Court Information

Ontario Court of Justice

Date: 2017-02-03

Court File No.: Central East Region: Oshawa Courthouse 15-22160; 16-33520

Parties

Between:

Her Majesty the Queen

— And —

Amanda Adamson

Before the Court

Justice: Peter C. West

Oral Submissions heard: January 27, 2017

Oral reasons for Sentence released: February 3, 2017

Counsel

For the Crown: M. Malleson

For the Defendant: J. Guile

Decision

WEST J.:

Guilty Pleas and Adjournments

[1] On September 27, 2016, the accused pled guilty to assault causing bodily harm from February 1, 2016 and a breach of an 810 peace bond from October 14, 2015. The Crown proceeded by summary conviction. The matter was adjourned for the accused to do some upfront counselling until December 15, 2016. On that date the matter was further adjourned to January 27, 2017, for the preparation of a pre-sentence report (PSR).

Facts of the Assault Causing Bodily Harm

[2] The facts provided by the Crown on the guilty plea to the assault causing bodily harm were quite brief. The accused was at the Pearson Arms Bar with co-workers and friends. Apparently the accused got into an argument with the victim, Dmitri Machine. Mr. Machine was not a co-worker and the argument continued outside the bar on the sidewalk. The accused threw a bottle of beer in the direction of Mr. Machine and it struck him on the right side of his face on his right cheek to the right of his nose, causing a laceration which started to bleed. Mr. Machine went to the hospital by ambulance where he received 7 stitches. Exhibit 4 is a number of photographs, which depict Mr. Machine's right cheek just after the laceration was stitched at the hospital. The accused was under the influence of alcohol when this altercation occurred.

Facts of the Breach of Peace Bond

[3] The facts surrounding the breach of the peace bond relates to the accused attending her ex-husband's residence where she confronted him regarding an article in the newspaper. The accused was not advised what the article was about. She was under the influence of alcohol when she attended her husband's residence. The police were called and the accused was arrested.

Crown's Position

[4] The Crown is seeking a 30 day jail sentence, to be followed by 2 years of probation in respect of the assault causing bodily harm. On the breach of the s. 810 peace bond the Crown is asking that the court suspend the passing of sentence and place the accused on the same 2 year period of probation with conditions. The conditions of probation will be dealt with at the conclusion of these reasons for sentence as both counsel are in agreement with respect to the terms.

Defence Position

[5] The defence is seeking a conditional discharge with probation, which counsel concedes is not the usual sentence for assault causing bodily harm. He points to the mitigating circumstances present in this case, the accused's youth and the fact she has no criminal record as well as the significant steps the accused has taken already in addressing the underlying causes of her behaviour. Counsel also points to the potentially significant collateral consequence of a criminal conviction on the accused's future employment opportunities.

Victim Impact Statement

[6] Exhibit 2 is the Victim Impact Statement (VIS) provided by Mr. Machine, which reflects the fact that as a result of the assault Mr. Machine is fearful to go out at night and does not trust people as he once did. The stitches left a scar, from the photographs it appears it is along the crease of his right cheek, which Mr. Machine indicates as a musician causes him embarrassment. He indicates in the VIS he plans to get plastic surgery to remedy the scar but has not done so yet. Mr. Machine also advised the Crown he was out of pocket $95.00, for the ambulance ride to the hospital, a cab ride back to his home and some clothing which was ruined because of the blood from the cut. Counsel for the defence advised that the accused is prepared to provide restitution to Mr. Machine for his out of pocket expenses.

Evidence and Exhibits

[7] The pre-sentence report (PSR), dated January 23, 2017, prepared by Probation and Parole Officer, Michaela Wilson, was marked as Exhibit 1. A certificate from Salvation Army Anger Management program was marked as Exhibit 3a, two letters from Lakeridge Health, Pinewood Centre Program were filed as Exhibit 3b and 3c, a letter confirming the accused's obtaining her RIBO licence, dated March 17, 2009 was marked as Exhibit 3d and an email, dated November 8, 2016, from Mike Todd, Senior Recruitment Consultant, showing an insurance company being interested in hiring the accused was marked as Exhibit 3e. A series of photographs depicting the injury to Dmitri Machine after stitches were done at hospital was marked as Exhibit 4.

Crown's Aggravating Factors

[8] The Crown points to a number of aggravating circumstances present in this case to support its position that a jail sentence is the appropriate sentence in this case. Counsel pointed to the fact that the victim apparently was acting as a "peace maker," however, this was not part of the facts read by the other Crown, and agreed to by defence counsel and the accused, at the time of the accused's guilty plea. Consequently, the court does not know if that is, in fact, an accurate description of what happened. Counsel for the Crown objected to a portion of the PSR where the accused related to the probation officer she threw the beer bottle at Mr. Machine because she had reacted to a derogatory comment Mr. Machine made about her disabled daughter. The Crown insisted if the accused wished to rely on that explanation she would have to prove it on the sentencing hearing. Defence counsel chose not to further delay the sentencing hearing and indicated this reference could be excised from the PSR. As a result, the court is not going to consider counsel's submission regarding Mr. Machine being a "peace maker" as being an aggravating factor.

Aggravating Factors Accepted by the Court

[9] What is an aggravating factor in this case is the fact that Mr. Machine received 7 stitches as a result of the cut he sustained from the beer bottle that broke when it struck his right cheek. His VIS indicates that he now has a scar from the injury and the stitches. The court also takes into account the fact that the incident has had an emotional impact on Mr. Machine. Further, the accused was on bail for the breach of the peace bond, which related to her contacting her ex-husband, and despite this she engaged in behaviour that once again breached the peace.

Crown's Recognition of Mitigating Factors

[10] Counsel for the Crown recognized in his submissions there are significant mitigating factors present in this case, which the court discusses in detail below. He also recognized the serious steps the accused has already taken to address the underlying causes of her behaviour.

Background of the Accused

[11] The accused is 29, born on November 26, 1987. She is divorced from her marriage to James Adamson, a US Marine. They were married in 2010 in North Carolina. They have a daughter who was born in 2011. Their daughter has cerebral palsy and cannot walk because of hip dysplasia. The accused separated from her husband in 2012, returning to Durham Region with her daughter, where she took care of her daughter full time. Mr. Adamson also moved to Canada after he retired from the Marines. The accused reports domestic violence occurred in North Carolina between her and her husband while they were married. Her husband was charged with assaulting her and impaired driving.

Family Circumstances and Mental Health

[12] When the accused first moved back to Canada she and her daughter lived with her parents. The accused's parents, the Haddens, advised the probation officer the accused became emotional when her ex-husband moved to Canada and the responsibilities for her daughter's care and the financial obligations began to weigh on her. Her parents believe the co-parenting was difficult and it was during this period the accused turned to alcohol and drugs as a way of dealing with these pressures.

Child Welfare and Custody

[13] CAS became involved with the family and the accused's mother became a supervisor for the accused when she had access to her daughter. Ms. Hadden is still acting in a supervisory role. The accused's parents both believe she suffers from mental health and addiction issues, although she has been seeking counselling and has been drug free for 4-5 months. The accused is described as a good mother who does not want to lose her daughter. The current Family Court order has given Mr. Adamson primary residence of their daughter and he has final say in any decision making with respect to her care. The daughter resides with the father 4 days a week and 3 days a week with the accused, under the supervision of Ms. Hadden. Ms. Hadden acts as a third party contact between the accused and her ex-husband. The accused pays child support of $160 a month because her husband has custody of their daughter one extra day a week.

Ex-Husband's Position

[14] Although Mr. Adamson was contacted by the probation officer he did not wish to be interviewed. He indicated he felt a revocable consent condition would assist with child care access/needs.

Education and Employment

[15] The accused graduated from Grade 12 and attended 6 months in a business program at Durham College but did not complete the program. She obtained her ONVIC licence to sell cars and her RIBO licence as an insurance broker in 2008. She is currently redoing her certification for her insurance license and only has the written exam to complete. Exhibit 3d is a letter, dated March 17, 2009, which is her original proof of passing letter so she could commence employment with an insurance brokerage firm. Exhibit 3e is an email from Mike Todd a recruitment consultant she has contacted to seek employment once again in the insurance field.

[16] The accused is currently working as a bartender for the past 3 months. Her father is concerned about her current employment because of the temptation it creates for her. The accused has accumulated significant debts in the amount of $30,000, which is why she has accepted her current job. It is her intention to seek employment in the insurance field once she has completed her exam.

Mental Health History

[17] The accused admitted to the probation officer she has experienced symptoms of depression as early as age 12. She refused treatment then as she did not believe she needed it. Her depression remained untreated for many years but her symptoms of depression and anxiety continued. Her mental health deteriorated to the point she began having suicidal thoughts, together with sleep issues. The accused attempted suicide when she was 26 or 27, by consuming alcohol and drugs and attempting to drown herself. She was hospitalized briefly. After the charges were laid, approximately 7 months before the date of the PSR, Ms. Hadden called for an ambulance as her daughter was "out of control." She stayed in hospital for a couple of days and was released on an out-patient referral. She has been seeing a psychiatrist since that time, attending two sessions with a third scheduled in February. She is currently prescribed Seroquel for anxiety and Adavan for her sleep issues. The probation officer referred her to Canadian Mental Health Association for further assistance.

Substance Abuse History

[18] The accused began drinking alcohol in her teenage years. She admits all of her offences were committed when she was under the influence of alcohol. She told the probation officer she is still consuming 2 beers every 3 weeks. She began using cocaine at age 26. She would use cocaine when she had been drinking. Her drug use was at its worse when she was 27, she was spending about $400 a month on cocaine. She described her behaviour as becoming worse when she was using, "aggressive, paranoid and ridiculous."

Rehabilitative Steps Taken

[19] As a result of the assault causing bodily harm charge being laid by police, the accused decided to address a number of her issues. On March 19, 2016, she completed the Anger Management Program offered by the Salvation Army, which is a full day program.

[20] Further, following her arrest and CAS' involvement in her access to her daughter, the accused decided she wanted to quit using cocaine. Consequently, she has been providing drug screens to CAS and has been clean from using drugs for 4-5 months. It is the accused's intent to continue to get drug screens to improve her position with CAS and Family Court.

[21] The accused has also been regularly attending Cocaine Anonymous over the last year. She has been attending support groups and individual counselling at the Pinewood Centre Program at Lakeridge Health. Exhibits 3b and 3c are letters from two of her counsellors at Pinewood. Her attendance was also confirmed by the probation officer. The accused has also been referred to COPE Mental Health Services and the Women's Residential Treatment Program, which is a 21-day residential treatment program for women.

Pre-Sentence Report Assessment

[22] The PSR indicates the accused presents as motivated to continue to remain abstinent and seek a diagnosis for her mental health issues. She has been gainfully employed and she has strong family support from her parents. She is working to re-attain her RIBO licence; however, the court was advised a criminal record/conviction may prohibit her from working in this field. The probation officer, Michaela Wilson, indicated in the PSR that the accused was a suitable candidate for community supervision given the positive steps she has already taken and that she is highly motivated to continue taking counselling and treatment, both for her addictions and mental health issues.

Remorse and Guilty Pleas

[23] The accused entered pleas of guilty, which the court was advised has always been her instructions to her lawyer. The court accepts this submission. The accused expressed her remorse for her actions in court and has recognized the underlying cause of her behaviour and is making significant strides forward in addressing those issues, as described above. Her guilty pleas represent her remorse, which the court finds to be sincere. She has accepted responsibility for her actions by pleading guilty and she has saved the administration of justice the cost of a trial.

First Offender Status

[24] The accused has no criminal record. She has overcome significant difficulties in her life, her addiction to cocaine, which, in the court's view, is important in assessing the impact of the criminal justice system on this young woman's future conduct and behaviour. She also has strong family support in her parents, who have assisted her since her return to Canada after her separation and through her difficulties with cocaine and alcohol.

Sentencing Principles and Legal Framework

The Restraint Principle for First Offenders

[25] An added feature in the accused's sentencing is she is a relatively 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]

Application of Restraint Principle

[26] In 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 (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".

Balancing Sentencing Principles

[27] In 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, 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.

Proportionality and Sentencing Objectives

[28] The 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. The court has set out above a number of aggravating and mitigating factors and circumstances which must be considered in determining an appropriate sentence.

[29] The 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

[30] How much weight the court places on any one objective will depend on the facts of each case.

Sentencing Principles for Assault Causing Bodily Harm

[31] It is agreed by both counsel that the paramount sentencing principles applicable in a case involving an assault causing bodily harm are denunciation and deterrence; however, rehabilitation, particularly where the accused is a youthful first offender, must not be discounted or ignored and general deterrence and denunciation should not be over-emphasized (see R. v. Batisse, supra). General deterrence, however, does not guide the entire analysis. It is only one factor the Court must consider (see R. v. Sears, [1978] O.J. No. 435 C.A.). It is the court's view the principle of specific deterrence is not a significant factor in this sentencing given the steps already taken by the accused. Sentencing is highly individualized 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.

Sentencing Range for Assault Causing Bodily Harm

[32] The 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 serious and the Crown has proceeded by indictment. 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 both general and specific 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 criminal record.

Conditional Discharge in Cases of Violence

[33] Recently, 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 the court's 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.

When Conditional Discharges Are Appropriate

[34] In 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.

Examples of Conditional Discharges

[35] Other 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;

• 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.

Application to This Case

Disproportionality of Custodial Sentence

[36] It is the court's view, based on the totality of the facts presented by the Crown in this case that a custodial sentence of 30 days is completely disproportionate having regard to the Ontario Court of Appeal's directions in R. v. Stein, R. v. Priest and R. v. Batisse, supra, to consider every available sentence other than incarceration for a first offender and particularly someone who is youthful. The court recognizes there are circumstances surrounding serious offences that often require a custodial sentence to be imposed despite the accused being a first offender.

Rehabilitation and Underlying Causes

[37] Further, given the circumstances the accused was dealing with in her life at the time of the commission of the assault, namely, her addiction to cocaine, her excessive use of alcohol and her mental health issues, all of which must be considered in fashioning a proportionate sentence, it is the court's view a custodial sentence is disproportionate, particularly in light of the steps she has taken to address these issues after being charged. These rehabilitative efforts reflect a positive prognosis for the future and do not support the imposition of a custodial sentence.

Criteria for Discharge

[38] Section 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.

Public Interest Analysis

[39] In the accused's case the Crown proceeded by summary conviction so there is no minimum sentence and the maximum sentence available is not greater than 14 years. A conditional discharge is clearly in the accused's best interest. The issue which must be determined is whether granting a conditional discharge is contrary to the public interest. Given the court's view a custodial sentence is completely disproportionate in this case, the issue to be determined is whether a conviction needs to be imposed to appropriately reflect the principle of general deterrence or whether a conditional discharge can be imposed, which will adequately address general deterrence, as well as rehabilitation.

General Deterrence in Cases of Violence

[40] As discussed above in most cases involving violence, where injury results, the requirement of general deterrence militates against granting a discharge. However, the Court of Appeal recognized there were exceptional cases where a discharge would not be contrary to the public interest.

Exceptional Circumstances

[41] In the court's view this is such a case. The accused is a relatively youthful first offender. The assault involved the accused throwing a beer bottle at an individual she was in an argument with outside of the pub they had both been drinking at. The court was never advised how close the accused was to Mr. Machine or whether she intended the beer bottle to hit Mr. Machine in the face. From the photographs provided by the Crown in Exhibit 4, Mr. Machine was taller and heavier than the accused. The court was not advised as to what the argument or disagreement was about or what words were spoken by either the accused or Mr. Machine prior to the beer bottle being thrown. The facts in this case, the nature of the assault and the injuries sustained are completely different from the nature of the assault and injuries caused in the R. v. Huh or R. v. Woods cases, which involved significantly more serious assaults and where the injuries were far more extensive and severe.

Rehabilitative Efforts

[42] The accused has significantly begun to address the underlying causes of her behaviour, which caused her to assault Mr. Machine. She has been attending Cocaine Anonymous for approximately one year and has engaged in group counselling (Pathways Program) and individual counselling with Pinewood Centre. She has been providing drug screens for five months which demonstrate she has not been using cocaine. It is her desire to continue to do drug screening to demonstrate her continued abstinence. She is described as highly motivated to continue dealing with her addictions. The accused has also recognizes there are mental health issues she needs to have assessed further and she is currently seeing a psychiatrist and taking medications to assist her. She has indicated she wants to make restitution to the victim for his out of pocket expenses that arose as a result of her actions. It has always been her intention to plead guilty.

Collateral Consequences

[43] The court is also aware that a conviction would have significant consequences for the accused's future employment opportunities in the insurance field where she worked previously for a number of years. In the court's view the imposition of a conviction, would probably bar her from re-attaining her RIBO designation. In the court's view this consequence would be completely disproportionate to the seriousness of the offence she committed. 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).

Deterrent Effect of Conditional Discharge

[44] A 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). Community service was not one of the terms of probation suggested by either counsel; however, it is the court's view that the inclusion of a community service term is in the public interest as it provides a mechanism for the accused to give back to the community as a whole for the conduct she engaged in. Granting a conditional discharge does not mean the accused will go "scot-free" as a period of 2 years' probation with strict terms and a significant number of hours of community service is a significant penalty and will no doubt deter others from engaging in this type of conduct.

Conclusion on Public Interest

[45] In the exceptional circumstances of this case, it is the court's opinion a conditional discharge is not contrary to the public interest. Informed members of the public would support the granting of a discharge to the accused having regard to the nature of the assault and injury sustained by Mr. Machine and the efforts the accused has already undertaken to rehabilitate herself. Her loss of employment opportunities if she was convicted is an appropriate consideration in not registering a conviction and the court is 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 the accused should be given a second chance.

Breach of Peace Bond

[46] The accused also pled guilty to the breach of an 810 peace bond she was bound by. The court was advised she spent two days in pre-trial custody before she was released on a subsequent breach charge, which the Crown is withdrawing and not relying on the facts underlying it. The court is taking this time spent in custody into account in determining an appropriate sentence on the breach of the 810 peace bond. In the court's view, spending a night in police custody would have had a positive and constructive impact on the accused who was a first offender. Counsel for the defence indicated this to the court during submissions.

[47] The facts of the breach of the peace bond related to the accused attending her ex-husband's residence to see her daughter, when she was under the influence of alcohol. Mr. Adamson suggested to the probation officer he wanted any term of probation involving a no contact clause to include a written revocable consent on his part. His rationale was the accused is once again co-parenting their daughter with him and he will need to be able to have contact with her. In the court's view it is not contrary to the public interest to grant the accused a conditional discharge on this charge. The court is persuaded this is an appropriate sentence for all of the reasons discussed above.

Final Disposition

[48] Consequently, the court is granting the accused a conditional discharge and placing her on probation for a period of two years with terms and conditions.

Released: February 3, 2017

Signed: Justice Peter C. West