ONTARIO COURT OF JUSTICE

CITATION: R. v. Ferguson-Kellum, 2023 ONCJ 119

DATE: 2023 03 14

COURT FILE No.: City of Stratford 3211-998-20-633-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

Deserai FERGUSON-KELLUM

Before Justice K.L. McKerlie

Heard on August 31, 2022

Reasons for Judgment released on October 26, 2022

Sentencing: March 14, 2023

Jeff Costain.......................................................................................... counsel for the Crown

Tom Brock...................................... counsel for the accused Deserai Ferguson-Kellum

McKerlie J.:

[1] Deserai Ferguson-Kellum, you are being sentenced today for committing an offence under s. 320.14(1) of the Criminal Code, and while operating the motor vehicle, causing bodily harm to your passenger, Emily Clarke, contrary to s. 320.14(2) of the Criminal Code.

Circumstances of Offence

[2] The offence date was June 18, 2020. The crown elected to proceed by Indictment. As a result of the COVID-19 pandemic, your trial was not heard until 2022. The finding of guilt was made on October 26, 2022. Sentencing was adjourned for the preparation of a pre-sentence report.

[3] The trial was focused on the narrow issue of whether you caused the bodily harm suffered by your passenger as a result of a single motor vehicle collision. You admitted that you were operating the motor vehicle while your ability to do so was impaired by your consumption of alcohol and that you had a blood alcohol concentration exceeding 80 mg of alcohol in 100 ml of your blood.

[4] On the date of the offence, June 18, 2020, you were 21 years old. You rented a car and took your younger friend, Emily Clarke, to Grand Bend for the day. You bought a bottle of rum and some vodka coolers. You and Ms. Clarke spend the day socializing at the beach and consuming alcohol. By late afternoon, you were both intoxicated.

[5] You testified that you had originally planned to sober up before driving home, but your passenger insisted on leaving and you made the decision to drive. At trial, you admitted that when you entered the vehicle to drive home to Kitchener, you were impaired and knew that you should not be driving.

[6] Your judgment was impaired as was your ability to operate a vehicle. Ms. Clarke’s judgment was likewise impaired--getting into a vehicle with a drunk driver, consuming alcohol during the drive and arguing with the driver while the vehicle was in motion. You and Ms. Clarke each described a chaotic scene inside the car including arguing with each other and drama associated with phone calls made during the drive.

[7] At trial, your attempts to blame your poor driving on Ms. Clarke’s behaviour in the vehicle did not have an air of reality and did not survive the scrutiny of cross examination. None of the conduct you described on the part of Ms. Clarke was an excuse for your decision to drive erratically at a high rate of speed while your ability to drive was impaired by alcohol.

[8] As the driver, you were responsible for the safety of yourself, your passenger and other users of the roadway. Your irresponsible and criminal decision to drive while impaired resulted in life-altering consequences for your passenger, Ms. Clarke.

[9] Not only did you make the choice to get behind the wheel and drive while impaired, but you also continued to drive after the situation in the vehicle became chaotic as you argued with your passenger. You drove erratically and at an excessive rate of speed.

[10] The findings of fact at trial included the following:

• You made the decision to drive back to Kitchener when you knew that your ability to operate a motor vehicle was impaired by alcohol and you knew that you should not be driving.
• You drove at an excessive rate of speed from the time you left the Grand Bend parking lot to the time of the crash.
• Only minutes before the single motor vehicle crash at the roundabout, you aggressively passed a vehicle at a high rate of speed such that an oncoming truck was forced to take evasive action.
• After passing that vehicle, you continued to drive in the oncoming lane.
• You entered the roundabout at a high rate of speed. Your vehicle struck the curb in the middle of the roundabout and became airborne. The vehicle flew through the roundabout and crashed into the north-east ditch.
• Your driving conduct and impairment caused the accident which resulted in the bodily harm suffered by your passenger, Emily Clarke, which included injuries to her bowels, colon, spleen and kidneys, and the surgical removal of a section of her colon.

[11] As to what she remembered about the crash, Ms. Clarke testified:

I remember it was slow motion before the car had hit the ditch. And I remember gasping for air. I was lifted out of my seat, moved forward and then jerked back really aggressively. And then after that I like lost consciousness and it was just all black.

[12] The next thing Ms. Clarke remembered was waking up in the hospital. Ms. Clarke remained in the hospital for 7 days. As to her injuries, Ms. Clarke testified:

The seatbelt that saved my life also ruptured my bowels. My spleen and kidneys were bruised—one of them was punctured, I can’t remember which one, it was either the spleen or the kidneys. I had to get trauma surgery because my colon was smushed I guess and they had to remove 12 centimeters of it off. Due to that they gave me a colostomy bag.

[13] When asked if things have improved since that time, Ms. Clarke replied, “yes and no. I still have the [colostomy] bag”. On the date of the trial, Ms. Clarke was only 20 years old. She has suffered traumatic and life altering consequences as a result of your criminal driving conduct.

Circumstances of Offender

[14] Ms. Ferguson-Kellum, you come before the court today at the age of 24 with no prior record, but with one item of subsequent record. It is shocking that after committing the June 18, 2020 offence but before your trial, you again chose to drive while impaired. On February 3, 2022, you were convicted of the February 19, 2021 offence of impaired driving and sentenced to a fine, driving prohibition order and period of probation.

[15] The Pre-Sentence Report sets out your personal background and current circumstances. On the date of the offence, you were 21 years old. You are now 24 years old. You are currently in a committed dating relationship, but report victimization during prior intimate partner relationships.

[16] Your parents separated shortly after you were born. You resided with your mother in what was described as a dysfunctional and sometimes chaotic environment. Family and Children’s Services became involved. You report two placements at a group home and placement in an addiction treatment facility for six months.

[17] Your mother reports that you were raised in an environment where alcohol abuse was a part of everyday life and she failed to provide you with adequate security, structure and safety. You and your mother report that you started consuming alcohol and marijuana at the age of 13. By the age of 15, you were using marijuana and cocaine. Family and Children’s Services sponsored your admission to the six-month Portage residential treatment program.

[18] As detailed in the Pre-Sentence Report, you have survived significant trauma and abuse in a variety of forms. I have considered the details as outlined in the Pre-Sentence Report and the Lutherwood Psychological Assessment, but will not include them in these reasons given the sensitive nature of that personal information.

[19] You have previously been diagnosed with PTSD as well as Social Anxiety Disorder and Persistent Depressive Disorder. You have struggled with anxiety, depression and suicidal ideation.

[20] As a result of a more current 2022 psychiatric assessment, you were diagnosed with “Major Depressive Disorder (recurrent), Generalised Anxiety Disorder, Substance Abuse Disorder, a Cluster B Personality (Borderline and antisocial traits) and a history of ADHD and PTSD. You have been prescribed medication for anxiety, nightmares, ADHD and your psychiatrist has also recommended trauma therapy.

[21] You report being very remorseful for the consequences suffered by your passenger and are described as empathetic. The writer of the Pre-Sentence Report indicates that you now take “the perspective that this incident serves as a wake up call to make positive changes in the areas of substance use, personality deficits, interpersonal relationships and to make a greater effort in addressing emotional health issues”.

[22] In your letter of apology addressed to Ms. Clarke, you state, in part:

You were my best friend, and the last thing I wanted to do was cause you harm. I will forever carry the guilt and shame for what I have done.

[23] You have been bound by a probation order since February 2022. The probation officer describes your reporting to the probation office as “very good”. You are participating in one to one counseling at Stonehenge and completed a two-week program at the House of Friendship addictions program. The writer of the report indicates that you responded well to these interventions and responded very well to probation supervision.

[24] You currently receive ODSP benefits. With your caseworker’s knowledge and support, you have been employed at Value Village since August 2022. You are described as a good employee and work full time sorting and hanging clothing.

[25] The Pre-Sentence Report ends with the following summary:

Sources report the subject was raised in a very dysfunctional family setting typified by parental neglect, ineffectiveness and substance abuse. Her mother reports she failed to provide her daughter with the adequate amount of love, safety, support and structure necessary for a child to thrive and socialize as she should. Despite these absences, the subject appears to have behaved in a generally pro-social manner up until the age of 12. It was at this time that she began to rebel against authority. The victimization she experienced…seems to have triggered a more intense anti-social reaction that involved uncontrollable behaviour in the home and in the community, as well as self-abusive behaviour that included physical harm, suicidal ideation and substance abuse. The subject also eventually entered into and maintained intimate relationships that were extremely abusive and toxic.

During these times, the subject made efforts to address these anti-social patterns of attitude and behaviour by cooperatively participating in community resources … The positive intentions of those interventions did not immediately manifest themselves as desired. It is reported that, despite the tragic consequences resulting from today’s offence, the subject has decided to see this as a cathartic, watershed event in her life and therefore is making some very positive changes in her life to reduce the likelihood of any repetition of similar offences. She has completed one intensive community based addiction program and continues to avail herself of ongoing counselling and support provided [through] Stonehenge. She is attempting to address her emotional and mental health problems through Grand River Hospital and her family physician and by complying with a regime of medications designed to manage these issues.

The subject has also improved her relationships with her family and is currently in an intimate relationship that, quite unlike her previous relationships, has proven to be very loving and supportive. She has made efforts to engage in educational pursuits that will improve her employability and is currently employed in a job that, at the present time, provides her with some employment experience, purpose, enjoyment and financial compensation.

Sentencing Submissions

[26] Section 320.2 of the Criminal Code provides that every person who commits an offence under subsection 320.14(2) is guilty of an indicatable offence and liable to imprisonment for a term of not more than 14 years.

[27] Pursuant to s. 320.24(4) and (5)(b) of the Criminal Code, if an offender is found guilty of an offence under subsection 320.14(2), the court may make an order prohibiting the offender from operating the type of conveyance in question for not more than 10 years, plus the entire period to which the offender is sentenced to imprisonment.

[28] Section 718.1 of the Criminal Code provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[29] In this case, the crown seeks a period of imprisonment of 18 months followed by a three-year probation order. The crown also seeks a driving prohibition order for three years plus the period of imprisonment and a secondary DNA order.

[30] The crown acknowledges that as a result of recent amendments to the Criminal Code, a conditional sentence of imprisonment is now available as a sentencing option for this offence. The crown submits, however, that a conditional sentence of imprisonment would not send a sufficient message of denunciation and deterrence in the circumstances of this offence. The crown submits that the sentence of imprisonment ought to be served in a provincial jail and not under a conditional sentence of imprisonment.

[31] Defence counsel acknowledges that a sentence of imprisonment in the upper reformatory range is required, but submits that the sentence of imprisonment ought to be served conditionally in the community under a conditional sentence of imprisonment. Defence counsel agrees that the probation order, driving prohibition order and secondary DNA order sought be the crown are appropriate.

[32] In support of his submissions, the crown relies upon the principles outlined in the following case authorities:

R. v. Lacasse, 2015 SCC 64

R. v. Clouthier, 2016 ONCA 197

R. v. Theriault, 2018 ONSC 7465

R. v. Stennett, 2018 ONCJ 466 and 2021 ONCA 258

R. v. Bulland, 2020 ONCA 318

R. v. Leis, 2021 ONCJ 86

R. v. Gomes, 2022 ONCA 247

[33] In Lacasse, the Supreme Court of Canada described sentencing as “one of the most delicate stages of the criminal justice process in Canada”. The Court noted that although sentencing objectives are clearly defined in the Criminal Code, sentencing “involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing”.

[34] As succinctly captured in the headnote of the majority decision:

Proportionality is the cardinal principle that must guide [courts] in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. Both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice. …

… [T]he fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.

[35] The paramount sentencing objectives for the offence of impaired driving causing bodily harm or death are denunciation and deterrence, which must be “emphasized in order to convey society’s condemnation”: Lacasse, para. 5.

[36] The dangers of drinking and driving are well known and well publicized. Over the years, Parliament has increased penalties for drunk driving and yet drunk drivers persist in making the choice to endanger lives. As summarized in Lacasse, at paras. 7-8:

[7] The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly. Despite countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offence in Canada. …

[8] This sad situation, which unfortunately continues to prevail today, was denounced by Cory J. more than 20 years ago:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of deaths and serious injuries resulting from hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country: R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at para. 16.

[37] As aptly noted by Conlon J. in R. v. Theriault at para. 20, there is a recent trend in the jurisprudence toward more severe sentences in impaired driving-related offences and there is no definitive range of sentence because the facts can be so varied from one case to another. The paramount sentencing objectives continue to be those of denunciation and deterrence.

[38] Defence counsel emphasizes your young age and good prospects for rehabilitation, which are both important mitigating factors for sentencing. The crown emphasizes that in Lacasse at para. 79, the Supreme Court of Canada directly addressed this issue and recognized:

… Although an offender’s youth is often an important mitigating factor to consider, it should be noted that it is young people who are affected the most by motor vehicle accidents that result from impaired driving. In light of the importance that must be attributed to the objectives of deterrence and denunciation in such cases as well as the dire consequences of the accident in the instant case, the trial judge was right to reduce the weight attached to his youth as a mitigating factor.

[39] Ms. Ferguson-Kellum, you are a young woman and your passenger was even younger. Fortunately, Ms. Clarke survived her injuries, but she suffered and will continue to suffer the dire consequences of those life-altering injuries for the rest of her life.

[40] Defence counsel correctly notes that this trial was very focused. You made a number of admissions that saved trial time. The evidence of six witnesses (4 civilians and 2 police officers) was adduced by way of an Agreed Statement of Facts. A similar observation was made by Kenkel J. in R v. Stennett.

[41] The case authorities relied upon by the crown well support the crown’s submission for an 18-month period of imprisonment followed by a three-year probation order. A sentence of imprisonment in the upper reformatory range is clearly required.

Conditional Sentence Regime and Guiding Principles

[42] The issue on this sentencing hearing is whether the objectives of denunciation and deterrence can be achieved through the imposition of a conditional sentence of imprisonment, under strict terms of house arrest monitored by GPS technology—a sentencing option that was not available to the sentencing judges in the case authorities filed.

[43] The legislative history of the conditional sentencing regime is outlined in the recent Supreme Court of Canada decision in R. v. Sharma, 2022 SCC 39, at paras 7-14 and summarized at para 1:

[1] Conditional sentences are a form of punishment that allow offenders to serve their sentences in the community, rather than in jail. Parliament created the conditional sentencing regime in 1996. In 2012, it amended the regime to make conditional sentences unavailable for certain serious offences and categories of serious offences.

[44] As noted in Sharma, the Supreme Court of Canada first considered the conditional sentence regime in R. v. Proulx, 2000 SCC 5. In 2007 and again in 2012, Parliament amended s. 742.1 of the Criminal Code to place restrictions on the availability of conditional sentences for certain offences.

[45] Bill C-5 came into force on November 17, 2022. It removed the prohibition against conditional sentences for indictable offences punishable by a maximum of 14 years or life imprisonment in s. 742.1(c) and repealed s. 742.1(e) in its entirety. Parliament removed those restrictions to increase the availability of conditional sentences. As a result, a conditional sentence of imprisonment is now an available sentencing option for the offence of impaired operation causing bodily harm, contrary to s. 320.14(2) of the Criminal Code.

[46] The requirements under s. 742.1 (a) must still be met. The court must be satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.

[47] In light of the Bill C-5 amendments, it is useful to return to the initial guidance provided by the Supreme Court of Canada in Proulx – guidance provided at a time when the exclusionary provisions (later added and now removed) were not part of the conditional sentence regime. I am mindful, however, that Proulx must also be read in the context of the upward trend toward more severe sentences for impaired driving-related offences.

[48] In Proulx, the Court restored the 18-month sentence of incarceration imposed by the sentencing judge for the offences of dangerous driving causing death and dangerous driving causing bodily harm with Lamer C.J. also noting at para. 130:

I hasten to add that these comments should not be taken as a directive that conditional sentences can never be imposed for offences such as dangerous driving or impaired driving. In fact, were I a trial judge, I might have found that a conditional sentence would have been appropriate in this case.

[49] The guidance provided by the Supreme Court of Canada in Proulx, includes the following:

1. The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. [para. 22]

2. The conditional sentence is defined in the Code as a sentence of imprisonment. Conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrest or strict curfews should be the norm, not the exception. [paras. 29, 36]

3. Where an offender breaches a condition without reasonable excuse, there should be a presumption that the offender serve the remainder of his or her sentence in jail. This constant threat of incarceration will help to ensure that the offender complies with the conditions imposed. [para. 39]

4. As a prerequisite to any conditional sentence, the sentencing judge must be satisfied that having the offender serve the sentence in the community would not endanger the safety of the community. [para 63]

5. It is only once the judge is satisfied that the safety of the community would not be endangered that he or she can examine whether a conditional sentence “would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”. In other words, rather than being an overarching consideration in the process of determining whether a conditional sentence is appropriate, the criterion of safety of the community should be viewed as a condition precedent to the assessment of whether a conditional sentence would be a fit and proper sanction in the circumstances. [para 65]

6. Safety to the community focuses on the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence. Two factors must be taken into account: the risk of the offender re-offending and the gravity of the damage that could ensue in the risk of re-offence. If the judge finds that there is a real risk of re-offence, incarceration should be imposed. The risk that a particular offender poses to the community must be assessed in each case on its own facts. The risk of re-offence should also be assessed in light of the conditions attached to the sentence. [paras. 66-76]

7. Denunciation is the communication of society’s condemnation of the offender’s conduct. … Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed, and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. [para 102]

8. The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are aware of the offender’s criminal misconduct can provide ample denunciation in many cases. [para 105]

9. The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct. [para 106]

10. Judges should be wary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. … A conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. …Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration. This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed. [para. 107]

[50] At para. 117 of Proulx, the Supreme Court re-emphasized, “punitive conditions such as house arrest should be the norm, not the exception” and such conditions must be realistically enforceable. The court further stated, “This requires a consideration of the available resources in the community in which the sentence is to be served”.

[51] In years following Proulx, there have been significant developments respecting the availability of resources for enforcing house arrest conditions, most notably the availability ankle bracelets with GPS monitoring.

[52] In 2022, the Ministry of the Solicitor General implemented the GPS monitoring program for Conditional Sentence Orders. The background information provided by the Ministry indicates that GPS monitoring is used to maintain public safety and monitor the movement and whereabouts of individuals living in the community with court-ordered electronic monitoring conditions. GPS devices use satellites to monitor movement. This technology allows monitoring of the offender’s movements anywhere in the community.

Application of Sentencing Principles

[53] I now turn to the application of the sentencing principles to the circumstances of this offence and the circumstances of this offender.

[54] It is a difficult sentencing. Ms. Ferguson-Kellum, the sentence imposed today must be proportionate to the gravity of the offence and your degree of responsibility. The circumstances of the offence are aggravating. Your degree of responsibility and moral blameworthiness is high.

[55] As to the condition precedent that serving the sentence in the community would not endanger the safety of the community, your conviction in 2022 for the February 2021 offence of impaired driving is a significant concern. Were it not for your subsequent successful completion of the one-year probation order and your very positive response to community supervision, this condition precedent would not be met.

[56] Given the positive assessment in the Pre-Sentence Report, the progress you have made during counselling and treatment, your commitment to continue counseling and treatment, your motivation and ability to abstain from alcohol, and your compliance with medication prescribed in relation to your mental health diagnoses, I am satisfied that serving the sentence in the community at the present time would not endanger the safety of the community.

[57] I also take into account that the risk of re-offence can be mitigated by the conditions attached to a conditional sentence of imprisonment. The “constant threat of incarceration” reinforces compliance with onerous conditions imposed to address the safety of the community. The duration of a conditional sentence can be extended beyond the duration of a jail sentence that would ordinarily have been imposed. A GPS ankle bracelet is a constant reminder of the onerous conditions of house arrest and adds to the stigma of living in the community under house arrest.

[58] I now turn to the issue of whether serving the sentence in the community would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code. The paramount sentencing objectives in this case are denunciation and deterrence. I am mindful of the observation of Doherty J. in R. v. Killam, 1999 CanLII 2489 (ON CA), [1999] O.J. No. 4289:

[13] … A conditional sentence, if properly understood, can adequately address the needs of denunciation and general deterrence even in cases where those principles are paramount. I think, however, it must be acknowledged that a conditional sentence, even one like this one which imposes some significant restrictions on the offender’s liberty, does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal.

[59] The 18-month period of incarceration sought by the crown addresses denunciation and deterrence. It is clearly the most effective way in which to denounce and deter this type of irresponsible, criminal driving conduct. As noted in Proulx at para. 129, impaired driving offences may be offences for which harsh sentences plausibly provide general deterrence.

[60] There are, however, unique circumstances to address in this particular sentencing. Were it not for the totality of these unique circumstances, I would have imposed the 18-month sentence of incarceration sought by the crown. In my view, the combination of the following unique factors is such that a lengthy conditional sentence is appropriate in this particular case:

1. The offender’s young age in the context of the passage of time since she committed the offence. Ms. Ferguson-Kellum was 21 years old on the offence date. She is now 24 and has worked hard to achieve considerable positive personal growth since the date of the offence.
2. The reason this matter did not proceed to trial until 2022 was directly connected to the timing of the offence as it related to court scheduling during the height of the Covid-19 pandemic. It was not delay on the part of the offender.
3. During the delay occasioned by the Covid-19 pandemic, Ms. Ferguson- Kellum demonstrated a sustained and positive response to community supervision and made significant progress in counselling and treatment. As a result of those efforts, she has good prospects for rehabilitation.
4. Ms. Ferguson-Kellum was raised in a chaotic and dysfunctional family setting with very little support or stability. She is the survivor of significant trauma and abuse. Presently, she is successfully coping with substantial mental health issues. There is a risk that incarceration would negatively impact her mental health and her positive progress toward rehabilitation. The continuation of positive steps toward rehabilitation will contribute to the long term protection of the public.

[61] I emphasize that without the combination of those unique factors, a sentence of incarceration would have been required. The conditional sentence of imprisonment imposed today will be for a lengthy period with onerous terms that are intended to be punitive in order to meet the sentencing objectives of denunciation and deterrence. In these particular circumstances, I am satisfied that a conditional sentence will adequately address the objectives of denunciation and deterrence.

[62] Ms. Ferguson-Kellum, you will have the constant reminder of a GPS ankle bracelet and the stigma associated with wearing that device, which will reinforce the message of denunciation and deterrence. I emphasize that the conditions imposed today are meant to be punitive and are meant to restrict your liberty.

[63] In conclusion, Ms. Ferguson-Kellum, you are sentenced to a term of imprisonment of 21 months to be served conditionally in the community under a conditional sentence order. The conditional sentence order permits you to serve the sentence of imprisonment in the community as long as you obey all the conditions of the order, including house arrest which will be monitored by a GPS ankle bracelet. If you breach any condition of the conditional sentence of imprisonment, there is a presumption that you will serve the remainder of your sentence incarcerated in a provincial jail.

[64] You are also sentenced to a driving prohibition order. The length of the driving prohibition order is 3 years plus the 21-month term of imprisonment. The driving prohibition order prohibits you from operating any motor vehicle on any street, road, highway or other public place. The driving prohibition order is a court order made under the Criminal Code. Any breach of the driving prohibition order carries serious consequences, including a sentence of imprisonment and a further prohibition order.

[65] The conditional sentence order will be followed by a probation order for a period of 3 years. [Note: the conditions attached to the conditional sentence order and the probation order will be read orally and are not included in these written reasons.]

[66] In addition, there will be a secondary DNA order that requires you to provide samples of bodily substances to the Ontario Provincial Police or their designate at the Sebringville Ontario Provincial Police detachment or other designated location on or before April 14, 2023, at 4 pm.

[67] The victim surcharge is $200 and is required to be paid within 60 days.

Released: March 14, 2023

Signed: Justice K. L. McKerlie