Court File and Parties

Ontario Court of Justice

Date: 2016-08-24

Court File No.: Halton 15-2386

Between:

Her Majesty the Queen

— and —

Lee Seaton Milne

Before: Justice D.A. Harris

Heard on: May 2 & June 28, 2016

Reasons for Sentence released on: August 24, 2016

Counsel:

• Amy Stevenson, counsel for the Crown
• Stephen Darroch, for the defendant Lee Milne

HARRIS J.:

Introduction

[1] Lee Milne pled guilty to three counts of assault and one count of mischief, all involving the same victim, Chrystal Johnson. The first assault occurred in May 2014. The second assault occurred in October or November 2014. The final assault and the mischief occurred on August 6, 2015.

[2] Mr. Milne waived any limitation periods and Crown counsel elected to proceed summarily.

[3] Mr. Milne is before me today to be sentenced.

[4] Crown counsel suggested that I should impose a global sentence totalling imprisonment for four months, followed by probation for three years. She also requested a firearms prohibition and a DNA order.

[5] Counsel for Mr. Milne suggested that I suspend sentence and place Mr. Milne on probation for three years. He agreed that a firearms prohibition and a DNA order were appropriate. As a fall-back position only, counsel asked me to consider a conditional sentence of imprisonment.

[6] I find that a conditional sentence of imprisonment for four months, followed by probation for three years is the appropriate sentence here.

[7] My reasons for this are set out as follows.

[8] I will first review the law regarding conditional sentences of imprisonment and the fundamental purpose and principles of sentencing. I will then address the facts underlying the offences, the impact on the victims and the background of Mr. Milne. I will conclude with an analysis of all of those factors.

CONDITIONAL SENTENCE OF IMPRISONMENT

[9] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[10] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[11] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[12] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;

2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

3. the court must impose a term of imprisonment of less than two years;

4. the safety of the community would not be endangered by the offender serving the sentence in the community; and

5. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[13] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[14] In Mr. Milne's case, the first four prerequisite criteria have been satisfied.

[15] His offences are not excluded pursuant to section 742.1.

[16] Nor are they punishable by a minimum term of imprisonment.

[17] Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years.

[18] Finally, I find that Mr. Milne serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He had no prior criminal record and he has not been accused of any further offences since being charged here. I am satisfied that, with the appropriate safeguards in place, there is no danger that he would return to crime following the imposition of a conditional sentence.

[19] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

[20] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[21] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[22] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[23] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[24] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[25] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[26] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[27] Section 718.2(a)(ii) provides that evidence that an offender, in committing an offence, abused a spouse or common law partner, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[28] The offences here had a significant impact on the victim, considering her age and other personal circumstances, including her health and financial situation. Section 718.2(a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance, and that the sentence should reflect that.

[29] I must consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[30] Finally, section 718.2(e) provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[31] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[32] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.

[33] I must also note that the Supreme Court of Canada expressly said in R. v. Proulx, supra that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.

[34] Before applying these principles, I must consider the facts underlying the offence, the impact on any victims and the background of Mr. Milne.

THE OFFENCES

[35] Mr. Milne and Ms. Johnson had been in an intimate relationship.

[36] In May 2014, Ms. Johnson was pregnant with his child. She woke Mr. Milne up and accused him of cheating on her. He became angry and pushed her up against the bedroom door with his hand over her throat. He then pushed her to the ground. A short time later he followed her downstairs to the living room area where he repeatedly slapped her in the face with an open hand.

[37] Their son was born in September 2014.

[38] In October or November 2014, there was an argument about parenting their son. Mr. Milne confronted Ms. Johnson. She raised a hand to slap him in defence of herself at which time he kicked her legs out from under her causing her to fall and hit her head on the ground. He then straddled her on the ground, grabbed her by the neck and continued to assault her.

[39] On August 6, 2015, following an argument, she asked him to leave her alone and go to work. She then tried to close the door behind him as he was leaving. He forced the door inward causing it to strike her on the head. He then swung at her striking her in the back of the head. He put his hand around her neck applying pressure while he attempted to retrieve her cell phone to prevent her from calling police. When he got the cell phone, he bent it, causing the screen to break and rendering the phone inoperable.

VICTIM IMPACT

[40] A Victim Impact Statement was filed as an exhibit. This document contained much that ought not to have been included. By agreement, it was highlighted in one colour to show those passages which counsel for Mr. Milne objected to and in another colour to show those which Crown counsel agreed were inappropriate. Unfortunately, this left a number of statements which I must view as being without evidentiary basis and therefore I am attaching no weight to them.

[41] What remains is still very significant.

[42] On the day that Mr. Milne was arrested, Ms. Johnson had bruises on her arms and cuts and scrapes on her throat. She already suffered from fibromyalgia in her wrist which was exacerbated by Mr. Milne's actions.

[43] She still experiences pain in her wrist today.

[44] Since then she has been sad and angry and depressed. She still experiences nightmares, and sometimes wakens crying and soaked in sweat. She sees a psychotherapist weekly, plus a worker from a women's shelter. She completed a 15 week mindfulness program. She has self-esteem and confidence issues. She is afraid to make new relationships with men. She lost connections with many of her old friends during her relationship with Mr. Milne.

[45] Her older children are in psychotherapy weekly. The eleven year old began pulling his hair out two months before the arrest and this continues today. He has nightmares. The nine year old has issues making friends and thinking people lie.

[46] The cost of replacing her cell phone was $700. The cost for an ambulance was $45.

BACKGROUND OF MR. MILNE

[47] I had the benefit of a Pre-Sentence Report and a reference letter from his employer which provided me with the following information regarding Mr. Milne.

[48] He is 33 years old.

[49] He enjoyed his childhood. He was involved in cubs and house league sports up to age 12. He later achieved the Gold Cross level in swimming and participated in army cadets for five years. He also played high school football. His maternal grandfather was a commercial pilot and Mr. Milne and his family members enjoyed family vacations and weekends with grandfather as they all flew free if he accompanied them.

[50] After high school he attended college for one year before leaving to work full-time. He worked for a number of major construction companies where he was trained to operate heavy equipment. He also obtained his AZ and DZ truck driving licences. In his current job, he is tasked with heavy equipment excavations which generally include site preparation for roads and housing lots. His current employer and one previous one both describe Mr. Milne as a reliable worker.

[51] It was also noted that Mr. Milne was arrested while at work and that this caused him significant embarrassment.

[52] Mr. Milne was in a previous relationship with a woman. They chose to separate after six years because he wanted to have children and she did not.

[53] He then entered into the relationship with Ms. Johnson. He became a father to her two sons. They separated after six months of living together but tried to reconcile when they discovered that she was pregnant. Their son was born in September 2014. Mr. Milne recognizes now that their relationship was such that they should not have got back together again.

[54] He is currently paying child support in the amount of $644 per month through a weekly wage garnishee.

[55] He has regular access to his son, supervised by his mother.

[56] He does not wish to resume a relationship with Ms. Johnson. He has expressed remorse for what he did. He is ashamed and views himself as a failure with respect to the manner that he conducted himself. He is amenable to completing anger management counselling. He did look into such a program but was informed that he needed to resolve these criminal charges before being admitted into the program.

ANALYSIS

[57] I must consider both the aggravating and the mitigating factors present here.

[58] The aggravating factors can be found in the facts underlying the offences and the impact they had on the victims.

[59] Mr. Milne assaulted his spouse. He did so when she was pregnant. He did so repeatedly over a period of 15 months.

[60] The assaults were of a frightening nature and left visible marks.

[61] The impact of these assaults on Ms. Johnson and her sons has been extremely significant.

[62] There are a number of mitigating factors present here.

[63] Mr. Milne had no prior criminal record. He has remained out of trouble since being charged just over one year ago.

[64] He pled guilty to these offences. I take this to be both an expression of remorse and an acceptance of responsibility by Mr. Milne. It also made it unnecessary for Ms. Johnson to testify and relive her victimization all over again in the witness box.

[65] That is especially noteworthy in this case where, during the judicial pre-trial process, it became apparent to me that a trial could potentially take four or five days with allegations and counter-allegations from both sides.

[66] The Pre-Sentence Report is positive.

[67] Mr. Milne expressed remorse there and in conversations with family members and with his employer. He indicated that he is amenable to undertaking counselling, including anger management counselling.

[68] He is a reliable worker who is well regarded by his employer. He is currently paying child support which is apparently enforced by garnishment of his wages. This of course would come to an end if he were to lose his job after going to jail.

[69] He currently has access to his son supervised by his mother.

[70] He has the support of his family and his employer.

[71] I find that denunciation and deterrence are the principles of sentence that must be given priority here. These may be satisfied however by the imposition of a conditional sentence of imprisonment. In that regard, I note the comments of the Supreme Court of Canada that a conditional sentence is a punitive sanction capable of achieving the objectives of denunciation and deterrence although it is not as effective as a sentence of real imprisonment.

[72] I also note the very real embarrassment experienced by Mr. Milne when he was arrested publicly at his place of employment. That, together with the stigma of being convicted of these offences, contributes to denunciation and deterrence here.

[73] I am also mindful of the need to address other principles of sentence.

[74] The sentence I am imposing is intended to also address the need for the rehabilitation of Mr. Milne and the desire for restorative justice. The sentence will allow him to maintain his employment, which will then allow him to support his son financially to make financial restitution for the property he damaged.

SENTENCE

[75] For all of the above reasons, I sentence Mr. Milne to a conditional sentence of imprisonment for four months to be served in the community. This will be followed by probation for three years.

[76] The terms of the conditional sentence of imprisonment will require that Mr. Milne:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. report in person to a supervisor within two working days and thereafter report when required by the supervisor and in the manner directed by the supervisor;

4. notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;

5. remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the supervisor;

6. cooperate with his supervisor. He must sign any releases necessary to permit the supervisor to monitor his compliance and he must provide proof of compliance with any condition of this order to his supervisor on request;

7. live at 1459 Progreston Road, Carlisle, Ontario, or a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance;

8. a home confinement condition will be in effect for the first two months of the conditional sentence;

9. during that time he will remain in his residence or on the property of his residence at all times except:

   • a) between 1 pm and 5 pm on Saturdays in order to acquire the necessities of life,
   • b) for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling),
   • c) for going directly to and from or being at school, employment, court attendance, religious services and legal or medical or dental appointments, or exercising access to his son, Jack,
   • d) he will confirm his schedule in advance with his supervisor setting out the times for these activities,
   • e) with the prior written approval of the supervisor. The written permission of the supervisor is to be carried with him during these times.

10. During the period of home confinement, he must present himself at his doorway upon the request of his supervisor or a peace officer for the purpose of verifying his compliance with his home confinement condition.

11. Following his home confinement, for the remainder of this order, he must remain in his residence or on the property of his residence daily between 11 p.m. and 5 a.m. except:

    • a) for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling). He must provide written justification to the supervisor within 72 hours of any such absence during his curfew hours;
    • b) for going directly to and from or being at school or employment;
    • c) he will confirm his schedule in advance with his supervisor setting out the times for these activities;
    • d) with the prior written approval of the supervisor. The written permission of the supervisor is to be carried with him during these times.

12. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Chrystal Johnson except:

    • a) pursuant to a family court order or for the purpose of conducting or defending family court proceedings;
    • b) in the presence of or through legal counsel;
    • c) for the purposes of making arrangements for, or having contact with his child Jack, through his mother Janet Milne;

13. not be within 20 metres of any place where he knows Chrystal Johnson to live, work, go to school, frequent, or any place he knows her to be except:

    • a) pursuant to a family court order or for the purpose of conducting or defending family court proceedings;
    • b) in the presence of or through legal counsel;

14. not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in his name or those available over the counter.

15. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor, and complete them to the satisfaction of the supervisor, for anger management; substance abuse; alcohol abuse; domestic violence which may include the Partner Assault Response (PAR) Program, and any other program directed by the supervisor.

16. make reasonable efforts to seek and maintain suitable work;

17. make reasonable efforts to provide for the support of dependents, namely his son Jack.

[77] The terms of the probation will require that Mr. Milne:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report in person to a probation officer within two working days of completing his conditional sentence of imprisonment and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

5. cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with Chrystal Johnson except:

   • a) pursuant to a family court order or for the purpose of conducting or defending family court proceedings;
   • b) in the presence of or through legal counsel;
   • c) for the purposes of making arrangements for, or having contact with his child Jack, through his mother Janet Milne;

7. not be within 20 metres of any place where he knows Chrystal Johnson to live, work, go to school, frequent, or any place he knows her to be except:

   • a) pursuant to a family court order or for the purpose of conducting or defending family court proceedings;
   • b) in the presence of or through legal counsel;

8. not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in his name or those available over the counter.

9. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor, and complete them to the satisfaction of the probation officer, for anger management; substance abuse; alcohol abuse; domestic violence which may include the Partner Assault Response (PAR) Program, and any other program directed by the probation officer.

10. make reasonable efforts to seek and maintain suitable work;

11. make restitution of $745 to Chrystal Johnson, to be paid in full by March 31, 2017. All payments are to be made by cash or certified cheque or money order payable to the Minister of Finance through any criminal court office for payment to the victim;

12. make reasonable efforts to provide for the support of dependents, namely his son Jack.

[78] I also make the following two ancillary orders.

[79] Assault is a secondary designated offence. In this case there were three such offences under circumstances such that I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Mr. Milne of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[80] Finally, pursuant to section 110 of the Criminal Code, for the next five years Mr. Milne is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[81] Mr. Milne will have 90 days to pay the victim fine surcharges.

Released: August 24, 2016

Signed: Justice D.A. Harris