WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— And —
T.H.W.
Before: Justice D.A. Harris
Heard on: September 15 and November 9, 2017
Reasons for Sentence released on: February 27, 2018
Counsel:
- Amanda Camara, counsel for the Crown
- Arun Maini, counsel for the accused T.H.W.
Reasons for Sentence
Introduction
1T.H.W. pled guilty to assault, sexual assault and forcible confinement. These offences occurred on December 26, 2016 and on January 1, 2017 in Milton. They all involved the same victim, KH.
2Crown counsel elected to proceed summarily.
3Mr. T.H.W. is before me today to be sentenced.
4Crown counsel suggested that I should sentence him to imprisonment for 9 to 10 months.
5Counsel for Mr. T.H.W. suggested that I impose a conditional sentence of imprisonment for one year.
6Both agreed that I should place him on probation for three years, make a DNA order, impose a weapons prohibition and order that he comply with the Sex Offender Information Registration Act for 10 years.
7I find that a blended sentence combining imprisonment for the equivalent of 90 days to be served intermittently with a conditional sentence of imprisonment for one year is the appropriate sentence here.
8My reasons for this are set out under the following subject headings:
- The law regarding conditional sentences of imprisonment;
- The fundamental purpose and principles of sentencing;
- The offences;
- The impact on the victim;
- The background of Mr. T.H.W.; and
- Analysis
Conditional Sentence of Imprisonment
9The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.
10The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."
11The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.
12Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:
- the offender must be convicted of an offence that is not specifically excluded by the legislation;
- the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
- the court must impose a term of imprisonment of less than two years;
- the safety of the community must not be endangered by the offender serving the sentence in the community; and
- a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
13The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
14In Mr. T.H.W.'s case, the first four prerequisite criteria have been satisfied.
15His offences are not excluded pursuant to section 742.1 where, as here, Crown counsel proceeded summarily.
16They are not punishable by a minimum term of imprisonment.
17Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years.
18Finally, I find that Mr. T.H.W. serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He had no prior criminal record. He has not been in any further trouble since being charged. I am satisfied that, with the appropriate safeguards in place, there is no danger that he would return to crime following the imposition of a conditional sentence.
19That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
Fundamental Purpose and Principles of Sentencing
20The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
21The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.
22The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.
23Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:
The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.
24He went on to state that:
The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.
25He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.
26Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.
27I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".
28I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."
29The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.
30The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.
31I must also note that the Supreme Court of Canada expressly said in R. v. Proulx, supra that a conditional sentence is "punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.
32I also note that:
…there need not be any equivalence between the duration of the conditional sentence and the jail term that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.
33I can therefore impose a conditional sentence that is longer in duration than the jail term that I might otherwise have imposed.
34I can also impose a blended sentence.
35It is settled law that it is improper to blend a custodial sentence with a conditional sentence in the context of a single offence.
36However"when an accused is being sentenced for more than one offence, it is legally permissible to blend a custodial sentence with a conditional sentence so long as the sentences, in total, do not exceed two years less one day and the court is also satisfied that the preconditions in s. 742.1(b) have been met in respect of one or more but not all of the offences."
37The Supreme Court of Canada stated in R. v. Middleton that "intermittent and conditional sentences can be effectively combined to take appropriate advantage of their complementary purposes – in full compliance with the statutory conditions by which they are respectively governed."
38Fish J. elaborated on this stating:
Intermittent sentences strike a legislative balance between the denunciatory and deterrent functions of "real jail time" and the rehabilitative functions of preserving the offender's employment, family relationships and responsibilities, and obligations to the community.
That balance cannot be sustained indefinitely. Parliament has therefore fixed its duration at a reasonable limit of 90 days. Beyond that limit, intermittent sentences lose their purpose: the recurring "taste of jail" becomes disproportionately punitive as a deterrent and counter-productive as a rehabilitative and correctional alternative to continuous terms of imprisonment.
It has not been suggested, on the other hand, that the combination of an intermittent and a conditional sentence – even when their aggregate duration exceeds 90 days – is similarly objectionable on any ground of correctional policy, or inconsistent with the sentencing principles enacted by Parliament in the governing sections of the Criminal Code.
On the contrary, it is conceded that their combination in this case served the purposes of both intermittent and conditional sentences. This fit combination of sentences harmonizes the differing correctional advantages of conditional and intermittent sentences, while respecting the letter and the spirit of the provisions of the Criminal Code dealing with both.
39The maximum sentence for assault is imprisonment for six months when the Crown proceeded summarily.
40The maximum sentence for sexual assault is imprisonment for 18 months when the Crown proceeded summarily.
41The maximum sentence for forcible confinement is imprisonment for 18 months when the Crown proceeded summarily.
42Before applying these principles, I must take into account the facts underlying the offences, the impact on the victim and the background of Mr. T.H.W.
The Offences
Background
43The complainant KH and Mr. T.H.W. had been friends in high school and had renewed their relationship after Mr. T.H.W. began attending college.
44Mr. T.H.W. had a history of self-harm, and had cut himself on a number of occasions in the past. KH noted that they both were "cutters" and that this, along with the "life angst" they both felt, was something they shared in common.
45They had been dating for about three months prior to these offences. They never lived together.
Assault
46On December 26, 2016 Mr. T.H.W. went to her residence where she was involved in an argument with her mother. Mr. T.H.W. joined in and began to argue with her mother too. Later, after they left in Mr. T.H.W.'s vehicle, KH told him not to get involved in arguments she was having with her mother. An argument then erupted between them, resulting in Mr. T.H.W. being angry and saying hurtful and insulting things to her. She then stated that due to his behaviour, she did not want to go to his residence and told him to pull over because she wanted to go home. She reached for the door handle, and he grabbed her and prevented her from leaving. He held both of her wrists as he continued to drive. He let go of her when they arrived back at his residence.
47Once there, he made suicidal comments and attempted to leave in his vehicle. She stopped him. His mother became involved and convinced him to go inside. Mr. T.H.W. went to his room, grabbed a sword and held it to his chest saying "you guys are better without me".
48KH convinced him to put the sword down.
49He then attempted to kiss her but she turned away as she smelled alcohol on his breath.
50He went into his bedroom and locked the door. KH believed that he was looking through her cell phone.
51He then opened the door and told her that she was a "fucking slut". He grabbed her arm and waist and attempted to pull her into the bathroom. She grabbed at the door frame to stop herself from being pulled in. She slapped his face and escaped the bathroom.
52She sustained a bruise on her left forearm but did not require medical attention.
Sexual Assault
53On January 1, 2017, he went to her residence. She let him in and then returned to her bed to sleep. He pulled the covers off her, flipped her around, then pulled her legs bringing her closer to him. He then forced his hand down the front of her pajama shorts and inserted his finger into her vagina. She complained that he was being rough and it was painful. She told him to stop but he did not.
54She did manage to get away from him.
55Later in the day, they were sleeping together. She woke up to find his hand down the front of her pajama shorts, on his knees in front of her with his finger inserted into her vagina. He then began to lick her clitoris. She told him to stop, then felt pain in her clitoris and said "ow". She again told him to stop and then felt another sharp pain from, what she thought, was him biting her clitoris. She pushed him away using her feet and Mr. T.H.W. left.
56She did not sustain any injuries but did suffer some discomfort and pain in her vaginal area.
Forcible Confinement
57Later in the evening on January 1, 2017, she received a phone call from her mother requesting that she come home for dinner. Mr. T.H.W. was angry and wanted her to stay the night with him. Mr. T.H.W. began cutting his forearm causing it to bleed and wiped the blood on her forearm. He put a mask over her eyes and left the room. She took the mask off, saw him with duct tape and ran upstairs and stayed with his mother. She was fearful as to what he was going to do with duct tape.
58A loud thud was heard and the accused was observed laying at the bottom of the stairs. KH attended to him.
59Mr. T.H.W. took her hand and guided her into his bedroom and said he was going to put a show on for her. He put a piece of duct tape over her mouth and picked up a knife. He lifted up his shirt, saying "you don't want me to hurt myself. You can make it go away". He pushed her on the bed, climbed on top of her with his forearms on either side of her head and tried to pull her pants off. She removed the duct tape and he reapplied it. He told her to look at his bicep and then directed her gaze there with his finger on her chin. He then cut his bicep with the knife, inches away from her face. She pushed him off forcefully.
60She did not suffer any injuries from this incident.
Victim Impact
61KH declined to provide a Victim Impact Statement. She did however speak to the probation officer who prepared the Pre-sentence Report. I note the following comment:
These offences traumatized the victim, and it appears she continues to struggle with the aftereffects of the assaults. She told the "all I ever wanted is for him to get help" but notes that she does not want any type of relationship with him for the foreseeable future.
62KH told the probation officer that while she and Mr. T.H.W. were "just good friends", she did not feel manipulated or controlled by him. It was only after they decided to start dating that she recalled him becoming controlling, and jealous, smothering her with gifts or leaving notes for her. He also began to act in an aggressive manner with her. She noted"he can get very irrational, very amped up", and remembered after they began dating not knowing which man she would be greeted with – the despondent one, or the one that was on an "emotional high". She believed he was heavily invested in his dating relationships, recalling when his other two relationships ended he felt the loss "overly deeply – he was too dependent on having a relationship".
Background of Mr. T.H.W.
63I received a Pre-Sentence Report, a psychiatric assessment, and letters from his family doctor, his psychologist, his former employer, and his present employer. I also received a letter from Mr. T.H.W. apologizing to the victim. All of this provided me with the following information.
64Mr. T.H.W. is now 22 years old.
65He is the older of two children. For the first 16 years of his life he was an only child. His mother is a district manager for a greeting card company, and his father is a correctional officer. He has one younger sister, aged 6.
66He was born and raised in Mississauga until aged 13, when the family sold their home and purchased a home in Milton. He resides with his parents, his younger sister, maternal grandparents and his maternal great-grandmother. He has good memories of his childhood years. As he moved into adolescence his parents became more lenient with him, and he was "somewhat spoiled".
67He attended public school to grade 8 in Mississauga, and Bishop Reding Catholic Secondary School in Milton for grades 9-12. He received average grades, and got along well with his teachers and other students.
68He played on school sports teams, and for the last two years of high school was head of the tech crew, setting up for events, and training younger students on the use of the sound board and lighting. He did volunteer work in the community with the local cable company, filming and covering sporting events.
69He started working part-time and in the summers at local restaurants at age 15.
70He recounted one dark period during his formative years, an event that occurred when he was 13 years of age. This involved the death of a same-aged cousin from leukemia, a cousin whom he was very close to. According to his parents, the loss devastated their son, and was a loss he buried and never really addressed. The victim likewise pointed to the subject's loss of his cousin from her perspective as being a significant unaddressed issue that continued to impact him. She pointed to his "overly generous giving of everything – money, rides, whatever his friends needed" as being motivated by guilt that he hadn't "done enough" for his cousin.
71He was suspended from grade eight for two days following his cousin's death for lighting a fire on school grounds. There were no behavioural issues prior to this.
72Shortly following his cousin's death, he began a dating relationship with a student who was in a grade higher. He became intensely invested in this relationship. His father believes a significant attraction was the girlfriend's involvement with the "Goth" lifestyle, and as Mr. T.H.W. was still dealing with the death of his cousin, the fixation on death fit well for him. Following the break-up of this relationship, he began what his parents saw as a much healthier relationship; this relationship lasted over three years, and ended when he and the victim of these offences renewed their close friendship at the college they both attended.
73Everyone agrees that Mr. T.H.W. tends to invest himself intensely in his romantic relationships, and becomes devastated when they end.
74Following high school, he attended college, and completed the first year of two different programs, media and tool and die.
75It was during this time that he and the victim began spending a great deal of time together; although their dating relationship only lasted approximately two months, it was an intense relationship and one all parties describe as unhealthy from the onset.
76After finishing year one of the tool and die program, he was hired at a company in this field, and worked in this area until being laid off two months ago. He is working temporarily at a party rental company while waiting to be called back. All those interviewed described him as a hard worker and as someone who invests himself intensely in his work.
77He continues to reside at home with his parents, and plans to eventually return for more education, once he has paid off debts incurred from the offences for which he is presently before the Court, as well as the cost of his counselling sessions.
78There are no issues with drugs or alcohol.
79After being charged with these offences, Mr. T.H.W. sought help from his family doctor. He was prescribed an antidepressant and referred to a psychiatrist, Dr. Ahmed. Dr. Ahmed diagnosed him with bipolar disorder. He is now on medication for this and being supervised by Dr. Ahmed.
80He has also been seeing a psychologist/therapist, Dr. Sritharan. He is attending a behavioural modification program with Dr. Sritharan, through New Leaf Counseling in Milton. The group has been meeting weekly since September 20, 2017, with the goal of helping the participants learn how to handle their emotions and learn coping mechanisms.
81He has good family support, and his parents, who are his sureties, state that they have seen improvement in their son over the past number of months. He appears to be taking responsibility for his mental health challenges and is responding well to both medication and counseling.
82He presents as genuinely remorseful for his offences and describes his behaviour as "reprehensible".
83The probation officer concluded that he would make a good candidate for community supervision.
Analysis
84Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:
The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.
85I am satisfied that in this case, the predominant sentencing objectives are denunciation and deterrence. The issue is what sentence best accomplishes those objectives.
86Actual imprisonment will obviously satisfy the need for denunciation and deterrence. A conditional sentence on the other hand can also be punitive and is capable of providing significant denunciation and deterrence.
87The issue before me then is whether I should send Mr. T.H.W. to jail or sentence him to a conditional sentence of imprisonment, or resort to a combination of those two options.
88If I were to consider only the facts underlying the offences before me, I would easily conclude that a longer jail term was called for here.
89Mr. T.H.W. assaulted KH on December 26.
90He sexually assaulted her on two separate occasions on January 1. On both of those occasions he penetrated her vagina with his finger. On one occasion, he did this while she was sleeping. On that same occasion, he bit her clitoris when she objected to him performing oral sex on her.
91He attempted to physically confine her in his car on December 26 and in his bedroom on January 1.
92He also threatened to harm himself if she did not do what he asked her to do. On the one occasion, he made her watch while he actually did cut himself. I am satisfied that he did this in order to manipulate her into doing what he wanted her to do.
93On the other hand, there are a number of mitigating factors that have to be considered here.
94Mr. T.H.W. is a young man.
95He pled guilty. I take this to be both an acceptance of responsibility and an expression of remorse. It also made it unnecessary for KH to re-live the events while testifying in court.
96He has further expressed his remorse both in what he said to the probation officer and in what he said to me in court.
97He has no prior criminal record.
98He has complied with the terms of his bail since January 2017. These terms have been as restrictive as those proposed for the conditional sentence.
99He has sought out assistance with regard to the mental health issues which appear to have been a significant factor in his offences. He has now been diagnosed as being bi-polar. He is taking medication and participating in therapy to deal with this.
100He is working.
101He appears to be making a genuine effort to turn his life around.
102If I was to consider only these mitigating factors, I would have no difficulty in finding that a conditional sentence was more than sufficient here.
103Taking everything into account, however, I am satisfied that some jail is called for.
104In determining the appropriate length of that jail term, I am mindful that I must consider "all available sanctions other than imprisonment that are reasonable in the circumstances" and that Mr. T.H.W. "should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".
105In this case I am satisfied that the appropriate sentence can be accomplished by blending a shorter period of actual imprisonment, served on an intermittent basis with a longer conditional sentence.
106I adopt the comments of Wilkie J. in R. v. Stoutley, that:
Jail is always the last resort, and where it is imposed as here, principally, to satisfy the need for general deterrence and denunciation, its impact, in my view, comes in large measure from the fact of meaningful incarceration, rather than the precise length.
107I find that an intermittent sentence does constitute meaningful incarceration. It requires the offender to attend at the jail weekend after weekend, over an extended period, hopefully being reminded each time of the reason why.
108In this case, that will be complemented by the conditional sentence of imprisonment which further satisfies the need for deterrence and denunciation.
109At the same time, this blended sentence will also allow Mr. T.H.W. to continue working, and to continue to address his mental health issues. Successful treatment of his bipolar disorder is the best way to reduce the likelihood that he will reoffend in the future.
110Finally, I point out that one must look at the blended sentence as a whole, and understand that it is intended to be applied to the combined sexual assault and forcible confinement offences. It would be wrong to simply assess the appropriateness of one particular sentence for the one offence.
Sentence
111For all of the above reasons, I sentence Mr. T.H.W. as follows:
112With respect to the assault offence, sentence is suspended and he is placed on probation for three years.
113With respect to the sexual assault offence, I sentence him to time served, being 9 days of pre-sentence custody, credited as 13 days plus further imprisonment for 77 days, to be served intermittently. He will be taken into custody today for processing and then released. He will then surrender himself into custody at the jail at 7:00 p.m. on Sunday, March 4, 2018 and remain in custody until 5:00 a.m. on Wednesday, March 7, 2018 and thereafter between each subsequent Sunday at 7:00 p.m. until the following Wednesday at 5:00 a.m. until the sentence is completed.
114That will be accompanied by the above probation for three years, commencing today.
115The terms of the probation will require that Mr. T.H.W.:
(1) keep the peace and be of good behaviour;
(2) appear before the court when required to do so by the court;
(3) notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;
(4) appear at the jail to serve his intermittent sentence on time, in a sober condition, with a blood alcohol concentration of zero, and not under the influence of or in possession of any controlled substance unless he is taking that controlled substance pursuant to a lawfully obtained prescription;
(5) not apply for or accept admission into any temporary absence program at the jail;
(6) report in person to a probation officer within two working days and after that, at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in his supervision;
(7) cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;
(8) not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with KH;
(9) not be within 20 metres of any place where he knows KH to live, work, go to school, frequent, or any place he knows her to be;
(10) attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer, for anger management; and for domestic violence which may include the Partner Assault Response (PAR) program; and for psychiatric or psychological issues; and for bereavement/grief issues, and any other program directed by the probation officer.
116With respect to the forcible confinement offence, I impose a conditional sentence of imprisonment for one year to be served in the community. This is to be served concurrently with the intermittent sentence and the period of probation.
117The terms of the conditional sentence of imprisonment will require that Mr. T.H.W.:
(1) keep the peace and be of good behaviour;
(2) appear before the court when required to do so by the court;
(3) report in person to a supervisor within two working days and thereafter report when required by the supervisor and in the manner directed by the supervisor;
(4) notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;
(5) remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the supervisor;
(6) cooperate with his supervisor. He must sign any releases necessary to permit the supervisor to monitor his compliance and he must provide proof of compliance with any condition of this order to his supervisor on request;
(7) live at a residence in Milton, Ontario, or a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance;
(8) a home confinement condition will be in effect for the first 6 months of the conditional sentence;
(9) during that time he will remain in his residence or on the property of his residence at all times except
(a) between 1 pm and 5 pm on a day of the week to be determined by the supervisor, in order to acquire the necessities of life,
(b) for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling),
(c) for going directly to and from or being at school, employment, court attendance, religious services, legal or medical or dental appointments, assessment, counselling, or rehabilitative programs, or for serving his intermittent sentence of imprisonment,
(d) he will confirm his schedule in advance with his supervisor setting out the times for these activities
(e) with the prior written approval of the supervisor. The written permission of the supervisor is to be carried with him during these times.
(10) During the period of home confinement, he must present himself at his doorway upon the request of his supervisor or a peace officer for the purpose of verifying his compliance with his home confinement condition.
(11) Following his home confinement, for the balance of this Order, he must remain in his residence or on the property of his residence daily between the hours of 11:30 p.m. and 5:00 a.m. except
(a) for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling),
(b) for employment purposes,
(c) he will confirm his schedule in advance with his supervisor setting out the times for these activities
(d) with the prior written approval of the supervisor. The written permission of the supervisor is to be carried with him during these times.
(12) not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with KH;
(13) not be within 20 metres of any place where he knows KH to live, work, go to school, frequent, or any place he knows her to be;
(14) attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor, and complete them to the satisfaction of the supervisor, for anger management; and for domestic violence which may include the Partner Assault Response (PAR) program; and for psychiatric or psychological issues; and for bereavement/grief issues, and any other program directed by the supervisor.
118I also make the following three ancillary orders.
119Sexual assault and forcible confinement are primary compulsory offences and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. T.H.W. of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis. I decline making a similar order with respect to the assault charge, a secondary designated offence, solely to avoid a redundant order.
120Sexual assault is also a designated offence pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to section 490.012 of the Criminal Code that Mr. T.H.W. comply with the provisions of the Sex Offender Information Registration Act for 10 years.
121Finally, with respect to all three charges, pursuant to section 110 of the Criminal Code, for the next 10 years Mr. T.H.W. is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.
122Mr. T.H.W. will have six months to pay the victim fine surcharges.
Released: February 27, 2018
Signed: Justice D.A. Harris