 |
| John L. Hill |
This case involves D.L., who was charged with 20 counts related to the alleged abuse of his former common-law partner, the complainant. He was acquitted of three sexual assault counts and one extortion charge but was convicted of the remaining 16 charges, which included various forms of assault and uttering threats. The trial judge imposed a conditional sentence of two years less a day. The Crown appealed both the acquittals and the sentence, while D.L. appealed the convictions.
There were several accounts the appeal court had to consider in determining if a crime had taken place.
There was the “laptop incident” of Feb. 6, 2020. The complainant’s version was that after a dispute over infidelity, D.L. attempted to access her laptop. When she resisted, he dragged her by the hair, kicked her and choked her against a column — all in front of their children. D.L. claimed the complainant attacked him, and he merely pushed her, causing her to fall.
Then there was the visit from the Children’s Aid Society two weeks later. The complainant said that after a CAS visit
Atlas Studio: ISTOCKPHOTO.COM
The complainant testified that these incidents were part of an ongoing pattern of abuse lasting from February to April 2020. The complainant recounted being choked over 30 times, with frequency increasing to multiple times daily. She testified D.L. used a 15-minute timer to administer punishments, which included forced rough sex, pinching, making her hit herself and death threats. At trial, the complainant had not previously mentioned the timer to the police but insisted she disclosed it.
Then there was the incident involving the bedroom window in late March 2020. D.L. supposedly grabbed the complainant by the throat and pushed her against a window. Their daughter heard her scream and entered the room but was told to leave. The complainant also recalled that while cutting fruit, D.L. threw her against the counter, picked up a knife and said, “I [should] just stab you here.” He put the knife down when their daughter reacted.
There was also the pushpin incident and sexual coercion on April 29, 2020. D.L. allegedly told the complainant to stab her thigh with a pin, then forced it in himself when she didn’t do it deeply enough. Later, he asked for sex, saying it wouldn’t be good if she weren’t on “Team D.L.,” defined as loyal followers, with threats of death for disloyalty. D.L. claimed she initiated intimacy and was harming herself voluntarily; he cited his fear of needles.
The following day, the complainant stated that D.L. demanded she gather pushpins so he could insert them under her fingernails. She pretended to comply, then fled to the vehicle and locked herself inside. D.L. allegedly threatened to kill their children if she did not leave the vehicle. However, D.L.’s version was that he denied making threats and claimed she was acting erratically.
D.L. was found guilty at trial in the Ontario Court of Justice of a sustained and escalating pattern of physical, emotional and sexual abuse, as well as threats and controlling behaviour, toward his former partner over four months in 2020. While acquitted on some charges, the court convicted him on the majority, finding the complainant’s account credible and corroborated by evidence. He received a conditional sentence of two years less a day. The Crown appealed the sentence as too lenient, and D.L. appealed his convictions.
D.L. appealed his convictions on the basis that some verdicts were unreasonable and others lacked sufficient judicial reasoning. He sought acquittals or new trials for several counts. The Crown opposed, maintaining that the convictions were reasonable and adequately supported by the evidence.
The Court of Appeal upheld the verdicts and sentence, although it merged some of the offences as duplicative or unnecessary under the Kienapple principle. The court determined there was no need to amend the information or verdicts. D.L.’s arguments largely failed to demonstrate prejudice or judicial error. The convictions were reasonable and adequately explained, except where stayed due to overlap. The Crown’s appeal of acquittals was dismissed. The Crown was granted leave to appeal the sentence, but that appeal was also dismissed.
While acknowledging that the conditional sentence was lenient, the court remained unconvinced that it was demonstrably unfit for the purpose. To meet the “very high threshold” of establishing that a sentence is demonstrably unfit, the Crown must prove that the sentence was “clearly unreasonable,” “clearly inadequate” or a “substantial and marked departure” from what a proper sentence would be (R. v. Lacasse, [2015] 3 S.C.R. 1089), which it failed to do.
In trying to put the family together again, the Court of Appeal gave great weight to the decision in R. v. Habib, 2024 ONCA 830. That decision recognized “family separation consequences may justify a sentence adjustment — even a significant one — or a departure from the range,” which is true “even for grave offences that require deterrence and denunciation.”
While this Humpty Dumpty family situation could never be fully restored, and denunciation and deterrence were acknowledged, the sentencing objectives were adequately addressed in terms of how a conditional sentence could achieve them.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.