R. v. Nelson, 2022 ONCJ 634

ONTARIO COURT OF JUSTICE CITATION: R. v. Nelson , 2022 ONCJ 634 DATE: 2022 10 25 COURT FILE No.: Brampton 3111 998 20 1863 and 20 5576 BETWEEN: HIS MAJESTY THE KING — AND — LEONARD NELSON Before Justice G.P. Renwick Heard on 24 October 2022 Reasons for Judgment released on 25 October 2022 A. Heydon............................................................................................. counsel for the Crown D.

Vago........................................................... counsel for the Defendant Leonard Nelson REASONS FOR SENTENCE RENWICK J.: INTRODUCTION [ 1 ] Following a trial, I rejected the Defendant’s claims of self-defence, I was not left in any reasonable doubt and I found the Defendant guilty of assault causing bodily harm and breaching a release order by having contact with his former girlfriend, Simone Cole. [ 2 ] During an argument with the complainant, the Defendant punched her twice in the face. She fell backward and hit her head on the floor and became unconscious.

The Defendant assisted the complainant briefly before he left. Her injuries included a fractured jaw and a broken tooth and associated bumps and bruises. The complainant has suffered physically, emotionally, and financially as a result of the attack. [ 3 ] During his allocution, the Defendant acknowledged the long-lasting harm he has caused the complainant. He expressed remorse for the suffering experienced by the complainant. [ 4 ] In these reasons, I will explain the parties’ positions on sentence and how I arrived at the sentence to be imposed.

GOVERNING SENTENCING PRINCIPLES [ 5 ] The fundamental purpose of sentencing as expressed in

section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society, where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 6 ] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the

degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender. [1] [ 7 ] In R. v .

Hamilton and Mason , Doherty J.A. of the Ontario Court of Appeal stated that: The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence… The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. [2] [ 8 ] The Court quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v .

Priest : The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. [3] [ 9 ]

Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [4] [ 10 ] In R. v . Proulx , the Supreme Court spoke about the principle of restraint when considering imprisonment: Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(

d) and (e).

Section 718.2(

d) provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances", while s. 718.2(

e) provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders". Further evidence of Parliament's desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(

c) qualifies the sentencing objective of separating offenders from society with the words "where necessary", thereby indicating that caution be exercised in sentencing offenders to prison... [5] [ 11 ] The Supreme Court has instructed that

section 718 requires a sentencing judge to consider more than simply denunciation, deterrence, and rehabilitation.

The court must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused by an offender, while attempting to rehabilitate or heal the offender. [6] Our Court of Appeal has affirmed the need to “promote a sense of responsibility among spousal abusers and an acknowledgement of the harm done not only to their immediate victims, but equally to the community at large.” [7] [ 12 ] Although the rehabilitation of the Defendant is a secondary consideration in the overall calculus of an appropriate sentence in this case (behind denunciation and deterrence), it is still a factor I must consider.

POSITIONS OF THE PARTIES [ 13 ] In addition to ancillary orders, the prosecutor seeks the maximum sentence for the assault causing bodily harm when proceeded summarily: 18 months imprisonment, followed by probation for two years. As well, the prosecutor seeks 30 days jail, to be served concurrently, for the breach of bail offence. [ 14 ] The Defendant seeks a conditional sentence of imprisonment for 12 months, followed by probation for two years.

Alternatively, the Defendant submits that an intermittent jail sentence and probation is appropriate because it would allow the Defendant the chance to maintain his employment with a local food company. [ 15 ] The parties submitted several cases to support their positions. However, the cases served only to highlight the range of sentence for these offences and the need for individualization given the unique facts of each case. MITIGATING AND AGGRAVATING FEATURES [ 16 ] It is mitigating that the Defendant is a first offender.

In fact, the Defendant’s situation in Canada is precarious, because he is a refugee claimant from Jamaica. While this does not mitigate the seriousness of the offences or the moral culpability of the Defendant, it does underline the need for penal parsimony and restraint. [ 17 ] The Defendant is a contributing member of the community. He has worked as a mechanic and currently works in the picking and receiving department of a food company, for whom he has been employed for over one year. He is known at work as dependable, hard- working, punctual, and he is a good colleague.

The Defendant also enjoys support from his sister as well as his landlord. [ 18 ] The aggravating features include the extent of the assault (two punches to the face), the injuries suffered (broken jaw, the loss of a tooth), the duration of the harm caused (over two years), and the impact that the assault continues to have upon the complainant. The fact that they were in an intimate relationship, that she was assaulted in her home, and that her children were present (although asleep), add to the serious nature of the assault.

It is also aggravating that the assault was unprovoked and the complainant continues to suffer psychological harm as a result of the attack.

[ 19 ] It is important to note that the pre-sentence report is favourable. The Defendant is from a good family, he has no substance abuse issues, no history of violence, he is well-liked, and he contributes to our community. The pre-sentence author also noted the Defendant’s qualified remorse, while maintaining his innocence: “…he is seriously sorry and remorseful for any damage this has caused the victim and regrets the fact that things turned out the way they did.” DISCUSSION [ 20 ] On a continuum of assaults causing bodily harm, this offence is toward the most serious extremity.

There is a significant need for the sentence to denounce and deter this crime in the strongest of terms. The parties agree that imprisonment, in some form, in the mid- reformatory range is appropriate. [ 21 ] Given the mitigating factors (a lack of a prior criminal record, qualified remorse, community support, and employment), this is not a case where the maximum sentence is appropriate. I would attribute the appropriate range of sentence between 14-16 months of imprisonment in a custodial facility.

The need for restraint in recognition of the likely ancillary immigration consequences militates toward a twelve-month jail sentence. [ 22 ] I have considered and rejected a conditional sentence of imprisonment for the following reasons: i. The sentence should reflect the extreme nature of the assault and the injuries; and ii. The qualified remorse expressed does not include the Defendant’s responsibility for the harm caused.

Without any insight into his responsibility, there is a greater need for specific deterrence. [ 23 ] Theoretically, a conditional sentence of imprisonment can include deprivations to approximate a prison sentence.

However in this case, the maximum period of a conditional sentence (two years less one day) would hardly strike the appropriate chord of denunciation while serving to deter the Defendant and others from this type of nasty assault. [ 24 ] Moreover, serving a sentence of imprisonment in the community in a case such as this, involving an unprovoked attack of an intimate partner resulting in severe and long-lasting injuries, would not adequately address the primary sentencing principles (denunciation and deterrence) or the fundamental principles and purposes of sentencing (proportionality and parity).

CONCLUSION [ 25 ] In my view, the only appropriate sentence for this Offender in these circumstances is 12 months imprisonment in a correctional facility. This will undoubtedly result in the Defendant’s deportation from Canada. However, in my view, this is the shortest possible prison sentence which would adequately address all of the aggravating and mitigating circumstances and the Defendant’s culpability for the assault offence.

The bail breach deserves a jail sentence of 30 days, which will run concurrently. [ 26 ] I agree with the parties that the Defendant would benefit from probation for two years with the following terms: i. Keep the peace and be of good behaviour; ii. Attend court when required; iii. Notify any changes of name, address, and occupation; iv. Report to a probation officer within 2 business days of your release from custody by calling 905-457-6887 (from 8:30 am to 5:00 pm), and thereafter as required, but not less than once per month for the first six months; v.

Do not have any contact, directly or indirectly, with Simone Cole; vi. Do not attend at or within 100m of any place of residence, occupation, education, worship, recreation, or any place you know or find Simone Cole to be; vii. Do not possess any weapons; viii. Take counselling for intimate partner issues or a recognized P.A.R. program; and ix.

Complete releases of information in favour of your probation officer to monitor your attendance, participation, and completion of counselling. [ 27 ] While you are in custody, you will submit to a sampling of your deoxyribonucleic acid (DNA) to be analyzed and to have the results uploaded into the national DNA databank. Your DNA is to be taken by a qualified person in circumstances that are hygienic, that respect your bodily integrity and privacy, and that respect your health and safety.

Force may be used to extract your DNA if you do not submit to the DNA sampling voluntarily. [ 28 ] Lastly, you are prohibited from possessing the items referred to in s. 110 for 10 years. Released: 25 October 2022

Justice G. Paul Renwick