citation: "R. v. Polanco, 2019 ONSC 3073" parties: "Her Majesty the Queen v. Emark Robert Polanco" party_moving: "Emark Robert Polanco" party_responding: "Her Majesty the Queen" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "appeal" date_judgement: "2019-05-21" date_heard: "2019-04-18" applicant:

• "Emark Robert Polanco" applicant_counsel:
• "M. Gourlay" respondent:
• "Her Majesty the Queen" respondent_counsel:
• "T. Krancj" judge: "P.A. Schreck" summary: > The appellant, Emark Polanco, appealed a 21-month custodial sentence for domestic violence offences, arguing that his significant physical disabilities (wheelchair confinement, sleep apnea, diverticulitis) and the passage of time since conviction warranted a conditional sentence. The sentencing judge had erred by only considering whether correctional authorities could meet his medical needs, rather than the disproportionate impact of incarceration on a disabled offender. The Superior Court of Justice allowed the appeal, finding that physical disability is a personal circumstance that can justify a sentence adjustment, and that the combined factors of the appellant's severe disability and the three-and-a-half-year delay since conviction made a conditional sentence appropriate and consistent with sentencing principles. interesting_citations_summary: > This decision clarifies the role of an offender's physical disability in sentencing, distinguishing it from a mitigating factor related to blameworthiness. It emphasizes that disability is a "personal circumstance" under the principles of individualization and parity, meaning incarceration's disproportionate impact on a disabled offender must be considered, even if correctional facilities can provide adequate medical care. The court reconciles seemingly conflicting appellate authorities by asserting that while the ability of correctional services to provide care is relevant, it does not negate the need to adjust a sentence if the disability makes incarceration significantly more onerous. The case also highlights the relevance of the passage of time since conviction as a factor favouring a non-custodial disposition. final_judgement: "The custodial sentences imposed at trial are varied such that they may be served in the community as part of a conditional sentence." winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 3073 file_number: "CR-16-40000083-AP" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc3073/2019onsc3073.html" keywords:
• Sentencing
• Appeal
• Physical Disability
• Conditional Sentence
• Domestic Violence
• Proportionality
• Parity
• Individualization
• Criminal Code
• Passage of Time areas_of_law:
• Criminal Law
• Sentencing
• Constitutional Law cited_cases: legislation:
  • title: "Criminal Code" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/"
  • title: "Corrections and Conditional Release Act" url: "https://laws-lois.justice.gc.ca/eng/acts/C-44.6/" case_law:
  • title: "R. v. Polanco, 2017 ONSC 3765" url: "https://www.minicounsel.ca/scj/2017/3765"
  • title: "R. v. Polanco, 2018 ONCA 444" url: "https://www.minicounsel.ca/oca/2018/444"
  • title: "R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089" url: "https://www.minicounsel.ca/scc/2015/64"
  • title: "R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487" url: "https://www.minicounsel.ca/scc/2000/47"
  • title: "R. v. Drabinsky (2009), 2009 ONSC 41220, 246 C.C.C. (3d) 214" url: "https://www.canlii.org/en/on/onsc/doc/2009/2009canlii41220/2009canlii41220.html"
  • title: "Drabinsky (C.A.), 2011 ONCA 582, 274 C.C.C. (3d) 289" url: "https://www.minicounsel.ca/oca/2011/582"
  • title: "R. v. R.(A.) (1994), 1994 MBCA 4524, 88 C.C.C. (3d) 184 (Man. C.A.)" url: "https://www.canlii.org/en/mb/mbca/doc/1994/1994canlii4524/1994canlii4524.html"
  • title: "R. v. Jacobson (2006), 2006 ONCA 12292, 207 C.C.C. (3d) 270 (Ont. C.A.)" url: "https://www.minicounsel.ca/oca/2006/12292"
  • title: "R. v. Allen, 2017 ONCA 170" url: "https://www.minicounsel.ca/oca/2017/170"
  • title: "R. v. T.L.B., 2007 ABCA 61, 409 A.R. 40" url: "https://www.canlii.org/en/ab/abca/doc/2007/2007abca61/2007abca61.html"
  • title: "R. v. C.D., 2012 ONCA 696" url: "https://www.minicounsel.ca/oca/2012/696"
  • title: "R. v. H.S., 2014 ONCA 323, 308 C.C.C. (3d) 27" url: "https://www.minicounsel.ca/oca/2014/323"
  • title: "R. v. Aquino (2002), 55 W.C.B. (2d) 314 (Ont. C.A.)"
  • title: "R. v. Malicia, [2004] O.J. No. 2554 (C.A.)"
  • title: "R. v. R.L., 2013 ONCA 504" url: "https://www.minicounsel.ca/oca/2013/504"
  • title: "R. v. Aquino, [2002] O.J. No. 3631 (C.A.)"
  • title: "R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433" url: "https://www.minicounsel.ca/scc/2012/13"
  • title: "R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739" url: "https://www.minicounsel.ca/scc/2013/15"
  • title: "R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455" url: "https://www.minicounsel.ca/scc/2000/18"
  • title: "R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500" url: "https://www.minicounsel.ca/scc/1996/230"
  • title: "R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61" url: "https://www.minicounsel.ca/scc/2000/5"
  • title: "R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206" url: "https://www.minicounsel.ca/scc/2010/6"
  • title: "R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496" url: "https://www.minicounsel.ca/scc/2018/34"
  • title: "R. v. Okemow, 2017 MBCA 59, 353 C.C.C. (3d) 141" url: "https://www.canlii.org/en/mb/mbca/doc/2017/2017mbca59/2017mbca59.html"
  • title: "R. v. C.S."
  • title: "R. v. Shahnawaz (2000), 2000 ONCA 16973, 51 O.R. (3d) 29 (C.A.)" url: "https://www.minicounsel.ca/oca/2000/16973"
  • title: "R. v. M.E., 2012 ONSC 1078" url: "https://www.minicounsel.ca/scj/2012/1078"
  • title: "R. v. Rahaman, 2008 ONCA 1" url: "https://www.minicounsel.ca/oca/2008/1"
  • title: "R. v. Outram, 2015 ONSC 1934" url: "https://www.canlii.org/en/on/onsc/doc/2015/2015onsc1934/2015onsc1934.html"
  • title: "R. v. Chirimar, 2007 ONCJ 385" url: "https://www.canlii.org/en/on/oncj/doc/2007/2007oncj385/2007oncj385.html"
  • title: "R. v. Wang (2001), 2001 ONCA 20933, 153 C.C.C. (3d) 321 (Ont. C.A.)" url: "https://www.minicounsel.ca/oca/2001/20933"

Court File and Parties

COURT FILE NO.: CR-16-40000083-AP DATE: 20190521 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – EMARK ROBERT POLANCO Appellant

COUNSEL: T. Krancj, for the Respondent M. Gourlay, for the Appellant

HEARD: April 18, 2019.

REASONS FOR JUDGMENT

On appeal from the sentence imposed on October 11, 2016 by the Honourable Justice D. Hackett of the Ontario Court of Justice.

SCHRECK J.:

1In November 2015, following a trial in the Ontario Court of Justice, Emark Polanco was convicted of a number of offences arising from ongoing violent behaviour against a woman he had been involved with. In October 2016, he was sentenced to 21 months imprisonment. The convictions were set aside on an appeal to this court and then restored on a further Crown appeal to the Court of Appeal. The sentence appeal, which remained outstanding, was remitted to this court.

2Mr. Polanco was involved in a serious motor vehicle accident in 1990 that left him significantly disabled. He is currently confined to a wheelchair. He also suffers from obstructive sleep apnea and diverticulitis. He appeals his sentence on the ground that the sentencing judge erred in concluding that his physical disability did not warrant a reduction in sentence because the correctional authorities were able to provide him with treatment while in custody. He submits that his physical condition was a relevant factor to be taken into account on sentencing even if the correctional authorities could address his needs because it meant that a custodial sentence would have a greater impact on him than it would on other offenders. While he takes no issue with the quantum of sentence, he submits that he should be permitted to the serve it in the community.

3The respondent Crown submits that the trial judge was correct that since the correctional authorities could address his needs, his physical condition was not a factor to be considered and did not warrant any reduction in sentence.

4The following reasons explain why I would allow the appeal and vary the sentence to a conditional sentence.

I. EVIDENCE

A. The Offences

5The appellant and the complainant met on a ski trip in March 2013 and quickly became involved in an intimate relationship. At the time, the appellant was in a relationship with another woman, Vicky Ho. Although the complainant and Ms. Ho knew each other, spent time together and even went on a vacation together with the appellant, each believed the other’s relationship with the appellant to be platonic.

6According to the complainant, the appellant became very controlling early on in the relationship. By June 2013, he became violent and the violence continued throughout the remainder of the relationship, which ended when the appellant was arrested in November 2013.

7Despite the violence, the appellant and the complainant began to spend more and more time together. In October 2013, the appellant underwent surgery that left him wheelchair-bound. He moved into the complainant’s home because he was unable to manage the stairs where he had been living.

8In addition to describing ongoing violence, the complainant described several particular incidents:

• At some time after the appellant’s surgery, he grabbed the complainant by the hair while she was driving him to a friend’s house in her car.
• Sometime in October or November, the appellant struck the complainant with the leg rest from his wheelchair, breaking her pinky finger.
• The appellant caught the complainant searching his computer. He dragged her into the bedroom and punched her in the stomach several times.
• During an argument, the appellant removed his belt and hit the complainant with it, causing bruising on her backside and legs.
• During another argument, the appellant twisted the complainant’s arm, causing her to fall on his injured leg. He responded by “howling in pain” and putting her in a choke hold, which caused her to black out.
• On one occasion, the appellant was pressing the complainant to admit the truth about some unspecified event. When she said something he did not like, he picked up a large candle and hit her on the head with it several times, causing it to break. He repeated this five or six times. The complainant suffered bumps all over her head.
• During an argument in the car, the appellant grabbed and pinched the complainant’s arm and thigh, causing bruising.
• The appellant hit the complainant on the head and body with a loofah that was kept in the bathroom.
• During an assault the complainant could not recall the particulars of, the appellant injured both of her ears causing “cauliflower ear”.

9A friend of the complainant’s from her church group noticed that she had become withdrawn. The complainant told her that she was in an abusive relationship and had recently suffered a concussion. Although the complainant asked her friend not to tell anybody, the friend spoke to a police officer she knew. As a result, the appellant was arrested.

B. Victim Impact

10The complainant prepared a victim impact statement (“VIS”) prior to the sentencing hearing. In it, she described having emotional scars as a result of the offences. She had difficulty focussing on her work and her relationships with others became strained. She no longer felt safe. She wrote a letter to the appellant describing the impact of his offences on her and expressing hope that she would be able to heal and that he would be able to address the causes of his behaviour towards her.

C. The Appellant

(i) Background

11A pre-sentence report (“PSR”) was prepared for the sentencing hearing. It reports that the appellant was born and grew up in Toronto and has a supportive family. He has a daughter from a previous relationship who lives in the United States with her mother and with whom he maintains contact. He has a high school education and has a history of employment in the film industry as a transportation driver. At the time the PSR was prepared, the appellant was still in a relationship with Ms. Ho.

(ii) Criminal Record

12The appellant has a dated but serious criminal record. In 2003, he was convicted of three counts of discharging a firearm with intent to maim or disfigure for which he was sentenced to imprisonment for four years. Those convictions arose out of an altercation between the appellant and three males at a bar.

13The appellant also had a conviction for obstruction of justice from 2009, for which he received a suspended sentence and probation in addition to 90 days of pre-trial custody. That conviction was for misleading his parole officer after being granted parole in relation to the earlier convictions. As a condition of his parole, the appellant was required to advise his parole officer of any new intimate relationship. His parole officer saw him in the company of a woman on two occasions. Both times, he told his parole officer that the woman was merely a friend. Several months later, he married the woman, who was pregnant with his child. The timing of the pregnancy demonstrated that the appellant had been intimate with the woman at the time he told his probation officer that she was a friend. His parole was revoked as a result of this.

(iii) Physical Condition

14The appellant had a motorcycle accident in 1989 in which he suffered serious injuries. He underwent numerous surgical procedures on his knee and hip. At the time of sentencing, he required a walker and had physiotherapy three to four times per week. He experienced considerable pain on an ongoing basis for which he required treatment and medication.

15The appellant tendered fresh evidence on the sentence appeal, the admissibility of which will be considered later in these reasons. The fresh evidence shows that since the appellant’s sentencing hearing, he had further surgery in December 2018 in the form of a total right knee revision. That surgery did not go as intended and resulted in nerve damage, for which further surgery was required. That surgery took place in February 2019. Further surgery will be required in the future. The appellant is now in a wheelchair.

16The appellant also suffers from obstructive sleep apnea and requires a Continuous Positive Airway Pressure (“CPAP”) machine to sleep. His brother had the same condition and died from it.

17In addition to the other conditions, the appellant has chronic diverticulitis, a disease of the large intestine. In her Reasons for Sentence, the sentencing judge referred to this condition as having been treated and not requiring any further treatment. According to the fresh evidence, the appellant was hospitalized for this condition in April 2018 when the diverticulitis caused severe pain and internal bleeding. He may require surgery for this condition in the future.

18The sentencing judge heard evidence from a number of correctional officials about the ability of the correctional staff to address his medical issues while he is in custody. They testified that he would receive the treatment he required.

II. HISTORY OF THE PROCEEDINGS

A. Trial and Sentencing

19The appellant was arrested in November 2013. His trial began on January 28, 2015 and was initially scheduled to last for two days but took longer than expected for a variety of reasons. Eventually, 13 days of evidence and submissions were heard over the course of five months, ending on June 10, 2015. The trial judge, who had recently retired, then reserved judgment until November 18, 2015, at which time the appellant was found guilty. The matter was then adjourned to March 14, 2016 for sentencing.

20The sentencing hearing began on March 14, 2016 and continued on April 6, September 13, September 20 and September 27, 2016. The appellant was sentenced on October 11, 2016.

B. Appeals

21The appellant appealed his convictions and sentence to this court and was granted bail pending appeal on October 12, 2016. The appeal was heard on April 20, 2017. On June 16, 2017, this court allowed the appeal against conviction and ordered a new trial: R. v. Polanco, 2017 ONSC 3765. The Crown appealed that decision to the Ontario Court of Appeal. That appeal was heard on May 2, 2018. On May 11, 2018, the Court of Appeal allowed the appeal, restored the convictions and remitted the matter to this court for consideration of the sentence appeal: R. v. Polanco, 2018 ONCA 444. The appellant sought leave to appeal to the Supreme Court of Canada. That application was dismissed on November 22, 2018.

22The sentence appeal was then heard in this court on April 18, 2019, two years and six months after the initial sentencing and three years and five months after the convictions were entered. The appellant has been on bail throughout this period.

III. THE SENTENCING JUDGE’S REASONS

23After considering the evidence respecting the ability of correctional officials to meet the appellant’s healthcare needs, the sentencing judge came to the following conclusions (at pp. 61-62):

While there are indications of past issues with the ideal delivery of healthcare services within the federal and provincial institutions in this province, the evidence presented by the defence falls short of raising concern that Mr. Polanco’s healthcare needs at this point in time will not be addressed adequately in either a federal or a provincial institution should he be given a sentence for those systems.

In contrast, the testimony of Mr. Irving and Mr. Ogildie provides direct and clear credible and reliable evidence that these individual and specific needs of Mr. Polanco, which they were familiar with when they testified, will be properly addressed within both the federal and provincial system.

I find that there is no reduction appropriate in this case to [an otherwise] fit sentence for this individual because of his unique and complex health needs.

IV. ANALYSIS

A. Positions of the Parties

24The appellant takes no issue with the sentencing judge’s factual findings respecting the adequacy of the appellant’s healthcare within the correctional system. However, he submits that the sentencing judge erred in considering only whether the correctional authorities could adequately address his healthcare needs instead of considering whether his disability was such that incarceration would result in additional hardship to him and thereby affect the fitness of the sentence. He submits that incarceration will cause greater hardship to him that it would to another offender without the same disability and that the sentence imposed on him should be adjusted to account for this.

25The respondent submits that the trial judge took the correct approach. Absent evidence that the appellant’s condition could not be properly treated while he is in custody, his condition is not a factor to be considered and does not warrant any reduction in the sentence that should be imposed.

B. The Fresh Evidence

26The respondent opposes the fresh evidence on the basis that it could not reasonably be expected to have affected the result, which is one of the prerequisites for the admission of fresh evidence on a sentence appeal: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 115-116; R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487. The respondent points out that while the fresh evidence provides an update on the appellant’s condition, there is nothing in it relevant to the trial judge’s conclusion that the correctional authorities can meet the appellant’s healthcare needs.

27If counsel for the respondent is correct and the appellant’s disability has no bearing on the sentence that should be imposed absent evidence that his needs cannot be met in custody, then she is correct that the fresh evidence could have no bearing on the result. On the other hand, if the appellant is correct and his disability is a relevant factor regardless of the adequacy of his care while in custody, then updated information on his condition is relevant and could have a bearing on the result. As a result, I will defer my consideration of the admissibility of the fresh evidence until I have determined what role, if any, the appellant’s disability should play in the determination of a fit sentence.

C. Relevant Authorities

(i) Authorities Relied on by the Appellant

28Both parties rely on appellate authority in support of their respective positions. The appellant points out that in R. v. Drabinsky (2009), 2009 ONSC 41220, 246 C.C.C. (3d) 214 (Ont. S.C.J.), aff’d 2011 ONCA 582, 274 C.C.C. (3d) 289, the offender had reduced mobility resulting from polio and the sentencing judge considered this to be relevant in determining the appropriate sentence (at para. 45):

These physical limitations are to be taken into account in determining sentencing. The infirmity of the offender is a factor to consider in reducing the sentence. This is because the time to be served will be more difficult for a person with certain medical conditions. Again, a balance is required: “Compassion must neither be stifled nor allowed to take control [quoting from R. v. R.(A.) (1994), 1994 MBCA 4524, 88 C.C.C. (3d) 184 (Man. C.A.), a p. 191].”

The Court of Appeal affirmed that the physical limitations were a mitigating factor, but not one justifying a sentence below the usual range: Drabinsky (C.A.), at para. 170.

29In R. v. Jacobson (2006), 2006 ONCA 12292, 207 C.C.C. (3d) 270 (Ont. C.A.), at paras. 30-31, the Court of Appeal varied a custodial sentence to a conditional sentence because the former would have been “devastating” to the offender because of his psychiatric condition. The Court noted, however, that a conditional sentence was within the range of acceptable dispositions.

30R. v. Allen, 2017 ONCA 170, like this case, involved an offender confined to a wheelchair. The Court stated (at para. 16):

The trial judge mentioned the fact that the appellant had suffered the injury and was currently in a wheelchair. In fashioning the appropriate sentence, however, the trial judge does not appear to have considered the appellant’s condition and specifically, the adverse impact that the injuries suffered as a result of the unfortunate shooting will have on his incarceration. It was apparent on the record that, due to the exceptional difficulties encountered in managing the appellant’s condition, incarceration has a disproportionate impact on him: R. v. T.L.B., 2007 ABCA 61, 409 A.R. 40, at para. 34; R. v. C.D., 2012 ONCA 696. In our view, this impact ought to have been taken into account.

(ii) Authorities Relied on by the Respondent

31The respondent relies on R. v. H.S., 2014 ONCA 323, 308 C.C.C. (3d) 27, at paras. 37-38:

However, I agree that the sentencing judge erred by treating various of the respondent’s health problems (diabetes, pituitary gland issues and sleep apnea) as a mitigating factor on sentencing.

The status of the offender’s health may be a relevant consideration on sentencing, but in this case there was no evidence at the sentencing hearing that the respondent’s medical conditions could not be properly treated while he was incarcerated. In these circumstances, no reduction in an otherwise fit sentence was warranted due to the respondent’s health problems: R. v. Aquino (2002), 55 W.C.B. (2d) 314 (Ont. C.A.); R. v. Malicia, [2004] O.J. No. 2554 (C.A.); R. v. R.L., 2013 ONCA 504.

32The respondent also relies on R. v. Aquino, [2002] O.J. No. 3631 (C.A.), which is cited in H.S. and other cases. Aquino is a three-paragraph endorsement which reads as follows (at paras. 1-2):

The respondent concedes that the sentence of 18 months imprisonment fell below the acceptable range for this type of offence. Taking into consideration the serious stroke suffered by the respondent after the imposition of sentence, the Crown submits that the appropriate range is 3 to 5 years. We agree. Given the extremely serious circumstances underlying the offence, it is our view that a term of imprisonment of 4 years is the appropriate sentence.

The respondent is seriously disabled and will require special care and rehabilitative therapy for the duration of the time he will spend in custody. The correctional authorities are obliged under the Corrections and Conditional Release Act to provide inmates with essential health care. For that purpose, the respondent should be assessed immediately and appropriate steps taken to provide the proper medical care, including the rehabilitative treatment which the evidence indicates that the respondent requires.

33In R. v. R.L., 2013 ONCA 504, the Court concluded that no reduction in sentence was warranted due to the appellant’s medical condition (at para. 39):

I accept that the appellant suffers from serious health problems that have necessitated numerous attendances at the hospital during his incarceration. Nonetheless, the record before this court, including the fresh evidence of the appellant’s medical condition and treatment, does not support the conclusion that the appellant has received inadequate medical care in prison. To the contrary, the record suggests that the appellant has received timely and adequate treatment of his illnesses while incarcerated.

D. Basic Sentencing Principles

(i) Proportionality, Parity and Individualization

34As noted, both the appellant and the respondent rely on appellate authorities that appear to support their respective positions. As all of these authorities are binding on me, I must attempt to reconcile them. Doing so requires starting with first principles.

35The central organizing principle in Canadian sentencing jurisprudence is proportionality. A just sanction is proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37. There are, however, other important principles, as was explained in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 8-9:

In addition to proportionality, the principle of parity and the correctional imperative of sentence individualization also inform the sentencing process. This Court has repeatedly emphasized the value of individualization in sentencing: Ipeelee, at para. 39; R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 21; R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 92. Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigating circumstances (s. 718.2(a) of the Criminal Code), as well as objective and subjective factors related to the offender’s personal circumstances.

As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b) of the Criminal Code). In other words, “if the personal circumstances of the offender are different, different sentences will be justified” (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at s.2.41). [Emphasis added].

See also Lacasse, at para. 54; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 82; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43, R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 46.

36The relevant personal circumstances of an offender include any that may affect the impact a particular sentence will have on him or her. That is why, for example, collateral consequences of a conviction may be relevant, as was explained in Suter, at para. 48:

Though collateral consequences are not necessarily “aggravating” or “mitigating” factors under s. 718.2(a) of the Criminal Code -- as they do not relate to the gravity of the offence or the level of responsibility of the offender -- they nevertheless speak to the “personal circumstances of the offender” (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit. [Emphasis added].

(ii) Physical Disability as Part of an Offender’s Personal Circumstances

37In my view, there is no principled reason why an offender’s physical disability should not be considered in the same manner as collateral consequences. If such a disability means that a sentence “would have a more significant impact on the offender because of his or her circumstances”, then the offender is “no longer ‘like’ the others”, which may render a given sentence unfit. Looked at in this way, an offender’s disability is not a mitigating factor relevant to the seriousness of the offence or the blameworthiness of the offender but, rather, part of the personal circumstances of the offender: R. v. Okemow, 2017 MBCA 59, 353 C.C.C. (3d) 141 at para. 136; R. v. C.S. at paras. 218-220

38I find support for my conclusion in R. v. Shahnawaz (2000), 2000 ONCA 16973, 51 O.R. (3d) 29 (C.A.). In that case, the offender, who had been convicted of trafficking heroin, suffered from severe post-traumatic stress disorder as a result of having been the victim of torture. In setting aside a conditional sentence imposed at trial, a majority of the Court of Appeal stated (at para. 34):

What we are left with as a relevant factor for consideration is the evidence, accepted by the trial judge, that imprisonment had and would probably continue to have an “extreme effect” on Mr. Shahnawaz. Given this fact, it becomes necessary to adjust the sentence imposed on this particular offender so as to ensure that it does not become disproportionate to his crime. The court must not lose sight of the fact, however, that it is difficult to predict Mr. Shahnawaz’s future condition and that the state of any prisoner’s health while in custody is largely a matter for the correctional authorities. [Emphasis added].

Laskin J.A., dissenting, came to a similar conclusion about the effect of the offender’s condition, but would have given this factor more weight than did the majority (at para. 65):

The psychiatric evidence, supported by the trial judge’s observations, unequivocally shows that incarceration would be a much more severe punishment for Mr. Shahnawaz than for an ordinary person. Many courts, including this court, have recognized that a reduction from the customary range of sentence is justified where a sentence within the range would be “much more severe punishment” for the accused than for most people.

The majority and the minority agreed the individual’s health issues warranted an adjustment of the sentence despite the fact that the correctional authorities would be required to address those issues, although they disagreed as to the extent of the adjustment.

39The extent to which the correctional authorities can adequately address an offender’s medical condition will obviously have an impact on the extent to which the sentence will have a disproportionate impact on him or her. Where the correctional authorities cannot fulfill their obligations to an offender by giving him or her proper treatment, the offender’s medical condition may well amount to an exceptional circumstance warranting a sentence outside the usual range. However, even where the correctional authorities can address an offender’s needs, the offender’s medical condition remains part of his or her personal circumstances and may inform what sentence within the range of reasonable options should be imposed: R. v. M.E., 2012 ONSC 1078, at paras. 58-59.

E. Reconciling the Authorities

40I do not read the authorities relied on by the respondent as inconsistent with my conclusion. In H.S., the Court concluded that the trial judge had erred in treating the offender’s medical condition as a mitigating factor. For the reasons explained above, an offender’s medical condition is not a mitigating factor but, rather, part of the personal circumstances of the offender. The Court in H.S. concluded that the offender’s medical condition was relevant, but in the circumstances of that case did not warrant a reduction in sentence given that it could be addressed by the correctional authorities. In my view, it does not follow from this that an offender’s medical condition can never warrant a reduction in sentence, only that it did not in the particular circumstances of that case.

41In Aquino, which is cited in H.S., the Court acceded to the Crown’s submission as to the appropriate range, but noted that the Crown made its submission “[t]aking into consideration the serious stroke suffered by the respondent”. Thus, it would appear that the offender’s medical condition was a relevant consideration in determining the appropriate sentence.

42While not entirely clear, it appears that the issue in R.L. was whether the offender could receive adequate medical attention while in custody. The issue of whether the effect of the sentence would have a disproportionate impact on him was not discussed.

F. The Sentencing Judge’s Reasons

43To summarize, an offender’s medical condition or disability is not a mitigating factor but is part of his or her personal circumstances and, as such, a relevant consideration in determining an appropriate sentence. Where the offender’s disability means that the sentence will have a more significant impact on him or her than it would on other similarly situated offenders, the principles of parity and proportionality may require that the sentence be adjusted to account for this. Where there is evidence that the correctional authorities cannot adequately address the offender’s condition, this may amount to an exceptional circumstance justifying a departure from the usual sentencing range. However, even where the offender’s disability can be addressed in custody, that condition may be relevant to determining what a fit sentence should be. As with most sentencing considerations, the extent to which the offender’s disability will have an impact on the sentence will depend on the circumstances of the particular case.

44In this case, the sentencing judge concluded that because the correctional authorities could address the appellant’s needs, “there is no reduction appropriate in this case to [an otherwise] fit sentence for this individual because of his unique and complex health needs.” Nowhere in her reasons does she consider whether the appellant’s disability meant that a custodial sentence would have a more significant impact on him than it would on others and that this may warrant a reduction in sentence. As a result, she imposed a sentence without full consideration of the circumstances of the offender. In my view, this constituted an error in principle that had an impact on the sentence. As a result, no deference is owed to the sentence imposed and this court must impose whatever sentence it deems appropriate: Lacasse, at paras. 43-44.

G. The Admissibility of the Fresh Evidence

45Given that I must consider the issue of sentence afresh and in doing so must have regard to the circumstances of the offender, it follows that the fresh evidence outlining the appellant’s personal circumstances is relevant and may have an impact on the result. The fresh evidence is therefore admitted.

H. The Appropriate Sentence

(i) Length of the Sentence

46The appellant takes no issue with the length of the sentence that was imposed. Nor could he. Crimes of domestic violence are far too prevalent. In addition to the gravity of any crime of violence, these types of offences usually involve a breach of the implicit trust that exists in an intimate relationship as well as the violation of the sanctity of the victim’s home, a place where anybody should be entitled to feel safe. As a result, sentences for offences of domestic violence tend to emphasize the principles of denunciation and deterrence: R. v. Rahaman, 2008 ONCA 1, at para. 46; R. v. Outram, 2015 ONSC 1934, at para. 31.

47The real issue is whether the appellant should be permitted to serve his sentence in the community as part of a conditional sentence rather than in a custodial facility.

(ii) Conditional Sentence

(a) Prerequisites

48Section 742.1 of the Criminal Code sets out a number of prerequisites for the imposition of a conditional sentence. The only one at issue in this case is that set out in s. 742.1(a), which provides that a conditional sentence can be imposed only if “the court is satisfied that the service of 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 sections 718 to 718.2.”

(b) Safety of the Community

49Counsel for the respondent submits that a conditional sentence would endanger the safety of the community and points out that the appellant once violated one of his parole conditions. However, weighed against this is the fact that the appellant has now been on bail in relation to these matters for over five years without any suggestion of non-compliance. In my view, this evidence is far more cogent in relation to the issue of community safety than is the fact that he lied to his parole officer about having a girlfriend a decade ago.

50While the trial judge found that a conditional sentence would endanger the safety of the community, her conclusion was based on the appellant’s dated record and the appellant’s history of compliance with his bail conditions was not as well established as it is now. In my view, a conditional sentence would not endanger the safety of the community.

(c) Consistency With the Fundamental Purpose and Principles of Sentencing

51The more difficult issue is whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. As noted earlier, in cases of domestic violence, the principles of deterrence and denunciation are paramount. This weighs against the imposition of a conditional sentence. However, it is not the case that conditional sentences are never appropriate in cases of domestic violence. As noted in Rahaman, at para. 47, “[e]ach case is different. Some cases warrant conditional sentences. Others do not.” See also R. v. Chirimar, 2007 ONCJ 385, at para. 40. It is well established that conditional sentences are capable of advancing the objectives of denunciation and deterrence: Proulx, at para. 22.

52Given the seriousness of the conduct in this case, its prolonged nature and the psychological and physical harm caused to the victim, a conditional sentence would not ordinarily be appropriate. However, there are two factors which, in my view, make the circumstances of this case unique. The first is the extent of the appellant’s physical disability. While I accept the trial judge’s factual findings that the correctional authorities would be able to meet the appellant’s needs while in custody, the fact remains that a custodial sentence would have a significantly greater impact on him than on other offenders. The appellant is confined to a wheelchair, requires intensive physiotherapy, requires a CPAP machine to sleep, and suffers from chronic diverticulitis. As a matter of common sense, a custodial sentence would have a significantly greater impact on him than it would on other offenders. For the reasons outlined earlier, this must be taken into account.

53That said, I have some doubt whether the appellant’s physical disability, by itself, would justify a conditional sentence in this case. However, there is an additional factor which, in my view, tips the balance in favour of a non-custodial disposition. That factor is the passage of time since the appellant’s conviction.

54As mentioned earlier, it has been over three and a half years since the appellant was convicted and over two and a half since he was sentenced. He has been on bail without incident throughout the period. As stated in H.S., at para. 58:

…[T]he fact that the respondent has spent the last two years in legal limbo uncertain as to whether he would be incarcerated and, if so, for how long, is a relevant factor to take into account.

See also R. v. Wang (2001), 2001 ONCA 20933, 153 C.C.C. (3d) 321 (Ont. C.A.), at para. 75.

55In the very unique circumstances of this case, I have concluded that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing.

V. DISPOSITION

56For the foregoing reasons, the custodial sentences imposed at trial are varied such that they may be served in the community as part of a conditional sentence. I will invite submissions from counsel as to the appropriate conditions. My preliminary view, subject to hearing submissions, is that the following conditions should be imposed in addition to the statutory conditions:

• For the first 12 months of the sentence, to remain in his residence at all times, subject to the following exceptions:
  • While travelling to or from and while at a medical appointment, including any prescribed physiotherapy or other types of therapy.
  • While hospitalized.
  • While travelling to or from and while at his place of employment or any place he is required to be as part of his employment.
  • Once per week at a time to be determined for a period of four hours to attend to the necessities of life.
  • Any other exception approved of by his Supervisor.
• For the remainder of the sentence, to be subject to a curfew between 9:00 p.m. and 6:00 a.m. each day, subject to the same exceptions.
• Have no direct or indirect contact with Nancy Lee and not to be within 500 metres of any place he knows her to live, work, attend school or otherwise be.
• Not to possess any weapons as defined by the Criminal Code.

57The ancillary orders imposed by the sentencing judge remain in place.