Ontario Court of Justice

(East Region)

Her Majesty the Queen

v.

Patrick Guitard

Court Information

Before: Justice David M. Paciocco – Ottawa, ON

Counsel:

• Ms. T. Dobek for the Crown
• Mr. A. Brass for Mr. Guitard

Released: April 16, 2014

Reasons for Sentence

I. Introduction

[1] Mr. Patrick Guitard has pled guilty to three charges. Based on those pleas he has been found guilty of assaulting a bus driver, Ian Hodge, contrary to section 266, and doing so while bound by a probation order requiring him to keep the peace and be of good behaviour, contrary to section 733.1. These two offences, for which the Crown elected to proceed indictably, occurred on 3 March 2013. Mr. Guitard was also found guilty after pleading guilty to stealing a cup of tip money from a Tim Horton's restaurant on 20 January 2013.

[2] The Crown is seeking a period of incarceration of 18 months followed by one year of probation. Counsel for Mr. Guitard, Mr. Brass, is seeking a sentence of 1 year in custody, and did not make submissions opposing the subsequent year of probation. Neither Ms. Dobek for the Crown, nor Mr. Brass, indicated what proportion of their recommended sentence should be attributable to which offence. Neither provided any case law to assist the court in identifying an appropriate disposition. Submissions centred exclusively on the assault that Mr. Guitard committed on Mr. Hodge. Ultimately I am not bound by either submission. I must select a fit sentence according to law.

[3] The fundamental principle of sentencing that I must consider requires that to be fit any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s.718.1). This is achieved by examining the aggravating and mitigating circumstances that pertain both to the offence and the offender, bearing in mind established principles of sentencing, including those enumerated in the Criminal Code of Canada (s.718.2). The sentencing objectives suggested by this inquiry, selected from the sentencing goals listed in section 718, are then identified. I have to decide whether the sentence in this case should focus on denunciation – expressing society's disapproval of the conduct through the sentence imposed; general deterrence – sending a message to others that this kind of behaviour is too costly to engage in; specific deterrence – sending a message to Mr. Guitard to intimidate him into not offending again; incapacitation – locking Mr. Guitard up to protect those of us who are not locked up; or rehabilitation and reintegration – trying to assist him in reforming so he does not offend again. Based on the selected objectives and always mindful of the principles of restraint contained in sections 718.2 (c) – (e) of the Criminal Code of Canada I am then to select a fit sentence that will best achieve the objectives I have identified, and I must ensure that this sentence is similar to sentences imposed in similar cases. The inquiry is complicated but important. It is intended to justify the adverse consequences that are being imposed on an individual by society, while ensuring that those consequences are fair and constructive.

II. The Assault Offence

[4] I will begin examining the gravity of the central offence – the assault offence - by recounting the act that Mr. Guitard has been found guilty of. The assault on Mr. Hodge occurred after Mr. Guitard boarded a bus while extremely intoxicated. He was mumbling. With some difficulty Mr. Hodge was able to understand that Mr. Guitard did not have money to pay the fare. Mr. Hodge did him the kindness of nonetheless permitting Mr. Guitard to ride. After a short time Mr. Guitard approached Mr. Hodge and asked to get off at Bronson St. Mr. Hodge told Mr Guitard that they had already passed Bronson St. Mr. Guitard became upset and told Mr. Hodge to drive back, and shoved him causing the bus to swerve into oncoming traffic. Mr. Hodge told Mr. Guitard not to touch him. Mr. Guitard began swearing at Mr. Hodge, calling him crazy. He then punched Mr. Hodge in the shoulder. The punch was not painful, but Mr. Hodge took it as a real threat and decided to pull the bus over. The brakes were hit hard enough to disrupt the passengers as Mr. Hodge activated the emergency lights and brought the bus to a stop. Mr. Guitard got out of the bus when he learned the police were coming. While he was waiting for them he challenged Mr. Hodge to a fight.

[5] The act of assault itself – the push and a single, unimpressive punch to the driver's shoulder – is minor. The force was modest and did not strike vulnerable areas of Mr. Hodge's body. No weapons were involved, Mr. Hodge was not hit hard enough to receive physical injuries, and the assault was fleeting, consisting of two contact incidents. I have no evidence that Mr. Guitard was interrupted while attempting to carry on a more extensive assault, and while he attempted to induce Mr. Hodge into fighting him outside the bus he did nothing active to further the attack. Nor was Mr. Guitard's act premeditated. It was an immediate, impulsive response to frustration by an intoxicated patron, something I will say more about below.

III. Aggravating Factors

[6] The Crown urges that this otherwise minor assault was converted into a serious assault by the attending aggravating factors. Some of the factors identified by the Crown, however, are of only modestly relevance to the sentence I must impose. That Mr. Guitard boarded a bus intoxicated and brought alcohol onto the bus is part of the setting in which the assault occurred; it does not aggravate the assault itself. The fact that Mr. Guitard assaulted Mr. Hodge after he was told by Mr. Hodge not to touch him does not require a stiffer sentence; all assaults are non-consensual. And the fact that Mr. Guitard was acting aggressively and swearing throughout the incident is unfortunately fairly standard fare for those who resort to physical force. It does not mark this assault as particularly serious.

[7] The Crown also urged that I should treat this assault as a serious assault and that I should therefore impose a higher sentence than the assault would otherwise deserve because Mr. Hodge is a bus driver. Effectively, in her submission two distinct claims were being made by the Crown. The first is that the sort of assault Mr. Guitard committed is becoming increasingly prevalent in the community and therefore requires a harsher sentence to deter such conduct. The second claim is that by virtue of their occupation bus drivers are particularly vulnerable to assault and require increased protection through harsher penalties.

[8] The Crown supported the first contention that assaults on bus drivers are becoming more prevalent in the community by filing as Exhibit 4, statistics compiled by the Transit Law Enforcement Unit detailing "operator assaults" between 2009 and the first quarter of 2014. Mr. Brass did not object to their filing but questioned the accuracy and utility of the statistics. I agree that these statistics are of little use even though the rules of evidence are more liberal in sentencing proceedings. These statistics constitute hearsay collated by unknown persons from unidentified data. I therefore have no basis for treating them as reliable.

[9] Moreover, even if they were consulted they do not verify an increase in "operator assaults." They do not disclose assault rates prior to 2009, and in fact, even taking the statistics on their face there were appreciably more assaults in 2009 than in any other year. Statistics for the first quarter of 2014 also suggest a decline from the previous 2 years. I cannot increase Mr. Guitard's sentence on the basis of this evidence in an effort to stem an increased prevalence of an offence, when that increased prevalence has not been proved.

[10] What, then, of Mr. Hodge's occupation as a bus driver? Does his status as a bus driver alter the severity of the sentence I am to impose? I do not believe the law supports the notion that bus driver assaults per se attract higher sentences than other assaults. The context of a particular assault can, of course, aggravate the seriousness of an assault, and there are circumstances in this case related to the work Mr. Hodge was doing as a bus driver that do so. I will take those factors into account. I will not, however, consider the assault to be aggravated simply because the victim was a bus driver.

[11] In coming to this conclusion I accept that many bus drivers have been assaulted while on the job. This is notorious and indisputable, independently of the statistics that were offered for my consideration. That bus drivers are exposed to the risk of assault is supported not only by periodic media reports of driver assaults but by common sense. Bus drivers encounter thousands of individuals during their work, many of them impaired or simply intent on mischief. The sheer exposure to numerous persons increases the risk of incident. Moreover, anyone who commutes our City streets or who has taken a bus knows that the time spent on a bus can be stressful, increasing the risk of confrontation. And bus drivers, bearing responsibility for the bus and its passengers, can easily become the subject of abuse, including physical assault.

[12] While all of this is true, I am aware of no settled body of authority holding that an assault on a bus driver is per se more serious than assaults on anyone else who has the misfortune of being victimized, and no authority was advanced by the Crown. To be sure, the Criminal Code of Canada does contain principles aggravating the seriousness of an offence for vulnerable groups including those prone to hate-based abuse, the mental or physically disabled, children, and those who the offender owes a duty of trust to. Bus drivers are not, however, enumerated. There exclusion, I suspect, is because there is a difference between being a vulnerable individual – through mental illness, physical disability or immaturity for example – and engaging in an activity that increases the risk of confrontation and assaultive behaviour. The law reacts to the former harshly because it is bullying and involves the exploitation of weakness. The law reacts to the latter – individuals who are assaulted when engaged in activities that have created the risk of assault – by punishing the assault for what it is, namely an unacceptable violation of the integrity and security of the person.

[13] Beyond the enumerated list of specially protected victims in the Criminal Code of Canada there are cases where courts do reference the societal role of the victim in describing why a deterrent sentence is required. Assaults on police officers and prison guards can be sentenced more harshly, for example, because these offences are an affront to the administration of justice and imperil law enforcement (R. v. Sherwood, [1958] 25 W.W.R. 332 (B.C.C.A.)). This is so for internationally protected persons (R. v. Maltby [1986] O.J. No. 1092 (C.A.)) and health-care workers especially abortion providers (Alan Manson, The Law of Sentencing (Toronto: Irwin Law, 2001) at 158) because they can be targeted for premeditated attack because of their positions. The same holds true for taxi-drivers who work in isolation and can be directed to remote locations (R. v. McGlone [1974] N.S.J. No. 264 (N.S.C.A.)), and those who work at night (R. v. Stoshein [2001] S.J. No. 90 (Sask.C.A.), leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 102 (S.C.C.)). Bus drivers do not fall into these categories; they are not working for the administration of justice and are not apt to be targeted for premeditated attack because they are bus drivers. As indicated, they are apt to be assaulted because they are exposed to large numbers of individuals and the discharge of their function can create conflict. The reality is that many of us engage in callings or undertakings that expose participants to the risk of assault for these and other reasons, including group home workers, social workers, loss prevention officers, liquor store employees, minor league coaches and referees, and most certainly teachers. Anyone who attends a bar or sporting event, or who frequents a school yard is exposed to the risk of assault because of exposure to large numbers of others in situations of potential conflict. Rather than attempt to establish a list of occupations and undertakings that require enhanced protection through fixed aggravated sentencing policies the law does better to look at the particular circumstances of the case, including features that aggravate the offensiveness of the conduct. This includes features that can be related to the undertaking or occupation in question but it would be a mistake, in my view, to amplify Mr. Guitard's sentence because the person he lashed out at in this case was a bus driver.

[14] As indicated, there are demonstrated situational features in this case that are relevant to the work Mr. Hodge was doing as a bus driver on the day of the assault that do make this assault more offensive than it at first blush appears. The first is that the assault was entirely unprovoked. Mr. Hodge was simply carrying on his job as a bus driver when he was assaulted by an unruly, intoxicated passenger. Indeed, whether in an effort to avoid confrontation or as an act of generosity, Mr. Hodge had let Mr. Guitard stay on the bus without paying, and for this he was rewarded by being assaulted. He was an entirely innocent victim of uninvited aggression by an ungrateful actor and the sentence must reflect this. While the fact the assault was unprovoked is an aggravating factor, however, it is not a game-changing consideration. Many assaults seen in the courts involve accused persons who assault without discernable cause.

[15] Second, at the time of the assault Mr. Guitard was physically vulnerable. Because of his responsibility in operating the bus he was unable to take steps to protect himself when Mr. Guitard became threatening. He could not leave as things escalated as he had a bus in motion, nor could he ward off the blows. He was physically preoccupied with keeping control of the bus, and to this extent, his vulnerability aggravates the offence. At the same time, however, I have to bear I mind that Mr. Guitard did not fully exploit that vulnerability by directing a sustained attack at Mr. Hodge, or by using damaging blows. Had he done so, Mr. Hodges's vulnerability would have been a significant aggravating factor. Given the modest nature of the force used, it is a relevant but not a steering consideration.

[16] Finally, and most significantly, because Mr. Guitard was actively operating a bus containing an estimated 35 passengers at the time of the assault, the assault presented a risk of danger to those who were on the bus at the time. The assault was reckless and irresponsible given this. The bus swerved into the oncoming lane and the driver did ultimately brake hard after being punched, posing unquestionable risk to the passengers. The risk posed to the passengers has to be kept in perspective, however. There is no evidence before me that the assault posed imminent danger to the occupants. There is no information alleged that the swerve caused a near miss collision or that other vehicles had to take evasive action. Indeed, on the facts before me the push that led to the swerving bus did not even cause the driver to choose to pull over. On the evidence before me Mr. Hodge made the decision to pull over only after a further verbal exchange, after he hit the call button, and after he had been punched. Only then did Mr. Hodge recognize the seriousness of the threat. I cannot therefore sentence Mr. Guitard on the footing that the passengers were put in great danger. I can, however, and will sentence Mr. Guitard on the basis that the assault occurred in reckless circumstances that exposed the driver and the passengers to potential risk of collision.

[17] The final thing that must be considered as an aggravating factor is the injury to Mr. Hodge. As indicated, he was not physically harmed by the minimal force applied by Mr. Guitard. There is no dispute though that Mr. Guitard's conduct has contributed to real psychological harm that Mr. Hodge endures. A victim impact statement was filed as Exhibit 3. It describes a man who has become afraid to do his job and who is suffering significant job-related stress that has diminished his quality of life. In fairness Mr. Hodge does not suggest that Mr. Guitard is the author of all of this. It was this event and others like it that has contributed to Mr. Hodge's unhealthy state of mind. While Mr. Guitard cannot fairly be saddled with all of the responsibility for this outcome, neither can he seek to avoid responsibility entirely by blaming others. The sentence I impose has to reflect the fact that through his unlawful act Mr. Guitard has contributed to an indeterminable degree to the job-related, psychological stress that Mr. Hodge now endures.

[18] Taking all of this into account, I accept this assault is more serious than the transient, modest force used would suggest. It is not, however, a higher end common assault. There was no barbarity involved, no bullying and no extreme force, no sustained attack, no physical injury or discomfort of note, no repeated victimization, no exploitation of weakness, and no premeditated targeting because of Mr. Hodge's position. What this is, is lower end unprovoked physical contact that must be treated as approaching a mid-range common assault because it was a reckless attack that had the potential to endanger the occupants of the bus, and it contributed in some unidentifiable measure to the significant job-related stress that Mr. Hodge has experienced. The sentence imposed must reflect all of this but it can reflect no more.

IV. The Offender

[19] The law requires that, in addition to the gravity of the offence, a sentencing court must consider the degree of responsibility of the offender. The offender's attitude about the offence and who the offender is can assist in showing how serious the risk of reoffending is, and can help in identifying appropriate priorities from among the objectives of sentencing. Should the sentence focus, for example, on deterring the offender, separating the offender from society to protect the public, or should it be crafted with a view to rehabilitation or re-integration of the offender as a positive, contributing member of society.

[20] It is obvious to anyone who has observed Mr. Guitard in Court that he is a pathetic individual. He suffers ill-health. Now 51, he sustained an acquired brain injury in 2006. It was obvious when he spoke in Court that he is of substandard intelligence. This may be the sequalae of his brain injury but it is likely endemic. Mr. Guitard is illiterate, having completed only seven years of school. The only background documentation shared with the Court is his 2006 neuropsychological consultation after his injury, made Exhibit 2 in these proceedings. It records that even before he was injured Mr. Guitard was living a marginal existence. He was addicted to alcohol and cocaine, which appears to have inspired physical changes or damage to his brain. During his discharge assessment in 2006 he had cognitive impairment in most of the domains assessed, including attention and executive function. It is likely from his record that many of these problems have marked his entire life. Certainly at this point in his life, Mr. Guitard is impoverished, unemployed and probably unemployable. He is homeless, and he is alone.

[21] As sympathetic as his circumstances are, Mr. Guitard's problems are not his own. He has made them a problem for society since he became an adult, and possibly before. Mr. Guitard is the kind of nuisance offender that frequently populates our courts. He has an unbroken string of convictions since 1979. Most of the 150 or so criminal convictions on his record are the kind of minor, opportunistic or impulsive acts frequently committed by destitute, addicted and self-destructive offenders, including minor thefts; offences against police officers after apprehension including assaults, resisting and obstructing; and numerous breaches of court orders – more than 50 of them. The record reflects Mr. Guitard's personal history – it confirms that he is impulsive and largely ungovernable and that his executive functioning is poor and it predicts that regardless of the sentence imposed on him, Mr. Guitard is likely to come back.

[22] Of real relevance is that his record also shows that Mr. Guitard is violent. He has 17 assault convictions and two robbery-related convictions which would have involved violence. A close look at those convictions suggests that most were lower-end offences. The robbery convictions attracted low sentences for that offence, suggesting that they were not among the more violent or threatening forms of robbery that courts see. Five of the assaults Mr. Guitard has been sentenced for were committed while being arrested, and attracted penalties from a suspended sentence for the last one to up to 120 days. He also has six common assault convictions on his record that have either received concurrent sentences or sentences ranging from 15 days to 60 days in jail. And Mr. Guitard has 3 assault causing bodily harm convictions from two decades ago, attracting sentences ranging from a $200 fine to 6 months in custody. He has two 2008 aggravated assault convictions for which he received the equivalent of 4 months and 10 months respectively. And he has two assault with a weapon convictions for which he was sentenced to one month in 2007 and 9 months in 2010. It is obvious that Mr. Guitard resorts to force with disturbing frequency and that although he tends to be a nuisance offender, he does at times resort to potentially dangerous force. In spite of his difficulties society has the right to seek to protect itself against him, and it is this Court's duty to do so.

[23] Another important factor in determining the degree of responsibility of the offender is the offender's attitude relating to the offence. With respect to his frame of mind at the time of the offence, Mr. Guitard clearly did not deliberate before striking out. At the time Mr. Guitard committed this offence he was extremely intoxicated. This was the impulsive, obnoxious act of a drunken man. Yet Mr. Guitard's drunkenness does not lessen his responsibility. This is not a case where his intoxication can be pointed to, suggesting he acted out of character. Substance abuse is such a prevalent part of Mr. Guitard's life that, sadly, this conduct is demonstrative of who he has become. Nor can I rely on Mr. Guitard's addiction to find that he had no choice but to become drunk and dangerous. Public policy and public protection would not stand for that. Mr. Guitard's addiction is tragic, and in appropriate cases, addiction can inspire a pragmatic change in the focus of a sentence from punishment to rehabilitation but not in this case given Mr. Guitard's record of violence and the failure of past rehabilitative measures. Ultimately, neither alcohol nor addiction reduces Mr. Guitard's personal responsibility and neither agitates in favour of a more lenient sentence.

[24] What does mitigate this sentence materially is that Mr. Guitard pled guilty and has accepted responsibility for the offence. He also expressed his remorse when addressing the Court. I accept that when sober, Mr. Guitard regrets his actions.

[25] In sum, Mr. Guitard has a background that calls for compassion, yet his history of violence calls for enhanced censure and punishment. His personal issues do not lessen his responsibility. He knows right from wrong. While the offence was not premeditated, it was the kind of impulsive act that he seems apt to repeat. The only mitigating factor that I can consider is the guilty plea.

V. Sentencing Objectives

[26] What sentencing objectives, then, should this sentence give priority to? Clearly an unprovoked and reckless assault committed by an offender with a long record of similar offences even after pleading guilty calls for a proportionate measure of denunciation, general deterrence, and specific deterrence. I disagree with counsel when they agree that this case also calls for Mr. Guitard's "incapacitation." Incapacitation is a sentencing objective that enables individuals to be locked up because their crimes are so serious that it is necessary to deprive these individuals of their freedom because they are too dangerous to walk among us. It is this sentencing goal that justifies having dangerous offender laws. Mr. Guitard is more nuisance than danger. As it happens he will be "incapacitated" for a time because I agree with counsel that there is no alternative in this case but to incarcerate him, but this is being done in the interests of denunciation, general deterrence, and specific deterrence, not to separate Mr. Guitard from the rest of us. While Mr. Guitard's rehabilitation cannot be the priority objective given his history of offending and the unlikelihood that rehabilitate efforts will be effective in protecting the public in future, rehabilitation should not be disregarded entirely. I will therefore be combining a period of incarceration with the probationary sentence requested.

VI. Determination of Sentence

A. Incarceration

[27] I will address incarceration first. I agree with both counsel that Mr. Guitard has to be incarcerated even though a jail sentence is not standard fare for common assaults involving the modest force employed by Mr. Guitard on this occasion. Such offences typically attract absolute discharges, conditional discharges or at worst, suspended sentences or fines, even when they are unprovoked and often even in cases when they are committed against persons who are in vulnerable circumstances: see Clayton C. Ruby et al, Sentencing (8th ed), (Toronto: LexisNexis, 2012) at 863-865. What sets this case apart and requires incarceration is the irresponsible nature of the assault on the driver of a moving bus, and Mr. Guitard's record of violence.

[28] Still, this offence simply does not warrant in law the 18 months in jail sought by the Crown. I am confident that it would be an error of law should I impose such a disproportionate sentence – close to twice as long as he received for the most serious aggravated assault sentence he has ever served and 6 times longer than the 60 days he received for his last common assault. Although the case law relating to sentencing for common assaults does support upper-reformatory or even penitentiary sentences in some circumstances, these cases involve incidents that are far more aggravated than this case, even bearing in mind Mr. Guitard's criminal record. The nature of the offence Mr. Guitard committed cannot be lost sight of, and this was not a serious assault.

[29] The Crown offered no authority supporting an 18 month sentence for this assault and I encountered none in my research. In Ruby et al, Sentencing (8th ed), above, when exploring the range of sentences for common assault the authors list more than 30 cases. Only one case resulted in a common assault sentence beyond a year; in R. v. Harris [2001] O.J. No. 5526 (Ont.C.J.) an offender who assaulted an 82 year old women on two occasions after breaking into her home, where the assaults appear to have had sexual connotations, received a three year sentence. The next longest sentence reported in this text was 1 year; in R. v. Rye [2002] O.J. No. 4615 (Ont.C.J.) that sentence was imposed on a man with a significant record of assaultive behaviour for what appears to have been a sustained assault on a grandfather whose grandchildren had tried to pull the accused off of the victim during the assault. Most of the cases reported in this text involved non-custodial sentences, but where there were aggravating factors warranting jail courts tended to impose incarceration in the four to six month range.

[30] Thirty assault sentencing decisions are chronicled in Nadin-Davis and Sproule, Canadian Sentencing Digest 2013, 23 in the 2012 edition, and 35 in the 2012 edition. Of these, only 5 reported cases involved sentences of the length suggested by the Crown or longer and in all but one of them the accused was being sentenced for multiple substantive crimes, including multiple assaults on the same victim, unlawful confinement, or break and enter. The remaining case, R. v. Gosselin 2012 QCCA 1875, 2012 Q.C.C.A. 1875, was a domestic assault on a pregnant victim by an accused with 28 prior assaults involving 6 prior domestic partners.

[31] What happened to Mr. Hodge is deeply offensive and intolerable, but if I was to sentence Mr. Guitard to the sentence requested by the Crown I would not be treating Mr. Guitard similarly to similar offenders committing similar offences, nor would the sentence be proportionate to his degree of responsibility, and it certainly would not respect the principle I am bound to apply that incarceration should be used with restraint.

[32] I am confident of this notwithstanding that the step-principle calls for a longer period of incarceration where an offender repeats behaviour after earlier being sentenced for the same thing. The theory is that if the lesser sentence did not specifically deter the offender, maybe a longer sentence will, and that an offence committed by a repeat offender requires greater denunciation so members of the public do not become dispirited. The step-principle does not, however, require let alone permit courts to impose disproportionate sentences, nor does it support longer sentences regardless of the nature of the offence being considered. Assault is one of those offences that can be committed with tremendous variation in severity, and I have no precise evidence before me to show how serious Mr. Guitard's earlier assaults were. As indicated, what I do know is that the last common assault netted a sentence of 60 days, even when accompanied by a breach of probation conviction. While this case does warrant more than 60 days for the reasons I have identified, the step-principle does not support the Crown's position in all the circumstances.

[33] In my view an appropriate sentence for the assault, bearing in mind the step-principle and all of the aggravated and mitigating facts I have identified would be 6 months in prison. A half a year in custody is a serious sentence for the incident Mr. Guitard is being sentenced for, and it well reflects the risk that he put passengers to, Mr. Guitard's record and the contribution he has made to Mr. Hodge's distress. It is a fair sentence since it is proportionate and in keeping with what I discern to be the appropriate range for this kind of offence given the circumstances, yet it is forceful enough to denounce this offence. It is also a long enough sentence that anyone minded to act this way and who is capable of reflecting on the matter before doing so, including hopefully Mr. Guitard, would decide using this kind of force out of frustration where it creates a danger to others is not worth the penalty that could be imposed if apprehended.

B. Breach of Probation

[34] Mr. Guitard is also being sentenced for breach of probation for failing to keep the peace. He did so by assaulting Mr. Hodge. In other words, his one act constituted two distinct offences, the assault itself, and Mr. Guitard's failure to respect a court order telling him not to offend again. This kind of breach of probation requires, in my view, a consecutive sentence to signal that he is not simply being sentenced for the assault, but also for disregarding a court order. Still, since the same conduct marks both offenses careful regard has to be given to the principle of totality. The combined effect of the two sentences should not be overlong. Mr. Guitard has had many similar offences, and he generally receives concurrent sentences of between 30-60 days. Given that I am extending Mr. Guitard's sentence because he breached a court order a 30 day sentence is fit for the breach of probation offence.

C. Theft

[35] For theft convictions of the kind Mr. Guitard has committed in this case, offenders typically receive non-custodial sentences, and chronic offenders tend to receive sentences in the 30-60 day range, depending on the circumstances. This theft, committed by a clearly intoxicated Mr, Guitard, was not attended with aggravating circumstances that have been proven before me other than that the money was destined for employees. This was an unsophisticated offence. I do not even know the amount of money taken but it was not considerable. In my view, in light of his record warrants a 45 day sentence.

D. Global Sentence and Pretrial Custody Credit

[36] The global sentence Mr. Guitard deserves is therefore 8 ½ months, or 255 days. Mr. Guitard has spent 44 days in pretrial custody awaiting today's sentence. Where an offender spends time in custody before being sentenced and they have not been detained pursuant to sections 515(9.1) or sections 524(4) or (8) of the Criminal Code of Canada they will generally be given 1.5:1 credit for that time. This is because once a sentence is imposed by a court the majority of offenders are released into the community after serving two-thirds of that imposed sentence. This early release is done so that offenders can be supported and monitored after their release through conditions while they get re-established. If offenders were to be let out only after they have served every day of the sentence imposed, they would have to be let out without any controls, hence the statutorily supported practice of early release. As a result, in R. v. Summers 2014 SCC 26 the Supreme Court of Canada directed recently that it can generally be inferred that an individual will be released early into the community after sentence, and that to ensure that individuals who are detained pending their sentence are not treated more harshly than those who are released into the community, 1:5 to 1 credit should generally be given for time served before they are sentenced. I am therefore to give Mr. Guitard 1.5:1 credit for time served in pretrial custody unless the Crown points to evidence or presents evidence establishing that Mr. Guitard is not apt to be released after serving two-thirds of the sentence I am now imposing. The Crown has not done so and there are no legal impediments to granting Mr. Guitard what is now the ordinary credit for time served. I am therefore crediting the time Mr. Guitard has served on a 1.5:1 basis, or 66 days. The total sentence being imposed on Mr. Guitard today is therefore 6 months and 9 days, or 189 days.

E. Probation

[37] I am also placing Mr. Guitard on probation for 12 months, on terms identified in a probation order that I am issuing along with this judgment. That order is intended to assist Mr. Guitard in his rehabilitation.

VII. Final Disposition

[38] I am therefore sentencing Mr. Guitard to:

(a) 6 months incarceration for the offence of assault, contrary to s.266;

(b) 9 days in custody for the offence of breach of probation, contrary to s.733.1 (record to show 21 days of pretrial custody)

(c) Suspended sentence including 12 months of probation for the offence of theft, contrary to s.334(b) (Pretrial custody of 45 days to be reflected on his record)

[39] I have been asked by defence counsel to recommend that Mr. Guitard serve his sentence of incarceration at the St. Lawrence Valley Treatment Centre. The Crown does not oppose the recommendation and it is suitable given that Mr. Guitard has an acquired brain injury that no doubt exacerbates any potential recovery he will have from his addiction. Any progress that may be made in treating his addiction while his is incarcerated will protect society from Mr. Guitard's offences. I am therefore prepared to recommend that Mr. Guitard serve his sentence at the St. Lawrence Treatment Centre, if he otherwise qualifies, although given the length of time he has to serve Mr. Guitard may not be eligible for this program. I should also add that I suspect Mr. Brass asked for a one year global sentence for Mr. Guitard, even though it exceeds what is proportionate, in order to increase his chances of being admitted into the St. Lawrence Treatment Centre. It would be wrong, however, to sentence him to longer than he deserves for rehabilitative purposes. If he does not gain admission to St. Lawrence Treatment Centre because his sentence is insufficient to accommodate classification and treatment protocols Mr. Guitard will have to secure his treatment through other in custody programs and after his release through the services of the probation office.

[40] I am not imposing a weapons prohibition on Mr. Guitard for this offence. He is already prohibited from possessing any weapons until 2022, and the degree of danger he exhibited on this occasion does not warrant the symbolic imposition of an additional prohibition.

[41] Nor am I imposing an order collecting his DNA for the same reason. Mr. Guitard is already on the data bank, and again, given the nature of this assault does not, in isolation, warrant a record of his DNA.

Released: April 16, 2014

The Hon. Justice David M. Paciocco