2020 QCCQ 972, 2020 QCCQ 972

R. c. Delvaille 2020 QCCQ 972 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-169570-188 DATE: February 13, 2020 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ THE QUEEN Plaintiff v.

DELVAILLE, ASFA HART Defendant ______________________________________________________________________ JUDGMENT ON SENTENCE [1] ______________________________________________________________________ Introduction [ 1 ] On the 25 th of June, 2019, the accused, Mr. Asfa Hart Delvaille pled guilty to an aggravated assault on his common-law partner, Ms. C.B. The assault was violent and brutal, the accused—in a fit of uncontrolled anger—stabbed the victim seven or eight times.

Later in this decision I will outline the facts surrounding the assault as well as the nature of the injuries sustained by the victim. [ 2 ] In current Canadian society, domestic violence is abhorred. Violent behaviour by men towards women in relationships must be condemned and discouraged. To this end, our courts have emphasized the importance of denunciation and deterrence, both general and personal, as the predominant factors to be applied in sentencing those offenders charged in matters of domestic violence. [ 3 ] By definition, domestic violence is an aggravating feature.

Section 718.2 (a)(ii) of the Criminal Code of Canada deems abuse of a spouse or a child as an aggravating circumstance. [2] Where there is such a relationship, there should be safety, respect and trust. [3] Canadian society is determined to reverse and repel the tide of domestic abuse. [4] [ 4 ] In the present matter, the brutish nature of the violence alone calls for a significant period of detention.

As if this were not enough to justify making deterrence and denunciation the principal objectives in the pronouncement of the sentence, the accused also has a criminal record that includes acts of violence towards a domestic partner. [ 5 ] A carefully crafted sentence, however, must also assist the offender in his rehabilitative efforts. In doing so, consideration should be given to his or hers individual characteristics, circumstances, needs and potentialities. In the present matter, two different reports arrive at diametrically different conclusions regarding the offender’s prospects for rehabilitation.

While the criminologist who drafted the presentence report was pessimistic about the offender’s capacity to change his lifestyle (the various factors that lend themselves to his acts of violence), the psychologist who drafted the psychological evaluation was confident that the offender’s personal characteristics indicated a good potential for treatment and rehabilitation.

As could be expected, the reports clashed on the matter of the offender’s risk of reoffending: while the former concluded that the risk was high, the latter concluded that the risk was low as long as the offender obtains and follows a proper treatment plan. [ 6 ] The task of the sentencing judge is a difficult and delicate one. [5] He or she must fix a sentence which reflects the seriousness of the offence and the offending conduct, taking into account circumstances personal to the offender, including mitigating factors, as well as the applicable sentencing principles.

Sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises to a great degree from unavoidable difficulty in giving weight to each of the purposes of punishment. [6] [ 7 ] As mentioned above, the assault was brutish and the consequences incurred by the victim were serious. Under these circumstances, the easiest thing to do is to impose a severe punishment on the basis of the dominant principles of denunciation, dissuasion and protection of the community. But justice in sentencing cannot be reduced to locking a person up and throwing away the key.

I must be mindful that the central feature of the sentencing process in Canada is the individualization of the sentence through the broad use of judicial discretion [7] . Beyond retribution, I must craft a sentence that will assist the offender in his rehabilitative efforts and promote a sense of responsibility for the harm done to the victim and the community [8] .

The positions of the parties Position of the defence [ 8 ] Defence counsel did not minimize the gravity of the offence committed by the accused. Nor did counsel disagree with the premise that an appropriate sentence has to include the proper dose of denunciation and deterrence. However, the degree of punishment has to be tempered by the accused’s real prospects at rehabilitation.

It was submitted that a sentence of three and one half years would at once comply with the societal objectives of denunciation and deterrence without compromising the rehabilitation of the accused and his attempts at becoming a useful member of society. [ 9 ] In support of its position, the defence highlighted the following mitigating factors: • The accused pled guilty. • He expressed sorrow and remorse for his actions and for the harm incurred by the victim. • The psychological report is optimistic about the accused’s amenability to treatment or counselling for matters relating to anger management and drug consumption. • The accused has expressed a willingness to go back to school and to train as an electrician.

Given that his brother is an electrician, the accused’s career prospects are sound and realistic. Crown’s position [ 10 ] Stressing the principles of denunciation and deterrence, the Crown seeks a sentence of seven years of incarceration. In support of this position, the Crown highlighted the following aggravating factors: • The offender assaulted his common-law partner (section 718.2(a)(ii) of the Cr. c). • The brutal nature of the assault; the offender used a knife to stab the victim seven or eight times. • The injuries sustained by the victim were serious.

By all accounts, the consequences of the injuries—be they physical or psychological—will be long-lasting. • The offender has a criminal record which includes acts of violence towards a common-law partner . [ 11 ] The Crown added that the suggested sentence of seven years of custody is a restrained position which takes into account not only the aggravating factors but also the mitigating ones highlighted by the defence (the offender’s guilty plea, remorse and amenability to treatment).

The evidence Circumstances of the offence [ 12 ] On the evening of April 2, 2018, the accused and C.B. (the victim) met up with another couple for supper at a restaurant. Rather than a relaxing evening out, the accused’s foul mood put a damper on the get together. He complained about the choice of the restaurant and there was obvious tension or friction between himself and his partner. In an effort to lighten the mood and not embarrass anyone, C.B. discreetly texted the accused telling him to change his attitude and to put a «smile on his face».

The last thing she wanted was to pull a scene in front of their friends. [ 13 ] Once supper was over, both couples returned to the apartment the accused shared with C.B. The accused, however, was not the most welcoming or gracious of hosts. More particularly, he snubbed and ignored them all: while C.B. and the other couple were engaged in conversation, he withdrew to a separate area to play video games by himself.

Understandably, the accused’s attitude made the other couple feel ill at ease and they left the apartment. [ 14 ] Unhappy with the manner in which the accused spoiled the evening, C.B. headed to the bedroom. The accused then entered the bedroom after her, took out a knife and stabbed her seven or eight times. [ 15 ] The wounds inflicted by the accused on the victim were important and required surgical intervention to repair. Defensive wounds were incurred on both her arms and hands as she tried to shield herself from the blows.

Injuries were also inflicted on other parts of her body: on both sides of the upper back (trapezius muscles) and behind the right ear. [ 16 ] The aggression was brutal; there was blood everywhere. As a testament to the force deployed in the assault, the pointed tip of the knife broke off and got lodged in the left arm of the victim. It had to be extracted surgically. [ 17 ] Realizing what he had done, the accused tried to stop the bleeding with a cloth and then called an ambulance. [ 18 ] The wounds inflicted by the accused were important and required surgical intervention to repair.

The consequences for the victim were/are long lasting. Despite the surgery and ongoing physiotherapy, she is limited in terms of her physical capacities and she still experiences pain. Along with the physical pain, she has to endure the psychological trauma of the attack. Evidence at the sentencing stage

The accused —The psychological report [ 19 ] Defence counsel retained the services of Dr. Daniel Kunin, a psychologist, to prepare a psychological evaluation of the accused. Dr. Kunin’s detailed 16-page report covers several subjects: Background history of the accused (from childhood to adulthood, including work history), interpersonal relationships, legal problems (past and present), mental health (past and present) and various test results (ADS, BAI, BDI-II, BSS, BHS LSI-R, MMPI-2, and PDS.

The report ends with a series of conclusions regarding the character of the accused and his amenability to treatment and counselling. For the purposes of this decision, I need not review the psychology evaluation at length. Instead, I will limit myself to the psychologist’s comments regarding the accused’s amenability to treatment and the risk of recidivism. [ 20 ] Generally speaking, Dr. Kunin was rather optimistic about the accused’s potential to turn his life around on the condition that he receive proper treatment or counselling.

In particular, the accused had to address issues relating to anger management and drug dependency. [ 21 ] The psychologist identified certain character traits in the accused that were conducive to successful therapy: As to his disposition, from our multiple encounters over the course of several hours, Mr. Delvaille was found to be even-tempered and emotionally stable. He was consistently polite and respectful throughout his interaction with the examiner. He appears to hold strong moral beliefs, and likes to let people know where he stands on things. He also appears to stand up for what he thinks is right.

He gives evidence of greater sensitivity than most others and is likely to ruminate about injustice or perceived transgressions against him […] He appears to be guilt-ridden particularly over past transgressions and believes he has made poor past decision and has not lived the right kind of life. He neither downplayed nor minimized his past transgressions or substance use. [9] [ 22 ] In spite of his past brushes with the law, the accused does not appear to espouse anti-social values: And while he shows evidence of an anti-social past, paradoxically, from our lengthy discourse, Mr.

Delvaille does not possess characteristic anti-social values and attitudes. He believes in obeying the law, understands the importance of education in life as well as the importance of having a job […] It was our impression that he would like very much to improve his life and fit into society. [10] [ 23 ] For the psychologist, the accused’s dysfunctional past is explained, to a large degree, by his long-standing substance abuse problems. Invariably all his offences have taken place whilst under the influence of drugs or alcohol.

Also, the accused’s failure to meet and maintain adult responsibilities are inextricably tied to his substance abuse problems which must be addressed if he is to better himself in the long-term. [11] [ 24 ] The psychologist was of the view that the accused was honest and forthright in his desire to better himself and to do whatever was necessary to avoid reoffending. Along with therapy, the accused understood the importance of getting a job and setting achievable goals.

Test results confirmed that the accused was truthful and that he was not manipulating the evaluator: His PDS profile suggested that his responses to inventories were likely honest and valid. His MMP1-2 validity profile also suggested that he endorsed items accurately and consistently and did not portray himself in an overly positive or negative light […] Finally, ADS validity indicators suggested that he did not try to answer questions with a bias toward favourable self-portrayal. [12] [ 25 ] As to the accused risk of reoffending, his test score (LSI-

R) indicated a low/ moderate range of recidivism. [ 26 ] Along with positive test scores, Dr.

Kunin summed up the factors that bode well for the accused’s rehabilitation: • Strong family support that could facilitate his reintegration into society; • He possesses wholesome attitudes and values that are not antisocial in nature (validated by his PDS and MMP1-2 profile and test scores); • He possesses marketable skills and wants to return to school to learn a trade (electrician); • Test results did not point to mental instability, severe anger or impulse control problems; • He is a reasonable and personable individual possessing adequate social skills; • While test results identified mild anger pathology, importantly, it does not appear to interfere with functioning on a daily basis and is unlikely to involve outward expressions of physical violence; • He is open and willing to participate in anger management therapy as in the past. [ 27 ] In his evaluation, Dr.

Kunin highlighted the fact that the accused expressed remorse for the victim and accepted responsibility for his actions: Mr. Delvaille assumed responsibility for the event for which he is presently incarcerated. He appeared to understand that his behaviour was excessive and unreasonable and that he should have conducted himself with greater restraint. Mr. Delvaille reiterated that he never planned to harm his former girlfriend, that it was a lapse in judgment and that he feels sorry for her and his actions.

Of relevance, he expressed no ill-will towards her, still cares for her and hopes that she also gets the help she needs. [13] [ 28 ] The psychologist’s claim that the accused assumes full responsibility for his transgressions is somewhat dampened by the accused’s account of the circumstances leading to the assault. More particularly, the accused’s retelling of the story has the faint elements of justification in the form of self-defence. It all also suggests the shifting of blame on to the victim:

According to Mr. Delvaille at one point his girlfriend, with knife in hand, threatened that he would end up like Mathieu, a former boyfriend of hers who apparently died after overdosing on her medication while in her bed. According to Mr. Delvaille it was then (that) he reacted instinctively, grabbed hold of the knife and in the tussle stabbed her in the shoulder.

And while admittedly, he blanked out after that, he did seem to recall that her cheek and arms were also cut during the tussle. [14] [ 29 ] The accused’s claim that he « blanked out » during the attack may also be seen as an attempt to downplay his responsibility.

A blackout suggests that his actions were not the result of a conscious will to inflict injury. [ 30 ] In recounting the assault, the accused also seized the opportunity to highlight the flaws in the victim’s character: she abused drugs; she was emotionally unstable and took psychiatric medication; and she was in and out of the Douglas Hospital, a psychiatric institution in Montreal. [ 31 ] To be clear, I am not dismissing Dr. Kunin’s observations regarding the accused’s words of contrition.

However, there seems to be an appearance of superficiality in the expressions of remorse when the accused tries to justify, excuse or minimize his transgressions. When I discuss the pre-sentence report in the next chapter, one will note in the offender’s retelling of the assault the same tendency to excuse or downplay his responsibility by shifting blame on to the victim. [ 32 ] The psychological evaluation also covered two previous acts of violence on women. One of the incidents involved his sister whom he suspected was stealing from him.

When he confronted her, she responded aggressively and he, in turn, retaliated physically which landed him in jail for a few weeks. Once again, the accused’s account of the assault includes a smattering of justification. The violence was not gratuitous, he replied in kind only after having been the victim of the first blow (as well as being the victim of a theft). [ 33 ] Another incident of violence recorded in the psychological evaluation relates to an assault on a former girlfriend who worked as an escort. According to the accused, the couple were in a bar and had used drugs and were drinking heavily as well.

Fighting ensued between the couple after which he was escorted by bouncers and tossed out of the bar. He later retaliated on his former girlfriend by beating her up. He subsequently participated in a McGill University Anger Management workshop for several months where he acquired some strategies. — The presentence report [ 34 ] Though Dr. Kunin’s psychological evaluation appeared to be thorough in every respect, Crown counsel asked that a presentence report be prepared.

No doubt confident in the results, defence counsel did not object to the request. [ 35 ] The presentence report, dated September 3, 2019, was drafted by an experienced probation officer, Mr. Xavier Michel Martin. The same probation officer had already drafted a previous report for the accused a few years earlier. Unfortunately for the accused, the report was rather grim: his expressions of remorse were questionable; his amenability to treatment was doubtful and the risks of reoffending were rated as high.

Looking back at a previous report—drafted for a similar crime—the probation officer was of the view that the accused made little progress in addressing any of the issues that lend themselves to anti-social behaviour: substance abuse, lax lifestyle and lack of work experience. [ 36 ] As was the case with the psychology evaluation, the accused’s account of the assault in the presentence report includes some elements of justification in the form of self defense. In the course of a quarrel, the victim threatened him with a knife. Fearing that his life was in danger, he took the knife and used it against her.

Not unlike the psychology report where he claimed to have blacked out, he told the drafter of the presentence report that his «body and mind were separated». Unlike the psychologist, however, the probation officer saw in these explanations an effort by the accused to portray himself as a victim and hence minimize his responsibility: Disavowal or responsibility is very present and insight is weak. The offender presents himself as a victim of the events in this file .

He stated that he had responded to his own defence. [15] (Emphasis added) [ 37 ] In the same vein, the probation officer—unlike the psychologist—remarked that the accused had the same tendency to justify or to minimize responsibility for his previous assaults: We observe that he had the same attitude regarding the previous incidents of violence against women and against an authority figure (a police officer) whom he tried to hit with his vehicle. [16] [ 38 ] In the presentence report, we read that the accused’s criminality is impulsive and at times related to narcotics.

However, the use of intoxicants does not explain why the accused lashed out so violently against the victim. [17] [ 39 ] Unlike the psychologist, the probation officer was not optimistic about the accused amenability to treatment. In point form, the reasons for this position can be summed up as follows: • The accused has not asked for help and merely states that he will comply with court orders. • He has led a primarily lax lifestyle for many years, in which pleasure comes before effort.

This lifestyle includes the use of psychotropic substances, periods of living at the expense of girlfriends or family members, and a refusal to improve his skills so as to obtain employment that would bring a certain stability. • He has a criminal record that includes acts of domestic violence • Despite previous brushes with the law, court orders and the support of his relatives, the accused has made few efforts to improve himself over the years.

[ 40 ] Given all the aforementioned factors, the probation officer was of the view that the offender is near the upper limit of the rating of high risk of recidivism. [ 41 ] On a final note, the probation officer wrote that the accused is « able to verbalize what he ought to do to improve his lifestyle, but he remains inactive. » Actions speak louder than words. —Testimony of Mr. Xavier Michel Martin [ 42 ] Given the negative comments and conclusions contained in the presentence report, defence counsel requested that the probation officer be called to the stand in order to challenge his findings. [ 43 ] Mr.

Martin began his testimony by briefly explaining his qualifications as a probation officer: he trained as a social worker and has worked at the probation services for over 29 years. [ 44 ] Then, he reviewed the process of collecting information to prepare the presentence report: two separate interviews with the accused, each lasting about two hours. Next, he conducted telephone interviews with the victim and the half-brother of the accused. He also had a copy of Dr.

Kunin’s psychology evaluation which, as we know, he disagreed with several of its key observations and conclusions. [ 45 ] The subjects canvassed by the probation officer in preparation of the report were wide ranging. As the probation officer explained: There is a psychosocial evaluation. We look at all aspects of his life: family, friends and relatives.

We examine his work history and schooling… We get a good portrait of everything and then we assess the risk of recidivism and the needs of the offender. [18] [ 46 ] In evaluating the risk of recidivism, the probation officer used a tool called the LS/CMI. [19] In essence, it’s a questionnaire covering all aspects of an offender’s life. The said tool assists the probation officer or examiner in assessing the risk of reoffending and in identifying the appropriate levels of supervision based on an offender’s rehabilitation and programming needs.

The accused’s score result of «27» in the LS/CMI was at odds with the score of «20» in the LSI-R test administered by the psychologist. While a test result of «27» in the first test indicates a high probability of recidivism, a score of «20» in the second test indicates a minimal to moderate rate of reoffending. The probation officer added that he was surprised by the accused’s test results in the LSI-R, so much so that he retested the accused a second time on the LS/CMI test; and he retested another time using the psychologist’s tool, the LSI-R.

The additional testing only confirmed the probation officer’s original test scores: the risk of reoffending was high. [ 47 ] The probation officer’s rejection of the psychologist’s conclusions included comments on the supposed limitations of the LSI-R test. More particularly, the test is an actuarial device used to assess criminality in general and not violent criminality in particular. He added that the best test to predict the risk of reoffending for violent crimes is the SORAG.

It should be noted, however, that the probation officer did not use that test in his own evaluation as he was not trained to administer it. [ 48 ] In the course of his testimony in chief, the probation officer had the opportunity to go over the many factors that justified his negative assessment of the accused in the presentence report. Essentially, past experience with the offender has shown that he is unwilling to take the necessary steps to turn his life around despite the many opportunities to do so. The offender was known to the probation services for several years. For that matter, Mr.

Martin had even drafted a presentence report for the accused some six or seven years earlier. He noted that the accused has not changed in the slightest. He has not gone back to school to get some marketable skills; he has not found a steady job; and his relationship with women remains the same. [ 49 ] Cross-examination of the probation officer did not shake his testimony in the least. On the contrary, it gave him the opportunity to highlight the personality traits of the accused that hamper the possibility for real change in his life.

More particularly, the accused doesn’t like to be told what to do, especially if the orders come from someone in authority, such as a probation officer or a counselor. He likes his friends, his freedom and his non-conventional lifestyle. [ 50 ] The probation officer did agree, however, that the accused could benefit from a supervised probation.

He also agreed with the suggestion of defence counsel that services were available to address the accused’s issues with substance abuse and anger management. [ 51 ] When I asked the probation officer if the accused would abide with the conditions of a probation order, the answer suggested a pro forma or superficial compliance at best: In the last follow-up, he did the minimum to be conformist. Will he engage in the future? I am skeptical. Will he conform?

Yes, but it’s not his cup of tea. [20] [ 52 ] The probation officer added that in the course of his exchanges with the accused, the latter’s discourse was not indicative of an individual who has taken the full measure of his transgressions and the consequences of his repressible conduct. Someone charged with this would say, «I went really bad…I went really berserk…I never want to be in that situation again and so on…» He didn’t tell me anything that was close to that. The only thing close to that was when I asked him what he thought about the psychological evaluation of Dr.

Kunin and he said that he agreed with most of it. —Testimony of Dr. Kunin [ 53 ] Just as the defence wanted to call the probation officer as a witness in order to challenge his report, Crown counsel asked that Dr. Kunin be called to the stand. [21] [ 54 ] In essence, Dr. Kunin’s testimony mirrored the psychological evaluation he prepared for the accused: the accused accepted responsibility for his actions; he expressed remorse and he was a good candidate for rehabilitation. As he mentioned in his evaluation,

treatment needs for the accused have to address issues of substance abuse and anger management. [ 55 ] Beyond a rehash of his written evaluation, he elaborated on his methodology and why the test results supported his conclusions. To begin, he dismissed the probation officer’s comments regarding the limitations of the LSI-R test for evaluating criminality. From his experience, it is one five commonly used tests for predicting recidivism. For that matter, a recent study even concluded that the LSI-R test was a superior tool when it comes to matters of predicting the risk of reoffending.

Moreover, from a clinical point of view, the LSI-R test is a more complete tool. Along with concerns about recidivism, it also addresses treatment needs for the offender. [ 56 ] Of course, test results can be skewed if the offender is not portraying himself in an honest or truthful manner. In the present matter, however, the scores in four other tests administered by the psychologist indicated that the offender was honest and forthright in his answers to the questionnaires [22] . As the psychologist explained, the consistency or « convergence » in the test scores confirmed that they were reliable.

I gave him four different tests to determine if he was forthright, and they all told me that he (the accused) is reliable. That convergence in test scores gave me confidence. [23] [ 57 ] The psychologist noted that the accused had an « anger pathology ». However, he opined that the anger was not of the « violent or impulsive type». For that matter, the psychologist stated that the accused is neither a «violent or impulsive person». His anger, he explained, was «more of the brooding type». Rather than dealing with issues that bother him, he holds in the built-up frustrations and ruminates.

He would definitely benefit from anger management therapy. [ 58 ] The preparation of the psychology evaluation required several interviews with the accused totalling ten hours. At all times, the accused was respectful and polite, qualities that were highly appreciated by the psychologist. The fact that the accused did not display a « rough and tumble kind of machismo » also boded well for a potential treatment plan. At no point in the said interviews did the psychologist feel that the accused was minimizing his responsibility.

He accepted full blame for his transgressions and was genuinely remorseful. [ 59 ] On a final note, Dr. Kunin reiterated that the accused was a good candidate for rehabilitation. The accused understands that he needs therapy and that he is willing to take the necessary steps to turn his life around. More punishment will do nothing to address the underlying problems that could lead the accused to reoffend. — The victim impact statement [ 60 ] The victim, C.B., was seriously injured by the assault.

At the sentencing hearing, the Crown submitted a victim impact statement describing in great detail the physical and emotional injuries the victim suffered (and continues to suffer) on account of the accused’s violent conduct. [ 61 ] On a physical level, she sustained multiple stab wounds on different parts of her body: on the back of both shoulders at the level of the trapezius muscles, on the left elbow (more particularly, the cut and the subsequent scar runs a few inches above and below the elbow), on the right arm just above the elbow, on the right wrist (on both the dorsal and frontal sides), on the left earlobe and on the upper cheek bone. [24] At the hospital where she was brought for treatment, she was operated on her arms, hands and upper back.

Following the surgery, both arms had to be placed in a cast for about two months. All the other wounds required stitches in order to mend properly. [ 62 ] Following her discharge from the hospital circa one month later, the recovery process was slow and painful. To begin, she had to endure another surgery on her left arm (around the elbow area) in order to remove the surgical screws and plates inserted during the first surgery.

Next, the nature of the injuries (severed nerves on her arms and hands as well as deep cuts to the muscles in the back of the shoulders) has interfered substantially with her ability to perform the basic routines of everyday life, including combing her hair, personal hygiene, eating and turning door knobs. It was especially difficult in the first two months following the attack when the victim could not even feed herself as both arms were in a cast. [ 63 ] Along with the said physical limitations, the victim continues to suffer significant pain.

As she explained in her victim impact statement : J‘ai tellement de douleurs neuropathiques depuis, puisque plusieurs nerfs ont été atteints. Mon système nerveux est complètement déstabilisé que par moments, mon cerveau envoie des douleurs dans mon corps au complet et j’ai parfois de la difficulté à marcher. [ 64 ] Along with her physical injuries, the attack also impacted upon her psychologically. In her victim impact statement she stated that fear and anxiety pervades every aspect of her daily life. Not one day passes by that she does not think of the attack.

At night she is haunted by recurring nightmares and flashbacks of the assault : J’ai un stress post-traumatique depuis l’incident et qui est très présent dans ma vie. Je fais des cauchemars à chaque nuit, j’ai des flashbacks et j’ai un sentiment de peur constante. [ 65 ] The psychological trauma of the attack was compounded by the stress or anxiety of the judicial process. Along with the anxiety of coming to court and seeing the accused, she was afraid of how he would react to her victim impact statement.

In the following quote from her statement, she described how the court proceedings triggered depressive episodes and multiple panic attacks: J’ai beaucoup de craintes et d’angoisses face au processus judiciaire. J’ai peur de ce que monsieur pourrait faire et des conséquences suite à la rédaction de ce document. J’ai beaucoup d’angoisse et de peur face au fait de revoir monsieur. À chaque date de cour, je fais une dépression et des attaques de panique multiples parce que la réalité me rattrape. [ 66 ] Also, h er willingness to trust people and form meaningful relationships have been diminished:

Je suis incapable de me faire toucher par quelqu’un d’autre et de me toucher moi-même. Ma vie est complètement chamboulée surplusieurs aspects. Je ne laisse personne s’approcher de moi et entrer dans ma bulle. De plus, mon sentiment de sécurité a disparu depuiscette journée. J’ai peur de tout parce que j’ai réalisé que ce genre d’événement n’arrive pas juste aux autres et qu’on n’est jamais à l’abride rien. [67] The attack left her with a 12-centimetre scar on her left arm.

She is reminded of the brutal nature of the attack every time she seesthat scar. [68] From her statement, there is no doubt in my mind that the she is emotionally scarred from the attack and that the effects willlikely be long-lasting. —Testimony of the accused [69] The accused is 36 years of age with a history of substance abuse. He also has a criminal record which includes offences related todrug use (possession), dangerous operation of a motor vehicle, assaulting a police officer, failure to comply with a probation order andaggravated assault.

With regards to the aggravated assault, it should be noted that in 2005 he received a 12-month conditional sentencefor an assault on his common-law spouse. His work record is spotty at best. [70] He testified at the sentencing phase of the proceedings. In essence, he had the opportunity to address and rectify certain negativeaspects in the presentence report. [71] On the subject of his relationship with the victim, he described it as dysfunctional and marred by constant bickering.

As was thecase with the psychology evaluation and the presentence report, he stated that the victim had a difficult and erratic personality. She alsoabused drugs and was, at times, a patient in a psychiatric institution. But while his discourses with the probation officer and thepsychologist focused on the negative aspects of the victim’s personality, his testimony in court included praise for some of her positivequalities: «C.B. did many good things: she’s a good mother.

She is selfless and caring…» [25] [72] In his interview with the probation officer, he seemed to display little concern for the condition of the victim (at least, that wasthe impression of the probation officer). In both the presentence report and the psychological report, the accused’s account of the assaultappears to downplay his responsibility. In court, however, his discourse was totally different. He unequivocally accepted hisresponsibility and made no attempt to shift the blame on the victim.

In the same vein, he expressed remorse for his actions and for theconsequences incurred by the victim as a result of the attack. His words of contrition appeared to be genuine. [73] On a personal level, his court testimony was leagues away from the presentence report. While the probation officer doubted theaccused willingness and capacity to turn his life around, the accused expressed a desire to seek treatment in order to address issuesrelating to anger management. Also, he expressed a willingness to improve his work skills so as to secure a job that would provide forsome stability in his life.

After explaining that he is very good in working with his hands, he stated that he wants to apprentice as anelectrician as soon as he gets out of prison. Far from a pipe dream, he could work with his brother who is a licensed electrician. Heinsisted that he’s not the type of person to shy away from work, he just has difficulties with employers or supervisors who have littleregard for their employees. Applicable law The sentencing provision at s. 268 of the Criminal Code: [74] The offence of aggravated assault as set out in s.268 of the Criminal Code is among the most serious of offences involvingviolence.

Its objective gravity is signified by the potential maximum penalty of 14 years in jail that it carries. General sentencing principles [75] In R. v. L.M., 2008 SCC 31 , [2008] 2 SCR 163, at para. 17, Justice Lebel explained that sentencing is not a fixed orpredetermined procedure in which one ascribes specific terms of credit to various sentencing factors. He also summed up the factors thata judge must weigh in pronouncing a just sentence: Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’scompetence and expertise.

The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1Cr. C.; R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46 , at para. 22; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 ,at para. 82).

To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and thepersonal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code: —the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment ofand reparations for the harm they have done (s. 718 Cr. C.) —(the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender (s. 718.1 Cr.

C.); and —the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances that a sentenceshould be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and thatavailable sanctions other than imprisonment should be considered (s. 718.2 Cr. C.).

Sentencing principles in matters of domestic violence [76] In an effort to repress violence within the family unit and within intimate, personal relationships, Parliament in 1996, by means ofBill C-41, instructed the Courts to be cognizant of the obligation to assign aggravating weight to domestic assault offences.[26] This hasbeen codified as an aggravating circumstance pursuant to the authority of

section 718.2(a)(ii) of the Criminal Code.[27] Even before theenactment of the aforementioned provisions, the jurisprudence recognized that in cases of domestic violence the principles ofdenunciation and deterrence, both general and particular, are the overriding factors to be considered on sentence. In the seminal case ofR. v. Brown, 1992 ABCA 132 , the Court explained the importance of these sentencing principles as follows: [19] This court's experience is that the phenomenon of repeated beatings of a wife by a husband is a serious problem in our society.

Itis not one which may be solved solely by the nature of the sentencing policy applied by the courts where there are convictions for suchassaults. It is a broad social problem which should be addressed by society outside the courts in ways which it is not within our power tocreate, to encourage, or to finance.

But when such cases do result in prosecution and conviction, then the courts do have an opportunity,by their sentencing policy, to denounce wife-beating in clear terms and to attempt to deter its recurrence on the part of the accused manand its occurrence on the part of other men. [21] Then the Court should examine the circumstances which are peculiar because of the relationship. When a man assaults his wifeor other female partner, his violence toward her can be accurately characterized as a breach of the position of trust which he occupies. Itis an aggravating factor.

Men who assault their wives are abusing the power and control which they so often have over the women withwhom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they findthemselves, which makes it difficult for them to escape. Such women's financial state is frequently one of economic dependence uponthe man.

Their emotional or psychological state militates against their leaving the relationship because the abuse they suffer causes themto lose their self-esteem and to develop a sense of powerlessness and inability to control events. [22] In the case of assaults by a man against his wife or other female partner in life, two of the applicable principles are that thesentence should be shaped in the hope of furthering the rehabilitation of that man and in the hope of deterring him from repeating hisconduct in the future.

However, the more important principles are that the sentence should be such as to deter other men from similarlyconducting themselves toward women who are their wives or partners (what is called the principle of "general deterrence"), and that thesentence should express the community's wish to repudiate such conduct in a society that values the dignity of the individual (the"denunciation principle").

The importance of giving effect to these latter two principles has been driven home by recent remarks in casesthat did not relate to sentencing in criminal cases. (Emphasis added) [77] Violent behaviour by men towards women in relationships must be condemned and discouraged. Vulnerable women are entitledto the protection of the law against violent partners, and the community expectation is that such protection will be provided by thecourts. As the Ontario Court of Appeal explained in R. v. Denkers, (ON CA), The victim and others like her are entitled to break off a romantic relationship.

When they do so, they are entitled to live their livesnormally and safely. They are entitled to live their lives free of harassment and fear of their former lovers. The law must do what it can toprotect persons in those circumstances. [78] Similarly, the Court of Appeal of Quebec has emphasized the dominant principles of denunciation and deterrence in matters ofdomestic violence, even when the accused’s has made efforts at his rehabilitation. In R. c. Gauthier, (QC CA), theaccused pled guilty to a count of attempted murder on his wife. The offence took place at the Montreal Court house.

As he was about tosign the provisional measures in divorce proceedings between himself and his spouse, the accused took out a knife and stabbed her onthe thorax and on the wrist. He also stabbed her lawyer who came to her defence. Finally, he injured two constables who came to thevictim’s aid, biting the first one and throwing a table at the second one. The accused then took a second knife out and threatened to killhimself. When he was overpowered by the police, they searched him and found that he had a third knife on him. The victim spent sixdays in hospital.

Despite undergoing an operation on her wrist, she incurred a certain loss of dexterity. Aside from a scar, there were noserious complications from the wound to the thorax. [79] In first instance, the sentencing judge imposed a conditional sentence of two years less a day given the accused’s efforts atrehabilitation. On appeal, the original sentence was set aside by the majority of the Court and the accused was sentenced to a prison termof three and one half years.[28] In its decision, the Court of Appeal insisted on the gravity of the offence and on the accused’s degree ofresponsibility.

While rehabilitation is a legitimate sentencing concern, it cannot displace the dominant factors of denunciation anddeterrence in such matters. [29] [22] La juge du procès constate que l'état de l'intimé s'est beaucoup amélioré depuis; il a reçu des soins et il est entouré de personnesqui sont prêtes à l'aider. Il s'est écoulé plus de quatre mois depuis son arrestation et, au moment du prononcé de la peine, l'intimé esttoujours incarcéré.

Soucieuse de faciliter la réhabilitation de l'intimé, la juge du procès ordonne qu'il purge sa peine (deux ans moins unjour) dans la collectivité aux conditions qu'elle énonce, dont l'obligation d'être à sa résidence entre 22 heures et 6 heures pendant les 12premiers mois du sursis. [23 Le souci de favoriser la réhabilitation de l'intimé est légitime et l'on ne peut que se réjouir de constater que son état s'estamélioré.

Par ailleurs, il me semble erroné, dans les circonstances de ce dossier, que ce souci en vienne à occulter les autres objectifs quele tribunal doit poursuivre au moment d'infliger la peine, notamment les objectifs de dénonciation et de dissuasion. La peine infligée àl'intimé est déraisonnablement clémente par rapport à la gravité des crimes et à son degré de responsabilité, sans mentionner l'identité desgens contre lesquels ces crimes ont été commis (son épouse, son avocat et deux agents de sécurité) et l'endroit où ils ont été commis (aupalais de justice).

À mon avis, seule une peine d'incarcération produira l'effet dénonciateur requis par les circonstances. [80] In an earlier case, R. v. Gendron, (QC CA), our Court of Appeal made similar comments to the effect thatconsiderations of rehabilitation on sentencing cannot prevail inordinately over the paramount sentencing factors of denunciation anddissuasion in matters of conjugal violence. In substituting a four-year prison term to the original sentence of two years less a day imposed

by the trial judge, the Court made the following observations: [25] Cependant, si la réhabilitation demeure un facteur important dans la détermination de la peine, elle ne doit pas, surtout dans uncontexte de violence conjugale, prévaloir démesurément sur les facteurs de dissuasion et d'exemplarité de la sentence. Madame la jugeWilson dans R. c. Lavallée, (CSC), [1990] 1 R.C.S. 852, à la page 872, a rappelé "qu'il est difficile d'exagérer la gravité,voire la tragédie, de la violence domestique.

L'attention accrue portée à ce phénomène par les médias au cours des dernières années afait ressortir aussi bien son caractère généralisé que ses conséquences terribles pour les femmes de toutes les conditions sociales".[30] Aggravating and mitigating factors [81] In imposing a sentence, I should consider relevant aggravating and mitigating circumstances relating to the offence or theoffender (s. 718.2(a)). Aggravating factors will usually will result in a harsher sentence.

Mitigating circumstances, on the other hand,will usually favour a more lenient punishment. [82] The aggravating circumstances are summed up as follows: • The objective gravity of the offence The maximum sentence for aggravated assault set out at s. 268(2) of the Criminal Code is 14 years of incarceration. • The aggravated assault was committed in the context of domestic violence (section 718.2(a)(ii) of the Criminal Code) • The nature of the attacks and the level of violence used. The victim was stabbed seven or eight times.

As a testament to the degree of violence inflicted, the tip of the knife broke off and gotlodged in the left arm of the victim. • The severe impact of the assault on the complainant The complainant has suffered both physical and long-term psychological injuries as a result of the attack. Aside from her hospitalization,the physical injuries significantly impacted her health and her lifestyle and continue to do so at present. As for the emotional orpsychological consequences, they may be even more long-lasting and damaging than the physical hurt she incurred. She has difficultytrusting people, especially men.

Not one day goes by that she does not think about the assault. She still has nightmares in which sherelives the trauma she suffered. • The accused has a criminal record, including a previous conviction of domestic violence A criminal record will frequently invite a more stringent punishment, not because of the criminal record per se, but to re-enforce thedeterrent factor, it being apparent that previous discipline and penalties failed.[31] His prior convictions also make it clear that thepresent offence was not an isolated or aberrant event.

That being said, the proportionality principle - that the sentence be proportionate to the crime - still prevails, if for no reason other than itis essentially fair.[32] • Negative presentence report The author of the presentence report was skeptical about the accused’s amenability to treatment. Past experience has shown that he hasn’tmended his ways in the least.

The accused minimized his responsibility and the risk of reoffending was rated as high. [83] As far as the mitigating factors go, I note the following: • The accused pled guilty In pleading guilty, the accused spared the victim the ordeal of having to testify and relive the assault in a courtroom setting. The fact thatthe evidence pointed clearly to the guilt of the accused does not diminish the mitigating value of the plea. Nor could it be held againstthe accused that the plea was entered into after the preliminary hearing. It should be noted that the original indictment contained onecount of attempted murder.

One cannot blame the defence for testing the evidence on the count of attempted murder in order to have itreduced to an aggravated assault. • The accused has expressed remorse for his actions In pleading guilty, the accused expressed remorse for his actions and for injuries sustained by the victim. Though the presentence reportseemed to indicate that he minimized his responsibility, his apology and expressions of remorse in court were not accompanied by anyattempts to justify what he did. He accepted full responsibility with no strings attached. • The positive psychological evaluation.

While the probation officer was grim about the accused’s prospects at rehabilitation, the psychologist was optimistic. The accused is nota naturally violent or impulsive person. He understands that his behaviour was excessive and unreasonable and that he should havecontrolled himself better. Moreover, the accused is ready and willing to follow a treatment program in order to address the root causes ofhis wrongful acts. In particular, the accused has to get counselling for substance abuse and for anger management.

The psychologist also noted that the accused accepted full reasonability for his transgressions and that he expressed remorse. The risk of

reoffending is low so long as he gets the proper treatment. The case law: parity in sentencing [84] In crafting the proper sentence, a court must take into account the principle of parity, i.e. « a sentence should be similar tosentences imposed on similar offenders for similar offences committed in similar circumstances », (section 718.2(

b) of the CriminalCode). In R. v. Osterag, 2000 ABCA 232 CanLII, at para. 11, Justice Veit explained the principle as follows: A person convicted of an offence has the right to expect a sanction that will not be more severe than the sanctions imposed on otherswho are similarity situated; the community has the right to expect that a person convicted of an offence will not receive a morefavourable sanction than others who are similarly situated and have committed similar offences.

Starting-point sentencing guidelinessupport the principles of equality and uniformity. [85] An appropriate sentence, therefore, must be mindful of the punishments meted out by our courts for other similarly situatedaccused. [86] Though courts should strive for consistency as a matter of abiding importance for the administration of justice, any comparativestudy of the case law has its inherent limitations. To begin, it is difficult, if not impossible, to find case law where the circumstances areidentical to the case at bar. Next, sentencing is an inherently individualized process.

It is therefore plausible for two offenders havingcommitted the same offence under similar circumstances to receive different sentences. As the Court explained in R. v. M. (C.A.), (SCC), [1996] 1 SCR 500, at para. 92: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. Sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree acrossvarious communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needsand current conditions of and in the particular community where the crime occurred[33]. (Reference omitted) [87] In the present matter, both Crown and defence counsel have provided a number of sentence precedents to assist me indetermining the range of sentences that have been imposed in cases of domestic violence.

The range in the cases submitted by defencecounsel includes penitentiary terms that extend from 30 months to four and one half years. Counsel noted that in some of these cases thenature of the assault was more brutish or violent than the case at bar. Also, the case law submitted includes offenders whose criminalpast and prospects of rehabilitation were far grimmer than those of the accused in the present matter. [88] In R. c. Chenier, (QC CA), (QC CA), the Court of Appeal set aside a conditionalsentence imposed in first instance and substituted a prison term of 30 months.

In that case, the accused broke and entered into his ex-partner’s apartment and attempted to choke her to death. He had an extensive criminal record. [89] In R. v. Pilon, 2007 QCCA 1829 , the Court of Appeal substituted a 30-month prison term to the 18 months handeddown by the first judge. The accused in that case threw an ashtray at the victim hitting her on the head. The injuries sustained by thevictim were important and required surgery and blood transfusions. The accused also had an extensive criminal record. [90] In R. c.

Beaulieu, (QC CQ), the Court imposed a four-year term to an accused who fired a rifle in thedirection of his girlfriend, grazing her in the face. [91] In R. c. A.Y., [2007], J.Q. no 609, the accused was sentenced to a term of four years and one month for stabbing his wife (seventimes) and their daughter. Luckily, the injuries sustained were not as serious as one would have expected, even for the child who had tospend several days at the hospital. Though the injuries caused no physical disability, the psychological consequences for the spouse wereimportant.

With respect to the accused, there was evidence that he suffered from mental illness and that he abused drugs. However,neither his mental state nor the consumption of drugs could explain or excuse the acts of violence. The presentence report was negative.His expressions of remorse were described by the sentencing judge as «generic». [92] In R. c. Rouleau, [1998] J. Q. 773, the accused was handed a 4-year prison term for violently hitting his ex-girlfriend with abaseball bat. The injuries sustained by the victim were important and her recovery required several days in intensive care.

Theconsequences—both physical and psychological—for the victim were important. A psychiatric assessment of the accused indicated thathe suffered from no mental illness. However, he was a jealous, narcissistic, possessive and obsessive individual who could not acceptthat his ex-girlfriend was in a new relationship. In short, a personality disorder. In such cases, the offender’s amenability to treatment isproblematic. [93] As for the Crown, the cases submitted include a range of penitentiary terms that extend from 7 to 15 years.

In all those cases, thecourts highlighted the violent nature of the assault and the dominant principles of denunciation and dissuasion in sentencingconsiderations. For the purposes of the present decision, I will only review some of them. [94] In R. c. Zugravescu, 2012 QCCQ 345 , the accused tried to kill her spouse by stabbing him three times with a knifewhilst he was in the stairwell of a subway station.

In sentencing the offender to a prison term of seven years, the court took intoconsideration the premeditated nature of the assault and a negative presentence report which indicated that the offender did not acceptresponsibility for her actions and that the risk of recidivism was high.

The offender had no criminal record. [95] The offender in Zugravescu appealed the sentence deeming it too harsh and the Crown cross-appealed deeming that it was toolenient.[34] Though the Court of Appeal rejected both petitions to set aside the original sentence, it commented that the seven-year termwas on the lower end of the sentencing range:

[34] Dans les circonstances, une peine de sept ans n’est pas déraisonnable comme le prétend le ministère public. Même si elle se situeparmi les peines les moins longues, elle s’accorde néanmoins avec la jurisprudence. Un autre juge aurait pu être plus sévère, mais cen’est pas la question. Il n’y a simplement pas matière à intervenir. [96] In H.K. c. R., 2015 QCCA 64 , the Court of Appeal confirmed a global term of ten years of imprisonment for anoffender who pled guilty to charges of sexual assault causing bodily harm, aggravated assault and uttering death threats.

The facts of thecase are quite disturbing and include incidents of violence using a knife or a fork that he would jab into different parts of her body. Onone occasion, he applied a hot skillet on her arms, legs and on her buttocks. On another occasion he used heated metal skewers to burnthe victim’s buttocks and private parts.

A short time before the victim finally complained to the police, he had threatened to kill her. [97] Though the offender in H.K. had no criminal record, the trial judge underscored the planned and deliberate nature of the assaultand the important consequences—both physical and psychological—for the victim. The accused displayed no remorse and minimizedthe gravity of his actions. In the absence of treatment, the risk of recidivism was high. [98] In Marcel Roy c. La Reine, the accused went to the bedside of his common-law partner and stabbed her several times on the chin,on the thorax and on her neck.

In an effort to ward off the blows, the victim also sustained wounds to her hands. Fearing for her life, shecried out to her son to dial 911 and ran out of the bedroom. The accused caught up with her and stabbed her two more times in theabdomen. [99] A presentence report established that the accused did not have a delinquent personality or profile and that the risk of reoffendingwas minimal on the short term. Despite his guilty plea and expressions of sincere remorse, the Court of Appeal determined that anappropriate sentence was one of 15 years of incarceration.

However, given the offender’s time in preventive custody, the sentence wasscaled down to a jail term of 13 years. [100] As expected, defence counsel pointed to some obvious distinctions with respect to the cases submitted by the Crown and the casebefore the bar. On one level, it might be argued that the violence or sheer horror of the assault in the Crown’s jurisprudence was greaterthan the one before the Court. Further, one finds in the said cases elements of planning and deliberation which are absent in the presentmatter.

Finally, certain cases in the Crown’s list of authorities’ concern individuals who have shown no remorse and whose risk ofreoffending was rated as high. On the other hand, the offender in the present matter has expressed remorse for his actions and the risk ofrecidivism is low (if one accepts the evidence tendered by Dr. Kunin).

Application [101] The most important principle of sentencing in domestic violence cases is to denounce and deter, not only this accused but otherslike him who would assault their partners.[35] This is even more so when the assault is aggravated, using a knife, accompanied bythreats and confinement.[36] In such cases, the accused must be separated from society.[37] [102] Defence counsel argued that the length of the custodial term does not have to be unduly long in order to promote a sense ofresponsibility in the offender and an acknowledgement of the harm done to the victim.

The accused, after all, has admitted his guilt andexpressed remorse. Also, the sentence need not be so harsh so as to discourage the accused from his road to rehabilitation. [103] On the issue of rehabilitation, I must insist that the evidence is contradictory. The psychological evaluation and the presentencereport are at odds with respect to the accused’s acceptance of responsibility, amenability to treatment and risk of reoffending.

Somecommon ground, however, is found with regards to the underlying causes of the accused’s criminality: substance abuse, inability tocommunicate effectively and anger management issues. [104] The presentence report was drafted by an experienced probation officer. The conclusions contained therein flow logically fromhis observations and from sheer common sense. The accused was previously known to the probation services since 2005. During afollow-up, he refused to sign his treatment plan.

In order to reduce the risks of recidivism, the said plan called for the accused to findlegitimate employment, follow a training program so as to improve his marketable job skills and to seek professional help or counsellingon matters relating to substance abuse and anger management. His compliance with the treatment or follow-up plan was described aslimited and he had no intention of finding a job. At the time of the commission of the present offence, the accused had made no effort toturn his life around. He has not improved his skills either academically or professionally.

He has an unfavourable view of conventionsand he leads a marginal lifestyle. [105] The accused had the time and the opportunity to seek counselling, therapy or other help needed through a court-orderedintervention program, but he failed to act. He may know how to verbalize his needs, but he fails to do anything about it. [106] The psychological evaluation was drafted by an experienced and methodical psychologist who spent circa ten hours interviewingthe accused. In the course of their discourses, the accused expressed remorse for his conduct.

The accused’s test score on the LSI-R testindicated a minimal risk for reoffending. Other tests administered by the psychologist indicated that he was honest and forthright andthat the results were reliable. [107] In the present matter, I have no reason to dismiss the reports and the testimonies of either the probation officer or thepsychologist. Their observations and conclusions were backed by empirical evidence. Both their testimonies in court were clear, cogentand persuasive. When cross-examined by skilled and experienced counsel on either side, their testimonies weren’t shaken in the least.

Forthat matter, the cross-examination afforded them the opportunity to tie up some loose ends and reinforce their respective conclusions. [108] According to s. 724(3)(

d) of the Criminal Code, I must be satisfied on a balance of probabilities of the existence of a disputed factbefore relying on it to determine sentence.[38] This requirement is subject to s. 724(3)(

e) by which the crown must also establish beyonda reasonable doubt any aggravating fact.[39] [109] Given the contradictory evidence, what must I conclude on the issue of the accused’s expressions of remorse and acceptance ofresponsibility for his actions? One will recall that this was an area of some controversy in the sentence proceedings. The accused’s

account of the assault in both the presentence report and the psychology evaluation suggests that he was provoked by the victim and that he acted in self-defence when he seized the knife from the victim’s hand. As background information to the assault, the accused also recounted the dysfunctional relationship he had with the victim.

In essence this account of the facts dulls his act of contrition and gives the appearance that he is attempting to justify, excuse and minimize his responsibility by shifting blame to the victim. [ 110 ] To the accused’s credit, however, his expressions of remorse in the courtroom contained not the slightest suggestion that he was minimizing his responsibility for the offence. He had nary a bad word to say about the victim. I also listened carefully to his apology and to his expressions of sorrow and remorse for his actions. At all times, he was courteous and respectful. He appeared to be sincere.

When I consider all the evidence on sentencing (including the psychological evaluation and the testimony of the psychologist), the accused must be given the benefit of the doubt on matters relating to his acceptance of responsibility for the offence as well as to the sincerity of his expressions of remorse. [ 111 ] Another topic of controversy was the accused’s amenability to treatment and risk of reoffending.

While the psychologist saw potential for the accused to turn his life around via therapy, the probation officer was pessimistic about the accused’s willingness to make the necessary changes in lifestyle to keep him on the straight and narrow. While the accused’s past supports the position that he is reluctant or unmotivated to turn his life around, I cannot dismiss offhand the psychologist’s conclusions that the accused is amenable to treatment. He appears to understand the underlying causes of his anger and he has expressed a willingness to change.

Despite the gravity of the offence, the accused is not an inherently violent person. Nor is he the type of person prone to commit acts of violence impulsively. His anger is more of the «brooding-type» and stems from built-up resentment. [ 112 ] This being said, the accused’s amenability (or at least his potential) for treatment, does not necessarily mean that he will follow a therapy program or counselling upon his release from jail. As the probation officer explained, the accused is able to verbalize his needs, but he fails to take the necessary steps towards positive change.

Though the psychologist was optimistic about the accused’s potential for change, he couldn’t be sure that the accused would follow a treatment plan upon his release. [ 113 ] Every judge who pronounces a sentence undoubtedly hopes that the offender will undergo a change in his personality, especially when the sentencing matrix includes considerations over rehabilitation. In the present matter, the evidence shows that the accused is amenable to treatment. We are still a far cry away from the accused who has taken hold of his life and demonstrated in a concrete matter that his rehabilitation is well underway.

Conclusions [ 114 ] The gravity of the offence, in and of itself, calls for a serious term of imprisonment. The accused stabbed his common-law partner seven or eight times. The injuries she sustained were important. To this day, she has yet to recover from the physical and psychological injuries sustained. [ 115 ] Next, an exemplary sentence is called for when considering that the assault was committed in the context of domestic violence.

Courts across the country have recognized the need to condemn acts of spousal abuse and have emphasized the importance of deterrence, denunciation, punishment and the protection of victims and the community in the sentencing process. Significantly deterrent sentences are warranted as cases of domestic violence inherently involve a breach of trust and are typically committed against vulnerable complainants. [ 116 ] The objective of denunciation mandates that a sentence should reflect societal values. In the words of the late Chief Justice Antonio Lamer in R. v.

M. (C.A.) , supra , at paragraph 81 : The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender’s. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. [ 117 ] In the present matter, a proper sentence must adequately express society’s condemnation of the accused’s actions.

With respect for the contrary opinion, the sentence suggested by the defence of three and one half years of prison does not come close to addressing the dominant sentencing objectives of denunciation and deterrence. One cannot simply stab a common-law partner seven or eight times and expect to get away with anything less than a serious sentence. To do otherwise would not reflect the brutish nature of the assault and the importance of the injuries sustained by the victim.

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 118 ] In imposing sentence, however, I must also bear in mind the principle of restraint set out at sections. 718 (

c) and 718.2 (

d) and (

e) of the Criminal Code . [ 119 ] Of course, rehabilitation plays a role in the sentence. As mentioned above, I have given the accused the benefit of the doubt as to his capacity to turn his life around. To do so, he must follow a treatment program to address issues of anger management and substance abuse. He must also take the necessary steps to improve his professional skills, otherwise, he will be back in court again. His rehabilitation prospects, however, will not diminish the need for a deterrent and dissuasive sentence to a significant degree.

I must stress that rehabilitation in the present matter is limited to the accused’s amenability and potential to change. Let us not forget that the accused has a past history of domestic violence and that while he was followed by the probation services, he squandered the opportunity to change his life. [ 120 ] When I balance all the aggravating and mitigating factors, as well as the principles of sentencing, I am of the view that a prison term of five and one half years (66 months) is an appropriate sentence.

I add that were it not for some mitigating factors—the guilty plea, the expression of remorse and the potential for rehabilitation—I would have easily imposed a more severe sentence. [ 121 ] Given that the accused has spent the equivalent of 34 months in preventive custody (682 days x 1.5 divided by 30), he will serve a

term of 32 months of prison from the date of sentencing. [ 122 ] In addition to a prison term of 32 months (considering 34 months of preventive custody), I make the following accessory orders: —A DNA order pursuant to S.487.051 (1) of the Criminal Code ; and —A lifetime weapons prohibition pursuant to section 109(1)(a.1) of the Criminal Code . __________________________________ SALVATORE MASCIA, J.C.Q. Me Hélène Décarie For the Crown Me Mia Manocchio Me Clara Daviault For the Defendant Date of hearing: June 25, 2019, October 2, 2019, January 31, 2020