Court File and Parties

Ontario Court of Justice

Date: 2015-06-09

Court File No.: Newmarket 15-01809

Between:

Her Majesty the Queen

— and —

James Fitzsimmons

Before: Justice Joseph F. Kenkel

Trial Heard: June 8, 2015

Sentencing: June 8 and June 9, 2015

Counsel:

• Ms. Erin Thomas, counsel for the Crown
• Mr. Dan Mideo, counsel for the defendant

Decision

KENKEL J.:

[1] Sentencing is difficult in this case.

[2] The accused was charged with 13 counts including 3 charges of domestic assault in relation to the same complainant. At trial, the complainant testified that she had no memory of her complaint or the events that gave rise to the charges. She'd refused to give a video statement at the time of the complaint. She refused police offers to help her plan for her personal safety. After Mr. Fitzsimmons failed to surrender himself to police in relation to the charges arising from her complaint, she did not tell the police where the accused could be found. He was eventually arrested in her company at a Tim Horton's restaurant.

[3] Mr. Fitzsimmons was convicted of three counts of failing to comply with probation contrary to s. 733.1 c.c. The remaining 10 counts were dismissed.

[4] He recently pled guilty to assaulting the same complainant on December 19, 2014. For that assault, one count of failing to comply with a recognizance and one count of failing to comply with probation he received a 90 day intermittent sentence on top of 71 days credited to pre-trial custody. The remaining 5 counts including a further allegation of domestic assault were withdrawn.

[5] On February 9, 2015 Mr. Fitzsimmons was given a suspended sentence on top of 40 days credited in Toronto for a July 2014 Break, Enter and Theft to a dwelling house and failing to comply with probation.

[6] Mr. Fitzsimmons was serving the intermittent sentence and was on probation at the time of these further offences. Count 1 of Exhibit 2 at trial shows the accused pled guilty in relation to breaching a probation order from Toronto made on March 22, 2013. The details of that matter are not before the court but the fact of the prior sentence I find is relevant in establishing the timeline of the "gap" referred to in submissions and the frequency of activity since.

[7] Exhibit 1 in Count 8 indicates the accused was also bound by a probation order from Newmarket on February 24, 2014. I have no details of that incident but I'm advised that the offence or offences did not involve this complainant. I agree with the defence that the more dated convictions from 2008 and on are of less assistance in sentencing in this case given the apparent 5 year gap.

[8] Section 733.1 provides for a maximum 18 months in jail on each count where the Crown proceeds summarily.

[9] The Crown submits that a sentence of 4 months should be imposed on counts 4 and 5 concurrent and a further 4 months on count 6 to a total of 8 months. The Crown submits that the accused should receive 1:1 credit for time served pursuant to s. 719(3.1) given that he was probation and serving an intermittent sentence at the time of these offences. The Crown did not ask for probation to follow given the record of non-compliance.

[10] The defence submits that the accused should be sentenced to time served to be followed by probation. The defence submits the accused's pre-trial custody should be credited on a 1.5:1 basis per R. v. Summers 2014 SCC 26.

[11] The accused's intermittent sentence collapsed when he was arrested on these charges. His time from March 30 to June 8 of 71 days counts towards sentence. While I agree with the Crown that the aggravating factors she mentioned are present, I will credit the pre-trial custody of 71 days as 107 days per R. v. Summers. Of course those aggravating factors remain relevant to determining a fit sentence.

[12] It's important to keep in mind that the accused must be sentenced only on the three charges which were proved beyond a reasonable doubt. However, the domestic context of the breaches is an aggravating feature as is the record of prior breaches and the fact that the accused was serving an intermittent sentence at the time.

[13] The sentence imposed must bring home to the accused specifically the need to obey court orders where he's shown a pattern of non-compliance. It also must generally deter others in a similar situation. I agree with the defence that rehabilitation is a lesser goal but still relevant.

[14] I find that a sentence of 90 days on counts 4 and 5 and a further 90 days on count 6 consecutive is the least restrictive sentence that could meet the purpose and principles of sentencing in this case. That leaves 73 days remaining to be served on each count concurrent.

[15] I agree with the Crown that the accused's history casts doubt on future compliance, but I disagree that's a reason to not make such an order in this context. There is a public interest in ensuring the accused takes the steps identified in defence submissions to address his addiction and other issues.

[16] The custodial sentence will be followed by a term of probation for 2 years. The accused will keep the peace, report as required, reside at an address approved of by probation, take counselling as directed by probation for addiction and mental health issues and sign any releases necessary for probation to monitor compliance.

[17] I remind the accused he remains bound by his other probation orders including the one imposed December 19, 2014 with terms prohibiting contact with the complainant in this case. I mention that because the complainant has remained in the courtroom and it's plain from their glances and attempted communication during the proceedings that she's likely awaiting his release in hopes of resuming contact.

[18] That's the difficult part. I'm mindful that the accused was not convicted of any offences of violence, and those unproved accusations were not considered on sentence. But sentencing would be incomplete if I did not share with both the complainant and the accused the observation that their mutual history to date shares many of the characteristics of cases where serious violence or death has occurred.

[19] The previous probation order prohibiting contact was put in place for good reason. Mr. Fitzsimmons it's important that on release you have time and space necessary to engage in counselling as directed and get your life back on track. If you do that work you may in time lay the foundation for an application to vary your original probation to permit lawful contact with the complainant in the future. In the meantime, your existing probation and this one will assist you in avoiding further difficulties.

[20] NOTE: This sentence was delivered over two days. Late on the day of trial as sentence was being read out to Mr. Fitzsimmons, once it became apparent he would not be released immediately his demeanor quickly changed and he started shaking his head and communicating with the complainant in the court. It was apparent he was angry and fighting to keep control of himself. It was important that Mr. Fitzsimmons be able to focus on the sentence he was receiving and the comments of the court so sentencing was completed the next morning. Time served and the custodial sentence were adjusted by one day to account for the adjournment.

Released: June 9, 2015

Signed: Justice Joseph F. Kenkel