R. v. L.R.K. Date:, 2011 BCPC 304

Citation: R. v. L.R.K. Date: 20110831 2011 BCPC 0304 File Nos.: 90148-1-K; 90148-4-KA Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. L.R.K. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE DONEGAN Counsel for the Crown: K. Bouchard Counsel for the Defendant: G.J. Harris, Q.C. Place of Hearing: Kamloops, B.C. Date of Judgment: August 31, 2011 [ 1 ] THE COURT: On April 29, 2011, Mr. K. pled guilty to a single global count of assault of his wife, C.L., also known as C.K. This single count encompasses three different events between May 14 and 18, 2010. Mr.

K. also pled guilty to uttering threats to Ms. L. to cause death or bodily harm to her parents between January 1 and May 18, 2010. These guilty pleas followed shortly after Mr. K.'s arrest on April 27, 2011, for breaching his bail order with respect to those charges that same date by having contact with Ms. L. Mr. K. pled guilty to the breach as well. [ 2 ] By consent of the Crown, Mr.

K. was released on bail pending the preparation of a pre-sentence report and a psychiatric assessment to assist the court with sentencing. [ 3 ] The guilty pleas were entered partway through what was turning out to be a rather protracted trial. Ms. L. had testified in examination in chief that her statements to police, her family, and doctor in May of 2010 following the allegations accusing her husband of assaulting her numerous times were untrue. She said they were gross fabrications where, in fact, she was the aggressor and her injuries were as a result of Mr.

K.'s efforts to subdue her. [ 4 ] It was in the midst of a voir dire held to determine the admissibility of her statements to police that Mr. K. was arrested by

police. He effectively ended the voir dire and trial by entering guilty pleas. By his guilty pleas, he has acknowledged the Crown's circumstances were accurate and put to rest the notion that Ms. L. was the aggressor. [ 5 ] The circumstances are as follows. Mr. K. and Ms. L. have known each other since high school, dating at that time on and off, and remaining good friends throughout the years and throughout their separate marriages that saw them each have children with their spouses. [ 6 ] In August of 2008, Mr. K.'s marriage ended a month later Ms.

L.'s ended; and the two, shortly after, started a relationship that saw Mr. K. move from his home in Abbotsford to Kamloops to live with Ms. L. This move occurred within a few months of their relationship commencing. [ 7 ] In early 2010, family and coworkers noticed behaviours in Mr. K. that caused them concern -- pardon me, family noticed behaviours in Mr. K. that caused them concern. Mr. K. appeared possessive of his wife's time and attention. He was noted to not let her out of his sight quite often when with her, and began to allow her to see her family only when he was present. Ms.

L.'s contact with her family, which was once significant and positive, began to deteriorate. When she was at work, Mr. K. phoned her multiple times during the day. [ 8 ] In March of 2010, the two married. During the ceremony and subsequent week, the couple saw extended family while on holiday who noticed bruising on Ms. L. and witnessed firsthand Mr. K.'s possessiveness toward her, in their view. It was during this timeframe that Ms. L. began to distance herself from her family. This occurred largely as a result of Mr. K.'s increasing obsession of and control over Ms. L.'s life.

Not only was there some physical abuse during this early timeframe, but he threatened to harm her, her ex-husband, and her parents. Mr. K. told Ms. L. that he could kill her parents, especially her mom; that he knows people, it could be done, and no one would know who did it. He made threats about driving a car through her parents' home. [ 9 ] This ever-tightening emotional and physical control of Ms. L. was confirmed by Mr. K. in a conversation that has been reported by his probation officer, the officer who prepared the pre-sentence report. Mr.

K. told the probation officer that he holds very strong beliefs about marriage. He believes married couples should be together at all times, and he has organized their lives to reflect this belief. He needs to have constant contact with his wife, reassurance that he is loved and she is not having an affair. Mr. K. expects his wife to defend him to her family unquestioningly because that is what married couples do. [ 10 ] It is in this context that the events of mid-May 2010 occurred. On May 14, 2010, while in their home, a verbal argument started which resulted in Mr. K. throwing Ms. L. to the ground.

She landed on a box. [ 11 ] On May 16, 2010, they were again alone in the home and began to argue. Mr. K. was angry and kicked over a coffee table. He then knocked Ms. L. to the ground where he kicked her, slapped her buttocks, and choked her with his hands. She could not breathe for a period of time. As a result of this event, Ms. L. suffered a number of bruises and welts on her body. Photographs were subsequently taken of these injuries that are before me. [ 12 ] On May 18, 2010, while Mr.

K. drove his wife to a pre-planned doctor's appointment in Kamloops, he insisted that they stop at their banking institution for Ms. L. to effect a change of name to her married name of K. She resisted this and they argued in the car. Mr. K. then struck her with a backhand to the upper arm. Ms. L. did attend her doctor's office subsequent to this. It was there that she confided in her doctor about the abuse she had been enduring at her husband's hands. With the support of her doctor and extended family, she gave a statement to police. Mr. K. was arrested.

He was released on bail a few days later. [ 13 ] In August of 2010, the no-contact condition of Mr. K.'s bail was amended to allow contact regarding operation of their business. Then it was amended again in December of 2010 to allow them to be in each other's presence for one hour a day provided they were in the presence of an adult. Mr. K. was also permitted to travel with Ms. L. to and from counselling appointments in Abbotsford and attend those appointments together. [ 14 ] As I indicated at the outset, Mr. K. breached this varied order on April 27, 2011, in the midst of the trial.

Police had been surveilling their two separate homes and found them together at Mr. K.'s residence at nearly midnight that night. [ 15 ] I turn now to the circumstances of Mr. K. [ 16 ] He is 42 years of age and has no criminal record. He is an arborist by trade and operates a successful business in Kamloops that employs his wife part-time and one other person. He has three children from his first marriage, one of whom currently lives with him in Kamloops or at least did at the time of the pre-sentence report. His two older children reside with their mother in the Lower Mainland, and Mr. K. sees them regularly.

He provides support to his ex-wife and his children. [ 17 ] He moved to Kamloops from his long-time home in Abbotsford in late 2008 or 2009, as I indicated, to be with Ms. L. He has reported that he has no friends or associates other than Ms. L. and the employee from his business here in Kamloops. He started his business from scratch. I am advised it has now become quite financially successful and its prospects for the future are optimistic. [ 18 ] Shortly after his arrest in May of 2010, Mr. K. enrolled himself voluntarily in counselling with T.V., a counsellor in Abbotsford.

He has seen him for well over 100 hours of counselling since that time. Fifty-nine of those hours were joint sessions with Ms. L. [ 19 ] I have been provided with six letters bound together from Mr. V. giving updates on Mr. K.'s progress in counselling over the last year. The letters are positive in the sense that they demonstrate Mr. K.'s desire to develop insight and learn communication and coping skills. Mr. V.'s last letter, dated April 21, 2011, ends on a positive note where he writes: It continues to be the writer's opinion that while their relationship leading up to Mr.

K.'s arrest was increasingly unhealthy and under significant stress, the risk level for further acting out in this relationship is low at this stage, and given the passage of time, combined with the extensive counselling this couple has participated in to date, they are at a much different place today than they were a year ago. Beyond that, they have committed to ongoing counselling with this writer recognizing the value of accountability, support, and skill-

building opportunities that come from this process. [ 20 ] While it does cause me some concern that Mr. V. minimizes the physical abuse by Mr. K. against his wife by describing it as "acting out", his reports do show Mr. K. is engaged in a process of personal counselling and marriage counselling in an effort to improve his behaviour in the future. I do note, however, that only days after this final report from Mr. V., Mr. K. was arrested for breaching his bail condition and ended up in jail. [ 21 ] I also note that, although not written in the reports, Mr.

V. made it clear when speaking to the probation officer that his optimism for this couple remains cautious. He advised the probation officer that he had seen some progress in Mr. K.'s understanding of relationship dynamics, but is clear that he does not believe Mr. K. is "out of the woods." I reference page 6 of the pre-sentence report in this regard. [ 22 ] Mr. V.'s cautiously optimistic view of Mr. K.'s future rehabilitation is at odds with the view of both the psychiatrist and probation officer who prepared reports in this case. Both of these authors, based on their interviews of Mr. K. and Ms.

L. and a thorough review of the material they were provided with, expressed the opinion that Mr. K. has not developed any insight into his behaviour and has not accepted any responsibility for his actions. He continues, in their view, to be a significant risk to the safety of his wife. [ 23 ] Dr. Lessing's psychiatric evaluation indicates that Mr. K.'s mental status examination was normal in that it does not display any overt abnormalities in affect, mood, content, form of thought, or orientation. [ 24 ] Mr. K. entered guilty pleas to these offences, as I have indicated.

Ordinarily, the court views this as a mitigating factor as a clear indication of remorse and acceptance of responsibility, all of which is a good sign in terms of rehabilitation of the offender. It is a challenge for me, however, to assess Mr. K.'s acceptance of responsibility in this case. He did plead guilty. He did address the court and advise that he does accept responsibility for his actions and was sorry for ever hurting Ms. L., and was sorry for any hurt he may have caused her and the children. However, to the probation officer, Mr. K. denied any responsibility.

At page 7 of the pre-sentence report, C.F. [phonetic] writes under the heading "Attitude and Understanding Regarding Offence": Mr. K. denies any responsibility whatsoever for his actions in the current offence other than stating he may have “gotten a little rough” and justifies his violent actions against C. stating he was merely defending himself. He concedes he “shouldn't have pulled her hair”. Mr. K. contends he and C. are very much in love with each other and categorically blames her and her family for the predicament he finds himself in with the current conviction.

He states C.'s parents are on a vendetta to get him out of her life because they don't want to lose another daughter. He claims they have manufactured the threat on their lives as a tactic to separate him and C. He further blames C. for any of his behaviours, maintaining she was hurt by her parents' actions and aggressively took that out on him. Mr. K. believes he was justifiably retaliating when he inflicted the extensive and severe injuries to C., and is in fact himself the victim of the various parties involved. Mr. K. relates he pled guilty to the current offences only on the advice of his lawyer.

He believes it was the most expedient manner in which to resume his relationship with the victim as before as well as to protect her from the potential charge of perjury. Given Mr. K. does not understand his offence he is not able to mitigate his risk for reoffending. As I say, that is found at page 7 of the pre-sentence report. [ 25 ] A similar theme emerged from his two-hour interview with Dr. L. At pages 3 and 4 of her report she writes that: Mr.

K. was seen for a two hour period June 16, 2011. ...He spoke freely and confidently ... and essentially took the stance that the guilty pleas were suggested to him by the lawyers as an easy way to deal with this predicament. Furthermore, he felt that he had been going to counselling and has made great personal gains as well as gains in insight that would allow him to continue his relationship with Ms. C.L. He believes that things have calmed down between them now and that they could safely move back together and get “this over with”.

He feels that the breach was quite understandable since he continues to be the man of his house and had to help his wife clean up after they had had visitors. ... He goes on to say: When asked what struck him when he read the Police reports, he recalled that they were long, that they were vicious and vulgar, blown out of proportion, and that his actions were magnified “while nothing of what she did to me was noted”. Mr. K. also stated that “she makes herself a victim” and “her family makes themselves the victims”. Further at page 4, Dr. L. writes: Mr.

K. was also asked about his seemingly excessive sexual needs and demands for his wife's attention. Again, Mr. K. is not concerned about this. He states that he has dealt with this issue in counselling and that it is clear his wife needs to be more affectionate, and he needs to taper back on his sexual demands and thus they would meet in the middle and in this manner have a more peaceful cohabitation. Furthermore, Mr.

K. reported that he and his wife only had arguments when her kids were with their biological father and persisted in this opinion despite being confronted with Police reports that indicated differently. Mr. K. is also of the opinion that Ms. C.L.’s family are part of the problem and that they have tried, malignantly so, to interfere in the marriage and have thus partly led to the current legal situation which he feels is completely unnecessary and unwarranted. [ 26 ] What emerges from the body of material before me is the picture of an intelligent, confident, hardworking family man.

He had been controlling somewhat in his past marriage, and since engaging in this new relationship has changed. His control of Ms. L. has become what can only be characterized as obsessive and overbearing. He has become a demanding husband who, when his demands were not met in May of 2010, became physically violent. [ 27 ] Through the personal counselling and couple's counselling he has undergone the past year, Mr.

K. appears to recognize strategies he can use to deal with stress, anger, and conflict that arise in his life in a relationship, but what is apparent to me is that he fails to recognize any of the responsibility for the assaults upon his wife lies with him. His words to the court last day are somewhat eclipsed by

the comments he has made and the attitudes he has displayed towards others. Despite his many hours of personal and relationship counselling, Mr. K. continues to blame everyone else for his conduct. In particular, he blames Ms. L. and her family. The counselling he has received, while beneficial in some ways, has clearly not adequately addressed Mr. K.'s basic underlying beliefs. Many of those beliefs can cause a risk to Ms. L. in the future. [ 28 ] I turn now to victim impact. [ 29 ] There is more than one victim in this case. Ms. L.'s parents were threatened by Mr.

K., and they have witnessed the gradual alienation of their daughter from their once close family. They did move away from Kamloops when it all became too much for them. Her - that is Ms. L.’s father spoke to the probation officer about the impact upon him and his wife and their conversation is reported at page 4 of the pre-sentence report. He told the probation officer, effectively, that Mr. K. has destroyed their lives as well as their close family ties they once enjoyed. They used to live a block away from their daughter and were involved with her and their grandchildren until Mr.

K. became involved in their lives. They did move to Abbotsford as a result of the ongoing threats and abuse they say they were witnessing. They installed a security system at their new home, and Mr. W. sleeps with a bat beside his bed. [ 30 ] There is no direct information from Ms. L.'s mother. Family members have asked that she not be contacted because they report she has been devastated by Mr. K.'s actions and threats. They explain mentioning the circumstances of all of this causes the mother serious distress that can last for days. [ 31 ] The impact upon Ms. L.'s sisters, they are impacted as well.

It is reported at page 5 of the pre-sentence report and has been profound on their lives. I will not go through it in any detail, but I have read the material and sum it up by saying that the sisters once enjoyed a very close relationship with Ms. L. and no longer do so. [ 32 ] Although not mentioned that I can recall in submissions, it strikes me that Ms. L.'s children have also been impacted by all of this. They have been removed from her care by the Ministry for Children and Family Development as a result of the Ministry's protection concerns, all of which involve Mr. K. They do not involve Ms.

L.'s parenting skills in any way, shape, or form. Her children now live full-time with their father. I am advised Ms. L. sees them from time to time, although I am not told how much. [ 33 ] The challenges faced by these children since Mr. K. entered their life and the difficulties with their mother began have been substantial. The adjustments involved with a new step-parent in their home are something that children of divorce all go through. These particular children, however, while not witnessing the physical violence, now have a mother who is, as her sister describes, a shell of her former self.

They are no longer allowed to live with her. They must be confused and they must be scared. The impact upon them must be profound. [ 34 ] Ms. L. provided a written impact statement that she read out in court. She is an earnest, well-spoken woman who expresses clearly to me that she wishes to reunite with her husband. One of the things that struck me when Ms. L. was speaking, and I was reading her victim impact statement, was nowhere in her statement does Ms. L. describe the impact the actual assaults encompassed in Count 1 had upon her or the threats that were made to her against her parents. Ms.

L. describes the negative impact the court proceedings have had upon them both. She describes how her personality, her parents, even her prior husband are to blame for the conflict that occurred in her current marriage. [ 35 ] Although she states that both she and Mr. K. are to blame for where they have gone in their relationship, she only discusses in the victim impact statement Mr. K. in glowing terms and blames everyone but him for the assaults upon her. She implores me not to send him to jail and to allow them full contact again.

Despite the fact that she has lost contact with her family, has been assaulted by her husband, and lost day-to-day care of her children, her only concern appears to be re-establishing her life with Mr. K. [ 36 ] I turn now to the positions of the Crown and defence. [ 37 ] The Crown seeks a global sentence of 90 days imprisonment, advocating for a range of 30 to 90 days, three years probation, and two ancillary orders. The ancillary orders are not opposed. In support of its position, the Crown stresses the aggravating factors, both statutorily and the aggravating factors in this case.

The Crown points to the increased need for emphasis on denunciation and deterrence in cases of domestic violence, particularly where the violence is not isolated to a single occurrence and where a number of risk factors exist. The Crown strongly urges a three-year probation order with a number of conditions, including a complete no contact order. They do so in order to address Mr. K.'s need for rehabilitation, but also to provide the lengthiest measure of protection possible for Ms. L. They seek this despite Ms.

L.'s request for contact. [ 38 ] The defence seeks a suspended sentence with a number of conditions designed to promote Mr. K.'s rehabilitation and submit that, in the context of a probation order, a complete no contact order is not justified in this case. In the alternative, Mr. HARRIS argues that if a jail term is determined to be appropriate by the court, the court ought to impose a conditional sentence as it could, in the circumstances of this case, satisfy the provisions of s. 742 of the Criminal Code . In support of its position, Mr. HARRIS points to a number of mitigating factors such as Mr.

K.'s guilty plea, steps he has taken voluntarily toward rehabilitation in the form of extensive counselling, that he is 42, a contributing member of society who supports two families, has a successful business, and has no criminal record. [ 39 ] Mr. HARRIS provided me with two cases: R. v. Olson , a 2011 decision from the British Columbia Court of Appeal where the Court of Appeal upheld a conditional sentence order imposed in a case of domestic assault, obstruction of justice and breach of recognizance.

I note in that case that the initial sentencing hearing there was a joint submission for a conditional sentence proposed by both Crown and defence. [ 40 ] I have also been provided with R. v. Capstick , a 2006 decision from the Supreme Court of Nova Scotia, cited at 2006 NSSC 33 , where the court upheld a conditional discharge imposed on a father who assaulted his son with a broom handle. [ 41 ] Based on all of the sentencing principles and all of the mitigating factors in this case, Mr. HARRIS urges me not to impose a jail sentence but rather allow, whatever sentence is imposed, Mr.

K. the opportunity to serve it in the community. Further, Mr. HARRIS urges me not to sentence Mr. K. based upon what he describes as fear mongering on the part of the police, the Crown, and Ms. L.'s

family. [ 42 ] The determination of a proper sentence in this case requires that I consider and balance the principles of sentencing set out in s. 718 to 718.2 of the Criminal Code as well as the aggravating and mitigating factors which exist in this case. [ 43 ] I must also consider the comments that Ms. L. made to me, as I say, in the form of a written victim impact statement that she read that she is supportive of Mr. K. and desires a relationship with him and eventually their five children. [ 44 ] I am satisfied from Ms. L.'s comments that her desire to resume her relationship with Mr.

K. is heartfelt and honest. She wishes that Mr. K. not be incarcerated so that he can assist the family financially. I must, however, bear in mind that I am instructed by case authority that in cases involving domestic violence the representations and wishes of the victim should be treated with caution and that it would be dangerous to place too much weight upon them. In this regard I cite R. v. Fawcett , [1991] O.J. No. 363 , and R. v. Meade , 2010 ONCJ 18 . There are many other cases as well that I have considered. Any sentence that I impose must address, among many other things, how best to protect Ms.

L. from any future potential of being assaulted by Mr. K. [ 45 ]

Section 718 sets out the fundamental purpose of sentencing and the objectives which the sentence should attempt to achieve. These objectives are, in short, denunciation, general and specific deterrence, separation of offenders, rehabilitation, making reparations, and promotion of a sense of responsibility in the offender.

Section 718.1 makes clear that the gravity of the offence must be proportionate to the degree of responsibility of the offender. [ 46 ] In attempting to carry out the objectives of s. 718 and s. 718.1, the court must look at the principles set out in s. 718.2 . This

section states that a court must take into account the relevant aggravating and mitigating factors that exist in a case, some of which are set out in the

section itself, others emerge from case law. Applicable to this case is s. 718.2 (a)(ii) in which abuse of a spouse is considered an aggravating factor. The court must then take into account the principle that like offenders should be treated alike, the totality principle, the principle of restraint and use of incarceration, and the principle of imprisonment should be, within reason, seen as a last resort. I do apply all of these principles and factors in this case. [ 47 ] The mitigating factors in Mr. K.'s case have been well set out by the defence. As I have said, Mr. K. is young. He is 42.

He possesses no prior criminal convictions. He has worked hard to establish a successful business in his new community. He provides financial support to an ex-wife and children and to his current wife. By all accounts, he is a good parent. He undertook counselling voluntarily. He entered guilty pleas to the offences. I agree that all of these factors are mitigating, although I do not place significant weight on mitigation of the guilty pleas. As I outlined earlier, it is clear from Mr.

K.'s remarks to officials that he did not plead guilty due to remorse or an acceptance of responsibility, but rather to accommodate the predicament he found himself in partway through the trial. [ 48 ] The aggravating factors have been set out by the Crown. Mr. K. committed an assault against his domestic partner which is statutory aggravating. Although contained within one count, there was not a single event. There were three events in the context of a week, also in the context of protracted emotional and physical abuse in the home. It was not, in other words, an isolated incident.

The assault caused physical harm in the form of bruises and welts, although I am mindful that he is only convicted of common assault. He threatened harm to Ms. L.'s parents, and he did not abide by the no contact order in the middle of the trial. [ 49 ] There can be no doubt that spousal assault is a very serious matter. The sentence for serious spousal assault must, as the case law instructs, impress upon the offender and others in the community the abhorrence with which society ought to view violence committed against a partner in their own home. [ 50 ] I have considered a decision of Mr.

Justice Joyce called R. v. Donnelly , 2010 BCSC 1786 . I find it instructive. He wrote at paragraph 28: All persons have a right to feel safe within their home, from their spouses as well as from strangers. If it is to act as a deterrent to others, the sentence for a serious spousal assault must impress upon others who might be inclined to engage in similar conduct that, if they are convicted, they will receive a punishment that is more than simply a partial denial of one’s liberty. In paragraph 29, Mr. Justice Joyce goes on to say: In this regard, I would adopt what was said in R. v.

Chirimar , 2007 ONCJ 385 . . . a case relied on by the defence in connection with the appropriate length of the sentence. In that case, the defence also urged a conditional sentence. With regard to the cite of Mr. Justice Trotter, he writes: It is also important to observe that, merely because conditional sentences are capable, at a general level, of satisfying the principles of denunciation and general deterrence, this does not mean that they are appropriate in every case in which they might be available. Much depends upon the circumstances of the case. As the Chief Justice . . . explained in Regina v.

Proulx , supra, at para. 106: The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be.

However [and this is highlighted by the judge] there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct. He goes on to say at paragraph 40, and again I'm citing from the Ontario Superior Court in Chirimar : There are features of domestic violence that distinguish it from other types of violence. When the level of violence is serious, these features militate against a community-based sanction.

Most profoundly, it is the experience of the courts that domestic violence almost always occurs in the home, beyond the vigilance of the public. In a public place, there is the possibility of assistance being rendered to a

victim, or the police being called. These opportunities are diminished in the family home. The family home can be a place wherebullying and aggression may occur, uninterrupted, and in isolation. While a conditional sentence is capable of sending a denunciatorymessage when punitive conditions, such as house arrest, are imposed . . . the denunciatory message associated with a house arrestcondition may be distorted when an offender sentenced for serious domestic violence is allowed to serve his sentence at home.

Ofcourse, this is not to say that cases of domestic violence can never be met with non-custodial dispositions, including conditionalsentences. The authorities, starting with Proulx, suggest otherwise. [51] Now, in this decision of Mr. Justice Joyce, Mr. Donnelly was convicted of assault causing bodily harm against his spouse andcommon assault of his child. I recognize that these offences are different than the case at bar. The Crown did proceed summarily in thatcase. Mr Donnelly did plead guilty.

The circumstances were that he and his wife argued first at a local nightclub when they were out,and the argument continued at home when they arrived later. Their two children were at home. The argument became physical and, atone point Mr. Donnelly pushed his wife to the floor. She fell to the floor. It was not clear which. Mr. Donnelly held her down. In thecourse of doing so, his wife bit him on his inner thigh, which caused Mr. Donnelly to be angry and, as a result, he struck her a number oftimes in the face with his elbow. She suffered bruising and dislocated jaw.

At one point during the altercation, one of their youngchildren heard the commotion and tried to come to her aid. Mr. Donnelly pushed him away and he fell down. [52] Mr. Donnelly was found to be truly remorseful by the sentencing judge. He was 37 years of age. He had no criminal record. Hewas working and he was supporting his now separated family. There was no prospect of reconciliation from what I can gather from thedecision. Mr. Donnelly had significant roots in his community. He suffered stigma as a result of what had occurred. He had also takencourses for alcohol issues that he suffered from.

He had taken anger management courses, or a course, and was always cooperative withthe police. Mr. Donnelly, it was also noted, had no breaches of bail, pled guilty at his earliest opportunity, and there was no suggestionof a pattern of abusive conduct toward his spouse. This event was found to be a one-time aberrant act. [53] The sentencing judge in Provincial Court imposed a sentence of nine months incarceration for the assault causing bodily harmconviction concurrent to one week for the common assault on his child.

The sentencing judge declined to order a conditional sentenceorder, and the jail sentence was also followed by three years probation. [54] On appeal, Mr. Justice Joyce reduced the length of the custodial sentence to six months. He agreed, however, with thesentencing judge that a conditional sentence order was not appropriate. The nine months was found to be outside of the range and, as Isay, reduced the length of it to six months.

He also reduced the length of the probation order to two years. [55] In so finding, the court in Donnelly held that the circumstances of that case demanded a sentence that informs other that if aspouse allows a domestic dispute to develop into physical violence, that spouse will face serious consequences. I am cognizant of thefact that Mr. K. faces one count of assault simpliciter against his wife and not assault causing bodily harm as was faced by Mr. Donnellywhich makes Mr. K.'s case less egregious.

The maximum penalty is, of course, lower as well. [56] In terms of similarities, both men were of similar age, similar good standing in the community, similar providers to their families,similar engagement in voluntary counselling following their arrests. There are factors in Mr. K.'s case that are more aggravated than thatof Mr. Donnelly, as well. In Mr. K.'s case, as I pointed out, there is the assault. The three events contained within Count 1 occurred in apattern of abuse. These three events in a single week were not out of the blue.

They were not an aberration, and here there is noacceptance of responsibility by Mr. K. [57] One of the decisions that Mr. Justice Joyce referred to and relied upon in the Donnelly decision was an Ontario case called R. v.Chirimar. It's a 2007 decision which I also have reviewed and rely upon in my consideration today. The cite is 2007 ONCJ 385. InChirimar, the offender entered guilty pleas to two counts of assault causing bodily harm against his spouse. The first offence covered athree-day period during which Mr. Chirimar struck his spouse in the face three or four times leaving bruises.

The other count related to alater incident when Mr. Chirimar slapped his wife again in the face and various parts of her body on three or four occasions. Theviolence that he inflicted left her with bruises and abrasions on her body. [58] Mr. Chirimar was a young man. He had no prior criminal record, but these assaults occurred within the context of a history ofspousal abuse in their relationship. He had taken counselling, including anger management, prior to sentencing. He received a sentenceof six months imprisonment, effectively almost seven months. [59] Mr.

Justice Joyce in Donnelly quoted Chirimar extensively at paragraphs 36 and 37 of his decision, and I adopt this reasoning. He states: The sentencing judge discussed the issue of sentencing for spousal assaults at paras. 16 - 18: 16 Courts have long struggled with the issue of how to sentence those who inflict violence in a domestic setting. In Ontario, a five-person panel of the Court of Appeal addressed the issue in Regina v. Inwood 1989 . . . (ON CA), 48 C.C.C. (3d) 173(Ont. C.A.). The case involved a single incident of assault by Mr. Inwood on his wife causing bodily harm and an assault by Mr.

Inwoodon his infant son. The assault on his wife, which was of short duration, resulted in tenderness to her head, a bump on and swelling to thenose, a swollen and cut lip, and a bruise to her inner upper arm. The accused received a 30-day sentence for the assault on his son and asuspended sentence for the assault causing bodily harm to his wife. The Crown appealed the sentence imposed for assault causing bodilyharm. The Court of Appeal dismissed the appeal.

Writing for the Court, Chief Justice Howland said at p. 181: This court has acted on the principle that where there is a serious offence involving violence to the person, then general and individualdeterrence must be the paramount considerations in sentencing in order to protect the public. In my opinion, this principle is applicablenot only to violence between strangers but also to domestic violence. Domestic assaults are not private matters, and spouses are entitledto protection from violence just as strangers are.

This does not mean in every instance of domestic violence a custodial sentence shouldbe imposed, but that it should be normal where significant bodily harm has been inflicted, in order to repudiate and denounce suchconduct. I am pointing out later that battered wives, where there are persistent or prolonged assaults, may require special consideration indetermining the appropriate punishment. . . .

17 The Court held that the trial judge erred in not imposing a custodial sentence for Inwood’s assault on his wife and that a sentence of three months’ imprisonment with a lengthy term of probation was warranted. However, the Court declined to incarcerate the accused given the passage of time. [ 60 ] In imposing a six-month sentence on Mr. Donnelly, returning back to that case, Mr. Justice Joyce stressed that while Mr. Donnelly's conduct was inexcusable and serious, the event was isolated, and he was truly remorseful. He also stressed that Mr.

Donnelly had taken a number of steps to deal with his issues, and probation would be there to assist him in that regard. All in all, though, a jail sentence was still deemed necessary, considering all of the principles, in order to underscore the seriousness of the offence to Mr. Donnelly and to others as well. [ 61 ] When I consider and balance the principles of sentencing, the aggravating and mitigating factors in this case, which I have outlined, and the various case authorities to which I have referred, I am of the view that a jail sentence followed by probation is required in this case. [ 62 ] Mr.

K.'s rehabilitation is a significant factor that I must consider, and I do. A probation order will be of assistance in this regard. Although Mr. K. has no criminal history, he is of good standing in the community, I find that the circumstances of the offences to which he has pled guilty in the context in which they occurred mandate a jail sentence. It is necessary to underscore the seriousness of this offence to Mr.

K. and to others and to denounce his conduct. [ 63 ] I have given careful consideration to the provisions of s. 742.6 of the Criminal Code regarding the imposition of a conditional sentence, and I have also considered the principles set out in R. v. Proulx , a 2000 decision from our Supreme Court of Canada. [ 64 ] Mr. K. is eligible for consideration of a conditional sentence order, in that there is no mandatory minimum term of imprisonment and a period of imprisonment less than two years has been sought.

I have to be satisfied, however, that his serving the sentence in the community will not endanger the safety of the community. I further must be satisfied that serving his sentence in the community would be consistent with the fundamental purpose and principles of sentencing as set out in s. 718 to 718.2 of the Criminal Code . [ 65 ] Having considered all of the material before me, I have to say that I am not satisfied on either score. I cannot rely upon Mr. K. to abide by conditions, in particular the no contact condition with Ms. L. He has demonstrated this by breaching his bail order in the midst of the trial.

His attitude toward this breach was, as is evident from his comments to the probation officer, somewhat cavalier. Ms. L. is a member of the community, and in the circumstances of the case before me, I cannot be satisfied that Mr. K. serving his sentence in the community would not endanger her. [ 66 ] As well, a conditional sentence order would not be consistent with the need for denunciation and deterrence in this case. In Proulx the point was made that a Conditional Sentence Order is available in principle for all offences in which the statutory prerequisites are satisfied.

At paragraph 90, the Chief Justice Lamer wrote that: . . . it would be an error in principle not to consider the possibility of a conditional sentence seriously when the statutory prerequisites are met. Failure to advert to the possibility of a conditional sentence in reasons for sentence where there are reasonable grounds for finding that the first three statutory prerequisites have been met may well constitute reversible error.

He goes on to say, with regard to the denunciatory potential of a conditional sentence, at paragraph 102: Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.

And with regard to deterrence, Chief Justice Lamer said at paragraph 107: . . . a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition.

Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration. This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed. [ 67 ] I am mindful that denunciation and deterrence must be balanced with rehabilitation in this case, and I do so; however, in rejecting a conditional sentence order as unable to meet the principles of sentencing, I adopt the language of the court once again in Chirimar as quoted by Mr.

Justice Joyce in Donnelly . He says: However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct. There are features of domestic violence -- And this is paragraph 40: -- that distinguish it from other types of violence. When the level of violence is serious, these features militate against a community- based sanction.

Most profoundly, it is the experience of the courts that domestic violence almost always occurs in the home, beyond the vigilance of the public. [ 68 ] Here in Mr. K.’s case, the need for denunciation is so pressing that incarceration is the only suitable way in which I find to

express society's condemnation of his conduct. Although a common assault, they were not minor assaults. They did not consist of a single slap or strike. They occurred in the context of a pattern of physical and emotional abuse. In my view, a conditional sentence in this case would not adequately address the principles of denunciation and general and specific deterrence. [ 69 ] Each case is unique. The Crown submits that the appropriate range is 30 to 90 days imprisonment and seeks a sentence at the high end of that range. As I have indicated, the defence submits that jail is not necessary.

I have determined that it is. [ 70 ] In balancing all of the factors that I have already outlined, I find that a jail term of 45 days is appropriate in the circumstances. This will be followed by three years probation. Specifically I find 45 days jail on Count 1, which is the common assault, and 15 days jail concurrent on Count 5 - I will address the breach at the conclusion of these reasons - for a global sentence of 45 days in jail followed by probation. [ 71 ] Now, there is some controversy about the conditions to be imposed on the probation order.

Many of the conditions sought by the Crown are not opposed, but the no contact condition, which is sought in its entirety by the Crown, is very much opposed. The Crown seeks an absolute ban on contact with Ms. L. while the defence seeks full contact or, at the very least, some graduated contact that might be reviewed later once additional counselling or reports have been prepared. [ 72 ] When I consider the conditions to impose, I, of course, have to turn first to the legislation.

Section 732.1(3) (

h) of the Criminal Code allows the court to impose such reasonable conditions as the court considers desirable for protecting society and for facilitating the offender's successful reintegration into the community. When I look at what is reasonable and what is necessary for protecting society and facilitating reintegration, I am instructed by a number of cases, but the main case that I have reviewed is R. v.

Shoker, a Supreme Court of Canada decision which does provide guidance with respect to optional conditions. [ 73 ] At paragraph 13 of that decision, the Court wrote: I wish to make a few general comments about the power to impose optional conditions under s. 732.1(3). The residual power under [that]

section speaks of “other reasonable conditions” imposed “for protecting society and for facilitating the offender’s successful reintegration into the community”. Such language is instructive, not only in respect of conditions crafted under this residual power, but in respect of the optional conditions listed under s. 732.1(3) : before a condition can be imposed, it must be “reasonable” in the circumstances . . . It goes on to say: Reasonable conditions will generally be linked to the particular offence but need not be.

What is required is a nexus between the offender, the protection of the community and his reintegration into the community. At paragraph 14, the court went on to observe that: It constitutes an important sentencing tool. The purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code make it clear that sentencing is an individualized process that must take into account both the circumstances of the offence and . . . the offender. This is instructive in reminding me that rehabilitation is a major focus of a probation order. It is not the only focus.

Rehabilitation is a desirable outcome, but I must also focus on protecting society, which includes Ms. L. [ 74 ] Ms. L., despite her emphatic denials to the contrary, does require protection from Mr. K. at this stage. The history of violence, both emotional and physical, and his complete control over every aspect of her life makes her incapable, in my view, of adequately assessing the risk that he poses to her. I have a body of material in front of me that indicates Mr. K. has a long way to go in developing a true awareness of his offending and what he might do to prevent it from happening again.

The court must seek and provide -- pardon me, provide protection for Ms. L., a victim of domestic violence even when she does not seek it. Her view, as I had indicated earlier, is but one factor that I must take into account, and I am cautious of giving it too much weight. [ 75 ] So the conditions of Mr.

K.'s three-year probation order will be as follows: You shall keep the peace and be of good behaviour; you shall appear before the court when required to do so by the court; 401A, within 48 hours after completion of your jail sentence, you shall report in person to the probation office nearest the place of your release from custody and, after that, you shall report as and when directed by your probation officer; 302, when first reporting to your probation officer, you shall inform him or her of your present residential address and telephone number, and you shall not change your address or telephone number without first obtaining the written consent of the probation officer. [ 76 ] I am not imposing a curfew condition.

I do not see that as necessary. 307, you shall have no contact or communication directly or indirectly with Harry Wiebe or Tina Wiebe; 312, you shall not attend or be within 50 metres of any place which you know to be the residence, school, or workplace of Henry Wiebe or Tina Wiebe; you shall have no contact or communication - this is again 307, Madam Clerk - directly or indirectly, with C. L. with the following exceptions: you are permitted telephone contact and e-mail contact with Ms.

L. for the purposes of employment, discussing financial matters, and discussing matters pertaining to your children; you are permitted personal contact with Ms. L. only in counselling sessions in the presence of a counsellor, therapist, or other professional. [ 77 ] There has been no suggestion in any of the material before me that Mr. K. has -- that alcohol or drugs played a role in his offending, so I will not impose that condition that is sought. [ 78 ] A significant condition that I do impose, Mr.

K., is counselling. 327: You shall attend, participate in, and successfully complete any assessment, counselling or program as directed by your probation officer, without limiting the general nature of this condition, such assessment, counselling, or program related to anger management, spousal abuse prevention, and such full-time attendance programs in relation to those areas that may be directed by your probation officer, and you shall comply with all rules and regulations of any such assessment, counselling, or program.

[ 79 ] In addition, I have been advised by your counsel that you are not opposed to providing a sample of your DNA with respect to Count 1 for inclusion in the DNA databank, and I make that order. It is a secondary designated offence.

I find it is appropriate in the circumstances, so you will be obligated pursuant to s. 487.05 to provide a sample of your DNA. [ 80 ] In addition, pursuant to s. 110 of the Criminal Code , I find that it is appropriate, and in the interest and safety of the public, to make an order prohibiting you from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition for a period of -- and remind me, counsel, what the period that was agreed upon was? [ 81 ] MS.

BOUCHARD: Your Honour, I don't believe there was a period of time that was agreed upon. [ 82 ] THE COURT: Just give me a moment. A period of five years. [ 83 ] Turning now to Information 90148-KA-4, I have already outlined the circumstances of the breach. Counsel has submitted that Mr. K. spent a period of time in custody - I believe it was three days - with respect to that and submit that the appropriate sentence is effectively time served for one day in jail, which reflects the time he spent in custody.

I agree that that is an appropriate sentence, and that is the sentence that I do impose, four days less three days time served for a sentence of one day. [ 84 ] I am mindful, Mr. Harris and Mr. K., of the submissions that you will be endeavouring to engage in further counselling and may come back to court at some point to seek to vary the no contact condition further. Any applications of those nature should be brought before myself, and I am open to those applications at some point in the future when appropriate. So bear that in mind. [ 85 ] Is there anything that I have missed, counsel? [ 86 ] MR.

HARRIS: I have nothing further. [ 87 ] MS. BOUCHARD: Your Honour, a victim fine surcharge? [ 88 ] THE COURT: Given that Mr. K. is -- given the sentence that he has received, I will waive the victim fine surcharges in the circumstances of this case. I do not know if the outstanding counts have been stayed. [ 89 ] MS. BOUCHARD: I don't believe so, Your Honour, and I will stay those outstanding counts now. (REASONS CONCLUDED)