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 486.5(1) or (2) of the Criminal Code. These subsections 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 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES

(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

Court Information

Ontario Court of Justice

Date: January 18, 2017

Court File No.: Halton 14-881

Between:

Her Majesty the Queen

— and —

Omar Said

Before: Justice D.A. Harris

Heard on: November 14, 2016

Reasons for Sentence released on: January 18, 2017

Counsel:

• Charon Kerr, counsel for the Crown
• Brendan Neil, counsel for the defendant Omar Said

Reasons for Sentence

Introduction

[1] Omar Said pled guilty to:

• one count of mischief and one count of assault both of which occurred in September 2013 in Oakville;
• one count of threatening bodily harm which occurred on December 31, 2013 in Burlington;
• one count of criminal harassment which occurred in February, 2014 in Burlington; and
• one count of breaching a Youth Justice Court probation order.

[2] The victim in all of these offences was B.B.

[3] Mr. Said waived any limitation periods and Crown counsel elected to proceed summarily with respect to the first four charges. The final charge is a summary conviction offence.

[4] Mr. Said is before me today to be sentenced.

[5] Crown counsel suggested that I should sentence him to imprisonment for 60 to 90 days to be served intermittently with respect to the criminal harassment charge. She also requested a firearms prohibition and a DNA order.

[6] She suggested that I credit him for his pre-sentence custody and period of restrictive bail and place him on probation for 15 to 18 months for the other offences.

[7] Counsel for Mr. Said suggested that I impose a short conditional sentence of imprisonment followed by probation. He agreed that it was appropriate for me to make a firearms prohibition and a DNA order.

[8] I find that a blended sentence of time served in pre-sentence custody or on bail credited as 59 days, plus imprisonment for one day plus a conditional sentence of imprisonment for six months, plus probation is the appropriate sentence.

[9] My reasons for this are set out under the following headings:

1. The law regarding conditional sentences of imprisonment
2. The fundamental purpose and principles of sentencing
3. The facts underlying the offences
4. The impact on the victim
5. The background of Mr. Said
6. Analysis

Conditional Sentence of Imprisonment

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

[11] 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."

[12] 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.

[13] 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 must not be endangered by the offender serving the sentence in the community; and
5. a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[14] 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.

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

[16] His offences were not excluded pursuant to section 742.1.

[17] They were not punishable by a minimum term of imprisonment.

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

[19] Finally, I find that Mr. Said serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He has complied with the terms of his release on bail for the past 34 months. 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.

[20] 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

[21] 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.

[22] 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.

[23] 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.

[24] 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.

[25] 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.

[26] 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.

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

[28] Section 718.01 of the Criminal Code provides that "When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct".

[29] 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.

[30] Section 718.2(a)(ii.1) provides that evidence that an offender, in committing an offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[31] Section 718.2(a)(iii) provides that evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[32] The offence 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.

[33] I must specifically 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".

[34] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[35] 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.

[36] 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.

[37] 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.

[38] I also note that:

There need not be any equivalence between the duration of the conditional sentence and the jail term that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.

[39] I can therefore impose a conditional sentence that is longer in duration than the jail term that I might otherwise have imposed.

[40] In this case, counsel for Mr. Said has essentially argued that I should impose a blended sentence.

[41] It is settled law that it is improper to blend a custodial sentence with a conditional sentence in the context of a single offence.

[42] However, "when an accused is being sentenced for more than one offence, it is legally permissible to blend a custodial sentence with a conditional sentence so long as the sentences, in total, do not exceed two years less one day and the court is also satisfied that the preconditions in s. 742.1(b) have been met in respect of one or more but not all of the offences."

[43] Crown counsel elected to proceed summarily. As a result, the maximum sentence for threatening is imprisonment for 18 months and the maximum sentence for each of the other offences is imprisonment for 6 months.

[44] Before applying these principles, I must take into account the facts underlying the offences, the impact on the victim and the background of Mr. Said.

The Offences

[45] Mr. Said and B.B. started dating in May 2013. He was 18 years old. She was 15. The difference in their ages was 35 months. She resided with her mother and her step-father in Burlington.

[46] In September 2013 they argued over a photograph of her on Instagram. He grabbed her iPhone 5S and smashed it. The value was $600.

[47] On another occasion that month, he slapped her across the face with an open hand.

[48] On December 31, 2013, they argued while at her home. She struck him and then burst into tears. He then threatened her, saying "If you don't stop crying, I'm going to beat the crap out of you".

[49] On February 20, 2014, they argued again. She cried again and this angered him. She told him that she wanted to break up.

[50] The next day, her mother repeated this to Mr. Said.

[51] Despite this, Mr. Said sent B.B. approximately 23 emails pleading with her to take him back. She sensed that he was becoming more frustrated as these continued and she became fearful.

[52] Mr. Said then threatened to send her father photos of her in the nude as well as a video of her performing oral sex on Mr. Said. When this did not have the desired effect, he sent the photos and the video.

[53] In addition, he attended at her high school where he identified himself as her father and asked to see her.

[54] She then went to the authorities.

[55] He then sent a further video of himself to her, apologizing and begging her to take him back.

[56] Throughout this time, he was subject to a Youth Court probation order which required that he keep the peace and be of good behaviour.

[57] Counsel agreed that the act of oral sex referred to above was consensual both in fact and in law since there was less than a five year age difference between B.B. and Mr. Said. It was also agreed that the video and the photographs constitute child pornography, subject to a personal use exemption as described in R. v. Sharpe.

Impact on the Victim

[58] There was no Victim Impact Statement filed. Crown counsel informed me that B.B. wanted no further contact with Mr. Said.

[59] There was however significant victim input in the Pre-sentence Report. From that I learned the following.

[60] B.B. described the relationship with Mr. Said as having had a significant impact on her life. She was 15 at the time that they met and he was 17. They dated for ten months. She described herself as "shy and innocent" when they first met and she fell in love with him very quickly. She was happy with him in the beginning however, in hindsight, she realized that he was actually "extremely controlling." She initially found his behavior endearing as he did not want her speaking to other men but it soon escalated to the point that she was not allowed to speak to her own friends. He would give her ultimatums between choosing their relationship or her peers. As a result, she lost everyone in her social circle. He also disapproved of what she would post on social media accounts. Moreover, he became physically abusive. He was also verbally and emotionally abusive, yelling at her in front of her friends. Towards the end of their relationship, he was calling her names, telling her she was worthless.

[61] Towards the end of their relationship, they broke up a few times only to reconcile, as she would inevitably go back to him, feeling trapped as he made sure he was all that she had by this point. He would accuse her of being unfaithful despite having been the one that cheated on her. She frequently cried herself to sleep. She felt "it was always about control and having control over me." He would consistently blame her for his own abusive behavior and she would, inevitably, be the one to apologize to him despite the fact that he had assaulted her.

[62] B.B. has struggled with depression since her relationship ended with Mr. Said noting that "it put me into a dark, dark place." She stopped attending school noting "I hated my life then." Moreover, it has caused irretrievable damage in her relationship with her father. Her entire family has been affected and she believes Mr. Said will never fully grasp the impact it has had on them. She has seen several different youth psychiatrists and has tried a variety of anti-depressants. As she will be turning 18 soon, she is looking to meet with a psychiatrist that treats adults. Despite all the harm done, she advises she is a much stronger person and would never settle for the way Mr. Said treated her. Moreover, she suspects that Mr. Said struggles with mental health issues and she hopes that he receives the help he needs.

Background of Mr. Said

[63] I had the benefit of a Pre-sentence Report which provided me with the following information.

[64] Mr. Said is 21 years of age now. He was 18 at the time of the offences.

[65] He was born in Mombasa, Kenya, the second youngest of five children. He has two older sisters, an older brother and a younger brother.

[66] His parents separated when Mr. Said was three years old. His father moved to Saudi Arabia, leaving the mother to raise the family. She was self-employed as a cook who delivered meals to various mosques. The children frequently helped with the deliveries.

[67] The family moved to Canada when Mr. Said was nine. They were sponsored by an uncle who had moved here a few years earlier.

[68] The family initially shared a one-bedroom apartment before moving into a two-bedroom apartment in Etobicoke. They moved into a rented home in Oakville when Mr. Said was 14.

[69] His mother still works as a self-employed cook, providing food to others from Kenya who have settled in the Toronto area.

[70] Mr. Said had no major issues with the transition from Africa to Canada. He was fully fluent in English as a result of having attended an English-speaking school in Kenya.

[71] According to Mr. Said, the absence of a father was difficult for him to deal with as a teenager. He credits his mother for sacrificing a great deal for her children, putting them first and making a great effort to take on the role of both father and mother.

[72] His older brother Khalid also tried to fill that role.

[73] However around 2013, Mr. Said took up with "the wrong crowd". He became involved in the youth justice system. On February 28, 2013 he was placed on probation for 15 months and prohibited from possessing weapons for two years after being found guilty of robbery and possession under $5000. He did poorly while on probation.

[74] He was disrespectful of his mother and eventually left the family home. He also left school around that time.

[75] He began dating B.B. in May 2012. He says he was happy for the first eight or nine months. She was his first and only love. However, he became overly protective of her, verging on controlling. By the end he suspected that she had met someone new which left him devastated.

[76] Since being charged, Mr. Said has turned his life around.

[77] He stopped associating with his negative friends.

[78] He completed high school. He performed 40 hours of community service as required for this.

[79] He worked at a number of jobs. In December 2015 he began working through the Labourers' International Union of North America (LIUNA). He has taken a number of courses through the union and has worked his way up from $18 per hour to $33 per hour.

[80] Mr. Said and his brother Khalid now train together at a martial arts studio.

[81] Mr. Said has stopped drinking alcohol.

[82] After being found guilty in Youth Court of theft under and failing to comply with a youth sentence, on June 16, 2014, he was placed on probation for two years. At the same time, he was convicted as an adult of fail to comply with a youth sentence. Sentence was suspended and he was placed on adult probation for two years. His probation officer describes his response to probation since then as "excellent". He has been diligent in his reporting. He completed 120 hours of community service ahead of schedule and received glowing reviews for his efforts. He completed a one-day seven hour anger management course. He met with the in-house psychologist for counselling.

[83] He has taken responsibility for his abusive actions towards B.B. and expressed remorse for the harm done to her.

[84] He has "committed himself, wholeheartedly to a pro-social path and this has been evident in all areas of his life, including family, school, work and overall attitude and maturity". He is "deemed a most appropriate candidate for future community supervision and would benefit from counselling in the area of domestic violence."

[85] Mr. Said has advised that:

He would be willing to attend the Partner Assault Response program in order to better educate himself as to the underlying reasons for his behaviour which he feels is the antithesis of his true nature. He remarked that 'I would do anything to avoid what happened from happening again'.

[86] Mr. Said was raised Muslim and continues to practice his faith, attending mosque on a weekly basis if he is not working, and praying five times a day. He described his mother as a devout Muslim woman who has remained single since her separation from her husband as a result of her deep faith.

Analysis

[87] The sentencing principles of denunciation and deterrence are paramount here. I must not however lose sight of the possibility of rehabilitation.

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

[89] The aggravating factors arise out of the offences.

[90] A number of these are deemed to be aggravating circumstances by the Criminal Code.

[91] These offences involved the abuse of someone under the age of 18 years. Section 718.2(a)(ii.1) provides that this is an aggravating circumstance and that the sentence should be increased to reflect that. Section 718.01 provides further that I shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[92] The boyfriend/girlfriend relationship between Mr. Said and B.B. is analogous to that of spouses or common law partners and section 718.2(a)(ii) provides that this too shall be deemed to be an aggravating circumstance.

[93] B.B. trusted Mr. Said with the video of her performing oral sex on him. He abused that trust. Section 718.2(a)(iii) provides that this too is an aggravating circumstance.

[94] Finally, I am satisfied that the offences had a significant impact on the victim, considering her age and other personal circumstances. Section 718.2(a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance.

[95] I also note the comments by the Ontario Court of Appeal regarding criminal harassment in R. v. Bates, that:

In 1993 Parliament enacted s. 264 of the Criminal Code, the criminal harassment section, in order to address a growing concern manifested in this country and elsewhere about people who stalk their victims with escalating intensity, in many cases leading to violence against the victims and sometimes their murder. The purpose of the new section was to criminalize the threatening behaviour and to permit punishment of the offenders in an attempt to restrain their behaviour before it escalates to physical violence against the victims.

[96] While there are many differences between that case and the present one, there is one very striking similarity. Mr. Said, like Mr. Bates, "somehow perceived that his love and need for the complainant allowed him to be an unwanted presence in her life and in the lives of her family and associates, and to threaten and terrorize them to achieve his ends." The victims of such men are "entitled to break off romantic relationships [and] when they do so they are entitled to live their lives normally and safely [and] to live their lives free of harassment by and fear of their former lovers."

[97] The court must do what it can to protect persons in those circumstances by imposing sentences that deter both the specific offender and all other potential offenders.

[98] The court in R. v. Bates concluded its statement of the applicable principles of sentencing as follows:

The number of recent cases continuing to reach this court emphasizes the extent of the problem with criminal harassment and the need for sentencing courts to respond to this type of offence in the most forceful and effective terms, sending the message of denunciation and general deterrence to the community and specific deterrence to individual offenders.

[99] Shortly after this, the Court of Appeal stated in R. v. Finnessey that:

R. v. Bates did not announce new law. It did, however, set out the applicable principles of sentencing with a clarity and emphasis that was not apparent in our earlier jurisprudence.

[100] These principles are repeated in the cases cited by Crown counsel.

[101] In the current case, Mr. Said's behaviour included other criminal offences committed against B.B. He destroyed her iPhone. He assaulted her. He threatened her. Those offences are before me for sentencing too.

[102] He also committed offences which are not before me.

[103] He extorted her. He threatened to send an embarrassing video to her father if she did not do as he told her. When she did not comply he sent that video to her father.

[104] That video qualified as child pornography. As I stated above, it fell within the personal use exemption set out by the Supreme Court of Canada in R. v. Sharpe, but only with regard to making it and possessing it. That defence disappeared when Mr. Said transmitted or distributed the pornographic materials to B.B.'s father. At the time, the offence of distributing child pornography was subject to a mandatory minimum sentence of imprisonment for six months if the Crown proceeded summarily and one year if the Crown proceeded by indictment. That has since been amended to remove the option of proceeding summarily.

[105] Having said that, I remind myself that Mr. Said did not plead guilty to either extortion or to any child pornography offence. In fact, Crown counsel did not proceed with those offences.

[106] Even so, it was a very serious matter for Mr. Said to threaten his 15 year old girlfriend with disclosing to her father a video of her performing oral sex on Mr. Said. It was even more serious for him to follow through with this threat when she did not meet his demands.

[107] The impact on B.B. and her family has been devastating. It will be years before they get over all of this, if they ever do.

[108] Mr. Said had a prior record as a youth. He was on probation at the time that he committed these offences.

[109] There are also a number of mitigating factors here.

[110] Mr. Said pled guilty. I take this to be both an acceptance of responsibility and an expression of remorse. It also made it unnecessary for B.B. to relive the events of the offences while testifying in court.

[111] Mr. Said has expressed remorse.

[112] He sent B.B. an apology. Any mitigation flowing from this apology is pretty much negated however by the fact that the apology was in many respects a continuation of the criminal harassment.

[113] He has made many positive changes in his lifestyle since being charged. I will not go through these again. I will simply summarize them by saying that he has turned his life around completely.

[114] He had never been to jail before he committed these offences.

[115] He is still very young and he has the support of his family and others in the community. Both of these factors bode well for his continued rehabilitation.

[116] Even taking these mitigating factors into account, I am satisfied that the offences committed by Mr. Said call for a period of imprisonment as part of the sentence. The first question is how long should that sentence of imprisonment be. The second question is how much credit I should give him for pre-sentence custody and for time spent subject to restrictive bail conditions.

[117] Mr. Said spent 14 days in pre-sentence custody in jail. I am prepared to credit that as the equivalent of 21 days.

[118] There is then the question of whether I should give credit to Mr. Said for the time spent subject to bail conditions, and if so, how much credit.

[119] The Ontario Court of Appeal addressed this issue in R. v. Downes where Rosenberg J.A. stated:

In summary, credit for pre-trial bail conditions should be approached in the following manner:

• Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
• As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
• The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
• The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.
• Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[120] Rosenberg J.A. noted that the rationale behind credit for pre-sentence custody does not readily apply to time spent on bail, even under stringent conditions such as house arrest, for three reasons. First, there is no statutory provision that directly addresses the issue.

[121] Second, even the most stringent bail conditions, including house arrest, tend to allow the offender the opportunity to work, attend school, attend medical appointments, conduct religious worship and address personal needs. The rehabilitative and treatment options that are often denied an accused in pre-trial custody are usually available, even to an accused on house arrest.

[122] Third, unlike pre-trial custody, the impact of the bail conditions cannot be assumed. Trial judges do not need evidence or even submissions to understand the impact of ordinary pre-trial custody on an offender because they can take judicial notice that the ordinary consequences of pre-trial custody involve a severe loss of liberty.

[123] On the other hand, some of the same considerations that justify credit for pre-sentence custody apply to an offender who has spent a long time under house arrest. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code.

[124] Mr. Said has been subject to bail conditions for approximately 34 months.

[125] His counsel argued that he was subject to restrictive conditions. Crown counsel disagreed.

[126] I find that the terms of bail were certainly less stringent than those present in the cases cited by counsel for Mr. Said. As Crown counsel argued, he must have been out of his house a great deal in order to accomplish as much as he did over that time.

[127] I do view the long period of time spent subject to restrictions on his freedom as a form of punishment however and I am prepared to treat this time as the equivalent of 38 days imprisonment.

[128] I am therefore crediting him with the equivalent of 59 days in custody in total.

[129] The Ontario Court of Appeal has made it clear that "a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence".

[130] That is reinforced by the principles of sentencing set out in sections 718.2(d) and (e).

[131] It is further reinforced by the fact that Mr. Said has done so much to rehabilitate himself since he committed these offences.

[132] Finally, adding even a single day of imprisonment to this sentence will provide a reminder to Mr. Said of how close he is to going back to jail if he does not continue with his rehabilitation. Blending this with a conditional sentence of imprisonment and a long period of probation will then satisfy all of the principles of sentencing which are applicable here.

Sentence

[133] For all of the above reasons, I sentence Mr. Said as follows.

[134] With respect to the charge of criminal harassment, he is sentenced to time served, being 14 days of pre-sentence custody credited as 21 days, plus credit for a further 38 days for the time spent on bail, plus imprisonment for one day. This will be followed by probation for three years.

[135] The terms of the probation will require that Mr. Said:

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 five working days 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 B.B.;
7. not be within 20 metres of any place where he knows B.B. to live, work, go to school, frequent, or any place he knows her to be;
8. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer, for domestic violence which might include the Partner Assault Response (PAR) program, and any other program directed by the probation officer.

[136] With respect to all other offences, he is sentenced to concurrent conditional sentences of imprisonment for six months to be served in the community.

[137] The terms of the conditional sentences of imprisonment will require that Mr. Said:

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 five 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 4107-105 Dan Leckie Way, Toronto, 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 three 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 any assessment, treatment or counselling sessions;
   • (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. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with B.B.;
12. not be within 20 metres of any place where he knows B.B. to live, work, go to school, frequent, or any place he knows her to be.

[138] I also make the following ancillary orders.

[139] Criminal harassment, threatening and assault are all secondary designated offences. I am satisfied that this is an appropriate case for me to make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. Said of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[140] Finally, with respect to the criminal harassment charge, pursuant to section 109 of the Criminal Code, for the next ten years Mr. Said is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[141] I give Mr. Said six months to pay the victim fine surcharges.

Released: January 18, 2017

Signed: Justice D.A. Harris