Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Kurt Durance
Before: Justice Scott G. Pratt
Heard on: 1 May 2020
Reasons for Judgment released on: 4 May 2020
Counsel:
- N. Lamphier, C. Houle — counsel for the Crown
- Laura Joy — counsel for the Defendant
Reasons for Judgment
Introduction
1On 1 May 2020, Kurt Durance (hereinafter "the Defendant") entered guilty pleas to the following offences:
Information 19-211: Utter counterfeit currency, Fraud Under $5,000, Fail to comply with a probation order, all on 30 November 2018.
Information 19-20953T: Fail to comply with a probation order on 6 March 2019.
Information 20-207: Utter counterfeit currency on 2 January 2020.
Information 20-11050DV: Fail to comply with a release order, Break and enter a dwelling house, Assault on Dawn Lajeunesse, all on 10 January 2020.
Information 20-11076DV: Assault on Dawn Lajeunesse, Unlawfully in a dwelling, Fail to comply with a release order, all on 21 January 2020.
2The Crown says that a global sentence of 18 months jail followed by 24 months probation, together with various ancillary orders, is appropriate. The Defendant argues that a sentence of no more than 12 months, and perhaps less, followed by 18 months probation would be appropriate. The Defendant also seeks additional credit for presentence custody as a result of the current COVID-19 pandemic. These are my reasons for sentence.
The Offences
3The Defendant has been convicted of a total of 11 criminal offences. By their nature, all offences against the criminal law are serious. In the present case, however, the seriousness of his crimes is magnified by their context. Two separate charges of uttering counterfeit currency. Two separate incidents of serious intimate partner violence. Multiple breaches of court orders. All must be taken seriously by the Court. I will consider each incident individually.
30 November 2018
4The Defendant attended a Shoppers Drug Mart in Windsor and purchased a pack of needles and a $100 Visa gift card. He paid for these items with six $20US bills. These bills were determined to be counterfeit. He was identified on store security video. The items fraudulently taken were never recovered.
5Parliament has determined that the use of counterfeit currency is serious criminal conduct. It is a straight indictable offence, a distinction shared by relatively few other crimes. Robbery, Aggravated Assault, Frauds over $5,000, and Breaking & Entering into a Dwelling House are examples of this class of offences. It is clear that Parliament intended that Uttering Counterfeit Currency be treated with the utmost seriousness.
6 March 2019
6While bound by a probation order to have no contact with Dawn Lajeunesse, the Defendant was nonetheless found in a vehicle with her in London, Ontario. It must be remembered that for the administration of justice to maintain society's respect, its orders need to be obeyed. Breaches of orders challenge the authority of the Court.
2 January 2020
7The Defendant went to Bednarek Jewelry in Windsor. He purchased a diamond ring. He paid for this ring with another twelve $20US bills. Again, these bills were found to be counterfeit, more than a year after he did the same thing at the Shoppers Drug Mart. Again, he was identified on store security video. Again, the item taken was never recovered.
8As noted above, the uttering of counterfeit currency is extremely serious. The seriousness of this particular allegation is heightened by the fact that it came a significant time after the first such allegation. This leads me to believe that the passing of counterfeit currency was not a momentary lapse of judgment, or conduct borne out of dire economic need.
10 January 2020
9While bound by a court order to have no contact with Ms. Lajeunesse, the Defendant was found by her at approximately 1:00am, standing on her apartment balcony. He demanded to be let into the residence. She refused. He left the balcony and was soon pounding on her front door. Again, she refused him entry. He started to yell out a countdown. At the conclusion of the countdown, he forced the door open and entered the apartment. Ms. Lajeunesse fled to the balcony. She saw him moving through the apartment and, inexplicably, releasing some of the contents of a can of bear spray in the kitchen. Police arrived in the parking lot. The Defendant grabbed Ms. Lajeunesse and pulled her into the apartment. By the time police had entered the apartment, the Defendant had escaped over the balcony.
10Intimate partner violence remains a pernicious problem in society. Any sort of violence in an intimate relationship, whether that relationship is ongoing, intermittent, or recently ended, must be denounced by the courts. This incident is made even more serious by the Defendant forcing his way into the apartment over the objections of Ms. Lajeunesse, and then spraying bear spray while there. He also physically assaulted her while in the residence. This is all against the backdrop of a court order telling him to stay away from her. Despite the lack of injuries to Ms. Lajeunesse, this event is not at the low end of the spectrum of intimate partner violence.
21 January 2020
11Eleven days after the first incident at Ms. Lajeunesse's residence, the Defendant returned. She arrived home around 2:00am to find the Defendant in the residence. She told him to leave. He grabbed her by the sweater and tried to pull her into the apartment. She resisted, which led to rug burns on her elbows. Her sweater came off and she fled to the building's common bathroom. He remained in the apartment. She went to another common area, where she fell asleep. When she awoke, she went to her apartment and found her cell phone in the hallway outside her door. She called police. They attended and found the Defendant still inside.
12That the Defendant would victimize Ms. Lajeunesse in much the same way as he had less than two weeks earlier speaks to his lack of respect for her and for the law, and for the danger he posed to society at the time.
The Defendant
13The Defendant is 33 years old. He comes before the court with a significant criminal record. A non-exhaustive list of his convictions includes:
(1) 2005 – Uttering Threats x2, Breach Probation
(2) 2012 – Use a Forged Document
(3) 2017 – Assault, Assault Causing Bodily Harm
(4) 2017 – Uttering Threats, Breach Probation x2
(5) 2018 – Possess Counterfeit Money, Use Counterfeit Money, Breach Probation
(6) 2018 – Assault, Theft, Breach Probation x2
(7) 2019 – Breach Probation x4, Fail To Remain at Scene of Accident
14The record is long and related. Together with an extensive history of disregard for court orders and violence, the Defendant has two convictions regarding counterfeit currency. These arose in March 2018, approximately eight months prior to the Shoppers Drug Mart offence.
15I am advised that the Defendant has a diagnosed mental health condition. Counsel was unable, however, to advise exactly what that condition is. When I asked, I was told it "had to do with bipolar, schizophrenia". As those are two very different conditions, I am left with more questions than answers.
16Similarly, I was told that the Defendant's criminal behaviour is fuelled by his substance abuse. I don't know what the nature of this abuse is, or what steps (if any) he has taken to combat it, or how successful those steps, if taken, may have been.
17The Defendant is remorseful for his actions. I accept his guilty pleas as evidence of that remorse. He has saved Ms. Lajeunesse from testifying. According to the submissions I heard, it may have been that Ms. Lajeunesse would not have been a willing witness in at least some of these matters. That is perhaps borne out by the fact that despite repeated attempts to contact her, there was no response from Ms. Lajeunesse regarding the preparation of a Victim Impact Statement. The Defendant's guilty pleas have real meaning and are not an acknowledgement of the inevitable. Given that on the charges arising at the residence of Ms. Lajeunesse at least, there were no other witnesses to much of what is said to have taken place, I recognize that there were triable issues that were not pursued by the Defendant.
Positions of the Parties
18I conducted the judicial pre-trial of this matter. At that time, I advised that I would likely impose a sentence of 12 – 15 months of custody. While I might not ordinarily refer to discussions at a pre-trial in reasons for sentence, I do so here because the matters pre-tried did not include all matters pleaded to. At the time of the pre-trial, I was only aware of the counterfeit currency charge arising from Bednarek Jewelry. I did not know about, and my suggested sentence did not reflect, the inclusion of the Shoppers Drug Mart incident.
19Taking all matters into account, the Crown argued for a global sentence of 18 months followed by 24 months of probation. Ancillary orders in the form of a weapons prohibition and DNA were also sought. There was no breakdown offered by the Crown as to how those 18 months should be divided between the informations.
20The Defendant initially argued for a sentence no longer than 12 months, but the position became somewhat unclear when it was brought out in submissions that my position had not included the earlier counterfeit currency incident. Counsel for the Defendant advised that the Crown had screened that matter for 120 days jail. No issue appeared to be taken with that position. Like the Crown, no breakdown was suggested between counts and informations.
Pre-Sentence Custody
21The Defendant has several periods of pre-sentence custody, mostly attributable to these offences. Those periods are:
(1) 23 January – 21 February 2019 (30 days)
(2) 6 March – 23 April 2019 (48 days)
(3) 7 August – 3 September 2019 (28 days)
(4) 22 January 2020 – 4 May 2020 (74 days)
22His total pre-sentence custody is 180 days. There is a deduction of 14 days that were used when he resolved the Failing to Remain charge noted in the above list of prior convictions. The total pre-sentence custody attributable to these charges is 166 days.
23Section 719(3) and (3.1) of the Criminal Code state that credit for pre-sentence custody can only be given on a one-for-one basis unless the circumstances of a given case deserve enhanced credit on a 1.5:1 basis. In the case of R. v. Summers 2014 SCC 26, Justice Karakatsanis found at paragraph 68 that a loss of eligibility for early release or parole could qualify as such a circumstance. The practical effect of this ruling is that 1.5:1 credit for pre-sentence custody has become the norm.
24In the present case, that means that the Defendant will receive credit for 249 days (166 x 1.5 = 249). I note that the Defendant also advised me of 1.5 weeks that he spent in lockdown. That period will be considered later when the Defendant's sentence is imposed.
COVID-19 Pandemic
25Nearly every corner of the world is currently gripped by a worldwide pandemic. The novel coronavirus results in an illness known as the Coronavirus Disease – 2019, or COVID-19. At the time of these reasons, there are more than three million cases worldwide, and over 200,000 deaths. Canada alone currently has nearly 55,000 cases and over 3,000 deaths. The virus has affected almost all aspects of everyday life: commerce has ground to a near-halt, schools have been closed since mid-March, and the Canadian government has set up relief programs costing hundreds of billions of dollars.
26The court system is operating at only a basic level, with most participants (including counsel and judiciary) appearing remotely by either video or audio. This plea proceeding was conducted by audio.
27All these measures – business and school closures, remote work, videoconferencing – have been undertaken so that society can successfully employ the practice of "social distancing". Medical experts have advised that the virus is most easily transmitted from person to person when individuals are in close proximity to each other. Effectively removing physical interaction from daily life, it is believed, will ultimately starve the virus of potential hosts.
28It appears to be working. In locations where strict social distancing has been employed, the progress of the virus has noticeably slowed. The call to "flatten the curve", that is, to avoid a spike in cases that would overwhelm the healthcare system, has been heeded by people generally compliant with directives to stay home.
29There are, however, certain environments where social distancing is either difficult or impossible. Hospitals are one. Long-term care homes are another. Jails are a third.
30Personal space and freedom are not notions jails were designed to promote. They are spaces meant for confinement of individuals, away from society. This is accomplished by housing inmates in close quarters. They live in cells, which generally have two residents. When not in their cell, they are kept in a larger common area. While this area is certainly much larger than a cell, it can still be difficult to maintain space particularly when the facility is operating over population capacity. It is not hard to imagine COVID-19 (or any communicable illness, for that matter) being able to move easily from inmate to inmate in such conditions.
31To combat this risk, the Ministry of the Solicitor General has enacted several policies, as outlined in the document entitled "RESPONSE TO COVID-19 INFORMATION NOTE", dated 28 April 2020. This document is Exhibit 2 to this proceeding.
32One action taken by the Ministry is to reduce the inmate population. Between 16 March and 28 April, the inmate population was reduced by 32%. Unlike the days pre-COVID, when overcrowding was common, all provincial institutions are now "within operational capacity".
33All inmates and staff are screened for infectious diseases when they enter an institution. Staff have their temperatures taken each time they arrive for work. New inmates are assessed, and if they exhibit any symptoms consistent with COVID-19 they are moved into isolation. Even if the new inmates pass the screening process, they are kept in an intake unit for a minimum of 14 days before being placed in the institution's general population. Inmates and staff have access to personal protective equipment (PPE) to be worn when necessary.
34Visitation by members of the public has been suspended. Lawyer and spiritual advisor visits continue. Activities within the institution have been reduced.
35Inmates are being provided with pre-paid calling cards so they can make more phone calls than usual. The weekly limit of inmate canteen purchases has been increased by 50% to $90 so inmates can purchase more comfort and recreational items.
36Inmates serving intermittent sentences are immediately given Temporary Absence Passes on their first attendance at their designated institution and sent home. They are not required to enter the institution to serve their sentences.
37The foregoing is not a complete list of steps being taken in correctional institutions across Ontario. It is, however, clear evidence that the provincial government is taking this situation seriously and doing what it can to protect both inmates and staff.
38As of the 28 April Response, there was a total of 92 Ontario inmates who had tested positive for COVID-19. I hasten to add that 82 of those 92 all came from the Ontario Correctional Institute (OCI) in Brampton. Similarly, while 24 correctional staff have tested positive, 22 of those 24 also came from OCI. Following this outbreak, the Ministry took the extraordinary step of closing OCI entirely and moving the inmate population to the Toronto South Detention Centre. All OCI staff was also instructed to self-isolate for 14 days before returning to work.
39Locally, there has been only one positive test associated to the Southwest Detention Centre (SWDC). A third-party contractor tested positive. This person was neither an inmate nor regular staff. There have been no other positive tests from the SWDC. Even so, I recognize that incarceration is not easy at the best of times; in the current environment it is no doubt much more stressful than usual on all involved.
40I was also provided with an affidavit from Dr. Aaron Orkin, a Toronto physician and epidemiologist. It appears that this affidavit was first created for a bail review in Cornwall, Ontario. It has since been circulated. I've already seen it filed by the defence in two Windsor cases.
41Dr. Orkin is a well-educated and experienced health practitioner. He states in the affidavit that he is currently the Medical Director of the St. Joseph's Health Centre COVID-19 Assessment Centre, as well as the Population Medicine Lead for Inner City Health Associates.
42His affidavit sets out the background of the pandemic current to the date of its swearing, 7 April 2020. I will note that this affidavit and the information contained in it are nearly a month old at this point. Given how fluid the situation surrounding COVID-19 has been, that impacts on the weight I ultimately assign to this document.
43In support of his contention that correctional inmates are at an increased risk during the pandemic, he states at paragraph 16 that "The population health status of people experiencing incarceration is substantially worse than the rest of the public." He presents no evidence to substantiate this claim. I have also heard no evidence that the health of the Defendant is such that he might be at an increased risk of infection or serious consequences arising therefrom. In any event I note that at paragraph 36, Dr. Orkin states "The state of health of a particular inmate is irrelevant to my recommendations." So perhaps the pre-existing health of inmates does not matter. Or perhaps it does. I simply don't know.
44At paragraph 21: "Overcrowding and social distancing are mutually exclusive concepts. In other words, social distancing cannot be accomplished in conditions of overcrowding." While this may well be true, it does not reflect the contents of the more recent Ministry Response, which indicated that thousands of inmates had been released and that all institutions were operating within their individual capacities. It also does not reflect the Defendant's own words, who answered my question about his current cell arrangements by advising that he was housed in a two-person cell with one other inmate. The evidence I have tells me that overcrowding is not currently an issue in correctional facilities.
45At paragraph 27: "The degree of social distancing required to reduce COVID-19 transmission in correctional facilities is not possible with the number of people presently located in these facilities. This is a geometry problem, not a policy or strategy problem. There simply is not enough space to create the distance required between people in Ontario corrections facilities." With the utmost of respect to Dr. Orkin, his lengthy curriculum vitae discloses no actual experience working with the correctional system in Ontario. How would he know what is possible and impossible within a system he apparently has never studied? Further, does his claim relate to an overcrowded correctional system, or one operating within capacity?
46I was not told by counsel that notice of this affidavit and accompanying exhibits was provided under s. 657.3. I was not asked to qualify Dr. Orkin as an expert in any field. His affidavit, while accepted as part of the evidence under the somewhat relaxed rules of evidence specific to sentencing proceedings, is not taken as an expert opinion. Given the age of the affidavit, the events that have occurred since as set out in the Ministry Response, and the affiant's limited (if not absent) experience with matters of public health in a correctional environment, I afford the affidavit little weight. At most, it sets out the status of the pandemic at a point in time, nearly a month ago, with no evidentiary basis for the correctional system-specific claims subsequently made.
Judicial Notice
47The Defendant has invited me to take judicial notice of several factors related to the pandemic. These are:
(1) There currently exists a worldwide pandemic;
(2) The virus is highly contagious;
(3) Medical evidence demonstrates that the Defendant's health concerns are real and significant;
(4) Inmates are a vulnerable population because correctional institution infrastructure was not designed for a situation like this.
48The taking of judicial notice is no small step. It dispenses with proof of facts that may weigh heavily in the ultimate result of a proceeding. The Supreme Court of Canada set out the test for taking judicial notice in the case of R. v. Find 2001 SCC 32 at paragraph 48:
In this case, the appellant relies heavily on proof by judicial notice. Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross‑examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Potts (1982), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055.
49In the present case, I find that I can take judicial notice of the first two facts set out above. I cannot take judicial notice of the third and fourth fact.
50The first contention is that there currently exists a worldwide pandemic. In my view that claim is capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. COVID-19 has been found in nearly every country on Earth. It has struck every province and territory of Canada. There are over 3 million diagnosed cases. I have no hesitation taking judicial notice of the current worldwide pandemic.
51The second contention is somewhat more subjective. What is meant by "highly" contagious? Nevertheless, multiple sources, from Health Canada to the World Health Organization, have advised that the virus can spread from person to person through coughing, sneezing, or even speaking. It can also spread by the touching of surfaces containing the virus. The virus can clearly be spread in a variety of ways that do not require close contact between individuals. Setting aside what is meant by "highly", I find that I can take judicial notice of the fact that COVID-19 is very contagious.
52The third contention, that "Medical evidence demonstrates that the Defendant's health concerns are real and significant" is not so readily apparent. What evidence do I have of the Defendant's health concerns? He did not testify on the sentencing. I have been told that he suffers from some form of mental illness and that he has a substance abuse problem. I have no evidence of pre-existing medical conditions that might make him more susceptible to the virus, or that might make the consequences of infection more serious for him. If, by "the Defendant's health concerns", it is only meant that his concerns mirror that of the general population, I might be more willing to take judicial notice of them. But I would be speculating that that is what was intended.
53The submission was also made that persons of African descent (as the Defendant is) are more susceptible to the virus. There is no evidence to support that claim before me. I acknowledge that there have been news reports to that effect, but it would seem they relate more to socioeconomic status than racial heritage. This point cannot move me towards the taking of judicial notice of the third contention.
54Finally, the fourth contention might be accurate, but again I have no specific evidence to lead me to that conclusion, let alone to allow me to take judicial notice of it. The contention does not address at all the steps taken by the Ministry to minimize the risk of infection to inmates and staff. On the contrary, the Response indicates that among the thousands of inmates across Ontario, there have only been 92 positive cases, nearly all of which came from one institution. There have been no positive cases among inmates or staff at the SWDC. There was only one positive case at that institution, which involved a third-party contractor.
The Impact of COVID-19 on Sentencing
55The COVID-19 pandemic has likely created the fastest-growing body of caselaw in Canada. Across the country, courts are grappling with the effects of the virus both in their own functioning and in determining appropriate sentences. In Ontario alone there have already been several decisions on the issue.
56There is a growing list of cases that provide support for my refusal to take judicial notice of the increased risk of infection faced by inmates. See R. v. Jeyakanthan 2020 ONSC 1984; R. v. Mantes 2020 ONSC 2559; R. v. Lemmen 2020 BCPC 67. These cases stand for the proposition that there must be an evidentiary foundation for claims for pandemic-related relief, whether that relief is release from detention on a bail review, or a reduced sentence.
57Some courts have increased the ratio used to enhance pre-sentence custody when factoring in the pandemic. I decline to do so here as in my view I do not have any such authority. Parliament was clear the maximum credit for pre-sentence custody can be no higher than 1.5:1. I can award no more than that.
58Justice Pomerance of the Superior Court of Justice came to the same conclusion in the case of R. v. Hearns 2020 ONSC 2365. At paragraph 22 Her Honour stated:
First, I am not suggesting that the offender receive more than the statutory credit for pre-sentence custody. The accused is entitled to credit on a 1.5 to 1 basis and that is what he will receive. I am not at liberty to assign credit beyond that prescribed in the Code.
59I should not be taken as finding that the pandemic should have no effect on sentencing. Rather, a Court should simply be cautious in making assumptions without evidence and ought not to go beyond what Parliament has authorized.
60In my view, the Defendant is entitled to consideration given the novel situation society is currently facing. I turn again to Justice Pomerance in Hearns:
The question is not whether, looking backwards, the offender is entitled to more credit. The question is whether, looking forward, the pandemic warrants reduction of the sentence yet to be served. The question is whether the sentence already served, calculated with 1.5 to 1 credit, is a sufficient penalty. Given the pandemic, it may be that a sentence of shorter duration is not only tolerable, but appropriate, in the interests of personal and public safety.
61I have evidence before me that the situation inside correctional institutions is certainly different than it was pre-pandemic. There is increased screening, isolation, and even more curtailment of liberty than usual. Added to that is the psychological stress of being in a confined environment in the face of a news cycle that seldom strays from pandemic coverage. I find that incarceration at this time is more onerous than usual. Looking forward at the sentence still to be served, that onerousness must be a factor.
62I do not reduce the sentence to be imposed on the Defendant solely because of the pandemic. As I have stated, there is no evidence before me that he is personally at greater risk of infection or of serious consequences from infection should he be incarcerated. The evidence I do have reflects a Ministry doing everything in its power to keep inmates and staff as safe as possible. I reduce the sentence to be imposed because the experience of incarceration, while never pleasant, is currently more difficult than usual for the reasons I've outlined.
63The effects of the pandemic cannot, however, serve to make an unfit sentence fit. Much like the immigration consequences of a given sentence, the pandemic must play a role, but it cannot displace the principles of sentencing on which this area of criminal law is built.
The Sentence
64The Defendant has pleaded guilty to several serious offences. While told by multiple courts to stay away from Ms. Lajeunesse, he has nonetheless continued to contact her, and has victimized her repeatedly by entering her residence and assaulting her. On one occasion, he felt it necessary to discharge bear spray in her kitchen.
65On two other occasions, the Defendant used counterfeit currency to make various purchases. While not a violent offence, uttering counterfeit currency is a very serious offence that undermines our economic system. The damage done by uttering counterfeit currency was considered by Justice Agnew of the Saskatchewan Provincial Court in the case of R v Hartle 2018 SKPC 62 at paragraph 15:
There are several obvious harms which the offence of counterfeiting seeks to avoid (there may well be others):
the loss to the individual or merchant, who has exchanged valuable goods or services for a worthless piece of paper. When the "money" is found to be counterfeit, the person holding it will not be compensated - they have lost the entire value of the goods or services. In this regard, the harm of counterfeiting is precisely the same as that of theft;
a decrease in the acceptability of paper money. Knowing that counterfeit money is in circulation may cause individuals and businesses to decline to accept currency. This potentially creates a crisis of liquidity in the market;
as a related but separate effect, circulation of counterfeit money can cause an overall loss of confidence in paper currency, potentially creating a crisis of confidence in the country's currency as a whole;
looking at the economy in its entirety, the introduction of counterfeit currency represents an increase in the money supply. This in turn has at least two effects. The first is inflation: all other things remaining constant, increasing the money supply fuels inflation; furthermore, merchants raise prices to offset the fact that some of their sales will be paid for in worthless bills. The second is a loss of control over economic policy, as control over the money supply is a tool for managing the economy.
66I adopt and agree with Justice Agnew's words. In the Defendant's case, his conduct is all the more serious given that he has prior convictions for counterfeit currency offences already on his record. As I stated, this is not a one-time lapse in judgment.
67The Defendant has 166 actual days of pre-sentence custody attributable to these matters. That will be enhanced on a basis of 1.5:1 to 249 days. There are no other tools available to me to go beyond that enhanced number.
68There is support for the idea of imposing a (sometimes much) shorter than usual sentence in response to the pandemic, even to the extent of a "time served" sentence, when an inmate is a) being sentenced for non-violent offences, or b) close to having served his entire sentence already (See: R. v. McConnell 2020 ONCJ 177; R. v. McGrath 2020 ONCJ 192). It cannot serve, however, to displace the principles of sentencing set out in s. 718 of the Criminal Code (See: McGrath; Hearns).
69I find that as the Defendant is not being sentenced for entirely non-violent offences and has not served most of what would be a fit sentence already that neither of these rationales apply. Time served is not an appropriate sentence in this case.
70The Crown has sought a sentence of 18 months jail. The Defendant argued for a sentence of no more than 12 months, but then acknowledged that the second counterfeit currency offence had been screened by the Crown for an additional 4 months jail. No exception was taken to that position.
71The Defendant spent 1.5 weeks in lockdown while in custody. I will deduct 10 days from the sentence still to be served because of that lockdown.
72The Defendant's counsel has suggested that if I find further incarceration is required it could be served in the form of a conditional sentence. I have considered this option and decline to use it. Given the Defendant's history of both violence and breaching court orders, I have no confidence that such a sentence would not endanger the safety of the community, nor that he would abide by a conditional sentence should one be imposed on the counts where it is legally available.
73The Defendant will be sentenced as follows:
Information 19-211:
- Utter counterfeit currency – 180 days jail
- Fraud Under $5,000 – 60 days jail concurrent to the charge of Uttering Counterfeit Currency
- Fail to comply with a probation order – 60 days jail concurrent to the charge of Uttering Counterfeit Currency
Information 19-20953T:
- Fail to comply with a probation order – 60 days jail consecutive
Information 20-207:
- Utter counterfeit currency – 180 days jail concurrent to Information 19-211
Information 20-11050DV:
- Break and enter a dwelling house – 120 days jail consecutive
- Fail to comply with a release order – 60 days jail concurrent to the charge of Break and Enter
- Assault on Dawn Lajeunesse – 60 days jail concurrent to the charge of Break and Enter
Information 20-11076DV:
- Unlawfully in a dwelling – 80 days jail (reduced by 10 days to reflect time spent in lockdown) consecutive
- Assault on Dawn Lajeunesse – 60 days jail concurrent to the charge of Unlawfully in a Dwelling
- Fail to comply with a release order – 60 days jail concurrent to the charge of Unlawfully in a Dwelling
74Globally, the entire sentence is one of 15 months, or 450 days, custody. The Defendant's pre-sentence custody will be allotted as follows: 180 days credited to Information 19-211, 69 days credited to Information 19-20953T. The net result is that as of today, the Defendant has a further 201 days custody to serve.
75Ordinarily, each information would attract a consecutive sentence as each discloses separate criminal behaviour. Bearing in mind totality, proportionality, and the effect on the overall sentence of current incarceration conditions, I find that concurrent sentences on the charges of Uttering Counterfeit currency are appropriate.
76Incarceration will be followed by 24 months of probation. Probation conditions, in addition to the statutory conditions that appear in all probation orders, are as follows:
(1) Report by telephone to a probation officer within 72 hours of your release from custody, and thereafter as required by your probation officer;
(2) Cooperate with your probation officer by signing any such releases as required by the probation officer to monitor your compliance with this order;
(3) Do not contact or communicate in any way, directly or indirectly, including electronically, with Dawn Lajeunesse;
(4) Do not be within 100m of any place you know Dawn Lajeunesse to live, work, go to school, or any other place you know her to be;
(5) Do not attend within 100m of the following addresses: 111 Brien Avenue, Essex, Ontario; 4835 Wyandotte Street East, Windsor, Ontario; 2405 Dougall Avenue, Windsor, Ontario;
(6) Do not possess any weapons as defined by the Criminal Code;
(7) Attend and actively participate in all counselling and rehabilitative sessions as directed by your probation officer, including but not limited to the Partner Assault Response program and substance abuse counselling.
77I have considered adding an exception to the no contact order regarding Dawn Lajeunesse if she files her written revocable consent. I decline to do so. Regardless of her alleged willingness to have contact with the Defendant in the face of court orders prohibiting that contact, he has been found guilty of significant intimate partner offences against her. Should the Defendant wish to apply for a variation of this order at some point, he may do so. But I am not prepared to make that exception at this time.
78There will be a s. 109 weapons prohibition for life on the count of Assault from Information 20-11050DV. There will be an order for the provision of a DNA sample on the primary count of Break & Enter. There will also be a DNA order on each secondary count of Assault. I do not order DNA on any of the other secondary counts.
79I am confident that should COVID-19, or any other medical condition, become an issue in the Defendant's incarceration, either through his own infection or the infection of someone near him, the SWDC will respond appropriately and act in the best interests of all concerned.
Released: 4 May 2020
Signed: Justice Scott G. Pratt