R. v. Dunlop, 2014 ONCJ 44

Citation: R. v. Dunlop , 2014 ONCJ 44 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. Mr. Jack Dunlop Reserved judgment – Gilles Renaud J. – Released on January 23, 2014 Mr. J. Cavanagh Counsel for the Crown Mr. E. Little Counsel for Mr. Dunlop The factual background [ 1 ] On December 3, 2013, after the prosecution elected by way of

summary conviction, Mr. Dunlop pleaded guilty to an accusation of assault with a weapon involving a cordless telephone. The victim, Ms. D.S., is his former intimate companion with whom he shared a residence. [ 2 ] The defendant agreed that he was intoxicated at the relevant time and that he demanded $20.00 from the victim who refused, as she did not have any money to spare. As a result, Mr. Dunlop picked up a telephone and struck Ms. S. in the area of her temple. Further, Mr.

Dunlop said a number of quite unpleasant things including a statement to the effect that he was capable of killing her. [ 3 ] The victim was quite anxious over the matter, felt chest pains, and contacted 911 in order to obtain medical attention and was seen at a hospital. Eventually, she contacted the authorities in order to file a formal complaint. [ 4 ] Mr.

Cavanagh, Crown counsel, remarked that other abusive and violent acts of this nature had marked the couple’s relationship over the years, though the formal record of prior convictions did not reflect all past misconduct, a statement advanced to provide context for the victim’s emotional and physical trauma. The Crown added that abuse of alcohol was typically prominent in the genesis of Mr. Dunlop’s anger.

The offender’s criminal record [ 5 ] That being said, the formal record is as follows: 2001-02-01 - Fail to comply with a probation order - $100.00 fine 2000-11-02 - Fail to comply with a probation order – Mischief under $5,000 – 15 days on each concurrent one to the other 1998-08-19 - Assault; Assault with a weapon – 6 months on each c/c – probation for 3 years – lifetime weapons prohibition order 1994-11-04 - Possession of a narcotic - $100.00 fine 1991-05-11 - Fail to comply with a probation order - $300 fine 1990-05-11 - Break and enter and theft – 21 days and probation for 3 years

1989-06-08 - Released on mandatory supervision 1989-03-15 - Mandatory supervision violation – recommitted to custody 1989-03-07 - Assault – 30 days 1988-07-27 - Impaired operation - $600 fine – 1 year driving prohibition 1988-04-07 - Released on mandatory supervision 1985-10-23 - Parole violator – recommitted to custody 1985-09-19 - Assault – 30 days 1985-03-22 – Paroled 1982-12-24 - Manslaughter – 6 years and 6 month 1976-03-26 - Break, enter and theft – Suspended sentence and probation for 12 months [ 6 ] The Crown indicated that the 1998 convictions for assault involved the placement of a butcher type knife to the throat of the victim.

The victim impact statement [ 7 ] The victim impact information provided by Ms. S. makes plain that she has suffered a great deal on the emotional level, finding that the event was nightmarish, especially in light of the prior abuse she suffered at the hands of the offender. The positions of the parties [ 8 ] As discussed briefly earlier, the Crown pointed out that it was open to me to accept that prior, unprosecuted acts of Mr. Dunlop are to be weighed in taking account of the harm visited upon the victim as a result of Mr.

Dunlop’s assaultive actions on the day in question, but that these prior acts do not count as entries on his criminal record and the step and gap principle must be applied as against the formal record.

Further, emphasis was placed on the timing of the guilty plea, as it did not spare the victim from the trauma associated with waiting for trial, though it spared her from having to testify. [ 9 ] The Crown submitted that a conditional jail term was unfit for a number of reasons, chiefly that the same victim had been assaulted previously, and that repeated domestic violence of this nature prohibited the conclusion that the sentence was consistent with sentencing principles given the codified aggravating weight in cases of abuse of trust leading to violence against one’s intimate partner, with reference to s. 742.1 (

a) of the Criminal Code . [ 10 ] Accordingly, the prosecution sought a jail term within a custodial setting of 120 days, a DNA order, a weapons prohibition, a probation order of great length to prohibit contact with the victim, and a victim fine surcharge. [ 11 ] Mr. Little, defence counsel, responded with a well-honed submission, which was outlined in writing for the Court’s benefit, a boon that is greatly appreciated.

In sum, the Court was urged to either impose an intermittent jail term of 30 days or a period of house arrest of 60 days, in light of the 6 days of pre-sentence custody, the guilty plea that spared the victim from further victimization, albeit on the day of trial, the gap in his record as buttressed by the expert guidance of Professor Manson, and the signal contribution to the community in the nature of 300 hours of volunteer work. [ 12 ] The defence placed emphasis on a number of important elements, notably the sad life experienced by the offender, his quite frail health, his guilty plea in light of a full docket and the real possibility that the case might not have been reached, demonstrating a resolve to assume full responsibility for his harmful conduct, his behaviour whilst on judicial interim release including the 300 hours of volunteer work, the significant community support he enjoys as marked by the letters of support and community members in Court, and the rehabilitative anchor found in a new relationship. [ 13 ] In the circumstances, it will necessary to review the case law on domestic violence in order to ascertain whether this principle, applied to this offender in question, and involving a repeat victim, takes this instance outside the range of a conditional sentence and if so, what should be the fit jail sentence in light of the concession that imprisonment is required.

Domestic violence: A review of the case law Introduction [ 14 ] For ease of understanding, the Court will analyze the applicable case law by means of a thematic review. The codification of the need to eradicate domestic violence by means of aggravated weight in sentencing [ 15 ] At the outset, it will be of assistance to highlight Parliament’s injunction to the Courts to assign aggravating weight in circumstances in which unlawful conduct involves an attack on certain fundamental values, in this case the sanctity of domestic relationships and the imperative of repressing violence within the family unit.

It must be underscored at this introductory stage that this principle is not a novel one, though it was enacted in the Criminal Code for the first time on September 3, 1996, by means of Bill C-41. Indeed, sentencing Courts have been cognizant of the need to assign aggravating weight to such offences for quite some time. However, the fact of the statutory recognition of the need to counter this blight against our social peace by means of sentences that must reflect the aggravated weight resulting from an attack on a basic element of organized society is to be underscored. Thus, the inclusion of domestic

violence as a codified aggravating circumstance, pursuant to the authority of s. 718.2(a)(ii) of the Criminal Code, is of fundamentalimportance in the selection of a fit and proper sentence. [16] For ease of reference, s. 718.2(a)(ii) reads as follows: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, […] (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner… shall be deemed to beaggravating circumstances.

Instruction on sentencing for cases of domestic violence that pre-dates the introduction of s. 718.2(a)(ii) [17] It might be thought superfluous to draw attention to cases that were decided prior to the introduction of s. 718.2(a)(ii) of theCriminal Code by reason of the fact that the authority of many pronouncements might well have been overtaken by the legislation, butthe very general nature of the provision in question “evidence that the offender, in committing the offence, abused the offender’s spouseor common-law partner… shall be deemed to be aggravating circumstances” indicates that it might be quite valuable to frame thecontemporary response to offences of domestic violence against an appropriate historical background.

In fact, a great number of thesentencing principles applied today flow directly from the guidance of the appellate courts advanced in the decade prior to the enactmentof Bill C-41 on September 3, 1996. The recognition of the tragedy of domestic violence [18] The tragedy of domestic violence in Canadian society has been recognized increasingly in Canada over the last decades. Indeed,the Supreme Court of Canada characterized this vexing issue as a profound problem in R. v. Lavallee, (SCC), [1990] 1S.C.R. 852.

Justice Wilson observed at para. 32, pages 872-873 S.C.R.: [32] The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomenon inrecent years has revealed both its prevalence and its horrific impact on women from all walks of life. Far from protecting women from itthe law historically sanctioned the abuse of women within marriage as an aspect of the husband's ownership of his wife and his "right" tochastise her.

One need only recall the centuries old law that a man is entitled to beat his wife with a stick "no thicker than his thumb". [Emphasis added] [19] Her Ladyship then drew greater attention to the social background to the proposed legislative and social transformations, asfollows: [33] Laws do not spring out of a social vacuum. The notion that a man has a right to "discipline" his wife is deeply rooted in thehistory of our society.

The woman's duty was to serve her husband and to stay in the marriage at all costs "till death do us part" and toaccept as her due any "punishment" that was meted out for failing to please her husband. One consequence of this attitude was that "wifebattering" was rarely spoken of, rarely reported, rarely prosecuted, and even more rarely punished. Long after society abandoned itsformal approval of spousal abuse tolerance of it continued and continues in some circles to this day. [34] Fortunately, there has been a growing awareness in recent years that no man has a right to abuse any woman under anycircumstances.

Legislative initiatives designed to educate police, judicial officers and the public, as well as more aggressive investigationand charging policies all signal a concerted effort by the criminal justice system to take spousal abuse seriously. However, a woman whocomes before a judge or jury with the claim that she has been battered and suggests that this may be a relevant factor in evaluating hersubsequent actions still faces the prospect of being condemned by popular mythology about domestic violence. Either she was not asbadly beaten as she claims or she would have left the man long ago.

Or, if she was battered that severely, she must have stayed out ofsome masochistic enjoyment of it. The R. v. Inwood principle: Domestic violence is not a private matter [20] The Ontario Court of Appeal has provided signal instruction to trial courts with respect to the difficult enterprise of selecting a fitand proper sentence in cases of domestic assault in R. v. Inwood, (Ont. C.A.).

In so doing, the five person panelunderscored the public nature of this form of violence and the reasons may fairly be read as an acknowledgement that to consider itmerely a private matter would serve not only to perpetuate it, but to remove victims from the protection of the Courts. [21] The accused was convicted of assault occasioning bodily harm upon his wife and received a suspended sentence of three yearsduration with supervised probation.

It is to be noted that he was jailed for 30 days in respect to a related conviction of assault upon his 12month old child, to be followed as well by probation for 36 months. [22] Although the precise factual basis for the conviction is somewhat vague, there was objective evidence of injuries suffered by thecomplainant as follows: “tenderness on the left occipital area of her head, a bump on the bridge of her nose, a slight swelling of the nose,a slightly swollen lower lip with lacerations inside, a small bruise at the right elbow, and bruising of the inner upper left arm." The trialjudge found that the "injuries interfered with her comfort and were more than merely transient and more than merely trifling." Refer topara. 10. [23] Briefly, the Crown appealed against the suspension of sentence.

"It was the contention of counsel for the Crown that Inwood

should have received a custodial term for the assault on his wife, in addition to the three-year term of probation." Refer to para. 24. Itwill be of assistance to set out the following passage from Chief Justice Howland's judgment, concurred in by a full bench comprised ofBrooke, Houlden, Robins, and Grange, JJ.A., as consigned at para. 25: Crown counsel drew attention to the fact that domestic violence was very widespread in Canada. Counsel for the defence acknowledgedthat there was a heightened public awareness of such violence and of child abuse.

It was conceded that fines, probation and evendischarges were routinely granted for domestic assaults, and that the suspended sentence imposed in this case was not an exceptionaldisposition.

The court was asked to adopt a sterner policy towards domestic violence in light of the recent increase in the maximumpenalties for assault and assault causing bodily harm as indicative of Parliament's increased concern with offences involving violence. [24] Howland, C.J.O. then stated: "This Court has acted on the principle that where there is a serious offence involving violence tothe person then general and individual deterrence must be paramount considerations in sentencing in order to protect the public [...]" Seepara. 26.

The Court added "In my opinion, this principle is applicable not only to violence between strangers but also to domesticviolence." The unanimous judgment of our Court of Appeal goes on to state the law as follows, again as recorded at para. 26: Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are. This does not meanthat in every instance of domestic violence a custodial term should be imposed, but that it should be normal where significant bodilyharm has been inflicted, in order to repudiate and denounce such conduct.

I am pointing out later that battered wives, where there arepersistent or prolonged assaults, may require special consideration in determining the appropriate punishment. [Emphasis supplied] [25] In the result, the Court was of the view that an appropriate disposition would have been a custodial term of three months and thatin failing to impose such a sentence, the learned trial judge erred.

"Although of comparatively short duration, the violence to [thespouse] was serious and merited more than a suspended sentence, and a lengthy term of probation, in order to bring home to the publicand to Inwood that such behaviour will not be tolerated." Refer to para. 29. The Bonneteau principle: The paramountcy of denunciation and deterrence [26] Although it might be stated that the Court of Appeal for Ontario already held as such in 1989 in the Inwood case, the framing ofabove noted principle in accordance with the subsequent judgment of the Alberta Court of Appeal in R. v. Bonneteau, 1994 ABCA 327, [1994] A.J.

No. 726, 24 Alta. L.R. (3d) 153, 157 A.R. 138, 77 W.A.C. 138 (C.A.), 93 C.C.C. (3d) 385 is reflective of the painstaken by that Court to ensure a systematic and sound analytical basis for the selection of appropriate severity in cases of domesticviolence, from the least instance satisfying the Code

definitions to the most grave. [27] In that case, Hetherington, J.A., Veit and MacKenzie, JJ. (ad hoc), dealt with a Crown sentence appeal as follows. The accusedhad pleaded guilty to two counts of assault causing bodily harm and to one count of assault. The victim was his common law wife. Thetrial judge had sentenced the accused to a total of 90 days' imprisonment, to be served on an intermittent basis plus 12 months'probation. The Alberta Court of Appeal allowed the appeal and substituted a total sentence of imprisonment for two years less a day.

Inso doing, the court stated, inter alia, that "where the assault is serious, general deterrence and denunciation are the paramountconsiderations in sentencing." Refer to para. 34, citing R. v. Ollenberger, 1994 ABCA 72 , [1994] A.J. No. 153, 149 A.R. 81,29 C.R. (4th) 166 (C.A.) in particular.

The Brown principle: The starting point is the fit sentence for a stranger [28] The best means of expressing the so-called Brown principle is to make plain that the starting point for sentencing instances ofdomestic violence is to assign aggravating weight to the conduct as if it had involved two strangers as opposed to two individualsinvolved in a domestic or romantic relationship of some kind. In fact, the judgment in R. v. Brown, 1992 ABCA 132 , [1992]A.J.

No. 432, 125 A.R. 150, 14 W.A.C. 150, 73 C.C.C. (3d) 242, [1993] 1 C.N.L.R. 116, 13 C.R. (4th) 346 (C.A.) contains valuableguidance on the correct analytical approach in cases of sentencing for domestic violence. Indeed, the correct first step should be toconsider how the Court would assign aggravating weight were the facts identical, save for the existence of a prior relationship betweenthe parties.

In this respect, note the language found at para. 20, page 353 C.R.: [20] In cases of assault by a man against his wife, or by a man against a woman with whom he lives even if not married, the startingpoint in sentencing should be what sentence would be fit if the same assault were against a woman who is not in such a relationship.

Forexample, what would be the fit sentence if the man had assaulted a woman on the street or in a bar -- and if the aggravating factors (suchas severe violence, or a serious record of previous convictions for similar or other assaults), or the mitigating factors (such as a guiltyplea or other evidence of remorse) were the same as in the actual case? [Emphasis added] [29] Subsequently the Court added, at para. 26: It is not possible to draw up an exhaustive list of factual elements which should be taken into account in sentencing in wife-assault cases.Because the violence has occurred in the context of a spousal relationship without which the man might never have been violent towardthe woman, the Court must consider whether the assault for which the man has been convicted is relatively minor in nature, or is anisolated incident, or whether there are other circumstances which make it desirable that the sentence not be such as to becounterproductive to the possibility that the family relationship will be preserved (if there is any such possibility remaining).

The firsttwo of these points will already have been taken into account in deciding what the starting-point should be; that is, what the fit sentencewould have been if it had been an assault between strangers. […] [Emphasis supplied] [30] Further guidance on the issue of violence between strangers and in the case of non-strangers in a situation of domestic violence isfound in R. v.

Inwood: “This Court has acted on the principle that where there is a serious offence involving violence to the person thengeneral and individual deterrence must be paramount considerations in sentencing in order to protect the public [...]" See para. 26, page293 O.A.C.

The Court added “In my opinion, this principle is applicable not only to violence between strangers but also to domesticviolence.” [Emphasis supplied] Noteworthy as well is the following comment, found at page 293 O.A.C., para. 26: “Domestic assaultsare not private matters, and spouses are entitled to protection from violence just as strangers are.” [Emphasis supplied]

[31] In addition, it may be apposite to point out the dissenting judgment, in the result, of Mr. Justice Cory (as he then was) in R. v.R.J.S., [1983] O.J. No. 168 (C.A.), at page 4: "Acts of indecency such as these, committed upon a stranger to the accused, wouldcertainly result in a term of imprisonment." [32] In other words, what would be the appropriate penalty were a stranger the subject of the offence, to which is added that elementof denunciation and of general deterrence inherent in abusing one to whom protection is owed. [33] The judgment in R. v.

Brown also provides direction on the pre-1996 reform judicial view that any offence of domestic violencenecessarily involved a breach, by the offender, of the victim’s trust. As we read at para. 21: [21] […] When a man assaults his wife or other female partner, his violence toward her can be accurately characterized as a breach ofthe position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control whichthey so often have over the women with whom they live.

The vulnerability of many such women is increased by the financial andemotional situation in which they find themselves, which makes it difficult for them to escape. Such women's financial state is frequentlyone of economic dependence upon the man. Their emotional or psychological state militates against their leaving the relationshipbecause the abuse they suffer causes them to lose their self-esteem and to develop a sense of powerlessness and inability to controlevents. [Emphasis supplied] [34] In a case decided prior to sentencing reform, R. v. Hartle, [1995] O.J. No. 1100 (Prov.

Div.), I remarked as follows at para. 50: [50] In the final analysis, the defendant breached a trust in striking his spouse, a person who would look to him for protection,notwithstanding the separation. As well, he violated the trust of being admitted to her home.

A passage in Macbeth, Act 1, Scene VII inwhich the main character considers a bloody course of action is apposite: He's here in double trust: First, as I am his kinsman and his subject, Strong both against the deed: then, as his host, Who shouldagainst his murderer shut the door, Not bear the knife myself." (lines 13-16) One who assaults the person who received him into her home, being related to the victim by marriage, may fairly be said to be breachinga "double trust", warranting a term of prison. Loss of self-esteem and development of sense of powerlessness [35] R. v.

Brown discusses the question of a victim’s loss of self-esteem and acquisition of a sense of powerlessness as a result ofdomestic violence, chiefly at para. 21: “[…] Their emotional or psychological state militates against their leaving the relationshipbecause the abuse they suffer causes them to lose their self-esteem and to develop a sense of powerlessness and inability to controlevents.” Judicial notice of the widespread extent of domestic violence [36] It is of interest that the Ontario Court of Appeal did not contest the proposition put forward by Crown counsel to the effect “[…]domestic violence was very widespread in Canada.” See R. v.

Inwood at para. 25, page 292 O.A.C. Further, it did not require further orbetter evidence. In addition, the Court remarked: “Counsel for the defence acknowledged that there was a heightened public awarenessof such violence and of child abuse.” Refer again to pages 292-293, para. 25. [37] In light of this last observation, it will be useful to quote from Mr. Justice Gordon in R. v. McKee [1994] O.J. No. 490 (Gen.Div.). At para. 13, the Court observed: "Violence in the family setting is of great concern in society today.

Violence between men andwomen has gained at great deal of prominence in the public eye over the last few years. It is greatly frowned upon and to be deterred ifat all possible. In each case, it is necessary however to review the facts and the sentence must meet those facts." In the case at Bar, theCourt noted the absence of a wanton beating by the accused and that the force applied was not severe. Accordingly, there was asuspended sentence for a period of 12 months. Judicial recognition of Parliament’s increasing concern for the subject [38] Note that para. 25, page 292 O.A.C. of R. v.

Inwood includes these comments: “The Court was asked to adopt a sterner policytowards domestic violence in light of the recent increase in the maximum penalties for assault and assault causing bodily harm asindicative of Parliament's increased concern with offences involving violence.” Stress of life not resulting in mitigation [39] R. v. Glen, [1983] O.J. No. 179, 1 O.A.C. 212 (C.A.) makes plain at para. 14, p. 214: “This court has a duty to make it clear thathowever unhappy a spouse may be about his or her marital life, and however great the marital stress may become, resorting to violenceis not the answer.

The sanctions for violence will be very severe.” Spouse of domestic violence a captive victim [40] R. v. Jenner, [1994] O.J. No. 691, a decision of Mr. Justice Donnelly, includes these comments found at para. 25: "This incidentas I find it cannot be viewed as a typical scene of domestic violence between husband and wife where the wife is, in a sense, a captivevictim. If I took that view of the matter, jail would be the inevitable result." In essence, Donnelly J. found that the complainant wasaggressive and demonstrated a provoking attitude that resulted in a deliberate confrontation.

Sentencing instruction subsequent to the introduction of s. 718.2(a)(ii) Denunciation as a primary consideration [41] Note the case of R. v. Campbell, (ON CA), [2003] O.J. No. 1352, 170 O.A.C. 282 (C.A.), at para. 8 in order

to gauge the reach of the objective of denunciation in cases of domestic violence committed by first offenders, admittedly in thecircumstance of a grave offence. As we read, “The appellant argues that the sentencing judge erred in giving prominence todenunciation and deterrence despite the fact that the appellant was a first offender.” The Court's response is found at para. 9: “We donot agree. The sentence is within the appropriate range for attempt murder in a domestic situation.

This court has repeatedly stated thatthe principle of deterrence is of paramount importance in determining the appropriate sentence for crimes of domestic violence. See, forexample, R. v. Edwards (1996), (ON CA), 28 O.R. (3d) 54, [1996] O.J. No. 464, 88 O.A.C. 217, 105 C.C.C. (3d) 21,46 C.R. (4th) 319 (C.A.).” Paramountcy in the gradation of principles to be assigned to denunciation and deterrence [42] The case law makes plain that the Courts charged with fixing a fit and proper sentence in cases of domestic violence are guidedprincipally by the objectives of denunciation and deterrence.

In this vein, a recent and forceful expression of the view that denunciationand deterrence are of paramount importance in sanctioning domestic violence is found at para. 46 of R. v. Rahanam, 2008 ONCA 1,[2008] O.J. No. 1, per Watt J.A.: [46] In cases involving violence arising out of an existing or failed domestic or romantic relationship, the predominantsentencing objectives are denunciation and deterrence. See R. v. Boucher (2004), (ON CA), 186 C.C.C. (3d) 479(Ont. C.A. ) at p. 488 per Simmons J.A.

Further, sentences imposed must promote a sense of responsibility in offenders and anacknowledgement of the harm done, not only to the immediate victim, but also to the community at large. In cases like this, thelikelihood of enduring psychological trauma to the victim from the irrational, controlling and obsessive nature of the misconduct issignificant. See Boucher, supra, at p. 487 per Simmons J.A. [43] In the case of R. v. P.S., [2007] O.J.

No. 1476, 2007 ONCA 299, 223 O.A.C. 293, 221 C.C.C. (3d) 45, we are reminded at para.50 that the Court of Appeal for Ontario has “[…] made clear that crimes of domestic violence warrant giving paramount importance todenunciation and both general and specific deterrence. This is so even where the offender has not previously been to the penitentiary.” [44] Further, R. v. Downes, (ON CA), [2006] O.J.

No. 555, 79 O.R. (3d) 321, 208 O.A.C. 324, 205 C.C.C. (3d)488, 37 C.R. (6th) 46 includes these directs observations on the principles of sentencing applicable in the case of domestic violence andharassment in such a factual context, at para. 38, which are reproduced herein for ease of cross-reference: [38] In Bates, (ON CA), [2000] O.J.

No. 2558, 134 O.A.C. 156, 146 C.C.C. (3d) 321, 35 C.R. (5th) 327, atparas. 35 and 36, Moldaver and Feldman JJ.A. explained the principles and objectives to be applied in imposing sentence in domesticviolence and harassment cases: Domestic violence and harassment cases most often involve conduct directed by a male spouse or partner against a woman. Yet offenderswho feel empowered to harass a partner or former partner with impunity will not necessarily confine their behaviour to that person, butmay also harass and terrorize her friends and family members.

As this case illustrates, the respondent somehow perceived that his loveand need for the complainant allowed him to be an unwanted presence in her life and in the lives of her family and associates, and tothreaten and terrorize them to achieve his ends. His irrational actions made him a menace to [the complainant] and to those close to her. Consequently, when an offender like the respondent comes before the court for sentencing, it is important for the court to denounce hisconduct in the clearest terms by fashioning a heavy sentence. [45] In addition, R. v. B.T.Y., [2006] B.C.J.

No. 1491, 2006 BCCA 331, 228 B.C.A.C. 208, 210 C.C.C. (3d) 484 contains usefulguidance on the policy of the law that no mitigation in sentencing severity, to the contrary, arises in sentencing when the victim ofviolence is a member of the offender’s family, in conformity with s. 718.2(a)(ii): [41] It is helpful to refer to R. v. Hendry et al. (Whitebear) (2001), (ON CA), 161 C.C.C. (3d) 275, 57 O.R. (3d)45 (C.A.) in which a similar error in principle was concerned.

In that case, the trial judge had declined to make a DNA order on the basisthat it was a case of domestic violence, and the offender only offended against his spouse. In rejecting the distinction the trial judge hadmade, the court said: [50] In my view, the trial judge made several errors in principle. He erred in refusing to make the order because the respondent onlyassaulted his spouse. In R. v.

Bates (2000), (ON CA), 146 C.C.C. (3d) 321, at 330 and 331, this court recently hadoccasion to discuss the nature of spousal abuse in terms that are directly applicable to this case: … [35] Domestic violence and harassment cases most often involve conduct directed by a male spouse or partner against a woman.Yet offenders who feel empowered to harass a partner or former partner with impunity will not necessarily confine their behaviour to thatperson, but may also harass and terrorize her friends and family members. [46] R. v. Campbell, (ON CA), [2003] O.J.

No. 1352, 170 O.A.C. 282 (C.A.), instructs us at para. 8: “Theappellant argues that the sentencing judge erred in giving prominence to denunciation and deterrence despite the fact that the appellantwas a first offender.” The Court's response is found at para. 9: “We do not agree. The sentence is within the appropriate range forattempt murder in a domestic situation. This court has repeatedly stated that the principle of deterrence is of paramount importance indetermining the appropriate sentence for crimes of domestic violence. See, for example, R. v.

Edwards. [47] Reference may usefully be made as well to para. 34 of R. v. Woods, [2008] S.J. No. 200, 2008 SKCA 40 which contains thesehelpful remarks: [34] Courts across Canada have long recognized the significance of the problems of domestic violence and spousal abuse. For example, in R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852, Wilson J., for the majority of the Supreme Court of Canada,

said this at p. 872: The gravity, indeed, the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomenon in recent years has revealed both its prevalence and its horrific impact on women from all walks of life. The sentencing goals of deterrence and denunciation naturally play an important role in establishing appropriate societal values and attitudes in relation to this kind of crime.

Deterrence as a primary consideration in sentencing for domestic violence [ 48 ] By reason of the fact that references to the objective of denunciation found immediately above are invariably accompanied by mention of the objective of deterrence, no further reproduction of these authorities is required in the circumstances.

Incarceration is not required either by legislative enactment or by reason of appellate direction [ 49 ] Having just reviewed the objectives of denunciation and deterrence, it will be of assistance to pause in order to note that although Parliament has legislated often, and of late, to direct that even first offenders guilty of a great number of offences be jailed, Parliament has not chosen to modify the Criminal Code to direct courts to imprison all, or even a class of, offenders guilty of domestic violence, notably repeat offenders, as is the case with impaired operators of motor vehicles, to name but one example.

In addition, no case is known to have directed trial judges to impose jail sentences in all cases of such wrongdoing, or to have instructed that a conditional jail sentence cannot be selected to sanction these types of crimes. [ 50 ] Thus, the aggravating weight which must be assigned to cases of domestic violence must not be seen as an injunction by either the legislative branch or the case law to the effect that denunciation and deterrence trump all other objectives in all cases.

Vulnerability of the victim [ 51 ] In many respects, to speak of the vulnerability of the victim of domestic violence is to speak of redundancies in that all victims of domestic violence are vulnerable by reason of their participation in a relationship of some kind. In other words, if you offer up your heart to someone, you are placing yourself in a vulnerable state. [ 52 ] The first judgment of interest in this vein was drawn by Justice Gorman. This particular decision, R. v. Randell , [2006] N.J. No. 7 (Prov.

Ct.) , provides valuable guidance on this issue at paras 19-20 by emphasizing the vulnerability of the spouse: [19]

Section 718.2 (a)(ii) of the Criminal Code indicates that "evidence that the offender, in committing the offence, abused the offender's spouse or common law partner" shall be "deemed to be aggravating circumstances." [20] In R. v. O'Donnell , [2002] N.J. No. 333 , I had the opportunity to consider

section 718.2 (a)(ii) of the Criminal Code and sentencing in cases involving assaults in intimate relationships. In imposing sentence in that case, I said: Spousal assault is a societal problem of depressingly impressive magnitude. Offences involving men having assaulted their female spouse is a common feature of a judge's daily case load. The seriousness of spousal violence is reflected in Parliament having concluded that "evidence that the offender, in committing the offence, abused the offender's spouse ... shall be deemed to be an aggravating" circumstance in the imposition of sentence (see

section 718.2 (a)(ii) of the Criminal Code of Canada) . Our courts have a responsibility to reflect Parliament's intent in the sentences they impose. Females, in particular, are in extremely vulnerable positions in relation to their male spouses . General deterrence and protection of the public must be the primary sentencing principles applied in offences of this nature.

The sentence imposed in this case must attempt to protect other spouses, from such violence, by clearly stating that significant sentences will be imposed for such offences. [Emphasis added] [ 53 ] Justice Gorman then consigned valuable observations addressing the wider issue of domestic violence from a holistic and international perspective at para. 21: [21] In its 1995 Report, From Rhetoric to Reality, Ending Domestic Violence in Nova Scotia, the Law Reform Commission of Nova Scotia stated that, "Law is one of the central instruments used by governments to advance social, justice and other policies yet the legal system and law do not appear to be having much impact in eradicating this social problem." After considering reports "from around the world and other parts of Canada" the Commission noted that the continuation of violence after a woman leaves a relationship "highlights the extent" of this societal problem: ... violence against women by their spouses is a life threatening situation which is not treated seriously by the legal system or by society in general.

The common theme that surfaces is a failure to comprehend and respond to domestic violence as a life-threatening situation which should be accorded the highest priority in terms of response and protection. It would not be an understatement to say that for many women, the experience of existing with a violent man is akin to living with a time bomb which will eventually result in death. The fact that many women continue to experience violence after they leave or no longer live with the spouse highlights the extent of the difficulty posed for women.

The failure on the part of the entire legal system to appreciate this fact and respond accordingly is the central problem. International standards now recognize domestic violence as a significant violation of women's human rights akin to torture and as a major barrier to equality. Despite all of this, the situation remains unchanged. Since the law in Canada already clearly prohibits harassments, threats and all forms of physical violence, it appears that the existing law is not obeyed or respected.

Although the legal system itself cannot alter human behaviour and attitudes, the law and the delivery of legal services can encourage or reinforce particular attitudes. The Commission believes that little use is made of the criminal justice system by women experiencing this form of violence and that one of the reasons for not using the law is that it is not seen as responsive to their needs. This is an access to justice concern for women in that the system is clearly not serving the needs of all people equally.

[54] Further, noteworthy is the case of R. v. Paquette, [2001] O.J. No. 5000 (C.A.). In that judgment, the Court endorsed thefollowing, at para. 22: "The trial judge carefully considered the relevant aggravating and mitigating circumstances in this case, includingthe appellant's sad life and circumstances. We see no error in principle, no failure to consider relevant factors, nor any over-emphasis ofthe appropriate factors in the sentence imposed. Moreover, the sentence falls within the normal range of sentences that may reasonablybe imposed in cases of second degree murder of an unarmed spouse.

There is no basis to interfere." [Emphasis added] [55] Of note, the offender was sentenced to life imprisonment without eligibility for parole for fourteen years. He shot his wife in theface at close range with a 12-gauge shotgun, while heavily intoxicated, as was she. In effect, she was entitled to expect her spouse toprotect her from an armed aggressor, not to be the armed aggressor. Repetition of assaultive behaviour (in general) [56] R. v. Hart, [2004] O.J.

No. 3509 (C.A.), serves to emphasize that severity is appropriate in cases of an "... attack on the victim(the appellant's wife) [that] was repeated and life threatening". See para. 1. In addition, he had previously choked his wife intounconsciousness and been convicted of aggravated assault. [57] On the subject of domestic violence and repeated or multiple convictions involving the same victim, the case of R. v. Kopriva,2008 ONCA 54, [2008] O.J. No. 233 guides us as to the need for severity in order to protect a victim of repeated domestic violence fromfuture violence.

As we read at para. 1, the Crown appealed from the 60-day sentence imposed on the respondent on his third convictionfor a domestic assault on his same-sex partner, submitting that the sentence reflected an error in principle and was manifestly unfit. Thecourt agreed and meted out a twelve month term. [58] In so doing, it noted at para. 2 that “This was the respondent's sixth assault-related offence, his third on the same victim, and histenth violence-related offence.

The sentence was imposed for a domestic assault committed less than 48 hours after the respondent wasreleased from jail for a previous assault on the same victim. It also occurred in circumstances that were in contravention of his terms ofrelease, including the term that he not consume alcohol; alcohol consumption was a known trigger for the respondent's violentbehaviour.” Place of safety as site of crime [59] Many cases discuss the relevance in aggravation that the victim was the subject of an offence of domestic violence in a place ofsafety such as his or her home. In R. v. K.K., (ON CA), [2004] O.J.

No. 4884, 192 O.A.C. 237 (C.A.), the appellantand the complainant were involved in an intermittent domestic relationship for 16 years. On the night in question, the appellant arrived atthe complainant's home in an intoxicated state. When the complainant told him that she no longer wished to be involved romanticallywith him, the appellant repeatedly stabbed the complainant in the legs. Although the complainant's injuries were not life-threatening,they required 51 stitches, left scarring on her legs, and inflicted nerve damage to one of her legs. She may never recover full feeling inthat leg. Mr.

King pleaded guilty to assaulting the complainant with a knife and was sentenced to 18 months incarceration, followed by 2years’ probation. The sentence was upheld. [60] In the course of so doing, the Court observed at para. 7 that the attack "... occurred in the complainant's home in the context of alengthy domestic relationship that left the complainant unsuspecting of the potential for danger.” [61] Refer to R. v. Munro, (ON CA), [2003] O.J. No. 512, 186 O.A.C. 380, 173 C.C.C. (3d) 281 (C.A.), at para.72 in particular.

As discussed therein, the sentence was upheld notwithstanding that it represented quite an increase from his prior worstsentence, in keeping with the degree of violence and the significant injuries, and the fact that the assailant had been a guest in the homeof the victims. Noteworthy are the 423 stitches to the face required to treat one of the victims. See para. 17. By parity of reasoning, thesituation would be worse in the case of domestic violence.

More recently on the subject of aggravation in cases of domestic violence byreason of the factor of the offender violating the victim’s place of safety, we find guidance in the case of R. v. Hunda, 2008 ONCA 244,para. 1 which includes the following remarks: [1] […] the trial judge identified numerous serious aggravating factors, two of which are specifically identified by Parliament asaggravating factors. This was a domestic assault during which the appellant held a knife to the victim’s throat. He did so after forcinghis way into her home.

The appellant was on probation at the time for offences committed against the same victim. His criminal recordincludes over fifty convictions, including several assault offences. He even continued to contact the victim after his arrest on the break-in charges. [Emphasis added] [62] In the circumstances, it was held that “[…] the trial judge, given the joint submission, should have imposed a sentence at thebottom of the appropriate range. We would impose a total sentence of four years […]” Refer to para. 2. Related record [63] R. v. White, [2007] N.J.

No. 227, 2007 NLCA 44 provides a useful example of the severity which may attach to an offender whohas shown by his prior record a propensity for violence towards intimate partners. Refer to para. 14 in particular. Note as well para. 1 ofR. v. Nowacki, [2006] O.J. No. 1728 (C.A.). [64] Touching further on the question of the criminal record, it will be of assistance to quote from para. 46 of R. v. P. (G.), 2014ONCA 39: [46] The appellant acknowledges that the sentence was within the range of sentences appropriate for offences such as these. Theappellant was in a position of trust.

The abuse was frequent and ongoing. Although there was no collateral physical violence, theappellant’s manipulation and ongoing abuse of the complainants left both complainants psychologically scarred. The appellant hadpreviously served a custodial sentence on an earlier sexual assault and remained undeterred. As a result, I consider the trial judge’sdetermination that a global eight year sentence appropriate and that it reflects no error. [Emphasis applied]

Alcohol consumption as a known trigger for violence [65] R. v. Kopriva, 2008 ONCA 54, [2008] O.J. No. 233 includes this comment at para. 2: “[… The assault] also occurred incircumstances that were in contravention of his terms of release, including the term that he not consume alcohol; alcohol consumptionwas a known trigger for the respondent's violent behaviour.” Domestic violence and breach of trust [66] Some insights into this aggravating element of sentencing are found in the following quotations from R. v. VanEindhoven,[2007] Nu.J.

No. 2, 2007 NUCJ 2, at para. 25 wherein we find reproduced the Crown’s submission: “In committing this offence, theoffender violated two offence-specific attributes deemed aggravating by Parliament as set out in s. 718.2 of the Criminal Code, namely, abreach of trust and a crime of violence against a spouse.” [67] Hence, it is an obvious conclusion, but one which needs to be expressed in the reasons for judgment, that any offence of violencein which one’s spouse is the victim is necessarily a breach of trust; in other words, every offence of domestic violence involves a breacha trust.

On the other hand, not every breach of trust involves violence as against a spouse. A brief word on the timing of the guilty plea [68] R. v. Gamble, 2013 ONSC 7615, a judgment of Durno J., provides a useful introduction on the issue of the timing of the guiltyplea, starting at para. 105: 105 The starting point is that a guilty plea and particularly one entered early in the proceedings is entitled to a substantial credit inthe sentencing process. R. v. Mann 2010 ONCA 342, at para. 21.

The earlier the plea, the greater the indication of remorse, the saving ofexpense and inconvenience, hence the impact in mitigation. R. v. Rosenberg, [1993] O.J. No. 3260 (Gen.Div.) at para. 19. The effect of aguilty plea will vary with the circumstances of each case. In some, the plea is a demonstration of remorse, in others it is simply arecognition of the inevitable. However, even where a plea is not a manifestation of genuine remorse, it may still save valuable judicialresources and provide finality to the proceedings. R. v.

Faulds (1994), (ON CA), 20 O.R. (3d) 13 (C.A.) at para. 14[…] 108 Appellate courts have repeatedly noted the significance of the timing of a plea and its impact on the administration of justice.Court trial time is a precious commodity. Appropriate early guilty pleas are to be encouraged. Last minute guilty pleas can result incourts sitting idle although in some situations other cases can be heard in the vacated time. Here, four days of court time had been setaside for a trial that never proceeded.

However, setting aside trial time for a two-day case because of a Charter application that neverappeared was a factor to consider. I am unable to see how a valid consideration in sentencing in all cases would be excluded fromconsideration because the Attorney General's guidelines did not include that reason as an aggravating factor. 109 A late guilty plea is never an aggravating factor in sentencing. A guilty plea is always a relevant mitigating fact on sentence.However, a late guilty plea generally and in this case has less mitigation.

In the result, there are consequences for those who decide toplead guilty on the trial date -- less mitigation on sentencing. 110 At times, a late plea does not attract significantly less or any less mitigation than an early plea. For example, when the Crownagrees to accept a plea to a lesser offences that had been offered from early in the proceedings or if there has been some reason counselcould not obtain instructions. Here, there is nothing upon which it could be concluded defence counsel had any problems gettinginstructions from the respondent.

The conditional jail regime [69] In this instance, although the conditional jail regime is available to the offender by reason of the Crown’s election, I concludethat the prosecution is correct to submit that such a disposition is inconsistent with s. 742.1(

a) of the Criminal Code as it is not consistentwith the fundamental purpose and principles of sentencing. Indeed, it would fail to give effect to both denunciation and deterrence incases of domestic violence. Conclusion [70] In the result, a jail term is required to denounce this instance of domestic violence and to deter both Mr. Dunlop and the public atlarge. It would have been far more severe than the 4 month term sought by the Crown but for the late guilty plea (which is beingassigned mitigating weight in the circumstances) and the other mitigating elements advanced by the defence.

An order pursuant to s.743.21 of the Criminal Code will issue prohibiting contact with the victim whilst Mr. Dunlop is incarcerated. Mr. Dunlop will thencomply with a probation order for three years, with conditions of counselling, alcohol interdiction, and of no-contact with the victim. Heis prohibited from having firearms and other related weapons for 5 years, and he must submit a sample of his DNA. Finally, he must paya victim fine surcharge of $50.00 within 30 days. _____________________ Gilles Renaud, J.