WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2016-11-01

Court File No.: Newmarket 15-05970

Between:

Her Majesty the Queen

— AND —

P.M.

Reasons for Sentence

Delivered: November 1, 2016

Counsel:

• Ms. Jennifer Halajian — counsel for the Crown
• Mr. Mitchell Worsoff — counsel for the defendant

KENKEL J.:

[1] P.M. was convicted at trial of Assault upon his 11 year old son. The boy had been engrossed in a video game and refused to come with the family to a barbeque at his grandparent's home. Unfortunately, P.M. lost his temper, dragged his son over to the doorway, threw him against the wall, held him by the cheeks then the neck several times all in an effort to force him to put on his shoes and join the family.

[2] The Crown submits that a 4 month jail sentence followed by 18 months of probation is the least restrictive sentence that would meet the need for deterrence and denunciation in this case. The Defence submits that a Conditional Discharge would still meet those same principles and would not be contrary to the public interest.

[3] I've considered the circumstances of the offence and I agree with the Crown that the age of the victim and the father's position of trust are aggravating factors. It's also aggravating that P.M. had been specifically cautioned about the use of physical force in parenting prior to this incident but he failed to heed that warning in this incident.

[4] I've considered the impact of the offence upon the victim and the family. The victim suffered a scraped elbow from being dragged across the floor. Other contact left minor redness but no injury. The Victim Impact Statements of all three children show the real harm – some residual fear arising from the use of violence in the presence of all three children and a breakdown in the accused's relationship with all three that will take time to repair.

[5] I take into account P.M.'s personal circumstances. He has no criminal record. He's a hard worker who has always provided strong financial support for the family according to his ex-wife. He's abided by terms of release and there have been no further difficulties since his arrest. He's not seen his children in over 15 months which I accept has had a significant impact upon him.

[6] P.M. took two sessions of a parenting course then stopped prior to this incident. Perhaps if he'd finished he would have used a different approach to the situation that day. Since this incident he's reconsidered and has completed the full program. That's a positive step that helps reduce the likelihood of further similar errors.

P.M. was assessed by a psychologist using the Minnesota Multiphasic Personality Inventory 2 MMPI-2 which tests for personality traits and psychopathology. His scores and assessment were within the normal range. There was no evidence of personality disorder or other pathology that would increase future risk or would present a barrier to rehabilitation.

[7] The incident occurred in the context of a marriage that was ending and there's significant animosity on both sides. P.M. was under significant stress at the time and I find that contributed to his lack of judgment.

[8] I disagree with the Crown that a custodial sentence is required to meet the purpose and principles of sentence identified by both parties. Given the aggravating factors, I disagree with the defence that a conditional discharge would meet those principles and I find it is otherwise not in the public interest in this case.

[9] I will suspend the passing of sentence and place P.M. on 18 months of probation. (Terms read out in court.) There will be a s.110 order for 5 years prohibiting the accused from possessing any firearms or other items set out in that section.

[10] Considering the circumstances of this offence, the role that DNA can play in the investigation of offences of domestic violence, the public interest in those investigations and the minimal intrusion on the accused's privacy given the protections in the databank system, I find it necessary in the public interest to order the accused to provide a sample of his DNA for registration on the national databank.

Released: November 1, 2016

Justice Joseph F. Kenkel