Serge's Case — Choking — Conditional Discharge

Between
Her Majesty the Queen, and
Serge D.

[1999] O.J. No. 2836

Ontario Court of Justice (Provincial Division)
Toronto, Ontario
Judge Bonkalo

Sentenced:  8 April 1999
(66 paras.)

BONKALO J. (orally): —

¶ 1     MS CRAWFORD:  Good afternoon, Your Honour.  And the last matter.

¶ 2     THE COURT:  Would you come forward, please, sir.

¶ 3     MS CRAWFORD:  This is Mr. Serge D.  Could I see the information for a moment, please?

¶ 4     MR. PENNEY:  Your Honour, there are four counts. The accused consents to Your Honour having jurisdiction to the May charges.  They were sworn out of time.

¶ 5     MS CRAWFORD:  Yes.  So if he could be arraigned on counts one and three, please.

¶ 6     THE COURT:  If you'd stand, please.

¶ 7     MR. PENNEY:  The Crown has elected summarily, but we're consenting to Your Honour having jurisdiction on the May charge.

¶ 8     MS CRAWFORD:  Thank you.

¶ 9     CLERK OF THE COURT:  And you said one and three?

¶ 10     MS CRAWFORD:  One and three, yes.

¶ 11     CLERK OF THE COURT:  Serge D., you stand charged on or about the 2nd day of May in the year 1998, in the City of Toronto in the Toronto Region, did commit an assault on Brenda D., contrary to the Criminal Code.

¶ 12     You stand further charged on or about the 24th day of June in the year 1998, in the City of Toronto in the Toronto Region, did commit an assault on Brenda D., contrary to the Criminal Code.

¶ 13     The Crown's elected to proceed summarily.  How do you plead, guilty or not guilty?

¶ 14     MR. D.:  Guilty, Your Honour.

¶ 15     THE COURT:  What should probably be written on the information is counsel — write on it that he accepts that it's out of time, that he accepts the jurisdiction of the Court right on the information.

¶ 16     MS CRAWFORD:  Your Honour, with respect to the facts, on Saturday, May the 2nd, 1998, the complainant in this matter, who is the spouse of Mr. Serge D. — Mr. Serge D. and the complainant have been married for 14 years, they have four children together.  On that date at their residence at 81 Saba Drive in the City of Toronto, the complainant reported that her husband got angry at her for something.  She couldn't remember what exactly it was about.  They argued in the bedroom, and suddenly he jumped on the bed where she was, grabbed her about the throat and began to choke her.  She struggled with him and he ultimately let her go.

¶ 17     On — as well, on — on that day on May the 2nd, 1998, the two were hosting a birthday party for their son.  At some point in the afternoon they got into an argument before the guests were to arrive.  Mr. Serge D. became enraged, forced his wife out onto the balcony of their second floor bedroom, locked the door behind her and refused to let her out for about 20 minutes, despite her repeated request to unlock the door.  He eventually let her off the balcony, and she was able to come back into the residence.

¶ 18     On June the 24th, 1998, the couple began arguing about money and the marriage counsellor that they'd been seeing.  Mr. Serge D. grabbed the victim around the throat with both hands, pushing his thumbs into her throat, blocking her air passage.  She could not breath and she was begging him to stop.  He let go of her at that point.  She ran out of the house into the back yard screaming.  He ran after her, grabbed her by the waist and dragged her back into the home.  They again were arguing about money but agreed to go to the bank together.  Once in front of the house, the complainant observed a friend who was up the street and she took off from the accused.  She called the police from her friend's house and reported the incident to them.  Mr. Serge D. did turn himself into the police later that day.

¶ 19     As a result of that incident, Mr. — Mr. Serge D.'s wife, Brenda D. is her name, Your Honour, she suffered a scratch in her right ear.  She had a bruise on the left side of her jaw and a scratch to her right wrist, as well.  She complained of a sore throat.

¶ 20     Those are the facts.

¶ 21     THE COURT:  Are those facts substantially correct?

¶ 22     MR. PENNEY:  Substantially correct, Your Honour, subject to just a couple of modifications, which I indicated during my meeting with the Crown.

¶ 23     With respect to the May assault, Your Honour, which is the less serious assault, they had argued.  And Dr. Serge D. indicates that he did grab her, had his fingers around her jaw and neck area, and, after she had sworn at him he said: "Don't ever talk to me like that again."

¶ 24     And with respect to the incident that happened in June, Your Honour, he does admit to grabbing her around the throat.  And he tells me that as soon as he saw the fear in her eyes and realized what he had done and how scared she was, he then — he then let her go.

¶ 25     THE COURT:  On the facts as admitted, there's a finding of guilt on each count.  There is no record?

¶ 26     MS CRAWFORD:  No, the Crown's not alleging a record, Your Honour.

¶ 27     THE COURT:  What's the Crown seeking?

¶ 28     MS CRAWFORD:  Well, perhaps since my friend filed the materials he could make his submissions first.  My friend knows my position.  I'm not —

¶ 29     THE COURT:  Sure.

¶ 30     MS CRAWFORD:  — asking for the Court to impose a custodial period.  So ...

¶ 31     THE COURT:  All right.

¶ 32     MR. PENNEY:  Yes, Your Honour, I understand that my friend and I are joint with respect to the probation being an appropriate disposition here but are disagreeing over whether there should be a conviction registered or not.  I'm going to be asking Your Honour to consider a discharge in these — in this case.

¶ 33     Your Honour, prior to commencing, perhaps as a — I should take care of one preliminary matter and that's the sentencing materials that I've provided directly to Your Honour.

¶ 34     THE COURT:  I read them, yes.

¶ 35     MR. PENNEY:  Rather than file them with the Court, I think they should be marked collectively as exhibit one, if my friend has no objection.

¶ 36     MS CRAWFORD:  No, I have no objection.

¶ 37     THE COURT:  There's a case and there is the ...

¶ 38     MR. PENNEY:  I don't think the case needs to be marked as an exhibit, Your Honour.

¶ 39     THE COURT:  No?  That's fine.

¶ 40     MR. PENNEY:  Because that's not evidence.  It's just the sentencing...

¶ 41     THE COURT:  All right.

¶ 42     MR. PENNEY:  ...materials itself.

EXHIBIT NUMBER ONE:  Package of sentencing materials — produced and marked.

¶ 43     MR. PENNEY:  I don't propose to walk Your Honour through those materials in detail because...

¶ 44     THE COURT:  I read all the letters.

¶ 45     MR. PENNEY:  ...Your Honour's had an opportunity to read them in chambers.  I'm simply going to rely upon Your Honour's review of those materials prior to coming in here. I'm going to restrict myself to some submissions.

¶ 46     THE COURT:  Yes.

[REPORTER'S NOTE:  Submissions are made at this time.]

¶ 47     THE COURT:  All right, if you'd stand, please, sir.  I take into account that you've pleaded guilty.  You've expressed your remorse to the Court by pleading guilty and through your comments today.  You haven't required your wife to re-live the distressing experiences that the Court has heard about today.

¶ 48     The issue here is whether a conviction should be registered or whether a discharge is appropriate.  Domestic assault is an aggravating factor as far as assaults go because of the difficulty with control and power in the relationship.

¶ 49     The Court also has to consider as a mitigating factor the counselling that's already taken place. Counselling is important with respect to dealing with people who assault their spouses, and I am familiar with the programs in North York.  It's not an isolated kind of problem, and the only way that any good prognosis could come in the future is to take the counselling.

¶ 50     I find under the circumstances that it would not be contrary to the public interest to grant you the discharge. It does not relate at all to your profession.  You've come before the Court as an individual who assaulted his wife. You've participated already in the kinds of programs that spousal assaulters participate in prior to findings of guilt. And I find that you fit into that category.

¶ 51     There will be a conditional discharge.  You'll be placed on probation for a period of 12 months.  The conditions are that you are to report forthwith in person to a probation officer, and be under the supervision of a probation officer or person authorized by the probation officer to assist in your supervision and you will report as required.  You are to continue with domestic assault counselling and any other counselling your probation officer deems appropriate, and you are to sign any releases to allow your probation officer to check on your progress and attendance at whatever program you're involved in.  You are to keep the peace and be of good behaviour.  That applies to everyone, especially your wife.

¶ 52     Do you understand the terms of your probation?

¶ 53     MR. D.:  Yes, I do, Your Honour.

¶ 54     THE COURT:  If you disobey any of these terms, you could be brought back and be charged with breach of probation. A conviction for breach of probation often entails a jail term because it is a Court order.  This is a discharge, and it's very difficult to get a second one, if you should come before the Courts again and be found guilty.

¶ 55     I should have also indicated that there should be no weapons as defined by the Criminal Code as part of the probation order.  But I'm not going to make — I think it would be a 109 order ...

¶ 56     MR. PENNEY:  111, I believe.

¶ 57     THE COURT:  111, all right.  Not a 111 order, but it'll be part of the probation, not to possess any weapons as defined by the Criminal Code for the 12 months of probation.

¶ 58     That is the sentence on the first assault, and it's concurrent on the second.  The other charge?

¶ 59     MS CRAWFORD:  The other charges are withdrawn, please, Your Honour.

¶ 60     THE COURT:  The other charges, there are two of them, are withdrawn at the discretion of the Crown.

¶ 61     MS CRAWFORD:  Thank you, Your Honour.

¶ 62     MR. PENNEY:  Thank you, Your Honour.

¶ 63     MS CRAWFORD:  Thank you, Your Honour.  I thank my friend.  And I thank — I thank the officer.  She brought the brief down today because it was lost in the black pit of briefs that get missing in this building sometimes.  And we didn't have it, and so she brought it down specifically this afternoon for the charge to be dealt with.

¶ 64     THE COURT:  Thank you.

¶ 65     The photos can be returned because they weren't made exhibits — just the materials.

¶ 66     MR. PENNEY:  Thank you, Your Honour.

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