Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— And —
Mitchell Anthony Burghardt
Before the Court
Justice: Peter C. West
Evidence Heard: March 10, 2020
Submissions Heard: October 15, 2020
Reasons for Judgment Released: November 10, 2020
Counsel
Ms. K. Buker — counsel for the Crown
Mr. P. Affleck — counsel for the defendant Mitchell Burghardt
Reasons for Judgment
Introduction and Factual Background
1On March 10, 2020, Mr. Burghardt commenced his trial for assault and assault causing bodily harm. At the conclusion of the evidence of the two complainants, Holly Bellan and Paul Metz, Mr. Burghardt changed his plea to guilty on both charges.
2The facts of this case are quite simple and straightforward. On December 22, 2018, Mr. Burghardt and some of his friends were at Frosty John's Pub in Bowmanville. Holly Bellan and Paul Metz were security working in the establishment. There was a fight at the main bar and Mr. Metz broke it up. He was in the process of escorting a friend of Mr. Burghardt out of the pub and as he got through the main doors, Mr. Burghardt walked by Ms. Bellan and struck Mr. Metz on the side of his face. When Ms. Bellan tried to stop Mr. Burghardt from leaving by grabbing his arm and his forward momentum caused her to go back into a wall. Mr. Burghardt and his friends ran into the parking lot and Ms. Bellan lost sight of where they ran to when she attempted to chase them.
3The incident happened very quickly and took only a matter of seconds. Mr. Metz and Ms. Bellan finished their shift and afterwards Mr. Metz went to the emergency and received two stitches to the inside of his left upper lip. Ms. Bellan went to hospital a week after the incident and was referred for physiotherapy for her arm, which had been hyper-extended. She was off work for several weeks and received WSIB.
4A video of the incident was entered as an exhibit during the testimony and it shows what I would describe as a "sucker punch" by Mr. Burghardt to Mr. Metz and his running away when Ms. Bellan tried to grab his arm to prevent him from leaving. Neither of the witnesses were able to identify Mr. Burghardt as the person who punched Mr. Metz and caused Ms. Bellan to bang into the wall when he broke free from her grabbing his arm. The individual on the video looked very much like Mr. Burghardt.
5After the two witnesses finished their testimony Mr. Affleck requested a moment to speak to his client. I was advised after they returned that Mr. Burghardt wanted to change his plea to guilty. After conducting a plea comprehension inquiry, I was satisfied Mr. Burghardt understood the nature and consequences of his changing his plea to guilty to both charges. I ordered a presentence report be prepared by a probation officer and sentencing was adjourned.
6Mr. Burghardt's sentencing was adjourned several times because of the Covid-19 world pandemic and the courts in Ontario being closed for in-person hearings. I want to thank counsel for arranging to bring this matter forward to be dealt with and for their submissions and the caselaw they provided to me.
Position of the Parties
7The Crown is seeking a 30 day custodial sentence to be followed by 18 months of probation with conditions. The Crown points to the sentencing principles of deterrence and denunciation as being paramount, although she recognized the importance of rehabilitation, given the fact Mr. Burghardt is a youthful first offender. She is seeking a DNA order as assault causing bodily harm is a primary designated offence pursuant to s. 487.04 of the Criminal Code. She also seeks a s. 110 weapon's prohibition order for 5 years.
8The defence submits a conditional discharge is an available sentence in this case, as it would clearly be in Mr. Burghardt's best interest and is not contrary to the public interest. Mr. Affleck concedes the importance of deterrence and denunciation but argues the sentencing principles of restraint and rehabilitation when dealing with a youthful first offender cannot be ignored and take on an increased significance in determining a proportionate sentence. The defence concedes the ancillary orders are appropriate.
Circumstances of the Offender
9Mr. Burghardt was 22 years of age at the time of the offence and single. He does not have a youth court or criminal record, as this is his first involvement with the criminal justice system.
10He has lived in the Clarington area for most of his life with his parents and younger brother (2 years younger). Both Mr. Burghardt and his brother played competitive elite hockey for many years. Mr. Burghardt decided at age 18 to discontinue his hockey career when he was playing in the Junior "A" hockey league. This decision was not welcomed or supported by his parents and created some difficulties within the family. Both of Mr. Burghardt's parents believed he made the decision for the wrong reasons and under the influence of a negative crowd he was associating with. There is some suggestion in the presentence report (PSR) that the incident and charges has resulted in relationships improving and the family dynamics are much happier.
11Mr. Burghardt completed his high school in Bowmanville and was described as a good student up until Grad 10 when he began to use alcohol and marihuana and began associating with a negative crowd. After completing Grade 12 he elected not to pursue post secondary education. He reflected he now understands how important school was and regrets his minimal efforts and not being more scholastically motivated and committed. He expressed a possible interest in pursuing future education in HVAC as he has been assisting his uncle who is self-employed in a heating, ventilation and air condition business. Currently Mr. Burghardt works for Thermal Fischer Scientific in Whitby since April 2020 until the present, from Monday to Friday, 9:30 am to 6 pm. His employment is classified as part-time, but he usually receives full-time hours. He has been working for his uncle whenever he has days he is not called in. The PSR reveals Mr. Burghardt has generally been gainfully employed throughout the time after leaving high school.
12Mr. Burghardt has suffered from severe anxiety for a number of years, particularly his teenage years. The probation officer spoke with Valerie Mussington, with Durham Mental Health Services, who confirmed Mr. Burghardt was assessed and diagnosed by their psychiatrist with an "anxiety disorder." He was noted as being "cooperative, resourceful, fully engaged and an active participant" with their services and an individual with "a lot of potential." According to Ms. Mussington, Mr. Burghardt completed a "positive lifestyles program" through another community agency in Oshawa, which provides in-depth understanding of self-esteem, personal boundary regulation and coping skills. She was surprised by his current involvement with the law.
13Mr. Burghardt described being uptight and anxious for most of his life and having panic attacks and from age 16 attending a local hospital on numerous occasions as a result of related physiological anxiety symptoms. This was confirmed by his mother to the probation officer. He is uncertain what triggers his attacks or causes his anxiety. He believes his use of marihuana helps control his anxiety symptoms along with being active, through his fitness training and productive through working. He had been prescribed medications in the past to treat his anxiety but the treatment made him feel worse, so he discontinued their use. It was agreed by him and his doctors to cease this form of treatment. Apparently his parents sought assistance from psychologists and therapists to help assist their son but ultimately these did not work.
14Mr. Burghardt and his mother agreed with the probation officer that perhaps talking with someone about anxiety and management strategies might be more beneficial than clinical treatment. Mr. Burghardt described how, in the past, if he was experiencing intense anxiety this can sometimes prompt depressive symptoms. Although both he and his mother concurred that lately his anxiety levels have decreased significantly and he has been managing positively.
15Mr. Burghardt reported he commenced using alcohol on an occasional, social and recreational basis with his friends and hockey teammates. He recognized there have been occasions when he has said and done things in the past while under the influence of alcohol that he is ashamed of and regretted, but nothing significant or illegal. He acknowledged he was under the influence of alcohol when the incident occurred. He had mostly consumed beer but had a few shots of liquor as well. He told the probation officer he did not drink liquor frequently and when he did he would be "more confidant" and sometimes his "filter goes away" which possibly could lead to an impulsive response to a situation. His mother advised that in later teenage years she had concerns about his alcohol and marihuana use.
16Mr. Burghardt advised after the incident he became more responsible and "didn't drink to get blasted anymore." He decided to discontinue consuming alcohol for fitness enhancement reasons and currently has maintained this decision, which his mother confirmed.
17He acknowledged he has been using marihuana since he was 16 and that his use gradually increased to the point he was using it daily in Grades 11 and 12. He admitted to trying coke, molly and MDMA but only recreationally when provided by friends. He recognized these substances can "ruin your life" as he saw a number of "buddies" go through a destructive path with those types of drugs. Mr. Burghardt's mother expressed concerns over her son's long-term use of marihuana, both physiological and psychological effects and both of his parents have expressed this to him. His mother related to the probation officer that in the past her son's use of marihuana had intensified his anxiety and caused recurrent panic attacks. Mr. Burghardt has always thought his marihuana use was making his anxiety better. Mr. Burghardt advised the probation officer his use of marihuana has decreased significantly in the last couple of years to "0.5 grams or less" daily as he recognized his previous intake was negatively affecting his mood, ambition, motivation and other areas of his life. His mother confirmed her belief that his marihuana use was "way less" smoking only before going to bed. His mother reported to the probation officer that she has not observed her son having the recurrent panic attacks he has in the past and believes he is currently managing his anxiety symptoms better.
18Mr. Burghardt has become more focused on his physical well-being, maintaining his fitness through a training program in a home gym he and his father set up as well as through nutrition and healthy lifestyle choices. He has reduced his circle of friends and no longer associates with his previous friends who were "substance oriented." This was confirmed by his mother, who has observed the change and describes her son as "much a home-body now." The probation officer was of the opinion that Mr. Burghardt was remorseful for his actions and accepting responsibility for his actions. Mr. Burghardt, according to the probation officer, expressed insight into how he responded inappropriately to his perception that his friend was being ejected from the pub. Mr. Burghardt expressed to the probation officer that he recognizes his consumption of alcohol very likely led to his impulsive response to the security person ejecting his friend from the pub. Mr. Affleck advised that when Mr. Burghardt saw the video of the incident in the courtroom and again more recently when he was in Mr. Affleck's office preparing for the sentencing hearing, he recognized his actions on that night were not the actions of a sober person.
Victim Impact Statement
19Ms. Bellan provided a victim impact statement, which reflects she is still experiencing some effects from the incident. She opined he was "a young kid and jail time would turn him into a worse person than he is." She expressed concern whether he was aware he could seriously harm someone in the future if he engaged in similar conduct. Mr. Metz did not provide a VIS, despite the Crown reaching out to him to provide one.
20As I indicated to Mr. Burghardt during the submissions of counsel, Ms. Bellan and Mr. Metz were just doing their job. Mr. Burghardt's friend had become involved in a fight at the main bar, which Mr. Metz broke up. His friend also made derogatory and crude comments to some female customers who were present. As a result of that conduct Mr. Metz decided Mr. Burghardt's friend had to be removed from the pub in order to maintain peace and protect the other customers. Mr. Burghardt was not part of that altercation and I did not know whether he observed his friend's conduct. However, Mr. Metz already had that individual outside when Mr. Burghardt struck Mr. Metz without notice. Ms. Bellan only attempted to stop Mr. Burghardt from leaving after he assaulted her partner. Both of the security persons were simply engaged in their jobs to maintain order and ensure that everyone in attendance was safe.
Mitigating and Aggravating Circumstances
21Mr. Burghardt entered a plea of guilty to both charges after hearing the testimony of the two security persons. Normally a guilty plea entered at such a late stage of the proceedings would not be afforded much mitigation, however, this was a case where both of those witnesses were unable to identify Mr. Burghardt. The whole incident lasted no more than ten (10) seconds and the images on the video were momentary and unclear. The perpetrator was wearing a ball cap and it was difficult to identify if Mr. Burghardt was in fact the culprit. Yet after the evidence was completed the defence requested a recess and upon returning Mr. Burghardt was changing his not guilty plea to guilty. The Crown may very well have submitted I could identify Mr. Burghardt as the perpetrator from the video pursuant to R. v. Nikolovski, [1996] S.C.J. No. 122. It is my view Mr. Burghardt's changing his plea to guilty merits mitigation because it demonstrates his acceptance of responsibility and his remorse for his conduct despite the two witnesses being unable to identify him as the perpetrator.
22A further mitigating circumstance is the very positive presentence report, which confirms Mr. Burghardt's remorse and acceptance of responsibility and demonstrates insight into why this incident occurred, which bodes well for Mr. Burghardt not engaging in similar conduct in the future. His recognition that his consumption of alcohol was becoming problematic for how he was living his life and his recognition that the company he was keeping in terms of their lifestyle choices was having a detrimental impact on his life are both positive rehabilitative steps on his part.
23The most significant mitigating circumstance is the fact Mr. Burghardt is a youthful first offender, who at 22 years of age had never previously been in conflict with the law. Mr. Burghardt comes from a very supportive and involved family. His mother provided very helpful information to the probation officer, particularly concerning Mr. Burghardt's family involvement and support of his anxiety disorder.
24The nature of the assault committed by Mr. Burghardt is an aggravating circumstance. It was what I would describe as a "sucker punch" which could have caused far more serious injuries than occurred. I do not wish to minimize the fact Mr. Metz had to receive two stitches to close the cut caused by the punch to his upper lip or the fact Ms. Bellan had to receive physiotherapy for the several weeks she was off work.
25A further aggravating circumstance was the fact Mr. Burghardt's assault of Mr. Metz was unprovoked. His friend was already outside. He was not being treated inappropriately or roughly by Mr. Metz, who was basically was just escorting him out of the pub towards the parking lot. Ms. Bellan would not have been assaulted but for Mr. Burghardt punching Mr. Metz and her trying to stop him from leaving.
Sentence Imposed
26It was the opinion of the probation officer from the collateral sources she spoke to that Mr. Burghardt does not normally display aggressive behaviour and is not someone who has anger management deficits or issues. She believed he gained insight into his behaviour and had learned a valuable lesson from his experience. Mr. Burghardt had prosocial values, respect for the law, a supportive family network and favourable personal, community and societal conventions. Mr. Burghardt was open to pursuing counselling and becoming involved in performing community service if ordered to by the court. The probation officer saw him as a suitable candidate for community supervision.
27An added feature in Mr. Burghardt's sentencing is he is a youthful first offender. As such, it is important to consider the principle of restraint. In R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont. C.A.) at page 377, Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence:
It is the view of the Court that the sentence imposed upon the appellant does reflect an error in principle. In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate. In our view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to be imposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence. [Emphasis added]
28In R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.) Rosenberg, J.A. made the following comments concerning R. v. Stein, supra, (at paras. 18 and 19) as well as addressing the issues raised in sentencing a first offender:
As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now been codified in the recently proclaimed sections 718 and 718.2 of the Criminal Code. Section 718.2 (c) instructs that separation of offenders from society is an appropriate objective of sentencing "where necessary". Section 718.2 (d) directs that an offender should not be deprived of liberty "if less restrictive sanctions may be appropriate in the circumstances".
The principle embodied in now s. 718.2(e) was of particular significance in this case. It provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders".
29In R. v. Batisse, 2009 ONCA 114 , [2009] O.J. No. 452, at paras. 32 to 34, the Ontario Court of Appeal held:
…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.
…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:
[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.
In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in [R. v. Dubinsky, [2005] O.J. No. 862, 2005), at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.
30The determination of a proper sentence in this case calls for a consideration and balancing of the principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, as well as the aggravating and mitigating factors which exist in this case. I have set out above a number of aggravating and mitigating factors and circumstances which I must consider in determining an appropriate sentence.
31The overarching principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing, which include:
- general and specific deterrence;
- denunciation;
- rehabilitation;
- reparation to society or the victim;
- separation from society where necessary;
- the need to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.
32How much weight I place on any one objective will depend on the facts of each case.
33Certainly in a case of assault causing bodily harm the sentencing principles of denunciation and deterrence are important, however, the principles of rehabilitation and restraint cannot be discounted or ignored, particularly when dealing with a first offender. Further, general deterrence and denunciation should not be over-emphasized (see Batisse, supra). It is only one factor the Court must consider (see R. v. Sears, [1978] O.J. No. 435 (C.A.)). I agree with the assessment of the probation officer, which reflects that the principle of specific deterrence is not a significant factor in this sentencing given the previous steps already taken by Mr. Burghardt in addressing his anxiety and his issues with over-consumption of alcohol, as well as Mr. Burghardt's acceptance of responsibility for his actions and his expression of the insight he has gained into the wrongfulness of his conduct.
34Sentencing is highly individualized (see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at paragraph 92) and must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is to be increased or reduced to account for any aggravating or mitigating circumstances. It should strive to be similar in relation to other sentences imposed on similar offenders in similar circumstances.
35The jurisprudence indicates a range of sentence for assault causing bodily harm ranging from conditional discharges to sentences in the upper reformatory, and in rare cases, low penitentiary sentences where the injuries are very serious, and the Crown has proceeded by indictment. The Crown proceeded by summary conviction in this case. It is clear that any sentence must focus on the protection of the public by the imposition of a penalty that denounces this type of conduct and provides for deterrence. At the same time, the sentence must be individualized, as well as reflect and encourage as much as possible any apparent rehabilitative prospects. The appropriate sentence is determined by the circumstances surrounding the commission of the offence, including the nature of the assault and the seriousness of the injury caused and the individual circumstances of the accused, including the accused's background, mental health issues, addictions, or lack of a criminal record, as in this case.
36Recently, the Ontario Court of Appeal, in R. v. Huh, [2015] O.J. No. 2514, considered the fitness of a conditional discharge with 2 years' probation for an assault causing bodily harm, where a severe beating caused brain damage in the higher executive functions, facial fractures and post-concussion syndrome. The Court adopted the reasoning in R. v. Wood, [1975] O.J. No. 290 (C.A.), at para 4: "in cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused." [Emphasis added] In that case the Court of Appeal held the principles of denunciation and deterrence could not be met without a period of incarceration and in the circumstances, imposed a 6 month jail sentence with probation. It is, in my view, significant that the Court of Appeal recognized there could be cases where a conditional discharge could be imposed that was not contrary to the public interest in cases of assault causing bodily harm.
37In R. v. Hayes, [1999] O.J. No. 938 (S.C.J.), Hill J. substituted a conditional discharge for a suspended sentences and probation where the charges involved mischief, wilful damage to property and assault with a weapon. In addressing when conditional discharges are appropriate he cited these cases at para. 32:
Discharges are not restricted to trivial matters: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.). Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: Regina v. Taylor (1975), 24 C.C.C. (2d) 551 (Ont. C.A.) at 552 per Arnup J.A. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 37 C.C.C. (2d) 182 (Ont. C.A.) at 184-5 per Martin J.A.; Regina v. Culley (1977), 36 C.C.C. (2d) 433 (Ont. C.A.) at 435 per Martin J.A. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.). While a discharge is only rarely appropriate in offences involving violence causing injuries, such a sentence is not universally unavailable in such circumstances: Regina v. Wood (1975), 24 C.C.C. (2d) 79 (Ont. C.A.) at 80 per Jessup J.A.
38Other cases where conditional discharges have been imposed are as follows: R. v. Pera, 2016 ONSC 2800 , [2016] O.J. No. 2428 (S.C.J.), a conditional discharge was granted where the accused's actions caused a police officer to break his leg requiring extensive physiotherapy, and the accused's pre-trial custody was used in assessing whether a discharge was appropriate, the Crown had sought a conviction and a suspended sentence; R. v. Menese, [1974] O.J. No. 736 (C.A.), a conditional discharge does not mean an accused goes scot free, they are still subject to terms of probation and have to earn discharge; R. v. McGee, [2011] O.J. No. 863 (S.C.J.), a conditional discharge was granted to a first offender who dealt with alcohol issues where the assault caused a three inch cut to the chin of a taxi driver; R. v. D'Souza, 2015 ONCA 805, at paragraphs 3-5, discharges are not restricted to trivial offences and the over-emphasis on the nature of the offence must be avoided, here an accused was granted a conditional discharge where the sentencing judge placed too much emphasis on general deterrence for a trafficking in a schedule II drug, where a first offender had made tremendous progress in overcoming an addiction to marihuana, doing volunteer work and attending university and finally, in R. v. Neundorf, [2011] O.J. No. 5241 (C.A.) an accused was convicted of abduction respecting her children in contravention of a custody order and sentenced to a 12 month conditional sentence, which was substituted with an absolute discharge on appeal where a conviction placed undue hardship to the accused's travel to the United States for employment and to see their family.
39I am aware of other cases where conditional discharges were imposed in cases of assault causing bodily harm: R. v. Cruz, 2018 ONCJ 8 (Vaillancourt J.); R. v. Adamson, 2017 ONCJ 174 (West J.); R. v. Fantinato, [2018] ONCJ 710 (West J., OCJ); R. v. Fensom, [2016] O.J. No. 3954 (SCJ, Quigley J.) and R. v. Murphy [2007] O.J. No. 327 (SCJ, Del Frate J.). All were cases involving varying degrees of bodily harm, some quite serious and conditional discharges were granted.
40As I indicated the Crown is seeking a 30 day custodial sentence, which in my view does not give the appropriate consideration to the sentencing principles of rehabilitation and restraint, as reflected in the Ontario Court of Appeal decisions referred to above. Where the accused is a youthful first offender I am directed by the Court of Appeal in Stein, Priest, Batisse and Dubinsky to exercise restraint and to consider the offender's prospects for rehabilitation. It is important to note that two of the subsections of s. 718.2, namely, subsections (d) and (e) address the sentencing principle of restraint: that an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718.2 (d)), and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2 (e)).
41In R. v. Gladue, [1999] S.C.J. No. 19, at para. 36, the Supreme Court held the application of s. 718.2 (e) applies to all offenders and states that imprisonment should be the penal sanction of last resort. A custodial sentence is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender. It is for these reasons it is my view a custodial sentence would be a disproportionate sentence.
42Ms. Bellan, the security person who attempted to stop Mr. Burghardt from leaving, indicated in her VIS that she did not believe jail would be an appropriate disposition for Mr. Burghardt because he was just a young kid. Mr. Metz did not provide a VIS.
43Section 730 of the Criminal Code outlines the criteria for the imposition of a discharge. A discharge cannot be imposed where the offence is one where a minimum sentence exists or where the maximum penalty for the offence is 14 years or more. Moreover, a discharge may only be granted where it would not be contrary to the public interest and would be in the best interest of the offender.
44I recognize there are cases where the circumstances surrounding serious offences will sometimes require a custodial sentence or at a minimum a conviction to be imposed despite the accused being a youthful first offender. However, as the above-noted assault causing bodily harm cases demonstrate, there are cases where the totality of the circumstances allow for the granting of a conditional discharge where it is not contrary to the public interest. In Mr. Burghardt's case the Crown proceeded by summary conviction so there is no minimum sentence and the maximum sentence available is eighteen months. A conditional discharge is clearly in Mr. Burghardt's best interest. The issue which must be determined is whether granting a conditional discharge is contrary to the public interest. Put another way, the issue to be determined is whether a conviction needs to be imposed to appropriately reflect the principle of general deterrence and denunciation or whether a conditional discharge can be imposed, which will adequately address general deterrence and denunciation, as well as recognize the importance of restraint and rehabilitation having regard to the fact Mr. Burghardt is a youthful first offender.
45Based on the evidence of the video, it is my view the conduct of Mr. Burghardt was greatly influenced by the amount of alcohol he had consumed. The whole incident lasted around ten seconds, it was extremely quick, which supports a reasonable inference his decision was a spur of the moment, snap decision, where very little thought by Mr. Burghardt occurred. In my view his alcohol consumption clouded his perception of what was happening between the security individual and his friend and this perception caused him to act very much out of character, based on the assessment of the probation officer. Further, Mr. Burghardt told the probation officer he recognized that his consumption of a "few shots" of liquor caused his "filter to go away" leading to his conduct. His change of plea and his acceptance of responsibility despite both of the victims being unable to identify him as the perpetrator, in my view, speak volumes about Mr. Burghardt's character and his sincerity and motivation not to engage in similar behaviour in the future. His recognition of the destructive path he was on, with 'friends' described by his mother as being a negative crowd and who he described as embracing a 'party lifestyle,' bode well for his rehabilitation. His steps in changing his friends and his decision to cease consuming alcohol demonstrate his commitment to this.
46The presentence report described Mr. Burghardt's struggle with a diagnosed anxiety disorder. It is my view his preparedness to attend counselling to gain further insight and to develop strategies to address this issue is a positive step in the right direction. My hope would be that Mr. Burghardt would discover alternatives to his continuing to self medicate with marihuana (THC). Both he and his mother reflected his level of consumption has decreased as a result of this incident. Perhaps counselling with a medical practitioner specializing in the medical use of marihuana and its components, such as CBD, as opposed to THC, and which of these best alleviates the symptoms of an anxiety disorder would be helpful to Mr. Burghardt. In addition, counselling to assist him in gaining insight and understanding into what causes him to become anxious in my view would further assist him in his future behaviour and endeavours.
47I also recognize that because of Mr. Burghardt's youth, he is still determining what future education or training he intends to pursue, and a criminal conviction could detrimentally impact those pursuits. A conditional discharge would not have the same consequence as a conviction registered as a result of a suspended sentence. The Court of Appeal in R. v. Meyers, R. v. Culley and R. v. Neundorf, supra, recognized this was an appropriate consideration in deciding whether to impose a discharge as opposed to registering a conviction. Further, the British Columbia Court of Appeal in R. v. Etienne, [1989] B.C.J. No. 1492 (C.A.) also held the effect of a conviction on a youthful first offender's future employment opportunities was an appropriate circumstance to consider in granting a discharge (two additional unreported B.C.C.A. decisions supporting this consideration were included in this judgment).
48A conditional discharge can have a similar deterrent effect on other like-minded individuals where the terms of probation imposed are identical to the terms contemplated with respect to a suspended sentence. The Ontario Court of Appeal has recognized this in R. v. Cheung and Chow, supra. Also, general deterrence is not the sole consideration in assessing an appropriate sentence and where a sentencing judge has over-emphasized deterrence the Court of Appeal has substituted a conditional discharge for a suspended sentence (see R. v. Dubinsky and R. v. Sears, supra). In his discussions with the probation officer Mr. Burghardt expressed some reluctance to a term of probation requiring him to perform community service but in the end, indicated his willingness to do this. It is my view Mr. Burghardt's skills in hockey would be significant in his giving back to the community by volunteering his expertise and time to assist young people in improving their hockey skills. A conviction would prevent Mr. Burghardt from being able to impart his expertise and skills to young people, as he would be unable to pass a vulnerable sector check with a conviction for assault causing bodily harm. It is my view that the inclusion of a community service term is in the public interest as it provides a mechanism for Mr. Burghardt to give back to the community as a whole for the conduct he engaged in. Granting a conditional discharge does not mean Mr. Burghardt will go "scot-free" with no consequences, as a period of 2 years' probation with strict terms and a number of hours of community service is a significant penalty and will no doubt deter others from engaging in this type of conduct.
49It is my view in the context of the totality of the circumstances of this case a conditional discharge is not contrary to the public interest. Mr. Burghardt is entitled, in effect, to be given a second chance, primarily based on the positive and comprehensive presentence report prepared for his sentencing. Informed members of the public would support the granting of a discharge to Mr. Burghardt having regard to the nature of the assault and injury sustained by Mr. Metz and the fact the injury to Ms. Bellan was not intentional but more a consequence of the momentum of his forward motion running past Mr. Metz, as seen clearly on the video. Further, Mr. Burghardt is a youthful first offender and his loss of employment opportunities if he was convicted is an appropriate consideration in not registering a conviction and I am satisfied that an informed member of the public would consider this outcome to be appropriate in all of the circumstances of this case and that Mr. Burghardt should be given a second chance.
50Consequently, I am granting Mr. Burghardt a conditional discharge and placing him on probation for a period of two years with terms and conditions.
Released: November 10, 2020
Signed: Justice Peter C. West
