




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fraser, 2016 ONCA 745

DATE: 20161013

DOCKET: C60274

MacPherson, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Allan Fraser

Appellant

Thomas Allan Fraser, in person

Erin Dann, duty counsel

Hannah Freeman, for the respondent

Heard:  September 8, 2016

On appeal from the conviction entered on February 11,
    2015 and the sentence imposed on March 25, 2015 by Justice James A.S. Wilcox of
    the Superior Court of Justice.

Pepall J.A.:

[1]

The appellant viciously and
violently assaulted his
    domestic partner between June 1, 2009 and October 31, 2010.  He was convicted
    of aggravated assault, assault with a weapon, assault, and uttering a threat to
    cause death.  He received a global sentence of seven years.
[1]
He appeals from his
    conviction and seeks leave to appeal his sentence.

A.

BACKGROUND

[2]

The appellant met the complainant when she was in her teens and in high
    school, and he was about 30 years old.  They cohabited and separated and then
    would cohabit again.  The relationship was characterized by his physical
    attacks and verbal abuse.  The complainant is five-feet, five inches tall and
    in 2009 and 2010 weighed about 100 to 110 pounds.  In contrast, the appellant
    is five-feet, eight or nine inches tall and in those years weighed about 215
    pounds.

[3]

The facts on which the convictions were based include the following:

-      the
    appellant held the complainant down and applied a hot cigarette lighter to her
    bare legs three times.  He then pulled down her underwear and applied the
    heated lighter twice to her vaginal area;

-      the
    appellant choked the complainant five or more times.  He put her in a headlock
    and squeezed until she could not breathe.  On one of these occasions, she was
    rendered unconscious;

-      the
    complainant had been sleeping in bed and awoke with the appellant sitting on
    her and suffocating her with a pillow.  He pressed the pillow against her face
    four or five times and in between times elbowed her in the ribs so she would
    keep quiet;

-      on
    another occasion, the appellant held the complainant down and poured a glass of
    his urine on her face and in her mouth;

-      the
    appellant barged into the bathroom where the complainant was having a bath,
    forced her head under the water and held it there repeatedly.  He pulled her up
    by the neck and swung her around quickly such that her head hit the walls.  He
    then pulled her from the tub and hit her head against the cabinet, drawing
    blood.  He continued to whip her around and put her on the floor and punched
    her;

-      the
    appellant threatened to kill the complainant if she did not climb over a porch
    railing, which had a drop of six to eight feet to the ground, which she
    proceeded to do; and

-      the
    appellant would slap, punch or knee the complainant more or less every day and
    threatened her almost every day.  He said he would kill her or her family if
    she said anything about what was going on.

[4]

At the trial, which took close to two weeks, both the appellant and the
    complainant testified, as did nine other witnesses including many of their
    friends, acquaintances and at least one family member.  The evidence against
    the appellant was overwhelming, and the trial judge was satisfied beyond a
    reasonable doubt of the appellants guilt.

B.

conviction appeal

[5]

In reaching his decision, the trial judge noted, among other things, the
    appellants failure to deny the allegations when given the opportunity. 
    Assisted by duty counsel, the appellant submits that reliance on this failure
    was an error of law.

[6]

I do not accept this submission.

[7]

The trial judges comments must be placed in context.  At trial, a close
    friend of the appellant testified about an occasion when the complainant asked
    the appellant: What about the time you burnt me with the lighter? and
    motioned to the area of her groin and vagina.  The appellant responded: Do you
    know about the punch in the face game?  The witness concluded from this and a
    subsequent exchange that the appellant had no defence for himself.   Another
    witness drew a similar conclusion.

[8]

When a statement is made in an accuseds presence, in circumstances
    where the accused could reasonably have been expected to reply, silence may
    lead to an inference of adoption:
R. v. Robinson
, 2014 ONCA 63, 118
    O.R. (3d) 581, at para. 51.  Here, however, the trial judge did not make a
    finding that there was any adoption of any evidence by the appellant.  The
    trial judge also cautioned himself that a failure to respond is not proof of
    guilt. His comments on the appellants failure to deny the allegations were
    referable to the reactions of the witnesses who testified on their own
    reasonable expectations.  He was not making a finding that the appellant never
    rejected the complainants assertions.  Indeed, at page 14 of his reasons, the
    trial judge noted that when asked about the allegations, the appellant
    described the complainant as a lying bitch.

[9]

In addition to the argument advanced by duty counsel, the appellant made
    six submissions in support of his conviction appeal.  In essence, they amounted
    to an invitation to retry the case.  Credibility findings and findings of fact
    fall within the province of a trial judge.  I also reject the contention that
    the trial judge applied a different level or standard of scrutiny to the
    evidence of the Crown and defence witnesses.

[10]

I see no basis on which to overturn the convictions and would dismiss
    the conviction appeal.

C.

Sentence Appeal

[11]

On sentencing, duty counsel advances two arguments.  First, she submits
    that the trial judge erred in treating the appellants absence of remorse as an
    aggravating factor.  Second, she argues that the trial judge erred in failing
    to apply
Gladue
principles in sentencing the appellant.

(1)

Did the trial judge err in considering the appellants lack of

remorse as an
    aggravating factor?

[12]

In his reasons for sentence, the trial judge identified the following
    aggravating factors:

-

the ongoing and repetitive nature of the appellants misconduct: this
    was not a brief momentary lapse of judgment;

-

the appellant was abusing his domestic partner.  Sentencing for domestic
    violence must emphasize deterrence and denunciation;

-

the controlling, cruel and sadistic nature of the incidents, which put
    the complainant in fear for her life;

-

the significant impact the crimes had on the complainant;

-

the appellants lengthy criminal record, which shows multiple
    convictions from 1990 to 2002 including several counts of robbery; and

-

the apparent lack of remorse.

[13]

I agree that the trial judge erred in considering this last factor. 
    Absence of remorse is not an aggravating factor.  Rather, the presence of remorse
    may be a mitigating factor:
R. v. Valentini
, 43 O.R. (3d) 178;
R.
    v. Ling
, 2014 ONCA 808, 328 O.A.C. 210.

(2)

Did the trial judge err in not considering
Gladue
principles?

[14]

Turning to the second issue, no submissions were made before the trial
    judge on any need to consider
Gladue

principles.  The Crown and
    the defence agreed to the admission before this court of fresh evidence
    consisting of a report that considered the appellants Aboriginal history and
Gladue
principles.  It was prepared after his sentencing but in advance of the hearing
    of this appeal.

[15]

The report describes details of the appellants status: Both the
    offender and his father are non-status although they are in the process of
    obtaining same.  The paternal grandmother obtained her status card when she was
    63 years of age.  The offenders mother is non-native.  The offender has never
    resided on the reserve, nor have his parents or siblings.  He has little
    knowledge of his heritage and traditions.

[16]

In the absence of anything to alert the trial judge to the need to
    consider
Gladue
principles, it is unfair to say that he erred in that
    regard.  That said, I accept duty counsels submissions that
Gladue
principles should be considered in the sentencing of the appellant.

(3)

Is appellate intervention warranted in this case?

[17]

In
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, the
    Supreme Court addressed appellate intervention on sentence appeals.  Writing
    for the majority, Wagner J. stated, at paras. 43-44:

I agree that an error in principle, the failure to consider a
    relevant factor or the erroneous consideration of an aggravating or mitigating
    factor can justify the intervention of an appellate court and permit that court
    to inquire into the fitness of the sentence, and replace it with the sentence
    it considers appropriate.  However, in my opinion, every such error will not
    necessarily justify appellate intervention regardless of its impact on the
    trial judges reasoning.  If the rule were that strict, its application could
    undermine the discretion conferred on sentencing judges.  It is therefore
    necessary to avoid a situation in which [TRANSLATION] the term error in
    principle is trivialized;

In my view, an error in principle, the failure to consider a relevant
    factor or the erroneous consideration of an aggravating or mitigating factor
    will justify appellate intervention only where it appears from the trial
    judges decision that such an error had an impact on the sentence.  [Footnotes
    omitted.]

[18]

The record does not disclose what impact the appellants absence of
    remorse had on the sentence.  Clearly, it had some impact or the trial judge
    would not have mentioned it as an aggravating factor.

[19]

In contrast, consideration of
Gladue
principles could not have
    had an impact on the sentence given by the trial judge as he was not made aware
    of any need to address these principles.

[20]

In these circumstances, the deference owed to a trial judges sentencing
    decision as described in
Lacasse
is inapposite.  Rather, given the
    trial judges error respecting the absence of remorse and the need to consider
Gladue
principles, it falls to this court to sentence the appellant.  That said, for
    the following reasons, I would not interfere with the sentence imposed by the
    trial judge.

(4)

What is the appropriate sentence in this case?

[21]

As pointed out in
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R.
    433, at paras. 68-73, sentencing of all offenders, including Aboriginal
    offenders, is an individualized process.  As stated by the Supreme Court in
    that case, at para. 83:

Systemic and background factors do not operate as an excuse or
    justification for the criminal conduct.  Rather, they provide the necessary
    context to enable a judge to determine an appropriate sentence.  This is not to
    say that those factors need not be tied in some way to the particular offender
    and offence.  Unless the unique circumstances of the particular offender bear
    on his or her culpability for the offence or indicate which sentencing
    objectives can and should be actualized, they will not influence the ultimate
    sentence.

[22]

In
R. v. Collins
, 2011 ONCA 182, 104 O.R. (3d) 241, this court
    stated that an Aboriginal offender does not bear the burden of establishing a
    direct causal link between the systemic and background factors and the
    commission of the offence.  However, these factors should be considered.

[23]

In some cases, the evidence may suggest that the offenders Aboriginal
    background played a role in shaping the offenders path to committing the
    offence:
R. v. J.N.
, 2013 ONCA 251, 305 O.A.C. 175.  In that case,
    this court concluded that the evidence that the appellants Aboriginal ancestry
    may have played a part in his criminality was weak: para. 47.

[24]

In the fresh evidence filed on this appeal, the appellant identified
    himself as a non-status Cree.  His maternal family is described as being
    non-native.  The appellants Aboriginal heritage is through his father.  He
    states that his grandmother attended residential school.  The appellant was
    born in Scarborough where he lived until he was 12.  He then moved with his
    family to Aurora and then to Strathroy and lastly, to Bradford.  Except for periods
    of incarceration, he lived with his parents until he was 30.  The appellant described
    his upbringing as positive; he has always enjoyed a close and positive
    relationship with his parents and his siblings and was raised in a supportive
    home void of any criminal activity or substance abuse.  He described his
    family as non-violent and social people.   He denied any difficulties in school
    during his formative years.  He states that when he was 12 and 13, he was
    sexually abused by an uncle (not identified as being on the maternal or
    paternal side of the family), who died soon after.

[25]

The appellant has a son, age 12, and he has re-established his
    relationship with the mother of the child.  At the time of his arrest, he had
    been working in a retail bedroom furniture store.  He describes himself as an
    almost non-existent drinker and states that he has never experimented with
    any form of illicit drug except marijuana.  There is no indication that he was
    under the influence of any drugs or intoxicants when committing the index
    offences.

[26]

Although the appellants Aboriginal background is relevant in
    determining the appropriate sentence, it is not determinative.  Rather, it is
    one factor that must be considered in the context of the appellants individual
    circumstances, along with all of the other relevant factors:
R. v. Gladue
,
    [1999] 1 S.C.R. 688, at para. 88.  As stated in that decision at paras. 79-80,
    Generally, the more violent and serious the offence, the more likely as a
    practical reality that the terms of imprisonment for aboriginals and
    non-aboriginals will be close to each other or the same, often taking into
    account their different concepts of sentencing.  See also
R. v.
    Kakekagamick
(2006), 81 O.R. (3d) 664, leave to appeal dismissed, [2007]
    S.C.C.A. No. 34, at paras. 34-36.

[27]

One such relevant factor is that the appellant is not a first time
    offender.  In spite of the fact that he is stated to have been raised in a
    supportive home devoid of any criminal activity or substance abuse, the
    appellant found himself in trouble with the law with such frequency that he was
    sentenced to a federal penitentiary when he was 19 years old (in 1993).

[28]

The appellant is a two-time statutory release violator, having committed
    new offences while on conditional release.  He has numerous other convictions
    as well, although, as noted by the trial judge, the last was in 2002.  While I
    accept that the appellants institutional behaviour has been described as
    almost exemplary and that, based on the most recent correctional report, he
    should be commended for completing certain beneficial Aboriginal programs, significantly,
    in my view, he has limited insight into his recent offences and does not take
    any responsibility for them.

[29]

The offences for which the appellant was convicted were very serious. 
    They involved domestic violence of a heinous and brutal nature.  As noted by
    the trial judge, they were controlling, cruel and sadistic.  Abuse against the
    offenders common-law partner is specifically enumerated as an aggravating
    factor under s. 718.2(a)(ii) of the
Criminal Code
.

[30]

Domestic violence is an insidious crime, the effects of which endure
    long after the victims physical wounds have healed.  Here, the complainant provided
    a victim impact statement.  While a victim impact statement should not overwhelm
    a sentencing decision, it is a factor to consider.  The description of the
    impact of the offences on the complainant in this case can only be described as
    devastating.  This evidence also amounts to a statutory aggravating factor, as
    set out in s. 718.2(iii.1) of the
Criminal Code
.

[31]

This court emphasized the particular principles at issue when imposing a
    sentence in a case involving domestic abuse, in
R. v. Ibrahim
, 2011
    ONCA 611, at para. 15:

The sentence imposed in cases such as this must also 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.

[32]

The appropriate sentence in this case must reflect these principles,
    promote denunciation and deterrence, take into account the appellants
    individual circumstances, as well as the circumstances of the offences, and
    assist in his rehabilitation.

[33]

Before the trial judge, the Crown sought a sentence of ten years and the
    defence one of between six months and three years.  In
R. v. Young
,
    [2003] O.J. No. 5124 (C.A.), this court upheld an eleven year sentence given to
    an offender who had been convicted of domestic assault that had persisted for
    almost two years.  In
R. v. Martin
, 2009 ONCA 62, this court upheld a
    sentence of eight years and four months for fourteen offences involving domestic
    abuse.  While these sentences are of a higher range, having regard to the
    relevant sentencing principles, including those in
Gladue
, and the
    circumstances of the offences and the offender, I am of the view that the seven
    year global sentence is fit.

D.

Disposition

[34]

Accordingly, the conviction appeal is dismissed.  Leave to appeal
    sentence is granted but the sentence appeal is dismissed.

Released: October 13, 2016 (JCM)

S.E. Pepall J.A.

I agree J.C. MacPherson J.A.

I agree G. Pardu J.A.





[1]
Four years for the aggravated assault counts, two years consecutive for the
    assault with a weapon, one year consecutive for the assault and one year
    concurrent for uttering a threat to cause death.


