Court Information and Parties

Information No.: 13-8276

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Craig Pickering

Before: Justice Lloyd Dean

Counsel:

• D. Foulds, for the Crown
• G. Donald, for the Accused

Reasons for Sentence

Introduction

[1] After a trial the accused was found guilty of assault bodily harm. A sentencing hearing was conducted on September 9, 2014. The matter is before the court today for my decision on the appropriate sentence.

Facts

[2] The offender, Craig Pickering, was employed as a Court Prisoner Security Officer (CPSO) here at the London courthouse. On May 14, 2013 the victim, Timothy Vandusen, age 25, was in custody at the courthouse for an appearance in court. On that day an incident occurred between Mr. Pickering and Mr. Vandusen. That incident took place in the holding cell area downstairs in the courthouse. Mr. Vandusen was being escorted by CPSOs to a dry cell as a result of his threat to tamper with the sprinkler system in the holding cell area. Mr. Pickering provided assistance during that escort. After Mr. Pickering placed shackles and handcuffs, connected by a chain, on Mr. Vandusen he turned and forced Mr. Vandusen into the dry cell. I found, as stated in my judgment given on June 25, 2014, that Mr. Pickering intentionally used force beyond what was necessary in the circumstance. The excessive force used by Mr. Pickering caused Mr. Vandusen to strike the wall opposite the doorway of the dry cell. Mr. Pickering then immediately walked out of the cell showing no concern for him. Mr. Vandusen suffered injury to his mouth as a result. The injuries suffered included two broken teeth (upper row) and a cut to his top lip and gum. The cuts to his lip and gum were described by Mr. Vandusen as minor. The injury to his teeth was the injury which constituted bodily harm. The relevant events were captured entirely on video.

Background of the Offender

[3] Mr. Pickering has been employed in some capacity since as early as 12 or 13 years of age. At the time of the incident he had been employed as a CPSO for twelve years. As a result of this incident he was dismissed. He was able to find employment shortly thereafter and has since returned to the education system in an effort to become an HVAC technician and gas fitter. I understand HVAC to be an acronym for heating, ventilation and air conditioning. In order to support those endeavours and most other demands he had to cash-in part of his pension.

Numerous character reference letters were presented and filed on his behalf. They included both professional and personal references.

[4] The professional references consisted of two letters from two of his former supervisors while he was employed as a CPSO, two letters from members of the London Police Service who have known him for eleven and five years respectively, a letter from a retired Sergeant of the London Police Service who has known him for sixteen years and a letter from one of his former co-workers.

[5] These letters carry a common theme throughout them. Perhaps most importantly, that this type of incident was out of character for the man they know and observed in his duties over the course of his twelve years as a CPSO. In the letters he is described as, among other positive attributes, a person who worked hard, was reliable, dependable and a team builder. They describe him as being professional, honest, calm, of sound judgment and always exhibiting a positive attitude. One of his former supervisors stated that outside of this incident he could not have asked for a better employee. Although others in their letters did not say those same words, it is clear from the words they did choose, they felt the same way. Every one of them expressed words that made it clear they felt more for Mr. Pickering beyond just being a co-worker. It was an impressive set of professional references.

[6] With respect to the personal character reference letters, there was a letter from his wife, a letter from a cousin who works in the field of Child Protection, separate letters from a husband and his wife who are long-time friends of Mr. Pickering – their occupations are that of a nurse and doctor respectively, a letter from a close friend who is employed as an Investment Advisor and has known Mr. Pickering for twenty years, a letter from a clerk employed here at the courthouse, a letter from another friend who is a registered professional engineer and has known the offender for over fifteen years, a letter from an individual employed with TD Canada Trust who has known Mr. Pickering for the last fifteen years and finally a letter written together by a husband and wife who have known him for the last eight years.

[7] The personal reference letters are consistent with the professional reference letters. They describe Mr. Pickering as a kind, caring, dependable and trustworthy friend. Further, they describe him as a devoted loving husband and father and friend. The letters reflect that he is generous with his time to his friends and the community. All of them make great efforts to impress upon this court that this incident is extremely out of character from what they have seen and heard over many years and across many different situations. The personal character letters of references are even more impressive then the professional character references.

[8] Both the professional and personal letters make it known how much Mr. Pickering's actions on the day in question have cost him. The letters also make it abundantly clear that he continues to have the support of family, friends and former co-workers.

Victim Impact Statement

[9] Mr. Vandusen completed a victim impact statement. Mr. Vandusen is a frequent guest in the provincial reformatories and detention centres. He believes he has suffered consequences within the institutional setting as a result of this case. He believes he has been placed in a segregated cell more often now and also feels he suffers more mistreatment from correctional officers as a result.

Offender's Address to the Court

[10] When given the opportunity to address the court Mr. Pickering indicated it has been a difficult time for him, his family and supporters. He is grateful for all their support. He indicated he was deeply sorry for the injuries Mr. Vandusen suffered. He accepted responsibility for his actions and is prepared to accept his sentence.

Position of the Parties

[11] Defence counsel asks this court to consider granting Mr. Pickering a conditional discharge pursuant to s. 730 of the Criminal Code, submitting that a conviction would have a detrimental effect on future goals. He points out that Mr. Pickering had an exemplary career as a CPSO and this was a momentary lapse of judgment. Defence counsel also points out that the media coverage in this case has to some extent met the principles of denunciation and deterrence. To support its position defence counsel provided eleven cases to the court and went through each one during his submissions.

[12] The Crown has asked this court to sentence Mr. Pickering to a jail sentence in the range of 30-45 days real jail. The Crown points to the fact that Mr. Pickering has not pled guilty, so he is without the benefit of that being considered as a mitigating factor. The Crown further points to the finding of fact made by me in my judgment at paragraph 122, which the Crown submits implies that Mr. Pickering's actions were not a momentary lapse of judgment and further that Mr. Pickering testified he would do it again the same way. He further points to my finding that at the time of his actions Mr. Pickering showed no concern for Mr. Vandusen's well-being once he fell to the ground after being forcefully shoved into the wall. The Crown submits it was a vicious and shocking assault on a defenceless prisoner. To support its position the Crown supplied four cases to support its position. Two of the cases are R. v. Feeney and R. v. Byrne, 2009 ONCA 134, both decisions of the Ontario Court of Appeal. The Crown submits that the governing principles expressed therein indicate that a jail term is required in the case before me. The Crown also points out that none of the cases relied on by the defence make mention of Feeney or Byrne. Indeed, all but three of them pre-date those cases, and the three that don't make no mention of those two cases.

Analysis

[13] Most of the case law provided to me involves assaults by police, correctional officers and court officers on those in their care. The sentences imposed range from discharges to incarceration. They are from various levels of court and various jurisdictions across the country. There's no case exactly on all fours with the case before me. There are indeed some distinguishing facts and factors in many of them. Generally the case law speaks of the primary principles to be addressed by the sentence are those of deterrence and denunciation.

[14] As stated by my colleague, Pringle J., in the case of R. v. Smith:

An assault by a police officer on a defenceless prisoner in shackles is an assault on the integrity of the criminal justice system. It shakes the faith of the public in the police, it brings dishonour to other police officers, and it cries out for a response by the judicial system. The difficult question is what is the appropriate response?

[15] It is my duty to impose the appropriate sentence having regard to the purpose and principles of sentencing found in sections 718 through 718.2 of the Criminal Code.

[16] The sentence that is imposed must be consistent with the fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The sentence must have one or more of the objectives of denunciation, specific and general deterrence, separation of offenders from society where necessary, assist in rehabilitation, provide reparations to victims or the community for the harm done, promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. How much emphasis a Court places on each of these objectives will vary according to the nature of the crime and the circumstances of the accused.

[17] In each criminal trial the sentencing of an accused is a very individualized process, involving the specific offender before the court and the specific circumstances of the case before the court.

[18] The sentence imposed should be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[19] A court that imposes a sentence must take into account the aggravating and mitigating circumstances of each case and each offender.

Aggravating Factors

1. The offender was in a role of authority or trust over the victim. He had a duty to protect him from injury rather than to assault him.

2. The victim was in a vulnerable position. He was defenceless when the assault took place as he was handcuffed and shackled with a chain attaching the handcuffs and shackles together seriously restricting his ability to move his hands and legs.

3. The offender and his colleagues were not in any imminent danger.

4. The assault was violent.

5. The victim suffered bodily harm.

6. The offender's actions also serve to undermine the public confidence people have in those who are employed in law enforcement and similar positions, such as that in which the accused was employed.

Mitigating Factors

1. The offender has no prior criminal record.

2. The offender is spoken of in the highest terms by family, friends and co-workers and continues to have their unwavering support.

3. All indications are that this occurrence was the first of its kind and totally out of character for the accused. There is very little risk, if any, of re-offending of any kind.

4. He has suffered serious financial consequences, as he has been dismissed from his employment.

5. The offender in his statement to the court has extended an apology to the victim for causing him injury.

6. The offender is community service orientated.

7. The assault, although serious, was not, in my view premeditated, even though I did not describe it as a momentary lapse of judgment when finding the accused guilty, I would describe it as momentary incident, rather than continuous in the sense of time or number of blows. It happened on the sudden and there's no indication the offender attempted in any way to cover up the assault.

[20] Although not an aggravating factor, Mr. Pickering loses the mitigating effect a guilty plea would have had in this case.

Is a Conditional Discharge Available?

[21] Section 730(1) of the Criminal Code reads:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[22] Pursuant to section 730(1) of the Criminal Code, if I consider it to be in the best interest of Mr. Pickering and not contrary to the public interest, instead of convicting him I may direct that he be discharged on conditions prescribed in a probation order made under subsection 731(2). The significance of this is that if Mr. Pickering complies with the conditions, then he will be discharged of the offence and be deemed not to have been convicted of the offence pursuant to subsection 730(3).

[23] Section 730 was initially enacted in 1972 and there have been some minor amendments since (changing corporation to organization, and taking out reference to offences punishable by death). There were many appellate decisions in the immediate years after the enactment defining its applicability.

[24] There is no minimum punishment prescribed by law for the offence Mr. Pickering has been found guilty. The offence does not carry with it the possibility of imprisonment for 14 years or life. The wording of the section makes it clear that even though Mr. Pickering has been found guilty after a trial and has not pled guilty, a conditional discharge may still be considered, assuming the other criteria have been met.

[25] Two criteria that must be met before any consideration can be given to granting Mr. Pickering a conditional discharge is whether or not it is in his best interest and not contrary to the public interest.

Best Interests of the Accused

[26] In R. v. Sanchez-Pino, at paragraph 17, the Court stated:

The granting of some form of discharge must be in the best interests of the accused'. I take this to mean that deterrence of the offender is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him will have significant repercussions.

[27] In R. v. Fallofield, at paragraph 21, item (6), the same principle is repeated.

Contrary to Public Interest

[28] The focus of this criterion, as seen in the case law provided seems to be on whether or not a discharge would meet the principle of general deterrence. In other words, would the deterrence of others be diminished by a failure to render a conviction against the offender?

[29] Again looking to the case of Sanchez-Pino, supra, at paragraph 16, when referring to the discharge provision, the Court of Appeal stated:

The primary purpose of Parliament in enacting that section was to provide that an individual, although found guilty of what may loosely be described as a "less serious" offence, would not have a conviction recorded against him in all cases.

And further at paragraphs 18 & 19:

[The section] is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.

To attempt more specific delineation would be unwise, and might serve to fetter what I conceive to be a wide, albeit judicial, discretion vested in the trial Court. That Court must consider all of the circumstances of the accused, and the nature and circumstances of the offence, against the background of proper law enforcement in the community, and the general criteria that I have mentioned.

[30] In R. v. Hayes, J. Hill observed that:

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, at 552. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers at pp. 184-5; Regina v. Culley, at p. 435. 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.).

[31] In Fallofield, supra, the British Columbia Court of Appeal set down some guiding principles, including: There is nothing in the language of the section that limits its applicability to a technical or trivial violation, and it should not be applied routinely to any particular offence.

The full set of guidelines set out in Fallofield, and often referred to, is found in the decision at paragraph 21 and is set out there as follows:

From this review of the authorities and my own view of the meaning of s. 662.1 (now s. 730), I draw the following conclusions, subject, of course, to what I have said above as to the exercise of discretion.

(1) The section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life or by death.

(2) The section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivial violation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the next consideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions.

(7) The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence.

(8) Section 662.1 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of cases.

[32] In R. v. Charania, at paragraph 25, J. Goodman states:

The appellate courts in Ontario and elsewhere across Canada have recognized that a sentence of a conditional discharge can satisfy the needs of general deterrence and denunciation. As Dubin J. A. for the Court of Appeal in R. v. Meneses, stated (at paras. 10 & 12):

The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way when other considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit such an offence ....

It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-fee after committing the offence. In this case the accused is subject to the terms of the probation order, and in the event that the terms of the probation order are met, she will have earned her discharge. If the terms are not met she may be brought back and sentenced for the offence, and a conviction will be recorded against her.

[33] As I stated earlier, to support its position that a conditional discharge is not appropriate the Crown relies heavily on the Ontario Court of Appeal cases of Feeney and Byrne, supra.

[34] In Feeney four officers unleashed a collective, premeditated, vicious and humiliating assault upon a defenceless prisoner and then tried to cover up their actions. The victim was kicked in the face, given flying kicks, and punched in the back and face. In addition, the victim was grabbed by his bound hands and legs and his body was used as a mop to wipe the juice from the floor. The trial judge found that the respondents attempted to cover up their involvement and that they falsified reports. At paragraph 5 the court stated:

The conduct of the respondents must be considered in the light of the fact that they are officers in the justice system. They owe a duty to the public to uphold the values of that system. The respondents held a position of authority conferred upon them by virtue of their important public duties, and they owed the victim, a prisoner entrusted in their custody, a duty to take care for his safety.

And at paragraph 6:

We agree with the appellant that the situation was akin to a breach of trust which normally calls for a custodial term. Moreover, this was a case where the values of our society and its justice system must be vindicated and reflected by a sentence that clearly tells those vested with power and authority that attacks by court officers on vulnerable prisoners will not be tolerated and that when they occur, serious sanctions will be imposed.

[35] In Feeney the court referred to three separate cases in setting out the general principles to be considered in cases similar to the one before me today. The Court of Appeal referred to the B.C. Court of Appeal case of R. v. Bottrell (No. 2), at p. 47:

The police are in a special position of power over prisoners.... The prisoner cannot run from a policeman without fear of a charge of escaping lawful custody. There is really not much that a prisoner can do to protect himself against assaults by police officers. The justice system puts the police officer in that position of power and, in my view, it is the justice system that must protect the prisoner.

[36] The court then referred to a decision of the appeal Division of the Nova Scotia Supreme Court decision in R. v. Cusack, at p. 293:

In my opinion, the paramount consideration in this case is the protection of the public from offences of this sort being committed by persons who are given special authority by our law to deal with individual members of society, and to deter such persons from acting in breach of their trust. All citizens must have confidence that police officers who are invested with substantial rights of interference with individual liberties exercise these rights with a scrupulous propriety, and that any failure to so act will result not only in dismissal from the position of trust but also in the imposition of substantial punishment.

The commission of offences by police officers has been considered on numerous occasions by the Courts, and the unanimous finding has been that their sentence should be more severe than that of an ordinary person who commits the same crime, because of the position of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration.

[37] And finally the Court of Appeal referred to the case of R. v. Nixon, wherein the B. C. Court of Appeal stated at p. 432:

The gratuitous use of force on a defenceless prisoner in the confines of the police station lock-up is as reprehensible a crime in a free and democratic society as one can imagine, and one in which the appellant became deeply implicated by culpable inaction when he failed in his duty to the prisoner in his charge.

[38] The court in Feeney concluded the sentencing judge had failed to reflect those principles when imposing the sentence.

[39] As I noted the Crown also relied on the case of Byrne, supra. In that case the trial judge had concluded that while in a position of trust and authority, the respondent, a police officer, conducted a continuing assault, starting with his driving and later at 311 Jarvis Street. He then caused charges to be laid against the victim and colluded with his partner of the day, a trainee officer, to write a false report. He also tried to impede the police investigation that followed. As a result, a period of custody was required; in order to properly address the sentencing objectives of deterrence and denunciation, a conditional sentence was not appropriate. However, in accordance with the defence request, the respondent was allowed to serve the 90-day sentence on weekends. A period of two years' probation was also imposed. The summary conviction appeal judge found that the sentence imposed was outside the acceptable range because the respondent was a first-time offender with positive character evidence and presentence report, had undergone counselling, had an exemplary record, caused no serious injury to the victim and had suffered serious consequences from his behaviour by losing his job. She also found that although his reactions were unjustified, they may have been influenced by the victim's behaviour. The summary conviction appeal judge substituted for the sentence imposed by the trial judge a conditional discharge together with two years' probation, which she stated would serve the purposes of denunciation and deterrence. The Crown appealed the sentence. The defence (Respondent on the Appeal) put forward a number of cases to the appellate court where court officers who assaulted prisoners were given discharges or conditional sentences. The Respondent had submitted that the case law was consistent that a custodial sentence is outside the range for this type of offence and this type of offender.

[40] The Court of Appeal in Byrne stated at paragraph 15:

I do not propose to review or to attempt to distinguish these cases. To the extent that some trial judges may have taken the approach that a custodial sentence is not appropriate where a court officer assaults a prisoner, that approach is erroneous. …

[41] That statement in paragraph 15, in my view, simply expresses that if any sentencing court thinks a custodial sentence is outside the range in these types of cases they are mistaken. In my view that statement should not be seen as expressing that anything less than a custodial sentence would not be appropriate.

[42] The Court of Appeal then goes onto to say in paragraph 15:

…A recent decision of this court from November 2008 reflects the proper approach in such cases.

[43] The November 2008 decision they were referring to was their decision in Feeney.

Applying those principles in Byrne the Court of Appeal concluded the sentence that was substituted by the summary conviction appeal judge was outside the range and did not adequately reflect the principles of deterrence and denunciation that are necessary for the type of abuse of authority and breach of trust in that case. The facts of that case were that the victim was a teenaged girl, which exacerbated the circumstances in that case. And also the court noted the facts were similar to those in Feeney in that there was, as in Feeney, a prolonged assault on a defenceless victim, and an attempt to subvert justice by falsifying the evidence and influencing another officer to do the same.

[44] The approach to be taken in the case before me is to apply the general principles enunciated in Feeney and in Byrne.

[45] Applying those principles in my view does not eliminate a conditional discharge being imposed. Rather, the question I have to answer is: What is the appropriate sentence when applying those principles to the facts in the specific case before me with the specific offender before me, while at the same time bearing in mind and applying the purpose and principles found in s. 718 through 718.2 of the Criminal Code?

[46] I am particularly mindful of the principles enunciated in s. 718.2 (d) and (e), which provide that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances and all available sanctions other than imprisonment must be considered for all offenders.

[47] Clearly a discharge is in the best interest of Mr. Pickering. The question is whether it is in the public interest given the breach of public trust that occurred in this case. Because of the criminal conduct which occurred and the need to deter others from engaging in the same type of criminal conduct is it contrary to the public interest to grant a conditional discharge since it might be argued that there is not enough deterrent effect in the imposition of such a type of sentence? Persons in similar positions as Mr. Pickering must know that they will be vigorously prosecuted and, if convicted, sternly punished. This court cannot send a message to other law enforcement officials that the conduct at bar was not serious. The sentence I impose must denounce the criminal conduct and act as a deterrent to other law enforcement officials.

[48] Court Prisoner Security Officers, like police and correctional officers are in special positions of power over those in their custody. They are given extraordinary powers over prisoners so that they can properly carry out their duties. Mr. Pickering had been employed for twelve years and would fully understand that he was in a position of trust.

[49] When a CPSO assaults a person in custody it's a serious crime, not only against the person in custody, but against the justice system itself. Persons in custody are vulnerable and defenceless, and must be protected from assault and excessive use of force. The public expects a high standard of conduct and any abuse of power or excessive use of force must not be tolerated.

[50] There is no question that the job Mr. Pickering had can be a very difficult and stressful. He likely had to confront bad behaviour every day. It was the nature of the job. Some of the character letters speak to how difficult of a job it is and some of the events Mr. Pickering has had to endure, including being assaulted on more than one occasion. However, no person in custody, even persons with the record and character of Mr. Vandusen, should be exposed to violence from those entrusted with their care.

[51] While I have not concluded that Mr. Pickering's actions were premeditated, the assault was unwarranted, unreasonable, and without justification. There was nothing in the evidence I heard or watched that indicated the victim was a threat to anyone's personal safety or had provoked Mr. Pickering. The most that could be said is that Mr. Pickering may have been somewhat uncooperative in turning around to face the wall immediately and he may have not fully cooperated in lifting his feet to have the shackles put on. There was also evidence the victim reached for the keys in Mr. Pickering's hand or the hand itself when the handcuffs were put on. But as seen on the video, the shackles, handcuffs and chain that joined them were put on without much difficulty.

[52] There has been nothing heard by me that Mr. Pickering was going through stress outside the workplace or an event had happened earlier in the day that may give some explanations as to Mr. Pickering's state of mind and therefore accounts for his lapse of judgment. It was a deliberate callous act. The injuries could have been far worse.

[53] In the case of R. v. Wood, the Ontario Court of Appeal stated at paragraph four:

It is our view that 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.

[54] The Appeal Court in the very next paragraph went on to say:

In this case, accordingly, we are of the opinion that a grant of conditional discharge would not be in the public interest; we are not convinced that the interests of the appellant will be seriously prejudiced by the registration of a conviction.

[55] I recognize the Appeal Court uses qualifying words in both paragraphs. In paragraph four, "in almost every case" and in paragraph 5, "in this case". They did not preclude the granting of a discharge in an appropriate case.

[56] In determining what a fit sentence is the sentencing I should take into account factors related to the offender's personal circumstances.

[57] As set out in defence counsel submissions and in the numerous character letters written on his behalf, Mr. Pickering has suffered much as a result of this incident. He has lost his job, which has put a financial strain on him and his family. It was a job he very much enjoyed. He and his family have endured the wide media coverage this case has garnered, especially in this area where he and his family reside. He has not been able to enjoy several social activities that he previously enjoyed prior to this incident, including travelling across the border to the United States with family and friends. A formal conviction may impact his ability to travel internationally for many years and perhaps for the rest of his life.

[58] In the Supreme Court decision of R. v. Pham, at paragraphs 11 and 12 the court stated:

11 …the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2(a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender's rehabilitation.

12 However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Professor Manson explains this as follows:

As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation....

The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender's ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence.

(The Law of Sentencing (2001), at pp. 136-37)

And further at paragraphs 14, 15 and 20:

14 The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

15 The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will.

20 Accordingly, the sentencing judge is not compelled in all circumstances to adjust a sentence in order to avoid the impact of collateral immigration consequences on the offender. It remains open to the judge to conclude that even a minimal reduction, i.e. from two years' imprisonment to two years less a day, would render the sentence inappropriate for the particular offence and the particular offender. Collateral immigration consequences are but one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender's personal circumstances.

[59] Of course, every offender suffers collateral consequences as a result of their actions. But as the Supreme Court has said those consequences should be considered and I have done so in this case.

Conclusion

[60] When I balance and carefully consider all of the above I have concluded, in the case before me, it would be contrary to the public interest that a discharge be granted.

[61] Having decided that a discharge is not appropriate, I must now consider whether a term of imprisonment as suggested by the Crown is the appropriate sentence. The other alternative I have is to suspend sentence and place Mr. Pickering on probation. Much of what I have discussed above is to be considered in that determination. Having done so, I have concluded that a suspended sentence is also not a just and fit sentence in the circumstances of this case.

[62] In my view, to meet the purpose and principles of sentencing principles of the Criminal Code and those enunciated by the Ontario Court of Appeal in the cases of Feeney and Byrne, a jail sentence is the appropriate disposition in this case.

[63] There are no mandatory minimum sentences for assault causing bodily harm and because the Crown has elected summarily a conditional sentence of incarceration under section 742.1 of the Criminal Code is available to be considered.

[64] In determining whether or not to impose a conditional sentence, I am guided by the decision of the Supreme Court of Canada in R. v. Proulx. In that case the Court confirmed that conditional sentences were introduced by Parliament to reduce reliance on incarceration and to increase the use of restorative justice principles in sentencing. The criteria for imposing a conditional sentence in this case, given that there is no minimum sentence, are that a penitentiary term and probationary measures are inappropriate and that a term of imprisonment of less than two years is appropriate. I must also consider whether permitting Mr. Pickering to serve his sentence in the community would endanger the safety of the community. Further, I must satisfy myself that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing as well.

[65] I have already indicated that a suspended sentence and probation would not be appropriate in this case. A fit sentence in this case would be one that is considerably less than a penitentiary sentence. The Crown's position is capped at 45 days. Mr. Pickering, as a first time offender, is not likely to re-offend. Given the glowing character letters that have been written on his behalf I am confident of that. I do not believe a period in a custodial institution is necessary for specific deterrence. As for general deterrence, as Chief Justice Lamer stated in Proulx, the stigma of a conditional sentence with house arrest should not be underestimated. For these reasons, I have concluded that a conditional sentence is consistent with the fundamental purpose and principles of sentencing. By imposing a conditional sentence, I am in no way intending to minimize the seriousness of this offence. I am confident that the stringent conditions I have decided to impose will deter others from committing this type of offence.

Disposition

[66] I impose a term of imprisonment of thirty days and will allow Mr. Pickering to serve that term of imprisonment in the community under a conditional sentence order. The sentence order will have a term of house arrest for the full thirty days with the usual exceptions to attend school, employment, medical appointments and once a week during a three hour period to purchase necessities. There is a DNA order made. There is no section 110 order made.

Dated November 3, 2014

Justice Lloyd Dean London, ON