IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Michelle Marie Foreman is before me for sentencing following a guilty plea on a charge of wounding Timothy Grahn thereby committing an aggravated assault contrary to s. 268(1) of the Criminal Code.  The Crown submits the appropriate range is 18 months to three years. The Crown seeks a custodial sentence followed by a lengthy period of probation of two years. The Defence seeks the suspension of passing of a sentence with a period of probation.

[2]           The issue before me is what the fit sentence is now that the actual fit sentence of a conditional sentence order is no longer available.

[3]           The circumstances alleged by the Crown are that on April 9, 2012 while Ms. Foreman was separated from but still intimate with Timothy Grahn, she was drinking with Mr. Grahn in his trailer. Ms. Foreman’s then boyfriend called and Mr. Grahn hung up on him. This angered Ms. Foreman who began to throw things around the trailer. She grabbed a knife and slashed Mr. Grahn’s arm. Mr. Grahn threw Ms. Foreman out and locked the door, but Ms. Foreman broke in through a window. Ms. Foreman refused to leave the trailer. Mr. Grahn called the police and they arrived.

[4]           Mr. Grahn’s landlord’s two children were somehow present or nearby during this event. One of them fled in fear and continues to be in fear. Although Ms. Foreman is on terms of no contact, she and Mr. Grahn have an eight year old daughter together and she has continued to be in contact with him. The Crown acknowledges that urinalysis supports her claims that she is now sober. The Crown also acknowledges that she had a difficult upbringing. Ms. Foreman has nine convictions on her record since the assault, including four fails to comply with the recognizance. None of her convictions are for violence.

[5]           A pre-sentence report was sought by Defence after guilty pleas were entered which caused some delay in bringing this matter to disposition. The pre-sentence report gives insight into Ms. Foreman’s family and background; her education; her emotional health and her attitude toward the offence and interventions; as well as the victim impact statements of Mr. Grahn and his children; and options for sentencing.

[6]           Ms. Foreman described to Nicole Robson, the probation officer who prepared the pre-sentence report, that her childhood was an emotional, painful and hurtful one as a result primarily of her father’s alcoholism. She described her father as a “raging alcoholic who was a wonderful father when he was sober”. This alcoholism brought emotional and physical abuse. Compounding the matters, Ms. Foreman was sexually abused between the ages of eight and nine by her nanny and nanny’s boyfriend.

[7]           Despite her father’s alcoholism and the abuse she suffered as a result of it, she was still very close to him. She continues to feel the impacts of his death in 2006, arising from complications related to severe alcohol abuse.

[8]           Her current family support is her mother who is permitting her to live with her while she goes through her Adult Addiction and Supportive Housing program. In fact, Ms. Foreman had a large contingent of supporters present for sentencing who are all aware of her addictions and her charges. Positive supports are a key factor in rehabilitation.

[9]           With respect to her education, Ms. Foreman was expelled from school in Grade 10, but did later complete her Dogwood as an adult learner at Thompson Rivers University in 2009. Ms. Robson reports that Ms. Foreman has employable skills and enjoys working with heavy equipment or as a labourer, but her alcoholism ultimately results in her quitting her work before her employers fire her. She had a position at Dollarama when she first returned to Kamloops but, again, she began to drink and lost the job. At present, Ms. Foreman is focussed on her rehabilitation and does not intend to find employment for at least the next six months.

[10]        Ms. Foreman has partially subsidized housing. However, she finds herself financially stressed. She has applied for a Persons with Disabilities pension, which she now receives.

[11]        Ms. Foreman began drinking alcohol at the age of 13. She was a binge drinker. Her alcoholism led to loss of employment, relationships, custody of her daughter and self-respect. She has twice attempted treatment previously in 2012 and 2013 at Henwood Treatment Centre in Edmonton for 19 days and Panoka Treatment Centre for 47 days. Ms. Robson could not confirm attendance or follow through. Ms. Foreman’s mother believes her daughter completed both programs.

[12]        Ms. Foreman has had suicidal ideation previously. She has been hospitalized previously for suicide attempts. The last attempt was the night of the aggravated assault when she swallowed her remaining medication while under the influence of alcohol. At present, Ms. Foreman is receiving counselling through ASK Wellness. This is in conjunction with the AASH program. Her supervisor, Pam Jacobson, reported no concerns regarding the safety of other participants in the program or neighbours in Ms. Foreman’s building. Ms. Foreman is described as a pleasant, quiet tenant. Ms. Jacobson reported that Ms. Foreman seeks appropriate supports when she feels anxious.

[13]        Ms. Foreman has been diagnosed with major depression and general anxiety as well as attention deficit disorder and a learning disability. Her doctor cited a long history of this major depression and anxiety as leading to the alcohol and substance abuse. The doctor said that Ms. Foreman’s diagnosis was “chronic, ongoing and unlikely to go into full remission”. Ms. Foreman understands from her doctors that she is at risk of pancreatitis and heart failure due to her alcoholism, which are the same diseases her father succumbed to.

[14]        Ms. Foreman understands that she will be expelled from the AASH program if she uses alcohol. She has been sober since September 7, 2014. The urinalysis screening is completed a minimum of two times per week and her tests have not been positive for alcohol. Ms. Jacobson confirmed to Ms. Robson that Ms. Foreman’s motivation is excellent and her participation in the program is good.

[15]        Mr. Grahn did not contact the police right after he was stabbed by Ms. Foreman. However, he reported to Ms. Robson that he was fearful for his safety. He was primarily concerned about consequences to Ms. Foreman if he did report the incident to the police. However, he ultimately called them. He experienced physical abuse in the past from Ms. Foreman. As a result of this assault, he suffered physical, material, financial and emotional impacts. He had short term pain when he was wounded but has no ongoing pain from the injury. Mr. Grahn’s belongings were destroyed to some extent. He also lost approximately $500 in wages as a result of the offences. He does not wish to receive restitution for the damages.

[16]        Mr. Grahn admitted that he and Ms. Foreman joke and laugh about the offence but he feels sad that she “can’t get her shit together”. In his view, she historically does well for a few months and then falls apart again. He expressed concern to Ms. Robson that Ms. Foreman would “get away with [the offences]” because she would make herself look good in time for court. He feels conflicted because he believes she should receive a custodial sentence but there is also a part of him that does not want her to go to jail.

[17]        Mr. Grahn seeks a civil relationship with Ms. Foreman for the sake of their daughter. He does not invite Ms. Foreman to stay with him again and is concerned that she does not follow protective conditions. He worries about Ms. Foreman attending his residence and leaving with their daughter, but that is not a factor on sentencing. That is a matter for their family law proceedings. The dispute was not about their daughter or custody of her.

[18]        Ms. Foreman had a prior conviction for failing to comply with a recognizance for which she was sentenced on January 22, 2013. Alcohol was related to those charges and Ms. Foreman received an 18 month probation order in addition to jail time of 30 days. Prior to those convictions, her only other entry on her criminal history was for care or control while impaired in 2007.

[19]        Ms. Foreman acknowledges that she did not follow through with her community supervision in 2013. A warrant was ultimately issued. She appeared in court on the charge of failing to report.

[20]        Ms. Foreman, as I indicated, currently participates in the AASH program. It is a partnership between ASK Wellness, Mental Health and Substance Use Services, and the Canadian Mental Health Association. She was accepted into the program despite the potential for incarceration. She has been in her subsidized suite since September 18, 2014. Shawna Wright, a staff member with Mental Health and Substance Use, confirmed that Ms. Foreman started the Daily Addiction Recovery Program on September 22, 2014.

[21]        Ms. Foreman reported to Ms. Robson that this time it is different because of the nature of supports, the availability of housing, the structure of the programs and the urine testing through AASH. She feels more accountable and is better motivated to continue with her rehabilitation. She views AASH to be her best chance to be healthy and is terrified of returning to jail. She believes she will lose her apartment and the opportunities provided to her through AASH. She is also concerned that incarceration will result in extreme depression. Ms. Jacobson confirmed that AASH would consider Ms. Foreman again for the program even if she receives a custodial sentence.

[22]        Ms. Foreman also reported to Ms. Robson that she is motivated to attend programming for healthy relationships, emotions management and substance abuse. She is also prepared to take cognitive learning-behavioural techniques delivered by Probation and AASH. She has now completed one such programme.

[23]        Ms. Foreman expressed a wish to apologize in writing to Chelsea and Deanna Homeniuk, who are the teenage children of Mr. Grahn’s employer and previous landlord. She shows insight into what the girls experienced the night of the offences. Mr. Grahn doubted the authenticity of Ms. Foreman’s desire to apologize and offered that Deanna Homeniuk is traumatized from witnessing the offences.  There is no victim impact statement from either girl.

[24]        While Ms. Foreman is not permitted to have contact with Mr. Grahn, and Mr. Grahn has reported that she has continued to make contact with him with regard to their eight year old daughter, Mr. Grahn has asked that some contact be permitted through e-mail or text for matters relating to their daughter. Ms. Foreman is in favour of such a condition. Frankly, some form of contact related to raising the child ought to have been imposed in the first instance.

[25]        Ms. Foreman has told Ms. Robson that she is disgusted by what she did to Mr. Grahn. She acknowledges the pressure on Mr. Grahn as a result of her actions which he means he is now a single parent. However, she reported that he laughs about being stabbed and has kept the shirt he was wearing on the night of her offences. She doubts that he is fearful for his safety and feels he is more concerned about her and the subsequent consequences facing her after he reported her to the police. Her insights are accurate.

[26]        Ms. Foreman reported that Mr. Grahn was physically abusive towards her throughout their relationship and she felt fearful for her safety at times. This is not untypical in an alcohol-dependent relationship. She does not seek to excuse her violent behaviour toward him but believed he blames her for the previous conflicts in their relationship, and now he is using these offences against her as well. Again, it seems her insights are accurate.

[27]        Ms. Foreman breached the no contact terms in February, 2014 for which I have now sentenced her. She was kicked out of her boyfriend’s home and the women’s shelters were full so she believed she had nowhere else to go. She went to Mr. Grahn’s residence. Ms. Foreman felt guilt and shame as a result of the breach because her daughter was up at Mr. Grahn’s home when the police were called. Her daughter would have heard Mr. Grahn and Ms. Foreman “screaming at each other”. Ms. Foreman would like to see her daughter get into counselling because of what she experienced.

[28]        There are no photographs of Mr. Grahn’s injury. The police reported that he was covered in blood on the arm where he had been slashed. However, Mr. Grahn did not require medical attention and the laceration healed without the necessity of any stitches. This is typically the kind of injury one would see more in relation to an assault with a weapon or assault causing bodily harm as opposed to an aggravated assault. It is the Crown’s prerogative to determine which charges to proceed with. Ms. Foreman has pleaded guilty to the aggravated assault. However, I must take into consideration the nature of the assault despite the category of charge when I determine the appropriate sentence.

[29]        Ms. Foreman has embraced her recovery on this occasion. While it is early yet with the programs really only beginning in September, 2014, Ms. Foreman appears to be well on her path to recovery. Her intake goals are insightful and well thought out. Since the offence, she has completed the Daily Addiction Recovery Program (December 12, 2014). Mr. Bart Manson was the group facilitator. He reported her attendance as perfect. Ms. Foreman also completed sessions 1 through 9 of the 10 week CBT In Recovery Group put on by Mental Health and Substance Use Services for cognitive behavioural therapy. This certificate was dated April 10, 2015. Shawna Wright, the Mental Health and Substance Use counsellor documented a summary of Ms. Foreman’s attendance and participation in Mental Health Substance Use Services, including her intake and urgent response on August 12, 2014, her Daily Addiction Recovery Program and the CBT In Recovery Group Program that Ms. Foreman was slated to complete by April 17, 2015. Ms. Wright described Ms. Foreman’s participation as “active”. She is in the action/maintenance stage of recovery.

[30]        Another Mental Health and Addictions clinical counsellor, Shelley Blair, wrote in February, 2015 that she had been working with Ms. Foreman since October 8, 2014. She said that Ms. Foreman identified a desire to focus on her recovery while also heightening her self-awareness. She had, at the time of the letter, completed 12 one-hour clinical counselling sessions. It was expected that the sessions would continue for the time being. Ms. Blair said that Ms. Foreman attended all of the scheduled appointments and appeared receptive to exploring topics including additional issues brought to light during the sessions. Ms. Blair found Ms. Foreman determined to stay on a healthy path and found that she continues to reach out for healthy supports from her sponsor, meetings, psycho-educational groups and sober friends. She did not foresee any challenges that Ms. Foreman would be unable to overcome if she continued on her path.

[31]        Around the same time, Ms. Jacobson reported that she had known Ms. Foreman for five months. She had, at that point, graduated from DARP and was in the last phase of her AASH program. Ms. Foreman was described as a pleasure. She “exceeds our expectations in participating in the group and helps organize group activities and kitchen duties”. Ms. Foreman is well regarded and respected by staff and other participants. She is described as extremely motivated in her recovery, seeking out other supportive programs to continue in her sobriety. Ms. Jacobson reported that Ms. Foreman attends AA and NA several times per week. She has also sought counselling for her personal health issues. She receives continuing support from Family Tree as well as workshops on boundaries, relationships and conflict resolution.

[32]        Ms. Jacobson’s observations are that Ms. Foreman is putting into practice those techniques she has learned through her various programs. She has a “great rapport with her landlord”. She is employed by him to do landscaping and other building maintenance on weekends. Ms. Jacobson concludes saying “I am confident Michelle has a great support system and is solid in her sobriety. I believe Michelle is confident and stable to process any challenges that arise. Michelle is capable of maintaining her housing and reliable to conform to any conditions set before her by the court”.

[33]        Susan Wright from the Family Tree Family Centre has known Ms. Foreman for eight years in both her professional and personal life. She understood Ms. Foreman to struggle for many years with drug and alcohol abuse. At the time of the letter, February 24, 2015, Ms. Foreman had been six months clean and sober. She had taken many programs including those offered at Family Tree. Ms. Wright is Ms. Foreman’s sponsor in her 12 step meetings. She reported that Ms. Foreman consistently reaches out to her when she is struggling and is attending meetings on a regular basis.

[34]        Ms. Stanford pointed out in her submissions that Mr. Grahn is 6’4” and approximately 300 pounds. Ms. Foreman is significantly smaller than him. This does not alter the fact that Ms. Foreman wielded a knife resulting in a laceration to Mr. Grahn’s arm at a time when she was intoxicated and they were fighting. Ms. Foreman, in addressing the court, apologized for how long it took her to address these issues. She acknowledged that it was hard having the charges looming over her. She said however that she was not taking the rehabilitation just for how good it would look to court as Mr. Grahn suggested but because it took her this long to deal with her issues in her upbringing as well as her alcoholism. She advised the court that she is not now undertaking this recovery for her daughter, family or friends but because she now understands that she is worth it. She acknowledges her offence was serious and takes full responsibility for it.

[35]        Both counsel provided cases to me setting out the range they said was appropriate for this offence. The Crown cases are quite extreme compared to the circumstances of this case. In R. v. Craig, 2005 BCCA 484 (CanLII), 2005 B.C.C.A 484, the Crown appealed a sentence of one year imprisonment and two years probation imposed on the accused for aggravated assault. The Crown argued that the judge did not adequately address the objectives of denunciation and deterrence, and that the sentence imposed was an unreasonable sentence or not a fit sentence, having regard to the gravity of the crime.

[36]        The circumstances in that case are set out at paragraph 2:

[37]        Mr. Craig had five drug or alcohol related convictions which were quite dated. He appeared to have some significant delusions about the victim’s infidelity and medical condition. He drank heavily at the time of the attack. He admitted to stabbing the victim three times with the intent to disfigure and maim her.

[38]        The circumstances of that case are nothing like the one before me where the parties were engaged in a dispute which quickly escalated, resulting in the assault.

[39]        The Craig decision is particularly useful for the range for aggravated assault at paragraph 10:

[40]        R v. Gill, 2014 BCCA 88 (CanLII), 2014 B.C.C.A. 88 is a case where the court imposed a sentence of two years less a day following a guilty plea to aggravated assault. Mr. Gill stabbed his fiancée several times. The attack was unprovoked and without warning. Similar to Mr. Craig, Mr. Gill was under the delusion that his fiancée was involved with other men. Mr. Gill was suffering from a major depressive order as a result of a concussion, had no criminal record, and had undergone treatment for depression prior to sentencing. Mr. Gill appealed the sentence.

[41]        The victim in the Gill case underwent three surgeries and was off work for several months. She was left with scars and chronic pain. Again, the Gill case is significantly more disturbing than the one at bar. In that decision, Mr. Gill cited some cases where lesser penalties were imposed for more significant assaults. The Crown cited the case for the proposition that the court has consistently stated crimes of violence against women in domestic relationships require denunciatory sentences. The Crown submitted that the same applies where it is the male partner who is the victim in a domestic assault. Interestingly, at paragraph 39, Mr. Gill also relied upon R. v. Stanton as follows:

[42]        In R. v. Samuelson, 2015 BCCA 29 (CanLII), 2015 B.C.C.A. 29, Mr. Samuelson appealed a sentence of two years less a day followed by three years probation for aggravated assault. In that case there had been a provocative and aggressive exchange following which Mr. Samuelson attacked his victim with a rock put in a sock. The court found the assault was severe and pre-meditated. The victim continued to suffer from concussion symptoms as well as anxiety, paranoia and anger.

[43]        In imposing the sentence, the judge identified the permanence of the victim’s injuries; the pre-meditated nature of the assault; the absence of provocation; the nature of the weapon; his lack of insight into the crime; and his post-offence attitude exhibited by non-compliance on bail. The mitigating circumstances were Mr. Samuelson’s very difficult upbringing, his relative youth and the absence of criminal record.

[44]        At paragraph 25, the court felt it was important to emphasize that sentencing is an individualized process. The court said this:

[45]        As with this case, the Defence had advocated a suspended sentence and relied upon three decisions, two of which were presented to me by Ms. Stanford. The court distinguished those cases at paragraph 27-29, saying as follows:

[46]        As in Nakamura, Ms. Foreman has expressed sincere remorse and also has a very positive pre-sentence report. While her counsel was distressed at the inability to persuade the Crown that aggravated assault was an over-charge, Ms. Foreman was prepared to accept full responsibility for her actions. Her remorse and her rehabilitation are sincere and persuasive.

[47]        Unlike Nicholls, Ms. Foreman cannot claim complete compliance with her bail conditions. However, she has made considerable strides toward her rehabilitation which she has embraced with glowing endorsements from her supports.

[48]        In Powell, the injuries were more akin to “causing bodily harm” than an aggravated assault. That is precisely the case here. The Court of Appeal upheld the sentence explaining “it was within the sentencing judge’s discretion to conclude that the suspended sentence was the “best hope for [his] reformation and rehabilitation” which might “bring a positive change in his life”. So it is in this case.

[49]        The trial judge in Samuelson acknowledged that when Parliament closed the door on conditional sentences, it did not necessarily open the door to reducing sentences below the usual range to avoid Parliament’s clear intention. However, the court remains obligated under s. 718.2(e) to consider all available sanctions other than custody.

[50]        This was potentially a serious assault with a knife which could have resulted in much more significant harm than was inflicted in this case.

[51]        The decisions provided by Ms. Foreman have, through the quote in Samuelson, addressed Nicholls and Nakamura. I observe though, in Nakamura the accused stabbed the victim in the face and stomach. His injuries were life threatening as the result of also being beaten by someone else with a baseball bat at the same time. The assault was with the intention to rob the victim of drugs and money. The Defence cited an overwhelmingly positive pre-sentence report for Mr. Nakamura as well as the cultural significance of Mr. Nakamura’s background.

[52]        This is not a robbery case. Nor is it a premeditated one. The injuries are superficial although certainly alarming at the time.

[53]        After citing R. v. Shoker, 2006 SCC 44 (CanLII), 2006 S.C.C. 44 on the principle of individualized sentencing process, the court quoted from R. v. L.M., 2008 SCC 31 (CanLII), 2008 S.C.C. 31, at paragraph 69 of Nakamura:

[54]        Nakamura was a youthful first offender case but the same principles otherwise apply.

[55]        In Nicholls, the victim teased the accused who then attacked the victim with a three inch knife. The victim received a number of knife wounds. The victim and the accused had been smoking marijuana together right before the attack. Mr. Nicholls’ First Nations ancestry and troubled upbringing factored into the sentence.  The court reviewed a number of cases in that decision, many of which had significantly worse assaults involved. The Defence argued that there were special circumstances surrounding his native ancestry, his upbringing, his youth as well as his unblemished record. In addressing the principles of sentencing, the court said this at paragraphs 28 to 29:

[56]        Further at paragraphs 33 to 35 the court said this:

[57]        As the Crown noted, this is a case engaging not only the youth of the offender but his aboriginal ancestry.

[58]        In R. v. Foster, 2008 BCSC 1369 (CanLII), 2008 B.C.S.C. 1369, the accused stabbed the victim in the abdomen with a large knife. The wound endangered the victim’s life requiring prompt treatment and surgery. Mr. Foster also had difficulties growing up in an unstable and chaotic home. He suffered from violence and abuse at the hands of his mother’s friends. Mr. Foster had no criminal record. The court was satisfied that safety of the community would not be endangered and imposed a conditional sentence order of two years less a day. A conditional sentence order is no longer available having being specifically prohibited by Parliament. That being said, a conditional sentence order is a fit sentence in this case. I cannot, without ignoring s. 718.2, impose a custodial sentence.

[59]        The Crown has provided cases which do accurately set out a range for an aggravated assault. However, as I have indicated, the assault in this case is much more akin to assault causing bodily harm which is a different range. As Ms. Stanford submitted, the range is a guide only. In appropriate circumstances, it is appropriate for the court to look at more severe or less severe sentences. This is such a case demanding a less severe disposition.

[60]        Apart from the assault being on the considerably low end of the range for an aggravated assault, Ms. Foreman has made significant strides to rehabilitate the factors leading to her offending. While her compliance has not been entirely exemplary under the bail conditions, she has been sentenced separately for those offences. I must consider whether there are other sanctions that can be imposed which will still acknowledge the denunciation and deterrence that is necessary in all domestic violence cases, and particularly ones where there is a weapon used and injury results. While it would have been more appropriate to have put the significant consequences of a conditional sentence order in place, I am satisfied that I can suspend passing of the sentence and impose a period of probation with terms that are strict enough to emphasize the important principles of the sentencing of denunciation and deterrence while continuing Ms. Foreman on her path of rehabilitation.

[61]        I suspend passing of the sentence and impose a period of probation for two years, the terms of which are as follows: