B.C.’s Court of Appeal has rejected a 21-month jail sentence for a June 2023 aggravated assault after a man was convicted for punching “the victim once in the forehead causing devastating and life-changing injuries.”
Isaac Davis, a member of the K’ómoks First Nation, had pleaded guilty to aggravated assault and was sentenced to jail followed by one year’s probation.
On appeal, that sentence was changed to a conditional sentence of two years less a day and 12 months' probation.
In his appeal, Davis sought a conditional sentence, claiming the judge failed to adhere to the Gladue principles which suggest courts take into account the circumstances of Indigenous offenders.
The decision dismissing the appeal was written by Justice Lauri Ann Fenlon with Justice Christopher Grauer concurring and Justice Paul Riley dissenting.
According to the April 7 decision, Davis was on the phone with his mother on Jan. 13, 2023 when she became involved in a motor vehicle accident with the victim. He thought he could hear the man eventually identified as the victim in the case.
“Thinking that she was in danger, he rushed to the scene of the accident,” Fenlon said.
He confronted the man, who had just bought some cigarettes for Davis’ mother.
“Although Ms. Davis tried to stop her son, he walked briskly towards Mr. Stone and punched him in the middle of his forehead, causing him to fall to the ground unconscious,” Fenlon wrote.
The provincial court judge who sentenced Davis on Nov. 4, 2024 said the man suffered a skull fracture and a severe brain injury. The man had multiple surgeries, was in a coma for three weeks and was paralyzed for two weeks.
The provincial court judge said it was “touch and go for a while” as to whether the man would live.
The judge said the punch was without warning, life-threatening and life-altering.
“He has had to take speech therapy and now requires the use of a hearing aid. His voice is lower,” the judge said. “(He) is not the person he was before the assault. He is now often irritable and short-tempered. He has two young children and he now finds it is a challenge for him to help raise his children as he finds he has no patience.”
The appeal
Fenlon said the specific question for the court to address was whether Davis, as an Indigenous offender, should be sentenced differently from the way a non-Indigenous offender would be sentenced for such an aggravated assault.
“In my view, the answer to that question must be ‘yes,’” Fenlon said, noting jurisprudence suggested a conditional sentence may be imposed for aggravated assault.
“Mr. Davis’s moral blameworthiness is markedly diminished by his circumstances as an Indigenous offender,” Fenlon said.
Fenlon said the time served in custody would be counted as part of the conditional sentence order.
“The remainder of the first 18 months of the conditional sentence is to be served under house arrest,” she said.
The dissenting opinion
Justice Riley disagreed with Fenlon, saying the 21-month sentence was a fit one.
He said that balancing the nature of the assault and its impacts on the victim led him to conclude that a sentence of less than two years in jail would be appropriate.
“A conditional sentence would not address the fundamental purpose and principles of sentencing, even after taking into account the impact of systemic and background factors relating to Mr. Davis’s Indigenous heritage on his moral culpability,” Riley said.
