2014 MBPC 65, 2014 MBPC 65

2014 MBPC 65 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) N. Roche, for the Crown ) - and - ) ) Scott Ryan Taylor ) M. Minuk, for the Accused ) ) Judgment delivered: December 8, 2014 ) BAN ON PUBLICATION: Pursuant to s.486.4 of the Criminal Code of Canada , any information that may identify the person described herein as "the complainant" shall not be published, broadcast, or transmitted in any manner. CORRIN, P.J. [ 1 ] On June 12, 2014, Mr. Taylor pled guilty to six separate counts involving four assaults cause bodily harm, occurring between June 2008 and August 25, 2013.

A guilty plea was also entered with respect to a fail to comply with a no contact condition contained in a bail recognizance on October 25, 2013 as well as the disobeying of a court order prohibiting any communication with the complainant from custody. Mr. Taylor has been in custody since early October, 2013. He is before me today for sentencing on all charges. [ 2 ] The task of the sentencing judge is to impose a fit and proper sentence having regard to the nature of the offence and the circumstances of the offender.

A sentence is highly individualized and must reflect the facts and relevant considerations arising from the situation before the Court. [ 3 ] The Criminal Code of Canada tells us that the purpose of a sentence is to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just and peaceful society by imposing sanctions that have one or more objectives, which are different and often competing.

While the fundamental principle of every sentence is that it be proportionate to the seriousness of the offence and the degree of responsibility of the offender, other objectives must be given the consideration the circumstances dictate.

These include: • The denunciation of conduct; • Deterrence both in terms of the offender who is before the court and also other members of the community who might be inclined to participate in the same illegal conduct; • Separation of the offender from the community when necessary, but only if necessary; • Rehabilitation; • Providing reparation for the harm done to the victim; • Promoting a sense of responsibility in the offender and acknowledgment of the harm done to victims and to the community. Position of the Parties [ 4 ] The Crown is seeking a global sentence of three years.

The defence argues that time in custody currently 395 days to be followed by a period of probation is appropriate. Circumstances of the Offence [ 5 ] The victim, Ms. L., and the accused were in a close, intimate relationship for approximately six years. The assault offences arise from four separate incidents which occurred over a time frame of about four years. The first such incident occurred between June 2009 and September 2009. It occurred in Flin Flon, Manitoba at the time of the accused's wedding celebration. Mr. Taylor was intoxicated and struck the victim causing her to require stitches.

Another assault occurred in 2009 which resulted in the victim, Ms. L., sustaining a broken collar bone. The third such incident occurred sometime in January 2013 when the accused and the victim were arguing. As a result of blows Ms. L. sustained two black eyes. The next assault occurred on August 25, 2013. The parties were in an argument which escalated to the point where Ms. L. was pushed against the bedroom wall, held there for a period of time and then a short time later the same day while arguing over a cell phone, was elbowed by the accused causing injury to her finger which required

medical treatment. There is a further charge of disobeying a court order on December 16, 2013 involving Mr. Taylor composing a letterand addressing it to the victim's address. The letter in question was intercepted by the Milner Ridge Correctional Centre staff and notreceived by Ms. L. The last charge before the Court is a charge of fail to comply with a recognizance which occurred between October 22nd and October 24th, 2013. This incident occurred while the accused was on judicial interim release and involved a breach ofa no contact condition.

The incident involved the accused and the complainant/victim attending Mr. Taylor's parents' residence inconsensual circumstances. The Offender's Criminal Record [6] The offender has been previously convicted, in 2001, of a single count of domestic assault and a breach of undertaking in suchregard. Those are his only recorded convictions. The Crown did not indicate the facts surrounding the assault or breach. The Victim Impact Statement [7] The victim impact information provided by Ms. L. makes plain that she has suffered a great deal on an emotional level at thehands of the offender.

The codification of aggravated weight in sentencing regarding domestic violence [8] In an effort to repress violence within the family unit and within intimate, personal relationships, Parliament in 1996, by meansof Bill C-41, instructed the Courts to be cognizant of the obligation to assign aggravating weight to domestic assault offences.

This hasbeen codified as an aggravating circumstance pursuant to the authority of s.718.2(a)(ii) of the Criminal Code. [9] For ease of reference, s.718.2(a)(ii) reads as follows: 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, [10] It is noteworthy that Parliament may well have been moved to make the aforementioned statutory amendment in order toaddress the finding of the Supreme Court of Canada in R. v. Lavallee (1990) (SCC), 1SCR 852.

In LavalleeJustice Wilson observed at paragraph 32 as follows: The gravity, indeed the tragedy of domestic violence can hardly be overstated. Greater media attention to this phenomena in recent yearshas revealed both its prevalence and its horrific impact on women from all walks of life. Far from protecting women from it the lawhistorically sanctioned the abuse of women within marriage as an aspect of the husband's ownership of his wife and his "right" to chastiseher.

One need only recall the century's old law that a man is entitled to beat his wife with a stick "no thicker than his thumb". [11] At paragraph 34, Justice Wilson had the following to say on the general subject matter: Fortunately, there has been a growing awareness in recent years that no man has the right to abuse any woman under any circumstances. Legislative initiatives designed to educate police, judicial officers and the public, as well as more aggressive investigation and chargingpolicies all signal a concerted effort by the criminal justice system to take spousal abuse seriously.

The Brown Principle [12] The best means of expressing the so-called Brown Principle is to say that the starting point for sentencing with respect todomestic violence matters is to assign aggravating weight to the conduct as if it had involved two strangers as opposed to two individualsinvolved in a domestic or personally intimate relationship of some kind. The judgment in R. v. Brown (1992)125A.R.150 (A.B.C.A.)contains valuable guidance on the correct analytical approach in cases of sentencing for domestic violence.

The first step is to considerhow the Court would assign aggravating weight were the facts identical, save for the existence of a prior relationship between theparties. The instructive dicta are found at paragraph 20. In cases of assault by a man against his wife, or a man against a woman with whom he lives even if not married, the starting point insentencing should be what sentence would be fit if the same assault was against a woman who is not in such a relationship.

For example,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...or the mitigatingfactors...were the same as in the actual case? [13] R. v. Brown also discusses the issue which was addressed by the Crown in the Taylor case; the loss of a victim's self esteem andthe acquisition of a sense of powerlessness as a result of domestic violence.

At paragraph 21 the Appeal Court observed: Their emotional or psychological state militates against their leaving the relationship because the abuse they suffer causes them to losetheir self-esteem and to develop a sense of powerlessness and inability to control events. Sentencing principles of special application [14] The caselaw makes plain that the Courts are guided principally by the objectives of denunciation and deterrence when fixing fitand proper sentences in cases of domestic violence. The views expressed by Watt, J.A. in R. v.

Rahanm 2008 ONCA 1 , 2008ONCA1 at paragraph 46 are apropos: In cases involving violence arising out of an existing or failed domestic or romantic relationship, the predominant sentencing objectives

are denunciation and deterrence. (see R. v. Boucher (2004) (ON CA), 186 CCC (3d)479(ONT.C.A.) at p.488 perSimmons, J.A.) Further, sentences imposed must promote a sense of responsibility in offenders and an acknowledgment of the harm done, not only to theimmediate victim but also to the community at large. In cases like this, the likelihood of enduring psychological trauma to the victimfrom the irrational, controlling and obsessive nature of the misconduct is significant. [15] As was noted in paragraph 34 of R. v. Woods

(2008) SKCA 40... "The sentencing goals of deterrence and denunciationnaturally play an important role in establishing appropriate societal values and attitudes in relation to this kind of crime. Repetition of Assaultive Behaviour [16] Superior Courts have emphasized the needs for condign punishment in relation to repeated acts of domestic violence involvingthe same victim. In the case of R. v. Kopiriva

(2008) ONCA 54, the Ontario Court of Appeal provided the lower courts with someguidance as to the need for such treatment in the context of protection of victims from future violence. In this case the Crown hadappealed a 60 day sentence imposed on an accused on third conviction for a domestic assault on his same-sex partner arguing that thesentence reflected an error in principle and was manifestly unfit. The Appeal Court agreed and imposed a twelve month term of incarceration.

In so doing it was noted that this was the accused sixth assault-related offence, his third on the same victim and his 10th violence related offence. Aggravating the matter even more was that the assault had been committed less than 48 hours after the accusedwas released from jail for a previous assault on the same victim. It also occurred in circumstances where there was a breach of the termsof his release including an obligation to abstain from the consumption of alcohol as this had been a known trigger for violent behaviourof this sort in the past.

Aggravating and Mitigating Circumstances [17] While a guilty plea, or pleas, is always a relevant mitigating fact impacting on sentence, a late guilty plea generally has lessmitigation. This is particularly so for those who decide to plead guilty on the trial date. The guilty pleas in this respect were made onJune 12, 2014, some time after the last assault offence. The court notes that it is not unreasonable to conclude that the victim, Ms. L.,was thereby subjected to considerable emotional stress regarding the upcoming trial matter between the last assault incident and the dateof June 12, 2014.

That having been said the Court does acknowledge that one of the assault cause bodily harm counts had originallybeen laid by police as an aggravated assault, presumably leading to necessary discussions and negotiations with the Crown respectingtheir acceptance of the guilty plea to a lesser included offence. Circumstances of the Offender [18] Mr. Taylor has had many challenges in his life. It is almost certain that some of these involved early childhood trauma of sortswhich have predisposed him to have conflictive personal relationships with partners.

Like the accused, his mother also suffered fromsubstance abuse issues, which appear to have created a somewhat chaotic and dysfunctional childhood for Mr. Taylor. Mr. Taylorindicated in the pre-sentence report that was presented to the court that he had experienced physical and emotional abuse by his motherthroughout his childhood and described his mother as a "horrible parent". Mr. Taylor also disclosed that due to her criticism and generalinstability that he felt "unwanted most of the time". Dr. Sharon Kohn-Postel, Mr. Taylor's psychiatrist informed Ms.

Richard, the writerof the pre-sentence report, that the subject was severely shamed and humiliated by his mother in childhood. [19] Mr. Taylor has been a productive, hardworking and contributing citizen who has accumulated a number of academiccertifications both from Red River College and the University of Manitoba. He has held responsible positions with large corporations. These include a management position at General Electric and a Production Procurement Coordinator position at Standard Aero. He wasable to accomplish this notwithstanding that he has struggled with addictions issues for a number of years.

As previously mentioned Mr.Taylor was under the influence of alcohol during many of the assault incidents that bring him before the court. Of special concern in thisregard is Mr. Taylor's addiction to oxycontins. Apparently he was prescribed this pharmaceutical drug six years ago and subsequently,presumably because he possesses an addictive susceptibility, became dependent. He has been attending alternative methadone treatmentfor the last three or four years. Mr. Taylor was described by his treating psychiatrist, Dr. Kohn-Postel, as being a "troubled man withconsiderable anxiety". Dr. Kohn-Postel diagnosed Mr.

Taylor as having an identity disturbance of unstable self-image which in turn hascaused considerable personal instability due to mood swings. She reported that these are symptoms often seen in Borderline PersonalityDisorder patients. The Milner Ridge Correctional Centre's, in-house psychiatrist Dr. Roger Graham diagnosed Mr. Taylor with chronicdepression and a narcissistic personality disorder after interviewing him in November 2013. As a consequence of such diagnosisDr. Graham prescribed an anti-depressant which Mr. Taylor began using in mid-November 2013.

While in custody he received both thisanti-depressant as well as his daily methadone dosage to deal with his several personal psychiatric issues. [20] There is reason to believe that Mr. Taylor takes his emotional and psychiatric issues very seriously. The court discerns thisfrom his exceptional efforts to access psychiatric assistance at the Milner Ridge facility. Specifically, court was told that Mr. Taylorproactively sought out assistance from the psychiatric nurse, Ms. Greenaway, on the ten of fifteen occasions he has seen her while incustody.

This certainly seems to suggest, as defence counsel argued, that Mr. Taylor does not want to lose his treatment momentum aspreviously established with Dr. Kohn-Postel, during his term of incarceration. I agree with defence counsel that this would seemindicative of his sincere desire to deal with his personal issues that strongly influence his criminal offences. Court was also told that hehas been actively involved with the workbook program while at Milner Ridge and as such is working on personal issues that need to beaddressed. It was noted that Mr.

Taylor found the workbooks to be particularly helpful in the area of distress tolerance and anxietydisorder. Nurse Greenaway noted in her

Summary Report which was filed as Exhibit S5 in these proceedings that Mr. Taylor had toldher "he would like more". Nurse Greenaway also noted that his anti-depressant / anti-anxiety medication was also increased at hisrequest, relieving some of the symptoms of his depression. She also noted that his resistance to Dialectical Behaviour Therapy (DBT)abated over time and that on July 30, 2014, Mr. Taylor had actually begun to demonstrate an understanding of DBT skills. It was noted that on August 18th his attitude was in such respect observed to be appreciative and cooperative.

Analysis and Decision [21] The Manitoba Court of Appeal case cited as R. v. Bois

(2009) MBCA 70 is instructive with respect to the sentence to beimposed upon an offender pleading guilty to assault cause bodily harm. While the accused in Bois had only a dated record and hadvoluntarily undergone anger management and domestic violence counselling and was noted to have evidenced "significant remorse" theAppeal Court, noting that the offence entailed "considerable violence" replaced a one year conditional sentence with one of six monthsactual imprisonment.

The facts were found to be that the accused had punched his partner and kneed her several times in the head andchoked her twice, causing her to lose consciousness. She was also noted to have suffered facial bruising, swelling and cuts, as well asbumps and scratches on her head, her back and her arms. [22] Other Manitoba cases are also instructive in this regard. In R. v.

Vandermeulen, 2014 MBQB 116 Suche J., dealingwith a series of offences, including two counts of assault, choking to overcome resistance and sexual assault cause bodily harm, allinvolving the same victim as well as two counts of breach of undertaking imposed a period of one month imprisonment for a domesticassault where the accused had placed his hands on the complainant's throat and squeezed, although not with a great amount of pressureand a sentence of one year imprisonment respecting assault cause bodily harm and utter threats in relation to an incident where theparties had been staying at a local hotel when the complainant fell asleep and awoke with the accused sitting on her, choking her anddemanding that she give him the password to her cell phone.

When he could not get it to work after she had given him the password, hepunched and choked her and squeezed her jaw with his hand accusing her of cheating on him and threatening to kill her. [23] At this point, the court wishes to reflect once again on the principles of sentencing that must be borne in mind in this respect. Ido so with particular focus on defence counsel's observation that any sentence I impose must be proportionate to the gravity of theoffence and degree of responsibility of his client. In other words that I must respect the fundamental principle of proportionality.

For therecord, this court is aware that proportionality is of such significance that it has a constitutional dimension, in that

section 12 of theCharter actually forbids the imposition of a grossly disproportionate sentence that would outrage society's standard's of decency. Iconfirm that I have reviewed R. v. Nasogaluak

(2010) SCC 6 where LeBel, J. at paragraphs 39-45 explains the meaning ofproportionality in the context of sentencing. I am aware that a sentence must not exceed what is just and appropriate given the moralblameworthiness of the offender and the gravity of the offence, that "the degree of censure required to express society's condemnation ofthe offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability and not greaterthan it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes theoffender no more than is necessary".

This being said I also quote, LeBel, J.'s admonition that a "judge's discretion to decide on theparticular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts,subject to the overarching guidelines and principles in the Code and in the caselaw." Of course LeBel, J. also went on to say "it must beremembered, that while court should pay heed to these ranges, they are guidelines rather than hard and fast rules.

A judge can order asentence outside that range as long as it is in accordance with the principles and objectives of sentencing". [24] I am of the view that all offences before the court should be served consecutively as opposed to concurrently. This is becauseof the nature and circumstances of the criminal activity under consideration and the lack of connectedness of these various offences toone another. In my view none of these offences are part of the same transaction and as such are not closely linked to one another. In thisregard, I am aware of the decisions of the Manitoba Court of Appeal in R. v. Wozny

(2010) MBCA 115, R. v. Draper

(2010) MBCA 35and R. v. Maroti

(2010) MBCA 54. [25] I am also mindful of the admonition expressed in R. v. Hamilton (2004) (ON CA), 72 O.R. (3d)1 (ONCA)that: Factors which may accentuate the gravity of the crime cannot blind the trial judge to factors mitigating personal responsibility. Equally,factors mitigating personal responsibility cannot justify this position that unduly minimizes the seriousness of the crime committed (atpara. 93). [26] As no two cases are exactly alike, neither will any two sentences.

That having been said I am also aware of the principle ofparity that similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. [27] The Court agrees with the Crown that it cannot, as argued by defence counsel conclude that jail will exacerbate Mr. Taylor'sprospects for rehabilitation absent a comprehensive risk assessment report.

That since there was no expert's report suggesting such asituation I am simply precluded from drawing such a conclusion. [28] At the conclusion of the hearing, after defence counsel had presented his submission on sentence, the Crown provided details ofher three year sentence calculation. This was as follows: 1. 1) Assault cause bodily harm - June 1, 2009 to September 30, 2009 (the so-called "stitches around Ms.

L.'s eyes" incident thatoccurred in Flin Flon...3 months incarceration 2) Assault cause bodily harm – the December 24, 2009 incident resulting in a broken collar bone...18 months incarcerationconsecutive to the first count. 3) Assault cause bodily harm - January 1st to 31st, 2013 which resulted in Ms. L receiving two black eyes... 6 monthsincarceration also consecutive to the other counts. 4) Assault cause bodily harm- August 25, 2013 where Ms.

L. sustained a cut finger...6 months incarceration consecutive to theearlier counts. 5) The failure to comply with a recognizance which occurred between October 22-24, 2013 involving forbidden contact with thecomplainant...3 months consecutive incarceration to the other counts.

6) The disobey court order in relation to the offence date December 16 th 2013 involving attempted communication with the complainant from custody...3 months incarceration consecutive to the other counts. Total Cumulative Sentence........................................... 39 months [ 29 ] On October 28 th , the date of the sentencing hearing, the Crown advised that the accused had a total credit of 395 days time in custody, leaving approximately just under two years and two months still to be served in reference to the Crown's recommendation on a "one for one" basis.

It was the Crown's position that two months should be reduced in accordance with the totality calculation principal mandating two years imprisonment going forward. In this respect Ms. Roche emphasized that Ms. Richard, in her pre-sentence report, had concluded that the accused had poor prospects for community supervision and was perceived as high risk to reoffend. It was Ms.

Roche's opinion that personal deterrence should be emphasized in this context. [ 30 ] Defence counsel, emphasizing his client's mental health issues, took the position that jails were not properly able to accommodate inmates with mental health issues and that, given his client's need for appropriate curative treatment that the ends of community protection would be better served by a lengthy term of supervised probation.

As I have already mentioned, since no expert evidence was presented to the court in support of such position, I do not feel it appropriate to draw such inference favouring reduction of the otherwise appropriate sentence for such reason. [ 31 ] The accused, Mr. Taylor, has certain mental health issues but these issues do not go to the extent of his not knowing right from wrong. His issues relate more to lack of impulse control than anything else.

On the other hand, while I agree with the Crown that denunciation and deterrence are the paramount sentencing principles applicable to these types of charges, it must be remembered that he has had very limited, previous involvement with respect to this or any other criminal convictions. As well, Mr. Taylor, has a significant degree of community supports as discussed in the sentencing materials before Court and referenced by Mr. Minuk's submissions. He has also taken what appear to be appropriate measures to contend with his substance abuse issues.

His participation in corrections programming appears to be mostly positive. His personal needs are somewhat significant but his general risk to the community appears to be generally manageable. Having considered the accused's degree of moral blameworthiness in the context of his personal mitigating factors and concluded that they do not justify a disposition that unduly mitigates or minimizes the seriousness of his criminal offences I conclude that appropriate sentences for each are as follows: • With respect to the assault cause bodily harm charge on June 1, 2009 to September 30, 2009, had Mr.

Taylor been before me for sentencing at the time, he would most probably have been sentenced to a suspended or minimal incarcetory sentence with probation. I accordingly attribute one month incarceration in such respect; • With respect to the assault cause bodily harm charge on December 24, 2009 I sentence Mr. Taylor to a term of 12 months incarceration consecutive to the first count; • With respect to the assault cause bodily harm occurring between January 1 st and 31 st , 2013 I sentence Mr.

Taylor to 6 months consecutive to the former counts; • With respect to the August 25, 2013 assault cause bodily harm incident I sentence Mr. Taylor to 6 months consecutive to the other counts; • With respect to the October 2013 recognizance breach I sentence Mr. Taylor to 2 months consecutive. The sentence in this regard would have been longer if there had been a substantive reinvolvement involving the victim at such time; • With respect to the disobey court order involving the composition of the letter that was intercepted by Milner Ridge corrections officials on December 16, 2013...I sentence Mr.

Taylor to 2 months consecutive to the previous counts. Total Sentence................................................................... 29 months [ 32 ] At this time I wish to make a final observation – one related to the pre-sentence report's reference to Mr. Taylor presenting as a high risk to re-offend because of, among other things, a "Pro-criminal Attitude and Orientation" (see Part B – Manitoba Corrections Assessment and Recommendations). The court feels it necessary to observe that there is virtually nothing before me warranting such a conclusion. Indeed, my impression is quite to the contrary.

I make this point because the Crown relied on Ms. Richard's findings and assessment when making it's recommendations respecting sentence. [ 33 ] The Court must now determine whether the totality principle should be applied to such total sentence in order to ensure that it is not excessive. Consideration of the application of the principle of totality and the taking of the "last look" necessitates an examination of the gravity of the offences, the degree of guilt or moral blameworthiness of the offender with respect to the crimes committed and the harm done to the victim (see paragraph 73 of R. v.

James , 2013 MBCA 14 ). Keeping this in mind, I am of the view that the sentence should be adjusted downward to ensure proportionality. Accordingly, I impose a global sentence of 24 months. The Court will pronounce the actual go forward sentence on the actual date of sentencing at which time the offender's time in custody will be fully calculable. In this regard the Court notes that the accused did not, given the circumstances of these charges, make application for enhanced credit for time spent in custody. [ 34 ] The court feels that Mr.

Taylor's risk to the community can be mitigated by way of supervised probation. Accordingly the court orders that his time in custody be followed by a three year supervised probation order with the following conditions: • That he keep the peace and be of good behaviour; • That he report to probation within 48 hours of his release and thereafter as directed by his supervisor; • That he report any change of name or address to his supervisor prior to implementing same;

• That he attend, participate and satisfactorily complete any counselling including anger management counselling as directed; • That he continue participating in methadone programming in the community, if directed to do so; • That he abstain from the consumption of all intoxicants, including alcohol, illegal drugs and prescription drugs for which he does not possess a current physician's prescription; • That he attend any substance abuse assessments, counselling, programming, and/or therapy including residential treatment, if directed to do so by his probation supervisor.

That he have no contact or communication, direct or indirect, with the victim, Ms.

L., or her mother, Lori Chapman; • That he not attend within two city blocks of any place where either of the above-noted reside, are employed, go to school, or worship; and, • That he not possess any weapons except for personal, domestic use within his residence. [ 35 ] I also make the following orders: • A DNA Order pursuant to S.487.051(1) of the Criminal Code ; and, • A S.109 weapons prohibition for ten (10) years pursuant to the Criminal Code ; [ 36 ] I will address the victim surcharges after hearing counsels' submissions with respect to same. "ORIGINAL SIGNED BY:" Brian Corrin, P.J.