Canadian Criminal Sentencing/Offences/Assaultive Offences

General Principles Provocation will have an effect on sentence for assault. Where the injury occurred while in an initially consentual fight the sentence will be less than where the attack was unprovoked and against a defenceless victim. R v. Johnson [1998] B.C.J. NO.2924 (B.C.C.A.) In offences of violence involving a weapon, "the primary sentencing objectives to be applied are deterrence and protection of the public."R. v. Philpott, 2011 NLTD(G) 30 Random acts of violence upon strangers will often attract jail sentence. R. v. Lewis, 1983 OntCA -- 9 mo for random unprovoked assault Sports-related violence can frequently allow for discharges.R. v. Carroll (1995) 38 CR 238 (BCCA) 2 General Factors Key Aggravating Factors History of spousal abuse / previously assaulted same victim Criminal record for violence or related convictions Spouse or common law spouse is victim == breach of trust Serious injuries to complainant Planned or pre-meditated Use of weapon Children witnessed the assault or were present when the assault occurred Offence occurred in the home Degradation of victim Separate acts occurring over a period of time No remorse Home invasion Intoxicated at time of offence Other Factors degree of provocation circumstances that make it desirable to preserve the family relationship evidence that it was out of character or isolated event 2 Domestic Violence Section 718.2(a)(ii) provides that “evidence that the offender, in committing the offence, abused the offender’s spouse or common law partner...shall be deemed to be an aggravating factor." This can include those who are in a sexual relationship but may not be co-habitating.R. v. Wenc, 2009 ABCA 328 (CanLII) at para. 23 to 25 The primary principles are denunciation and general deterrence for domestic violence offences.R. v. McCarthy 2005 NLCA 36 R. v. Dodd 1999 CanLII 18930 (NL CA), (1999), 180 Nfld. & P.E.I.R. 145 at 38 R. v. O'Keefe, (1997), 158 Nfld. & P.E.I.R. 138 (N.L.P.C.) at p. 252 R. v. Rahaman,2008 ONCA 1 (CanLII) at para. 46 (The primary objectives in offences of "violence arising out of an existing or failed domestic or romantic relationship" is denunciation and deterrence.) also see R. v. Dodd, [1999] N.J. No. 262 (Nfld. C.A.) at para. 38 -39 Custodial sentences are considered the norm where significant bodily harm has been inflicted in a domestic violence situation. R. v. Inwood, [1989] O.J. No. 428 (C.A.) This is in part due to courts recognising that domestic violence is often part of continuous abuse ongoing in the relationship. R. v. Bates 2000 CanLII 5759 (ON CA), (2000), 146 C.C.C. (3d) 321 (Ont. C.A.) at para. 30 Domestic violence causing bodily harm will result in ranges from 9 to 15 months. R. v. Lynns 1976 NBCA - 9 months; unrelated record 2 Child Victims Certain courts have divided offences involving the assault of children into three cateogories:R. v. MacDonald (K.), 2009 MBCA 36, 236 Man.R. (2d) 239 at 14 cases involving the application of force with the expectation of causing injury or indifference to it; cases involving the application of force where a parent was immature and unskilled and acting out of emotional upset, frustration or temper and did not fully appreciate the serious injuries which might result; and cases involving diminished responsibility through mental disorder where the abnormal mental condition of the accused requires the treatment of the offender to be given priority over the principles of general and individual deterrence. 2 Peace Officers Police officers put themselves in harm's way to protect the community and preserve a just, peaceful and safe society. "Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society's dependence on the police, and society’s determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function." R. v. MacArthur, [2004] O.J. No. 721 (ONCA) at para. 49 2 Offender a Persons in Authority Factors to offences of violence by police officers:R. v. Gillian, 2009 BCPC 241 at 69 Was the officer on duty at the time or off duty? Was the offence committed spontaneously in the heat of the moment or was it committed continually or with time for the officer to consider his actions? Was there a concern for his personal or fellow officers’ safety at the time of the assault? Was the victim a prisoner in the officer’s custody in an institution? What was the nature of the assault? What were the injuries suffered by the victim? Was the sentencing at the conclusion of a trial or was it a result of a guilty plea? Did the officer express or show remorse? Did the officer impede or assist the resulting police investigation of his actions? What was the experience and rank of the officer at the time of the offence? 2 Choking Offences Section 246 provides that: Overcoming resistance to commission of offence 246. Every one who, with intent to enable or assist himself or another person to commit an indictable offence, (a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance, or (b) administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing, is guilty of an indictable offence and liable to imprisonment for life. R.S., c. C-34, s. 230; 1972, c. 13, s. 70. CCC Choking is often serious and can be life-threatening. Where the victim has been choked to the point of unconsciousness or bodily harm it is not a mere detail to an underlying offence. It should have an aggravating effect on sentence. The court should consider would be whether to impose:R. v. Lemmon, 2012 ABCA 103 (CanLII) a consecutive sentence for the choking offence under s. 245 a concurrent sentence that is greater than the sentence underlying the choking a sentence for the underlying offence that is greater than it would otherwise be. 2