ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
OA
Before Justice J.R. Richardson
Heard on November 27, 2025
Reasons for Judgment released on February 20, 2026
Lori Crewe, Counsel for the Crown Will Hume, Counsel for the accused
J.R. RICHARDSON J.:
Introduction
1On June 30, 2025, I found OA (“Ola”) guilty of the following charges:
a) Uttering a threat to cause death to AA (“Abi”) between July 1 and September 1, 2023;
b) Uttering a threat to cause death to Abi on December 25, 2023;
c) Assaulting Abi between January 1 and 31, 2023;
d) Uttering a threat to cause death to their three children on December 25, 2023.
2I amended the last count to conform with the evidence at trial in that when uttering the threat, Ola referred to the “children”, rather than calling them each by name. I then stayed Counts 5 and 6.
3The parties were married in Lagos, Nigeria on January 26, 2012. They have three children, IA who at the time of trial was 12, SA who at the time of trial was 11 and FA who at the time of trial was nine.
4They operated a business together in Nigeria. They liquidated that business and immigrated to Canada on December 26, 2020.
5I found Ola guilty of assaulting Abi between January 1 and 31, 2023 by pushing her during an argument about finances.
6I also found him guilty of uttering a threat to Abi in August 2023 when he told her, “I will take your life” during an argument about separating. I found that he was attempting to intimidate Abi to stay in the relationship, not hire a lawyer and propose or agree to a settlement that was palatable to him.
7I found that there were actually two threats uttered by Ola to Abi in December 2023. In the first one, Ola told Abi, “I will take your life”. He also added, “Do you know how men kill their wives in bed?” Ola was not charged with this threat. If he had been charged with it, I would have found him guilty of it. I found that this was further designed to intimidate Abi from taking steps to assert financial independence and separate from Ola.
8He was charged with the second threat from December 2023, uttered Christmas Day, when he told Abi, “If you leave this house I will destroy you.” I found him guilty of that offence.
9His addition of the words, “I will destroy the children” resulted in a finding of guilt for uttering a threat against the children.
10In the conclusion to my June 2025 judgment, I stated at paragraphs 150 to 152:
Words have meaning and actions have consequences.
Ola has broken the law by uttering three threats to Abi, two threats to cause her death and one threat to cause the death of their children. The words he used have meaning. They had real meaning to Abi and in the context of their relationship and their experience when they were uttered. They were real unambiguous threats intended to intimidate Abi from asserting her financial independence, leave the relationship and hire counsel to pursue a fair resolution to their division of property.
Ola has also broken the law by assaulting Abi, during the argument in January, again when she was trying to assert some measure of financial independence.
11For Ola, the question now to be decided is the appropriate sentence for these crimes.
12The Crown seeks a suspended sentence and three years probation. Defence seeks a Conditional Discharge.
The Pre-Sentence Report
13I directed the preparation of a Pre-Sentence Report, which was completed by Probation Officer Carrie-Anne Brown of the Ottawa West Probation and Parole Office and received August 26, 2025. It is Exhibit 1 on the sentencing. It reveals the following:
a) Ola was born in Nigeria. He is one of two children. He remains close to his family who still live in Nigeria.
b) His father was a journalist. His mother was a civil servant. He stated that he had “the best childhood”.
c) Ola originally wanted to be a professional basketball player. Ultimately, he earned a Bachelor’s Degree in Civil Engineering in Nigeria and a post-graduate executive Master of Business Administration degree.
d) Ola told the Probation Officer that he founded a company that once employed upwards of 60 people. He described himself as a self-made millionaire.
e) He met Abi in 2011. In 2012 they married. The three children followed.
f) Ola and Abi decided to move to Canada in 2020 to pursue a better future for their children. At first they lived in Kanata and then they relocated to Arnprior.
g) He worked in the information technology field and after working on various contracts in that field, he is now self-employed.
h) Ola did not see the children between January and July 2024. At the time the report was prepared, he saw the children on a supervised basis for one hour every two weeks.
i) Abi told the Probation Officer that Ola was “overbearing” during the relationship and stated that she did not have any say. She stated that he controlled all of their money, including money that she earned from her job.
j) Abi reported that there have not been any breaches.
k) Ola expressed concern to the Probation Officer about a criminal record. He recognized that it could affect future career opportunities, and travel.
l) There is no evidence of any problem with substance abuse.
m) He maintained his innocence. He told the Probation Officer:
She is using the system against me to keep me away from my kids. … This is not about her this is about my children. These are kids that have never been away from their father. Kids that I have always been there for, taken them always to all their sports, was a Pre School representative in their school. … I was with them all the time and then after this I did not see them for six months and now I only see them one hour every two weeks in a supervised visit. How do you deprive a father of his children?
I note that there is not an ounce of evidence before me that the intention of Abi in making her complaint was to keep Ola away from the children.
n) Despite this, he promised to comply with any terms the Court might impose as part of his sentencing, including a requirement that he attend the Partner Assault Response (PAR) program.
o) He completed a “Marriage and Parenting Program” in May 2024.
Letters of Reference Referred to in the Pre-Sentence Report
14The Pre-Sentence report refers to a number of letters from collateral sources.
15The first is from FOA, who is a previous employee or student of Ola’s. The letter makes it clear that under Ola’s tutelage, FOA learned a great deal about Project Management, which his one of Ola’s areas of expertise.
16The second letter is from ED, who is a Registered Clinical Counselor in the Making Your Marriage Work program. He stated that Ola referred himself to the program in May 2024 and completed it. The letter does not set out the number of sessions that Ola completed, whether the sessions were online or virtual and whether ED noted any improvement in Ola as a result of completing the program.
17The third letter is a letter from MA, who is the long-time friend of Ola. He states, “The Ola I know is an exemplary father, devout Christian and devoted and gentle husband and father.” MA indicates that Ola was a preschool representative at school where the three children attended. MA also stated that Ola “has never been one to use force or threats, and I have never considered him to be violent. Ola is very friendly and a peace maker when there is a disagreement, and he is quick to ask for peace.”
18Another long-time friend, KO, stated that they knew Ola from going to university and attending church. They described Ola as “highly dependable, trustworthy, temperate and distinguished.” They noted that he was always “pleasant to his family” and Ola “loves his wife dearly and also an exemplary father who has never turned away from his responsibility for his kids.”
19JO is another university friend of Ola who wrote a letter on his behalf. JO stated that he and his wife were shocked to hear of Ola’s “marital issue” because they had never seen “any hint of any rift between the couple.” JO stated, that, “[t]o my knowledge, Ola has never been one to resort to threats or violence and I have never thought of him as a violent person.”
20The letters of MA, KO and JO demonstrate the limited utility that letters of reference from friends can have in cases of this nature.
21Men who physically assault and threaten their wives and threaten their children are the antithesis, to use the words of the letters, of peacemakers, trustworthy, temperate, pleasant with their family, exemplary fathers, doting husbands, upstanding citizens or responsible family men.
22Intimate partner violence offences are committed in private out of the public eye. They are committed by otherwise pro-social and upstanding citizens. This point was made well by Justice Antonio of the Alberta Court of Queen’s Bench in R. v. Shrivastava, 2019 ABQB 663 where she noted that placing too much weight on “otherwise good character” “can undermine the denunciative and deterrent functions of criminal sentences” (at paragraph 87). Although Justice Antonio was writing with respect to a sexual assault case, these observations are equally applicable in cases of intimate partner violence.
The Victim Impact Statement
23Abi completed a Victim Impact Statement which was marked as Exhibit 2 on the sentencing. It reveals the following:
a) She is in a constant state of fear and hypervigilance. She is constantly looking over her shoulder out of fear that he will find her or the children.
b) She struggles with anxiety, sleep deprivation and a deep sense of helplessness.
c) She was alienated from her family.
d) Their daughter IA has “become withdrawn, anxious and deeply insecure”. She has “expressed feelings of worthlessness and fear”.
e) As a result of leaving the marriage, Ola reported that she is in thousands of dollars of debt. She has spent “huge sum of money” to recover her assets and money.
f) She reported having to start over.
g) She stated, “The financial strain has been immense, but the emotional toll is even greater.”
h) Abi expressed concern that Ola would use parenting time to retaliate against her.
i) Abi asked for “an absolute no contact order for the longest duration possible.”
Submissions
24Crown counsel sought a Suspended Sentence and 36 months of probation, a section 110 Order and an Order requiring the accused to give a DNA sample.
25Crown counsel submitted that intimate partner violence has been declared an epidemic in Renfrew County. The Crown cited the numerous aggravating factors in the Criminal Code, including the fact that the offence was perpetrated against the accused’s intimate partner and his children, and the fact that the commission of the offences are a breach of trust.
26Crown counsel cited the decision of the Court of Appeal in R. v. Cunningham, 2023 ONCA 36 as authority for the proposition that sentences in intimate partner violence cases need to increase to recognize the widespread scope of the problem, and the public’s disdain for domestic violence.
27Defence counsel argued that a Conditional Discharge and Probation was appropriate. Defence counsel focused on Ola’s lack of a criminal record, the fact that he was gainfully employed and the character letters in the Pre-Sentence Report. He noted that Ola sought out counselling for anger management out of his own volition.
28Defence counsel cited R. v. Fallofield, 13 C.C.C. (2d) 450 (B.C.C.A.) and R. v. Sweeney, [2001] OJ 1899 as authority for the proposition that a conditional discharge was available, even for violent assault.
29Defence counsel chose not to make submissions on the issue of the weapons prohibition. With respect to DNA, he stated that this would cause “undue prejudice”. He also noted that given that Ola has completed up front counselling, the risk of reoffence is attenuated.
Ola’s Allocution
30When I gave Ola an opportunity to address me before sentencing, he made the following points:
a) He is not violent. “Not once has anyone said I was violent.” “I am as gentle as they come”, he said.
b) His children went to the best schools. He took his children to school, attended parent-teacher interviews, and took them to soccer and swimming.
c) He once ran a business that employed over 300 people.
d) He was the chairman of his residence association.
e) He is a “devout Christian” and a committed member of his Christian fellowship group.
f) His children are “everything that I have” and his family “was central to everything that I did.”
g) He did not see his children at all for six months. He has now started seeing them under supervised conditions. He sees them for one hour every two weeks. Some visits have been missed.
h) He must now go to Family Court to seek more time with his children.
i) He is concerned about the effect of his absence on his children as they enter their teenage years and are very vulnerable.
j) He is well read and has a post-graduate education.
k) He did not come from money and against the odds, he succeeded and has always been a net contributor to society. He is therefore a good role model for his children.
l) His children should not lose the opportunity to have him in their lives unless there is a good reason.
31I note that as his right, Ola did not testify at his trial and he maintains his innocence.
32That said, these remarks, along with the suggestion to the Probation Officer that Abi had brought the charges in order to remove his children from his life, demonstrate a complete lack of insight with respect to how it is that he finds himself before the Court.
Analysis
Summary of Mitigating and Aggravating Factors
33I consider the following mitigating factors:
a) Ola is self employed and successful.
b) Ola has completed a course of counselling. I do not know what the counselling entailed or how many sessions were completed. Given Ola’s allocution, I find that the counselling did not have much effect on developing insight or bringing about change on his part.
c) Ola has indicated a willingness to attend further counselling.
d) Ola does not have a criminal record.
e) Ola has community support.
34I consider the following aggravating factors:
a) This is an intimate partner offence. Abi was in a vulnerable position. As a racialized woman in Canada, her vulnerability is heightened.
b) The offences were committed in the presence of children and the lives of the children were threatened.
c) The offences were a breach of trust.
d) The offences have had a significant impact on Abi and the children.
e) The offences were committed in an effort to intimidate Abi, control her, control her money, prevent her from leaving the relationship, and prevent her from seeking fair distribution of their property if she did leave the relationship.
35The following factors are neutral:
a) Ola is not entitled to the mitigation that comes with an early guilty plea. Having said that, Ola is entitled to maintain his innocence and to put the Crown to the test of proof beyond a reasonable doubt. Doing so can never be considered an aggravating factor.
b) Ola has not expressed any remorse for his offences. Like the decision to proceed to trial, lack of remorse is not an aggravating factor on sentence. All that can be said is that Ola is not entitled to mitigation in his sentence that comes with an expression of remorse.
36One of the nagging issues in this sentencing is Ola’s inability to demonstrate any insight into his behaviour, his continuing focus on being the victim as opposed to the perpetrator, and his wrongful emphasis on Abi’s motives for making her complaint, as opposed to his own deficits.
The Statutory Sentencing Framework
37It is well developed in our law that sentencing is a delicate and highly individualized process. As my colleague Justice March has often said, “No two offenders are alike”. See also R. v. Parranto, 2021 SCC 46 and R. v. Lacasse, 2015 SCC 64.
38Section 718 of the Criminal Code states:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a) to denounce unlawful conduct in the harm done to victims or to the community that is caused by unlawful conduct;
b) to deter the offender and other persons from committing offences;
c) to separate offenders from society, where necessary;
d) to assist in rehabilitating offenders;
e) to provide reparations for harm done to victims or to the community; and
f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.
39Section 718.1 of the Criminal Code establishes the fundamental principle of sentencing: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
40Section 718.2 of the Criminal Code sets out “other sentencing principles”:
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(ii.2) evidence that the offender involved a person under the age of 18 years in the commission of the offence,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence,
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and
(vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
41Section 718.201 of the Criminal Code requires the court to craft a sentence that reflects society’s disdain for intimate partner violence offences that are perpetrated against vulnerable women. It states:
A court that imposes a sentence in respect of an offence that involved the abuse of an intimate partner shall consider the increased vulnerability of female persons who are victims, giving particular attention to the circumstances of Aboriginal female victims.
The Test for the Granting of a Conditional Discharge
42The test for granting a conditional discharge is set out in section 730 of the Criminal Code. The Court must determine whether a conditional discharge is in the interests of the offender and whether it is not contrary to the public interest.
43A conditional discharge is almost always in the interests of the offender. Successfully completing the conditions associated with a conditional discharge allows an accused person to say that they do not have a criminal record. This can have important ramifications with respect to employment, international travel, particularly to the United States, and the ability to volunteer in certain capacities, including volunteer for the activities of the children.
44In R. v. Berseth, 2019 ONSC 888, at paragraphs 43 to 47, Justice Durno discussed the factors which the Court must consider when determining whether a discharge is appropriate:
In terms of the first prong, it presupposes that specific deterrence is not a relevant consideration, except to the extent required in a probation order, nor is the offender’s rehabilitation through correctional or treatment centres required, except to the same extent. Normally, the offender is a person of good character, without previous conviction, it is not necessary to enter a conviction to deter him or her from future offences or to rehabilitate them and, while not essential, that the entry of a conviction may have significant adverse repercussions: R. v. Sanchez-Pino (1973), 13 C.C.C. (2d) 53 (Ont.C.A.); R. v. Fallofield (1973), 13 C.C.C. (2d) 450 (B.C.C.A.); R. v. Myers (1997), 37 C.C.C. (2d) 182 (Ont. C.A.)
As regards the public interest prong, while the concern for general deterrence must be given due consideration, that does not preclude the judicious use of the provision: Fallofield, at para. 21(6). However, if there is a necessity for a sentence that will deter others, it is a factor telling against a discharge.
This view was reiterated in R. v. Lu, 2013 ONCA 324,
... In determining whether it would be contrary to the public interest, one consideration is whether the sentence will be a deterrent to others who might be minded to commit a like offence.
In Sanchez-Pino, the Court of Appeal held:
Obviously the section is not confined to “simple cases of possession of marijuana”. It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is “not contrary to public interest”. In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.
In R. v. Hayes, [1999] O.J. No. 938 (S.C.J.), Hill J. provided the following summary with regards to discharges. Discharges are not restricted to trivial matters. Where an offender has acted out-of-character, perhaps in the context of unusual pressure or stress a discharge may be fit. Where a criminal record will have a tendency to interfere with employment or perhaps important travel, a discharge may be given serious consideration. A suspended sentence is not necessarily a greater deterrent than a discharge.
Denunciation and Deterrence are the Paramount Principles of Sentencing in Domestic Violence Cases
45It is well established that denunciation and deterrence (both specific and general) are the paramount sentencing considerations in cases of intimate partner violence. This is recognized by Parliament in the statutory provisions I have quoted from above.
46It is also recognized in a multitude of appellate case law from Ontario and other provinces: R. v. Inwood, (1989), 48 CCC (3d) 173 (Ont. C.A.); R. v. Boucher, (2004), 186 CCC (3d) 479 (Ont. C.A.); R. v. Rahaman, 2008, ONCA 1; R. v. Dustyhorn, 2019 SKCA 93; R. v. Butcher, 2020 NSCA 50; R. v. Somers, 2021 BCCA 205.
47Most recently in R. v. Cunningham, supra, at paragraph 26, Justice Benotto expressed the sentencing principles in domestic violence this way:
In a domestic context, the objectives of denunciation and deterrence gain added significance and require heightened attention to the moral blameworthiness of the offender. The sentence must reflect the individual harm to the victim and the court’s response to the heinous effects of domestic violence.
The Impact of Cunningham on Sentencing in Intimate Partner Violence Cases
48Like the other cases I have cited above, the facts in Cunningham are far more violent, aggravating and unsettling than the facts in the case before me. Nonetheless, the principles expressed with respect to sentencing in intimate partner violence cases must be heeded.
49At paragraphs 48 to 53, of Cunningham, Justice Benotto added:
Most importantly, Boucher was decided nearly 20 years ago. The last two decades have seen an increase in society’s awareness of the prevalence of domestic violence and the evils it creates. Since Boucher was decided, Parliament has responded to this societal problem with legislation both within and outside the criminal justice system.
Within the criminal justice system, Parliament introduced Bill C-75 in 2019. A key aspect of the Bill was a focus on intimate partner violence, which included several reforms targeting domestic violence. The most significant changes were those made to sentencing, including the expansion of s. 718.2(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, directing that the commission of an offence involving abuse of an intimate partner must be considered an aggravating factor on sentencing. It is noteworthy that “intimate partner” includes current or former spouses, common law partners and dating partners.
Parliament also enacted s. 718.3(8) of the Code, which provides discretion to sentencing judges to impose a term of imprisonment higher than the maximum when the offence is committed in the context of an intimate partnership.
Parliament has also acted in the civil context. The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), for instance, has been amended to address “family violence” in the determination of parenting plans: see ss. 16(3)(j) and 16(4).
Thus, the intention of Parliament clearly supports enhanced penalties for perpetrators of domestic violence and denunciation and deterrence as the primary sentencing objectives. It also supports changes in sentencing ranges to reflect societal awareness and knowledge of the damage to society, as well as victims, caused by domestic violence.
This court’s decision in R. v. A.J.K., 2022 ONCA 487, 415 C.C.C. (3d) 230 explicitly notes, at para. 71, that sentencing ranges can change over time as a result of new and emerging understanding about certain offences:
The Supreme Court recently reiterated that ranges and starting points are malleable products of their time. They are “historical portraits” that provide insight into the operative precedents of the day, but they are not “straitjackets” and can be departed from as societal understanding of offences and the severity of harm arising from those offences deepens: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 108. To that end, it is not unusual “for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change” … [Emphasis Benotto J.’s]
50That is not to say that there can never be an intimate partner violence case where a discharge is appropriate. In R. v. Khanna (1998), OJ 2192 (Ont.C.A.), the Ontario Court of Appeal held at paragraphs 7 and 8:
This was a minor assault which occurred in the context of a most unhappy marriage. The appellant and complainant developed an intense dislike for each other and their respective families shortly after this arranged marriage was made. Both resorted to physical violence on occasion. Apart from each other, the complainant and the appellant are both valuable members of the community. Together they are trouble for each other.
Given the present circumstances of the appellant and complainant and the jury's verdict, we think an absolute discharge is an appropriate disposition.
51In R. v Daley, [1997] NSJ 325, Moir, J. was sitting as a Summary Conviction Appeal Court where the trial judge found that it was never in the public interest to grant a discharge in an intimate partner violence case.
52At paragraphs 9 through 12, His Lordship made the following observations concerning the problem of intimate partner violence, observations which I note have not changed despite the passage of almost 30 years between this decision and the case before me:
In my opinion, there is no such thing as a minor assault where the parties are partners and the perpetrator is the male partner. We have all come to understand the sociological implications of male aggression against wives or female partners. We are beginning to understand the psychological effects upon children of violence perpetrated by either spouse upon the other.
At least 10% of Canadian women have been assaulted by their male partners. As of 1990, on average a woman suffered such assaults 35 times before the police were called. The prevalence of assaults upon women by their male partners lead us to recognize the profound sociological under-pinnings of this common event, that is, the use of male physical strength in the historical disadvantage of women through dominance of them by men.
Studies have shown that boys who observe their fathers assaulting their mothers are far more likely to batter their own female partners in later life. The behaviourist conclusion that spousal assault is learned, constitutes only a superficial appreciation of the psychological impact this conduct has on children. Statistics indicate serious conduct problems are 17 times more apparent in boys who observed family violence, that such are 10 times more apparent in girls who have had the experience and that in one city fifty percent of young offenders had experienced family violence. These statistics shed greater light on the implications of spousal violence in child psychology. We are coming to recognize that such violence constitutes an attack not only on who the child is but also on the very fact of the child's existence. Such profound rejection is at the heart of many childhood and adolescent disturbances.
For those reasons, it is right to say that general deterrence must be emphasized "with offences such as this".
53After reading this passage, one might think that His Lordship would have been in agreement with the trial judge. Not so. His Lordship further stated at paragraphs 14 through 20:
Almost since Parliament established conditional and absolute discharges as an instrument for dealing with criminal conduct, appellate courts recognized that discharges are available in the right circumstances for serious criminal misconduct and are not restricted to trivial cases or to strict liability offences where there was no real criminal intent. Examples of those appellate decisions include Regina v. Fallofield (1973), 13 CCC (2d) 450 (B.C.C.A.) and Regina v. Sanchez-Pino (1973), 11 C.C.C. (2d) 53 (O.C.A.).
Section 736 of the Criminal Code holds out the possibility of a discharge so long as the accused is an individual, there is no minimum penalty and the maximum penalty is less than 14 years imprisonment. Those restrictions are broad enough to cover very serious offences including some which have special sociological implications. In providing for the prerequisite that the judge must be satisfied a discharge is not contrary to the public interest, Parliament did not delegate to the judges authority to carve out entire offences or categories of offence. In my opinion, each case must be assessed in the particular with much weight against a discharge where, as here, the public interest emphasizes general deterrence. I refer to the sixth principle set out in Fallofield at p. 455 of the C.C.C. text and to the first and second full paragraphs at p. 59 of the C.C.C. report of Sanchez-Pino.
To hold, as I take the Provincial Court Judge to have done, that a conditional discharge is always contrary to public interest in cases of spousal assault is, in my opinion, to decline a responsibility the elected branch of government has imposed upon the judiciary. For example: some people come to court with unfair disadvantage due to race and culture or from a materialistic environment where the frustrations of economic disadvantage lead to misconduct. The courts will look for opportunities to make the field more level. To preclude discharges for entire categories of offence is to disavow an instrument that could be used judiciously to address other important public interests. (Parenthetically, I am not suggesting that spousal assault is a particular problem of the poor or of any culture. In fact, we know that the problem is prevalent in all parts of society.)
As a further example, I note that studies have shown males who abuse are often responsive to counselling even where counselling is received under compulsion. That hopeful fact indicates that in cases where the man has a strong interest in avoiding conviction, the conditional discharge could be the best instrument to break a cycle of abuse where the possibility of avoiding a conviction would motivate a positive response under compelled counselling. Where the sociological problem may well be served by discharge, it is wrong to preclude the instrument on the very ground of that same sociological problem. (Parenthetically, my observation in this regard has nothing to do with remorse. Genuine remorse is often felt and expressed by a man after he beats his female partner, but he does it again.)
Also by way of example, there are cases, and this is one, where the facts are somewhat removed from the social problem of male control through repetitive violence. While there is no such thing in our time as a trivial spousal assault, the public interest in deterring cycles of male violence against wives or partners must be addressed in a different light where the incident was isolated, the assault was physically minor, and the victim rather than the perpetrator had been the perpetrator in the past. The rule stated by the Provincial Court Judge is preclusive of any particular assessments such as this.
These are just three examples of cases where it would be especially important to consider particular circumstances on a request for a discharge in respect of a spousal assault or, as here, on a joint recommendation for such. These are merely examples pointing out the need for pragmatic assessment of the public interest rather than determination of that prerequisite by rigid rule.
In conclusion, it was an error in principle to hold that the public interest is preclusive of a discharge in all cases of spousal assault. Rather, the social problem of assaults by men against wives or partners demands that general deterrence be given much weight in assessing the circumstances of a spousal assault to determine whether a conditional discharge is contrary to the public interest.
The Appropriate Sentence in this Case
54So, how does one reconcile the principles in Cunningham with case law that there is no category of offences (other than those which Parliament has ordained in section 730 of the Criminal Code that a discharge is not an available sentence) for which conditional discharges are inappropriate?
55Below I have set out a non-exhaustive catalogue of factors that a 2025 review of the cases reveals with respect to the imposition of discharges in intimate partner violence situations.
56I find that the following factors weigh in favour of discharges:
a) Where specific deterrence is not a relevant consideration, except the extent required by a probation order.
b) Where attendance at the treatment or correctional centre is necessary, except to the extent required by a probation order.
c) Where the offender is of otherwise good character and is without previous conviction.
d) Where the offence is less serious or trivial.
e) Where the offender acted out of character or in the context of unusual factors or stress.
f) Where the offender demonstrates diminished moral blameworthiness due to mental illness or brain injury.
g) Where entry of a conviction will have serious repercussions on the accused, such as interference with employment, interference with the ability to volunteer in certain capacities, interference with the ability to travel, or immigration consequences.
h) If the horns of the dilemma are between a conditional discharge and probation and a suspended sentence and probation, the Court should recognise that suspended sentences do not necessarily have greater deterrent value than a conditional discharge.
i) In an intimate partner violence case, the presence of mutual violence of a minor nature.
57The following factors weigh against discharges:
a) Although general deterrence does not necessarily preclude the judicious use of a discharge, the higher the likelihood that a sentence must deter others, the less likely it is that a discharge is appropriate.
b) Although denunciation does not necessarily preclude the judicious use of a discharge either, the higher the likelihood that a sentence must strongly denounce the conduct of the offender, the less likely it is that a discharge is appropriate.
c) Generally speaking, the more serious the offence, the less likely that a discharge will be appropriate. In this regard, in cases involving bodily harm, emotional and psychological harm, the use of weapons, or choking are less likely to be appropriate cases for a discharge.
d) In an intimate partner violence case, the commission of more than one offence.
e) In an intimate partner violence case, the commission of offences on more than one occasion.
f) In an intimate partner violence case, the commission of offences against children or in the presence of children.
g) In intimate partner violence cases, breaches of bail or probation orders designed to protect the victim, such as safety circles and non communication orders, offences involving public mischief or obstruction of justice are less likely to be appropriate cases for a discharge.
h) In intimate partner violence cases, facts that demonstrate that the offender has, in addition to the commission of the specific offence, attempted to control the victim’s freedom of movement, association and communication with friends and family and, ability to exercise financial independence. Intimate partnerships are, as the name implies, partnerships. No party stands in hierarchy to the other. Decisions made in the course of these relationships must be mutual decisions, where each party agrees to participate without fear or coercion.
i) The Court must recognise society’s abhorrence of intimate partner violence offences, the huge costs of this behaviour to the community and the fact that in the vast majority of cases this is a gendered crime. This is reflected in recent amendments to the Criminal Code with respect to sentencing of intimate partner violence offenders. Dated precedents, sentencing ranges and starting points must be read and reconsidered to give effect to this increasing awareness and changes in societal norms.
58As with all sentencing, the consideration of discharges must be individualized with respect to the offence and the offender. Unusual circumstances peculiar to the offender may skew in favour of or against a discharge.
59As I have said specifically with respect to the import of letters of reference, in a more general sense, the Court must be cognizant of the fact that intimate partner violence offences are often committed in private, behind closed doors, by individuals who are otherwise upstanding members of society. Sometimes what appears to be an isolated incident by someone of otherwise good character, is not so isolated and the character is not so good.
60In this case, after careful consideration, I am satisfied that it is not in the public interest to grant Ola a conditional discharge. He committed four offences over the span of almost one year. In addition to Abi, his children were witnesses and victims. He has caused significant impact to Abi and to the children. The offences were committed for the purpose of controlling Abi, controlling her money, preventing her from leaving the marriage and preventing her from achieving a fair resolution of their property matters.
61I therefore suspend the passing of sentence and place Ola on probation for three years. I have decided on three years as I am concerned that if his ability to contact Abi or invade her space is not controlled, he will continue to bully and intimidate Abi as I have found that he did when the offences were committed. In order to make serving his probation less onerous, the Order will provide that once Ola has completed his required counselling, he will no longer be required to report to a Probation Officer.
62With respect to the request for a Weapons Prohibition Order pursuant to section 110 of the Criminal Code, I will prohibit Ola from possessing any firearms etc. for a period of 10 years. Although 110(2.1) now permits the Court to set a weapons ban of up to life in intimate partner cases, I am satisfied that a 10-year ban strikes the right balance in this case, particularly given the fact that Ola does not have a criminal record. I do not consider a shorter period appropriate given the number of incidents in this case and the fact that the threats were uttered in relation to Abi and to the children.
63With respect to the request for a DNA Order, pursuant to section 487.051 of the Criminal Code, these are secondarily designated offences. I find that it is in the best interests of the administration of justice to make the order in this case given the number of incidents, the uttering of threats against Abi and the children and the language used toward Abi, “Do you know how men kill their wives in bed?” I am satisfied that the collection of a DNA sample from Ola is a minimal intrusion on his privacy and is a minor discomfort.
Released: February 20, 2026
Signed: Justice J.R. Richardson