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Man “Snaps” After Catching Ex in Bed with Another Man – Should He Get a Break?

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Man “Snaps” After Catching Ex in Bed with Another Man – Should He Get a Break?

Family law centers primarily around divorce, custody and issues related to the family, children, and the breakdown of relationships. But sometimes – quite unfortunately – family disputes can prompt criminal misconduct, most commonly when one partner in a relationship physically assaults the other due to heightened emotions or frustration.

In an interesting Alberta criminal case involving an aggravated assault charge, among the factors taken into account by the sentencing court was that the accused had walked in on a “provocative scene” during a house party – he found his ex-girlfriend in bed in a with another man, and it apparently caused him to “snap” and assault them both.

To set the scene: The accused had consumed a substantial quantity of alcohol at the party. At some point in the night, he opened one of the bedroom doors to discover his ex-girlfriend and the other man in bed. He said something to them, then retreated and closed the door. However, he heard what he thought was laughter; he then re-entered the room, picked up a plastic CD stand, and used it to strike the man on the heard. When the ex-girlfriend tried to intervene, he struck her too. The assault ended quickly, and the accused waited for the police to arrive.

The ex-girlfriend suffered only minor injuries in the assault; her new bedmate sustained head injuries requiring a plate to be inserted in his head, and he suffered nerve damage needing an estimated five years of recuperating time.

The accused offered an early guilty plea. When it came time for sentencing, the judge took into consideration that he was at low risk to re-offend, and had acted spontaneously with a “weapon of opportunity” rather than a dangerous weapon such as a knife or broken bottle. But perhaps surprisingly, the court also considered that the man’s significant feelings for his ex-girlfriend, the provocative scene he walked in on, and the sense that he was being laughed at, all made him feel “heartbroken” and caused him to snap. (The court was quick to add that this did not provide a defence, but rather reduced the accused’s moral blameworthiness).
Even though the Crown was seeking a sentence of 12 to 18 months’ jail time, the sentencing judge imposed a 90-day sentence with two years’ probation.

The Alberta Court of Appeal ultimately confirmed this sentence as appropriate in all the circumstances. In doing so, it pointed out that this was not truly a “domestic violence” case warranting a higher sentence, since technically speaking the man and his ex-girlfriend were not in a domestic relationship. But more importantly, the various principles of sentencing had been adequately considered by the sentencing judge, and the sentence was fit.

Should the court have considered the apparent “trigger” for the accused’s assault, among other things? What are your thoughts?

For the full text of the decision, see:

R. v. Wesslen, 2015 ABCA 74 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.