapping her face to defend himself. He denied that he said anything to Ms. Galvin about someone holding his head underwater in a bathtub as a child, and denied doing this to Ms. Galvin. I did not find Mr. Scott’s evidence credible. [8] Ms. Galvin provided an articulate victim impact statement to the Court. After this assault, Ms. Galvin’s life has spiralleddownward.

She has succumbed to a drug addiction such that she is now using street drugs on a daily basis and has become homeless. [9] She described it this way, in part, in her victim impact statement: I became sober in December 2014 until about March 2016. I had started to drink again shortly before I met Garron in 2016, he and Idrank together everyday. Garron didn’t do hard drugs, so I didn’t do it very often. After the incident in May, I started to drink and usedrugs more regularly. I do not blame him for my addiction, but this incident shook my life out of control.

The things that happened thatnight are reoccurring thoughts. When I think about the bathtub, it brings me to tears. I always think, “what if he had succeeded.” WhenI think about it, it is like I’m there again and I feel as scared as I did at the time. I can be walking down the street and it starts replayingin my head and I’m just crying. I cannot seem to talk about it, because I get a lump in my throat and I feel terrified. It is overwhelming. I can’t stop the tears or the feelings, even though it is over, so I became focused on doing drugs to escape my anxiety. [10] It is noteworthy to see Ms.

Galvin’s current appearance and her appearance in the evidence before the Court from March 2017. She has lost a significant amount of weight. She could be described as gaunt today. It is clear to me that she has suffered significantlyand continues to suffer the psychological repercussions from this assault. She continues to feel fear, have a lack of trust of others andfeels that she has no worth. Principles of Sentencing [11]

Section 718 of the Criminal Code sets out the principles of sentencing that must be considered by a sentencing judge. Thefundamental purpose of the sentence is to protect society and to contribute to a peaceful, safe and just society.

Some of the objectives ofthe sentence can be to communicate society’s condemnation for the unlawful conduct and recognize the harm done to victims andsociety by the criminal conduct; to deter the offender and others from committing similar crimes, to separate the offender from societywhen necessary, to aid in the rehabilitation of the offender, to provide reparations for the harm to the victim and the community and topromote a sense of responsibility in offenders and acknowledge the harm done to victims and the community. [12] The essential component of every sentence is that it should be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. [13] A sentencing judge is required to consider the aggravating and mitigating factors in the circumstances of the offences and thecircumstances of the offender. [14] Mr.

Scott is Indigenous. Therefore I must consider the systemic and historical context of the treatment of Indigenous people inthis country and the impact this has had on Mr. Scott. The Circumstances of the Offence [15] Mr. Scott has been convicted of offences of significant violence. Mr. Scott assaulted his girlfriend by punching, choking herwith his hands, choking her with an object and cutting off her ability to breathe by putting her head under the water in a bathtub. Histhreats throughout were that he would have to kill her to prevent his being sent back to jail, made the assaults more serious.

The natureof the assaults together with the threats had the intended effect of making Ms. Galvin fear for her life.

Section 718.2(a)(ii) codifies thatthe abuse of a domestic partner is an aggravating factor. [16] The choking and impairing her ability to breathe constitute a particularly dangerous assault. In R. v. Lemmon, 2012 ABCA103, the Court explained it this way: [28] A moment’s reflection will reveal the reason for that.

Rendering a person unconscious, whether by choking, strangulation orsuffocation, is an inherently dangerous act that is easily capable of causing death, or brain injury with devastating lifelong consequences.See R v Horvath (1982), (ON CA), 2 CCC (3d) 196 (Ont CA), R v Wallin, 2003 BCSC 809 , and R v Muckle,(unreported. July 28, 2006, Alt. P.C.). The difference in the outcome, between unconsciousness, brain damage and death, may be only amatter of a few additional seconds of pressure. In the final analysis, this is

an act of cruel domination met by sheer horror and oftenaccompanied by serious physical and psychological harm. I acknowledge that Ms. Galvin did not lose consciousness. However her ability to breathe was cut-off and entirely in Mr. Scott’s control.The choking was sufficient to leave a red, linear mark on her neck that lasted some months. [17] I acquitted Mr. Scott of the charge of attempting to overcome resistance by choking to further an assault cause bodily harm. That offence requires that the Crown prove that there was an ulterior purpose for the choking to facilitate another offence (see R. v.

Cook(N.), 2014 MBCA 29 at paragraphs 40 and 41.) I found that the Crown had not proven an ulterior purpose. The choking was part of theassault on Ms. Galvin and demonstrated Mr. Scott’s power, control and domination over her. The nature of the assault demonstrated Mr.

Scott’s ability to carry out the threats to kill her and gave forceful emphasis to those words. [ 18 ] Other aggravating factors include the prolonged nature of the assaults and threats over several hours and the confinement of Ms. Galvin. [ 19 ] The evidence is uncontested that Mr. Scott had been drinking. He did not testify to any interference with his memory from this night. The threats and assault were deliberate and not impulsive or momentary.The nature of the assaults, confinement, threats and the fact that they took place over hours and only ended when Ms.

Galvin successfully escaped the apartment, lead me to conclude that his moral culpability for these offences is high. [ 20 ] There are no mitigating factors related to the offence. Counsel for Mr. Scott pointed out that Ms. Galvin’s injuries were superficial. I acknowledge that the physical injuries healed and were not permanent or as catastrophic as seen in some of the case law. This is the absence of an aggravating factor. However, the psychological impact was severe. The Circumstances of the Offender and his Previous Record [ 21 ] A substantial amount of material has been filed before me about Mr.

Scott and his background. In addition to a pre-sentence report, I have numerous federal corrections reports from his last federal sentence. [ 22 ] Mr. Scott has the following convictions as an adult: 2006 October 23: Assault Cause Bodily Harm 1 day, (104 days pre-sentence custody) 2 years Probation Causing a Disturbance concurrent Assault a Peace Officer Break Enter & Commit Possession of Property Obtained by Crime Under $5000 Fail to Comply with Recognizance Possession of Scheduled Substance [ 23 ] The transcript of the 2006 sentencing was filed before me.

Crown Counsel was not able to provide me with the pre-sentence report which was filed with the court in 2006. Defence counsel’s submissions to the Court in 2006 attribute Mr. Scott’s “main criminogenic factor” as being the consumption of alcohol. Mr. Scott was 19 at the time of those offences. The circumstances of the assault cause bodily harm included Mr. Scott punching the 73 year old male victim in the face repeatedly when the victim confronted him about being in a vehicle that did not belong to him. Mr. Scott repeatedly told the male victim that he was going to kill him.

The male victim was “considerably beaten and bruised”, bleeding from his nose, eyes and mouth area. [ 24 ] On November 20, 2009, he was sentenced for a major sexual assault, R. v. Garron Scott , 2009 MBQB 300 . Mr. Justice Martin, the sentencing judge, described the offence at paragraph one: “On February 21, 2007, in the parking lot of a shopping center, Garron Scott randomly and brutally attacked a stranger; choking, raping, biting and sodomizing her.” The victim was an 18 year old woman.

A sentence of 8 ½ years was imposed. [ 25 ] The sexual assault sentencing decision noted in committing the assault cause bodily harm offence in 2006, Mr. Scott used a seatbelt to choke the 73 year old victim. However, this information does not appear in the 2006 sentencing transcript. The Crown conceded before me she could not verify that information. So I proceed on the basis there was no choking in relation to the 2006 assault cause bodily harm. [ 26 ] The corrections reports demonstrate Mr.

Scott was an active participant in treatment programs and completed a number of sex offender treatment and maintenance programs and substance abuse treatment and maintenance programs. He was released on parole in Edmonton, Alberta in March 2013. There was reason for optimism for Mr. Scott at this time as he had worked as a cabinet maker and developed skills in that trade while in custody. He was attending one-on-one psychological therapy as arranged by corrections to address emotional issues of self-reliance and self-confidence. He was tested and found to be of average intelligence.

He was assessed to have alcohol dependence in controlled remission and antisocial personality traits. No other conditions were diagnosed. [ 27 ] While initially on parole in the community he secured a series of jobs related to his trade and was able to secure his own accommodation. He described it as his first home. However, he was re-admitted to custody in May 2014 after he stole a neighbour’s vehicle and was involved in a single car collision. He was found by police to be intoxicated contrary to a parole condition.

On May 12, 2014, he was convicted of theft of a motor vehicle and sentenced to 50 days concurrent. [ 28 ] He was released again on August 28, 2014 with a condition not to consume alcohol or drugs. On September 6, 2014, police were called due to Mr. Scott being intoxicated and causing a disturbance. He had facial injuries but refused to say how they had occurred. His parole was again suspended. He was released in October 2014 and remained in the community until his warrant expiry date in November 2014. [ 29 ] On October 6, 2017, he pleaded guilty that on September 8, 2016, he uttered a threat to kill Ms. Galvin.

The circumstances were that Ms. Galvin and Mr. Scott were drinking and playing cards. An argument started when Mr. Scott learned that Ms. Galvin had received some money from her mother she had not told him about. Mr. Scott sat on Ms. Galvin and she felt she could not leave. She turned up the music which led to the security officers attending to her suite. When she attempted to communicate her need for assistance to the security guards, Mr. Scott said, “Carmen, are you serious? Are you seriously going to go through with this? I’m going to fucking

kill you.” The court imposed the sentence recommended by both counsel which was to note 40 days, credited as 60 days and 2 years unsupervised probation, with a condition that he have no contact with Ms. Galvin. I note this charge was pending when the offences occurred for which I am now sentencing Mr. Scott. Gladue Factors [ 30 ]

Section 718.2(

e) directs sentencing judges “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.” The Supreme Court of Canada explained in R. v.

Ipeelee , 2012 SCC 13 at paragraph 60 : To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders.

Rather they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. [ 31 ] Mr. Scott is an Indigenous man. He is now 31 years old. He is the youngest of six children born to his parents. His parents were from Bloodvein First Nation. The Gladue pre-sentence report (PSR) discloses that his father went to residential school and was an alcoholic. His parents’ relationship fell apart when Mr. Scott was six years old due to his father’s drinking. His father died at the age of 50 when he asphyxiated on his own vomit while intoxicated.

The Probation file discloses he was raised by his mother who began to drink to excess when his father died. Mr. Scott says his mother treated him well and he was disciplined by non-physical means. There were some Child and Family Services apprehensions when Mr. Scott was growing up but he was always returned to his mother within a week. His brother Ferlin Scott reports in the PSR that he and Mr. Scott had a positive childhood. Ferlin Scott does not know why Mr. Scott has engaged in a negative lifestyle. He believes Mr. Scott would benefit from addictions treatment and that Mr.

Scott has the potential to be a good person. [ 32 ] Mr. Scott witnessed domestic violence between his mother and one of her partners. While Mr. Scott reported in the PSR that his parents taught him to speak Ojibwe, he feels connected to his culture and enjoys traditional activities, this is at odds with the report of his maternal aunt. His aunt reports she and Mr. Scott’s mother were never taught about their culture. Mr.

Scott reports he experienced racism in elementary school which resulted in him missing school to avoid those issues. [ 33 ] In 2010, during his last federal sentence, he completed the Aboriginal Basic Healing Program. His communication skills were noted to be “more than adequate”. It was recommended that he seek substance abuse intervention. [ 34 ] His mother and aunts continue to support him and have been present in court to show their support. Both of his aunts report in the PSR they have no concerns about Mr. Scott’s use of drugs and alcohol.

I do not think they appreciate the very negative impact alcohol and other substances have had on Mr. Scott’s life choices and how it impacts his risk to public safety in the community. [ 35 ] I accept the legacy of colonialism as detailed by the Supreme Court in Gladue and Ipeelee has impacted Mr. Scott in his exposure to alcoholism, his own substance abuse, the family break-up and lack of connection with his culture. It is his abuse of alcohol which poses a serious risk to public safety. [ 36 ] Mr.

Scott reports being sexually abused by a family member when he was a teenager, something he has been reluctant to talk about. [ 37 ] Mr. Scott reports he began sneaking alcohol from his parents when he was five years old. He began to use alcohol and a variety of street drugs regularly when he was a teenager. All of his offences have been committed while he was under the influence of alcohol. It is for this reason that I am disappointed he chose to remove himself from the Winding River Therapeutic program at Headingley Correctional Center, a program aimed at long-term addiction. Mr.

Scott explained to me he felt the program was not suited for him and he chose to leave so that he could take a domestic violence program. The information in the pre-sentence report says Mr.

Scott wanted to be in the same unit as his brother and that also motivated his departure from the Winding River Therapeutic program. [ 38 ] While in custody he has completed the Coming to Terms with Substance Abuse program (January 22-February 2, 2018), a program aimed at education on how substances can impact different areas of a person’s life, the Thinking Awareness Group (December 2017), a relapse prevention program that focuses on how thinking affects feelings and behaviour, and the End to Aggression program, March 5 to March 9, 2018. The reports from all of these programs show that Mr.

Scott was an engaged, attentive participant who attended all sessions. The one caveat is he failed to complete the self-talk monitoring log in the Coming to Terms with Substance Abuse program. It is reported it is not clear how much insight he currently has into his present thoughts about using substances.

It is reported he showed some ambivalence in making the required changes in his life and follow-up programming might help him move through the stages of change. [ 39 ] His response in remand custody is reported in the PSR as being mixed in that he has been moved between a number of units for negative and threatening behaviour towards staff. Mr. Scott attributes this to personality conflicts with certain guards and guards having bad days. [ 40 ] The writer of the PSR concludes Mr. Scott is a high risk to re-offend and at this time he cannot safely be supervised in the community.

His previous federal corrections assessments placed him at a moderate high risk to re-offend. Sadly, this predictive assessment has been bourne out by the current convictions. Sentence Precedents [ 41 ] Mr. Tailleur provided a number of sentence precedents to assist the Court with the range of sentences that have been imposed in cases of domestic violence. The range in these cases extend from conditional sentences and probation to low or mid-range

penitentiary sentences. Mr. Tailleur points out that even in the cases filed by the Crown, with more serious injuries, the sentences do not approach the sentence being sought by the Crown. He also points out the cases relied on by the Crown are not for Indigenous persons with Gladue factors. He argued a sentence of 18 months would be appropriate in this case. [ 42 ] I will not detail all of the cases I was provided. In R. v. Akkak , 2017 NWTSC 30 the 47 year old Inuvialuit offender plead guilty to two counts of assault causing bodily harm. While extremely intoxicated, he broke the jaw of his common-law partner.

This required plastic surgery to repair. While she was still recovering from the surgery, Mr. Akkak punched her in the face and choked her. He assaulted a male person he was trying to eject from his residence by punching him in the ribs resulting in bruising. The case is silent as to his criminal record. Mr. Akkak had suffered neglect and abuse at the hands of his adoptive mother as a child.

He was sentenced to 18 months on the assault cause bodily harm against his wife and an additional 3 months for the assault on the male. [ 43 ] The cases are consistent in re-iterating in cases of domestic violence, the sentencing principles that should receive emphasis are denunciation and deterrence. [ 44 ] The Crown filed a series of cases which resulted in a range of sentences from 32 months to seven years. The seven year sentence imposed in R. v. Georgiev , 2017 ONSC 165 was imposed after the accused was convicted by a jury for slashing the throat of a blind victim whom he came across on a public sidewalk.

He was convicted of aggravated assault. The accused had a significant criminal record including four assaults in four years. [ 45 ] In R. v. Turtle , 2010 ABCA 334 , the Court of Appeal reduced a sentence of three years, nine months to one of 32 months. The assault cause bodily harm conviction in that case was for kicking, choking and punching a vulnerable, domestic partner who was a paraplegic. The offence was committed while the offender was on a court order that prohibited his contact and the consumption of alcohol.

The offender was 31 years old with a 16 prior assault convictions, two against the same victim. [ 46 ] In R. v. White , 2007 NLCA 44 , a five year sentence was upheld for an assault cause bodily harm conviction after trial. The 52 year old offender had a serious criminal record for assault and eight assault cause bodily harm or assault with a weapon charges. The injuries sustained by the victim included bruises, cuts, bite marks and a permanent indentation on her forehead.

The Court of Appeal did note that this sentence was on the high end of the range. [ 47 ] I have reviewed all of the sentence precedents provided by counsel. They are helpful to identify some of the sentencing principles and the range of sentences in the broadest way that have been imposed in other cases. The range is very wide.

Every sentence must be based on an individualized assessment of the circumstances of the offence and the circumstances of the offender before the court. [ 48 ] While the Crown concedes that she could find no precedent where the maximum sentence she is seeking has been imposed, she argues the normative pattern of the accused’s behaviour warrants the sentence she seeks. She points out that extensive efforts at rehabilitation have been extended to Mr. Scott and yet he continues to commit offences of serious violence.

She argues he has a high degree of moral culpability for the offences of which he has been convicted. She points out the serious danger in the assaults by choking the victim, both with his hands, an object and submerging her head under water such that she could not breathe. She argues public safety and separation from society are the sentencing principles which should be emphasized and call for the maximum penalty of 10 years. Application to this Sentence [ 49 ] I have already found that Mr. Scott bears a high level of moral culpability for these offences.

I am satisfied his consumption of alcohol was a factor in his offending. However, he was not extremely intoxicated as can be seen in some of the cases I was provided. The prolonged nature of the assault, the confinement and his reasoning that he needed to confine and threaten to kill Ms. Galvin to avoid returning to jail, speak to a level of intention that was deliberate. [ 50 ] At the same time, Mr. Scott continues to make efforts to take

part in programming. His program facilitators have noted his strengths are his work ethic, his engagement and his level of participation. Ms. Galvin said in her victim impact statement that Mr. Scott “has a great personality, lots of charisma and he is so smart. That’s what kept me in the relationship…He was great when he was sober.” These sentiments are shared by his family and the program facilitators. I agree with his counsel that the road to rehabilitation can take years, particularly when the legacy of colonialism and residential schools has been so traumatic and pervasive for Indigenous people.

I agree with him that substance abuse is a significant factor in Mr. Scott’s offending. [ 51 ] There was reason for optimism in the steps Mr. Scott had taken when first released on parole in 2013, when he secured employment in Edmonton and for a time reportedly was able to stay away from alcohol. Since his return to Winnipeg in October 2015, he has not worked. Ms. Galvin says their relationship was marked by drinking on a daily basis. The concerns noted in the PSR regarding his behaviour in custody are further cause for concern that Mr.

Scott is back-sliding. [ 52 ] I echo the words of Justice Martin, “the protection of the public and a meaningful opportunity for Mr. Scott’s treatment or rehabilitation are not competing issues but rather they are complementary.” ( R. v. Garron Scott , 2009 MBQB 300 at paragraph 44 ). I am not prepared to give up on rehabilitation for Mr. Scott by imposing the sentence sought by the Crown. Particularly, for an offender who continues to engage in treatment and programming, at least while in the institution. However, the sentence must be significant to reflect the gravity of the offences, Mr.

Scott’s high level of blameworthiness and the need for the public to be protected from Mr. Scott, who has now demonstrated on multiple occasions his propensity for serious violence when under the influence of alcohol. [ 53 ] Mr. Scott has served 436 days in pre-sentence custody. It is agreed that he is entitled to 1.5 credit for that time, which amounts to 21 ½ months. In my view, the fit and appropriate sentence for these offences and this offender is one of four years. I sentence him to four years on the assault cause bodily harm and forcible confinement.

Since the offences arose out of one continuous transaction, I am imposing concurrent sentences. There will be a sentence of 18 months concurrent on the charge of uttering threats. I note that threats to kill have accompanied his violent offending in the past. This means that the go forward sentence is one of two years and two and a half months.

[ 54 ] Mr. Scott you must supply a bodily sample sufficient for DNA analysis. There will be a lifetime weapons prohibition pursuant to

section 109 of the Criminal Code . As authorized by

section 743.21 I order that while you are incarcerated, you shall have no contact or communication, either directly or indirectly with Carmen Galvin. “ORIGINAL SIGNED BY:” KRAHN, A.C.J.