



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. T.E.C.,









2015 BCCA 43




Date: 20150130

Docket: CA041796

Between:

Regina

Respondent

And

T.E.C.

Appellant

Restriction on Publication: A publication ban has been mandatorily
imposed under s. 486.4(2) of the
Criminal Code
restricting the
publication, broadcasting or transmission in any way of evidence that could
identify a complainant or any witness under the age of 18.
This
publication ban applies indefinitely unless otherwise ordered.




Before:



The Honourable Chief Justice Bauman

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Savage




On appeal from: an
order of the Provincial Court of British Columbia dated
April 7, 2014 (
R. v. T.E.C.
, Surrey Docket No. 197101)

Oral Reasons for Judgment




Counsel for the Appellant:



R.M. Shore





Counsel for the Respondent:



M. Myhre





Place and Date of Hearing:



Vancouver, British
  Columbia

January 28, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January 30, 2015








Summary:

The appellant was given a
suspended sentence for assaulting his wife. He appeals that disposition on the
basis that the judge erred in principle by over-emphasizing the domestic nature
of the assault and by failing to give sufficient weight to his admission of the
assault at trial as a mitigating factor. He also argues the sentence was unfit
and a conditional discharge would be appropriate in his personal circumstances.
Held: Appeal dismissed. The judge made no error in principle, and the sentence
was fit. The sentence fell within the accepted range for similar offences, and
the public interest did not favour a discharge.

[1]

NEILSON J.A.
: On March 11, 2014, following a lengthy trial before
a Provincial Court judge, the appellant was convicted of assault and acquitted
on charges of sexual assault and uttering threats. The victim named in each
charge was his wife. On March 11, 2014, the appellant received a suspended
sentence of twelve months with conditions.

[2]

The appellant seeks leave to appeal his sentence and, if leave is
granted, argues that the trial judge erred in over-emphasizing the domestic
context of the assault, and in failing to recognize that his admission at trial
of the facts constituting the assault was a mitigating factor equivalent to a
guilty plea. He says this led to an unfit sentence, and an absolute or
conditional discharge should be substituted for the suspended sentence.

[3]

The events leading to the charges occurred over several days. The
appellants wife had recently advised him she had had an affair. He was angry
and unforgiving, and the couple was in the process of an acrimonious
separation. It is not necessary to relate the events underlying the other
charges, other than to say the appellant and his ex-wife gave very different
versions of them. The trial judge accepted that the couple was in the throes
of matrimonial strife and that the appellant was hostile and volatile. He
acquitted him on the more serious charges, however, primarily because of
concerns about the reliability and credibility of the wifes evidence.

[4]

During his testimony in chief, the appellant admitted that in one
exchange he had thrown a plastic cup of water and a sleeve of crackers at his
wife. The trial judge rejected his argument that these actions fell within the
de
minimus
doctrine, and convicted him of assault. In doing so, he affirmed
the view that the threshold of legal tolerance for assault within spousal
relationships is very low, stating:

[64]        Mr. Cs assault
of Ms. C falls at the low end of the assault spectrum, but when considered
in context I cannot conclude it was so trifling as to not engage the interests
of the public. Mr. Cs act was intentional and not defensive, measured, or
even retaliatory to a physical act against him by Ms. C. There was no
legitimizing it. It escalated an intense verbal encounter to a physical one in
an incendiary environment that risked escalating the conflict, thereby
increasing the risk of violence. There is a clear public interest in preventing
conflict between warring spouses from becoming physical and using the criminal
law as that preventative measure.

[5]

At sentencing, the Crown sought a suspended sentence.

[6]

The appellant asked for an absolute or conditional discharge. His
counsel summarized his personal circumstances and the impact of the proceedings
as follows. He was 45 years old at the time of sentencing, and had no criminal
record. His past employment included several years as a loss prevention officer
and also some private investigative work. The circumstances surrounding the
separation and the charges had a significant detrimental impact on his life. He
had gone from living in a home with his wife and three children to being alone
with no home, and being estranged from his oldest son. He was unable to work in
security occupations due to the charges, and said the criminal record resulting
from a suspended sentence would perpetuate this limitation, confine him to
menial labour, and limit his ability to support his children.

Reasons on Sentencing

[7]

The trial judge noted that the appellant had admitted the events
constituting the assault, but that he had been precluded from pleading guilty
to this charge as the allegation of assault was comprised of more than the one
incident on which he was ultimately convicted. He stated:

[2]        I accept what defence
counsel says with respect to a lack of latitude to plead guilty to that aspect
given the assault allegation against him contained far more than what he
admitted. I acknowledge that he was in a difficult position with respect to
taking responsibility and perhaps all he could do was when he took the stand
was to say indeed that it happened, so it is not in theory a guilty plea and it
does not have the salutary effects of a guilty plea such as saving court time,
saving the taxpayers money, saving a complainant from testifying. But again I
acknowledge the context of the case and the allegations in total.

[8]

The trial judge found the assault was not defensive or measured but
intentional, and that it increased the risk of violence between the couple. He
observed that the appellant had been intensely angry at the time, and the
offence was not a momentary lapse of control but more akin to the eruption of a
volcano that had been percolating. He accepted the effect of the charges on the
appellant had been profound and life-changing.

[9]

The trial judge referred to the sentencing principles in s. 718 of the
Criminal
Code
, and the specific provision in s. 718.2(a)(ii), which states that
evidence that an offender abused his spouse is deemed to be an aggravating
circumstance. He then expressed his conclusion in these terms:

[7]        Given the emphasis I
must place on that feature, given it is a violent offence and general
deterrence and denunciation are principles squarely before me, acknowledging
that I cannot ignore Mr. Cs rehabilitation, I am of the view that general
deterrence and denunciation and the other purposes and principles of sentencing
are best met in the context of this case by suspending of the passing of
sentence and placing Mr. C on probation for a period of 12 months with the
following conditions.

Analysis

[10]

I begin by acknowledging the restricted ambit of appellate review of
sentencing decisions. Our jurisdiction to interfere is confined to the
circumstances set out by the Supreme Court in
R. v.

C.A.M.
,

[1996]
1 S.C.R. 500 at para. 90:

Put simply, absent an error in
principle, failure to consider a relevant factor, or an overemphasis of the
appropriate factors, a court of appeal should only intervene to vary a sentence
imposed at trial if the sentence is demonstrably unfit.

[11]

In that context, the appellant argues the trial judge made two errors in
principle in imposing a suspended sentence instead of a conditional discharge.
First, he over-emphasized the domestic context of the assault. Second, he did
not sufficiently recognize the unique circumstances that precluded the
appellant from pleading guilty to assault, and so failed to treat this as a
mitigating factor equivalent to a guilty plea. As well, the appellant contends
that even if the judge did not err in principle, the sentence was unfit, given
his personal circumstances.

[12]

On the first point, the appellant accepts that s. 718.2(a)(ii) of the
Code
required the sentencing judge to view his assault on his spouse as an
aggravating feature. He, however, points to the judges comment at para. 7 of
his decision about the emphasis he must put on this as demonstrating that he
permitted the domestic context to override other equally relevant
considerations.

[13]

I am unable to agree. The jurisprudence of this country has long
recognized the uniquely emotional and malevolent nature of domestic assaults
and the inherent dangers they present, not only to the victims but to public
interests as well. This Court recently affirmed these views in
R. v. Gill
,
2014 BCCA 88 at para.34:

[34]      I am unable to accept Mr. Gills submission that
the sentencing judge overemphasised denunciation. This Court has consistently
stated that crimes of violence against women in domestic relationships require
denunciatory sentences. In
R. v. Stanley
, [1986] B.C.J. No. 695 (C.A.) at
para. 8, Mr. Justice Lambert said this:

I wish to say particularly in this case that society has a
deep interest in this kind of conduct. It is not a private matter between the
parties to the relationship nor a matter that goes away if there is forgiveness
within the relationship. This kind of conduct endangers and imperils society.
In addition the guardians of the social interest, the people involved in social
work and the police who are called out and into these situations, must have the
protection of the law and the understanding that these offences will not be
ignored by society or that forgiveness by one spouse will not put an end to the
offence.

[14]

The trial judge properly recognized his obligation under s.
718.2(a)(ii), and the public interest in preventing domestic assaults, no
matter how minor. I am not persuaded that in doing so he overly emphasized the
domestic context of this assault.

[15]

As to the second alleged error in principle, the trial judge explicitly
acknowledged that the more serious charges against the appellant and the
multitude of allegations raised by the complainant precluded him from pleading
guilty to assault at the outset of the trial. While he did not specifically
mention this as a mitigating circumstance, I am satisfied that para. 2 of his
decision, read as a whole, is reasonably interpreted as an indication that he
would consider this favourably in determining the appellants sentence. I find
no error in principle in this approach.

[16]

Finally, while the appellant acknowledges that a suspended sentence
falls within the range of acceptable dispositions for a domestic assault, he
argues that this result was unfit in his case, given his personal
circumstances. He reiterates the arguments made at sentencing, and emphasizes
that a criminal record will restrict his employment opportunities in the
security field, and thus limit his ability to support his children and to
restore his own life to a semblance of what it was before the assault. He says
the brutal and unfounded allegations made by his ex-wife, the long and
stressful legal process that followed, and the related detrimental changes to
so many facets of his life have provided sufficient individual deterrence and
punishment. As a result, a conditional discharge with the same conditions as
his suspended sentence would be a fit sentence.

[17]

As noted above, this Courts jurisdiction to interfere with a sentencing
disposition is limited. We are not entitled to vary a sentence simply because
we would have imposed a different penalty. Deference is due to the sentencing
judge, particularly where, as in this case, he presided over a lengthy trial
that enabled him to become thoroughly acquainted with the witnesses and the
nuances of the case:
R. v. Scott
, 2013 BCCA 397 at para. 34.

[18]

A conditional discharge may be imposed if it is in the best interests of
the offender, and if it is not contrary to the public interest:
R. v.
Fallofield
(1973), 13 C.C.C. (2d) 450.

[19]

There is no question that a discharge would be in the appellants best
interests.

[20]

As the judge observed, however, this assault engaged the public interest
in generally deterring and denouncing domestic abuse. From his unique
perspective as the trial judge, he determined it was an intentional and
gratuitous gesture, emanating from the appellants intense anger with his wife.
While a relatively minor assault, he found it had had the potential to escalate
into more severe violence. Despite the appellants personal circumstances and
potential for rehabilitation, he effectively concluded a discharge was not in
the public interest and imposed a suspended sentence.

[21]

Given the circumstances I have outlined, I am not persuaded this was an
unfit sentence. In my view, the disposition represents a proper exercise of the
trial judges discretion and is supported by the record that was before him. I
would grant leave to appeal but dismiss the appeal.

[22]

BAUMAN C.J.B.C.
: I agree.

[23]

SAVAGE J.A.
: I agree.

[24]

BAUMAN C.J.B.C.
: Leave to appeal is granted and the appeal is
dismissed.

The
Honourable Madam Justice Neilson


