Ontario Court of Justice

Date: August 26, 2022 Court File No.: 2038107320

Between:

Her Majesty the Queen

— And —

Andrew Kirkpatrick

Before: Justice Angela L. McLeod

Judicially pretried: February 22, 2021 Guilty plea: July 14, 2022

Counsel: Jenna Dafoe......................................................................................... counsel for the Crown Gary Pickard................................................................................... counsel for the accused

McLeod J.:

Overview

[1] Mr. Kirkpatrick has been convicted of one count of assault with a weapon, to wit, a pellet gun, arising from an incident on August 25, 2020.

[2] The facts are summarized as follows:

• The complainant, Lindsay Jones, called the police at 1:30 am; she had been shot in the neck with a pellet gun.
• The complainant and the defendant were in an intimate relationship.
• When police arrived on scene, Ms. Jones was waiting outside in her vehicle.
• Mr. Kirkpatrick was found on scene, with one hand in a backpack. He was highly intoxicated by alcohol. He was struggling to form coherent sentences when speaking.
• Ms. Jones had a visible pellet sized wound on her neck. She had taken a cell phone video of the accused shooting her.
• Mr. Kirkpatrick had shot her with a black handgun style replica pellet gun.
• Mr. Kirkpatrick was confrontational with police upon arrest.

Position of the Parties

[3] The Crown seeks a custodial sentence of 180 days, 18 months probation and a s. 109 order for 10 years. A forfeiture order is sought in relation to the weapon. The Crown is opposed to a conditional sentence order.

[4] The defence seeks a lengthy period of probation, or in the alternative a conditional sentence order, or an intermittent sentence. The ancillary orders are not contested.

Background of the Defendant

[5] Mr. Kirkpatrick has been on release since the date of his arrest, almost 2 years. He has no presentence custody to his credit.

[6] The criminal record of the defendant was filed as Exhibit #1, and contains three entries; impaired driving, driving while disqualified and failing to provide a breath sample. The convictions are from 2015-2016.

[7] A presentence report (dated March 2022) was filed as Exhibit #2. The salient facts are summarized below:

• Mr. Kirkpatrick has a positive and supportive relationship with his mother.
• He does not have the same type of relationship with his father.
• He does not have the same type of relationship with his younger brother.
• He has a history of casual intimate relationships.
• He has been in an on and off relationship with the complainant since 2017. He describes the relationship as “very toxic”. He alleges that the complainant is physically abusive towards him. He was placed on a peace bond for assault in 2018.
• He began a new relationship one week after this incident. This relationship has been “an ongoing cycle of her breaking up with him and then reconciling”. Currently, he stated that she is under stress as she has to find a new home so they are just friends, ‘nothing romantic’. [of note, counsel for the defendant submitted, in contrast to this information, that he has had the same girlfriend for the last 1.5 years]
• He said, “that he is trying to take a step back from relationships now, something he learned from the Partner Assault Response Program in 2021.”
• He was previously into drugs which led to a period of homelessness. He was clean between 2012-2016. He replaced alcohol for drugs and is a self professed alcoholic. His addictions have resulted in periods of homelessness, inability to work or to complete schooling. He said that “he has held a lot of temporary positions and has been fired ‘tons of times’.”
• He continues to consume both alcohol and drugs. He advised the PSR author that he would not benefit from substance abuse counselling.
• In August 2021, he began working as a bud tender at a cannabis store. In September 2021 the job ended. He received unemployment insurance until he went to work at another cannabis store. He was hoping to return to the original cannabis store in May 2022. [of note, counsel for the defendant, in contrast, submitted that he is currently working at a cannabis retail store as a manager and has had that position for 12 months, although was off for the winter].
• His mother assists him with paying for groceries and for his legal representation. He advised the PSR author that he has no income and no savings.
• He denies having anger management issues.
• Mr. Kirkpatrick claims to be “ashamed of his actions and he feels bad for repeating his father’s abuse …. however, he also said that he and the victim had been arguing previously and he believes that ‘she wanted to get me into trouble.’” His mother believes that “the victim ‘provoked him; and that the victim wanted to leave but he did not want her to go.”

[8] A victim impact statement was not filed, nor was any information provided about medical intervention or recovery.

Sentencing Principles and Analysis

A. Mitigating and Aggravating Factors

[9] I find the following to be mitigating factors for consideration:

• The plea of guilt
• The post offence completion of the PARS program

[10] I find the following to be aggravating factors for consideration:

• The prior criminal convictions, although lessened as they are not related, except as a product of intoxication.
• The fact that the victim was shot.
• The fact that the victim was shot in such a dangerous area of the body.
• The confrontational engagement with police.
• The lack of genuine remorse.
• The lack of any insight into the seriousness of the offence and the risk imposed to the life of the victim.
• The history of violence between the parties and the prior peace bond in 2018 for an offence of assault.
• The inconsistent or contrasting information about employment and relationship history.
• The assault took place within the context of an intimate relationship. Criminal Code, s. 718.201.

B. Sentencing Principles

[11] The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:

a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; b) deterring the offender and others from committing crimes; c) separating offenders from society where necessary; d) assisting in the rehabilitation of the offender; e) providing reparations for harm done to the victim or to the community; f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.

[12] The fundamental principle in sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[13] I must also consider the sentencing principles of restraint, rehabilitation, denunciation, general and specific deterrence. The latter three are paramount.

Conditional Sentence Order – Law and General Principles

[14] Section 742.1 of the Criminal Code sets out the considerations for a CSO. In summary, there are four criteria to be met:

• the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
• the court must impose a term of imprisonment of less than two years;
• the safety of the community would not be endangered by the offender serving the sentence in the community; and,
• a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[15] The first three criteria establish whether a CSO is available; the last whether it is appropriate.

[16] A conditional sentence can serve the sentencing principles of deterrence and denunciation. In R. v. Proulx, 2000 SCC 5, the court held:

22 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. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

[17] Furthermore, the court held that a CSO is both a punishment and can be as harsh as incarceration:

41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72,

in our view a sentence focused on restorative justice is not necessarily a "lighter" punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

[18] A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

Conclusion

[19] I do not have a joint position to consider.

[20] Domestic violence is a plague in our communities. There seems to be no end, no matter the social service agency endeavours, the public condemnation nor the justice system denunciation.

[21] The appropriate sentence is in the range of 12 to 15 months. Given the plea, which is not early by any stretch of the imagination and the PARS program completion, as well as the lack of victim impact information, the Crown position is very generous, but one that I find can, in all of the circumstances, support the principles of sentencing, however low.

[22] The sentence will be 180 days custody, 18 months probation, s. 109 order for 10 years, a DNA order and a forfeiture order.

Signed: Justice Angela L. McLeod