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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: November 21, 2017

Court File No.: Hamilton 16/1542

Between:

Her Majesty the Queen

— AND —

Christopher Laidman

Before: Justice George S. Gage

Heard on: May 17 & 18, June 20, September 13, October 2 and 31, and November 21

Reasons for Sentence released on: November 21, 2017

Counsel:

• J. Mackenzie — Counsel for the Crown
• S. Bernstein — Counsel for the Defendant

Overview

[1] On May 18, 2017 Christopher Laidman was convicted of committing a sexual assault of J.A. The conviction followed a trial where the Crown elected to proceed by summary conviction. The sexual assault occurred on October 28, 2015.

[2] Laidman is 24 years old. He has no prior criminal record.

[3] As of the date of the offence Laidman was 22 years old and J.A. was 16 years old.

[4] The Crown submits that the appropriate sentence is custodial imprisonment in a provincial correctional institution for a term of 12 months.

[5] Counsel for Laidman suggests that the appropriate sentence is either a suspended sentence and probation or a conditional sentence of imprisonment in the community.

[6] Counsel agree that since the Crown proceeded by summary conviction the imposition of a conditional sentence is not statutorily excluded unless a conditional sentence is found, in the circumstances prevailing in this case, to be contrary to the general purposes and principles of sentencing.

The Facts

Circumstances of the Offence

[7] J.A. first met Christopher about three weeks before the date of the offence. They met in the back yard smoking area at B.H., a shelter facility for homeless and troubled youth. When they first met J.A. was residing at B.H. and Christopher was a former resident who dropped in to visit staff members from time to time.

[8] They struck up a conversation. They agreed to be friends on Facebook. They communicated by messaging. At some point in the messaging Christopher suggested that they could get together and hang out at Christopher's home on […] Avenue. They got together at the […] Avenue residence about a week after their first meeting. They hung out and talked at Christopher's home for about 2 hours. Christopher's father was not present. Christopher's older brother was present. The brother made a statement to J.A. that he should not hurt his brother as he, the brother, had a gun. The first visit to the Laidman home was otherwise uneventful.

[9] On October 29 J.A. and Chris agreed through Facebook messaging that J.A. would visit the Laidman residence again. J.A. took the bus. He arrived at Christopher's home at about 8 pm. Chris was on the front porch having a cigarette when J.A. arrived. Chris hugged J.A. on the porch, they finished the cigarette and thereafter went inside. J.A. could tell that Chris had been drinking and that Chris was drunk. J.A. could tell that Chris was drunk because Chris could not stand up straight. J.A. also saw an empty bottle of Vodka on the floor.

[10] They went to Christopher's bedroom. They sat on his bed. They talked for a few minutes. Chris then reached over and began to stroke J.A.'s penis under his clothes. J.A. asked him to stop. Chris persisted and pushed J.A. on to his side. The stroking continued. J.A. said to Christopher: "You need to stop". He said this to Christopher at least three times. J.A. did not physically resist. Christopher did not stop. Instead, he pushed J.A. on to his back, pulled down J.A.'s pants and performed fellatio on J.A. This continued for about 2 minutes. There was no ejaculation.

[11] In his evidence in chief J.A. testified that, after fellatio was discontinued, Chris briefly penetrated J.A.'s anus with his finger. During his cross examination J.A. provided a more detailed account of the encounter. His evidence on cross examination made no mention of digital penetration.

[12] For the reasons I gave at the time of the finding of guilt I am satisfied that Christopher manually stroked J.A.'s penis, that he performed fellatio on J.A. without J.A.'s consent and in the face of J.A.'s repeated verbal objections and that the encounter included a measure of digital penetration of the anus though likely brief.

[13] After the fellatio ended, Chris lay down on the bed and eventually fell asleep. J.A. laid on the bed until he was sure that Chris was asleep and then left and went back to B.H. He reported the assault the next day to his mother and to the police. The same day he underwent a sexual assault examination at the McMaster Medical Centre. A swab of J.A.'s penis disclosed the existence of two DNA profiles. One profile was J.A. The other profile matched Chris Laidman to a consistency and probability of 1 in 71 trillion.

Circumstances of the Offender

[14] Christopher was born on February 16, 1993. His parents were older when they met and both had children from their previous relationships. Christopher has two half-brothers aged 54 and 30. His parents had one other child together. Christopher has a younger brother age 22. Christopher's parents were both alcoholics. His upbringing was chaotic. During his childhood he witnessed heavy drinking by both parents and frequent arguments. The weekend care of he and his brother was often delegated to baby sitters.

[15] Christopher's parents separated when Chris was 6 or 7 years old. Following their separation he was placed in foster homes. His grandmother looked after him for a brief time up to her death. He was close to his grandmother and her sudden death was a traumatic event for him.

[16] At age 11 he began to live with his father. When Christopher was 16 his father learned of Chris' homosexual orientation and kicked him out of his home. After that Chris was bounced around several group homes in Ontario and Quebec before moving back in with his father.

[17] Currently Christopher's relationship with his father is "iffy". Chris believes that his father is now reconciled to his sexual orientation.

[18] Christopher has a close relationship with his mother. Mother suffers from chronic lung disease and Christopher assists her care.

[19] Christopher is not currently involved in a steady relationship. He was involved in a committed relationship for two years from age 18 to 20 with a homosexual partner who was two years his junior. The relationship ended when he stopped taking his mental health medication and his partner was uncomfortable with the resulting mood instability.

[20] Christopher has been diagnosed in the past with depression anxiety and anorexia. Although medication has been prescribed to him in the past for treatment of mental health issues Christopher is not presently taking any medication. He prefers to deal with his anxiety and depression with yoga and meditation.

[21] He has two close female friends. Both have known him since childhood. They describe him as a passionate, friendly and warm person who puts others before himself.

[22] Christopher progressed through school up to the completion of Grade 11 in an uneventful fashion. After Grade 11 he moved to Montreal and his schooling was interrupted. He is presently enrolled in an adult learning program where he is completing Grade 12 credits. He hopes to attend a community college and study business and hair dressing.

[23] He is supported through public assistance. He works occasionally as a house cleaner. He has never had full time employment.

[24] Christopher has no prior criminal history of any kind.

[25] His primary area of social dysfunction is alcohol abuse. He began drinking at age 15. He admits to excessive alcohol consumption most weekends. His good friends report that Christopher's alcohol consumption has increased to four to five times a week in the year to year and a half preceding the preparation of the pre-sentence report.

[26] To his credit, prior to the trial of this charge, Christopher sought out group and individual counselling through the Alcohol, Drug and Gambling Services of Hamilton. He completed an intake session on March 29, 2017. He attended individual and group sessions in May. He completed the orientation and intake interviews and was accepted into the Wayside House residential treatment program in June. He entered the residential program on June 17 and completed the program on October 2, 2017.

[27] Christopher was an active participant in all aspects of the Wayside program. He attended group sessions, developed a recovery plan during individual sessions and demonstrated willingness to accept ongoing feedback from Wayside counsellors. He was also active in and supportive of other daily activities integral to the program including meal preparation and peer support.

[28] He has completed a transition plan and a relapse prevention plan. He continues to participate in the supportive housing program offered by Wayside. Christopher's addictions counsellor, Ryan Kitchen, reports that Christopher has "successfully followed through with a structured daily schedule with recovery based goals and strategies to achieve them".

[29] Although, due to alcohol consumption and a blackout, Christopher has very little memory of the incident giving rise to the conviction he accepts responsibility for his actions, understands the severity of the offence, expresses remorse and understands and regrets the impact on the victim.

Victim Impact

[30] J.A. completed a victim impact statement that was filed with the Court and marked as Exhibit 3. It is clear that the offence has affected his emotional equilibrium and well-being. He considered Christopher to be a friend and he feels betrayed. The offence has affected his ability to sleep and his ability to relate to, and trust, others. He is prone to anxiety episodes and he is overly sensitive to physical contact. J.A. is fearful of retaliation from Christopher's brother and father. He wants no contact with Christopher.

The Law

The Offence

[31] Pursuant to section 271(b) a sexual assault, where the Crown proceeds summarily, is punishable by imprisonment for a term of not more than 18 months. There is no mandatory minimum sentence.

[32] I accept the proposition advanced by the Crown that the "worst offender committing the worst offence principle" does not operate to constrain the imposition of the maximum sentence in summary conviction matters where the maximum sentence would otherwise be appropriate having regard to the principles articulated in Part XXIII of the Code.

[33] I also accept the proposition advanced by the Crown that within the sentencing matrix applicable to sexual assault the principles of general deterrence and denunciation will generally be of such predominant importance that a sentence that does not involve some form of actual incarceration will be the exception and not the rule.

[34] Factors that tend to preclude a conditional sentence include: multiple incidents; multiple victims; victims that are children; victims who were incapacitated by alcohol or drugs; position of trust; extraneous violence; and, repeat offender.

[35] That said, R v Wismayer, is a case in which a conditional sentence was found to be appropriate notwithstanding multiple incidents involving a 20 year old male accused who victimized an 8 year female on multiple occasions and was akin to a big brother to the victim and in that sense in a position of trust.

[36] More recently, R v Zhou, is a case in which a conditional sentence was upheld on appeal in circumstances where there were two separate incidents, two separate victims and both victims were patients of the offender.

Principles of Sentencing

[37] Section 718 codifies the purpose of sentencing and the objectives that sentencing should attempt to achieve. The purpose of sentencing is to protect society and to contribute to respect for the law and a just, peaceful and safe society. The objectives are:

• Denunciation of the unlawful conduct and the harm caused by the conduct
• Specific (individual) and general deterrence
• Separation of offenders from society where necessary
• Rehabilitation of the offender
• Reparation
• Promotion of a sense of responsibility in offenders

[38] It is a fundamental principle of sentencing that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender – per section 718.01.

[39] Other statutory principles that have application to this case include the principle that similarly situated offenders should be treated in a similar fashion and the principle of restraint that directs the court to consider all available sanctions other than imprisonment for all offenders and to determine whether less restrictive sanctions may be appropriate.

[40] A sentence may be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Evidence that the offender abused a person under the age of eighteen is deemed to be an aggravating factor.

[41] As Justice Charron observed in R v. BWP: "General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender. When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity."

[42] But as Justice Charron also observes in the same decision: "While general deterrence as a goal of sentencing is generally well understood, there is much controversy on whether it works or not."

[43] In the same vein, Chief Justice Lamer in Proulx said this about deterrence: "The empirical evidence suggests that the deterrent effect of incarceration is uncertain." This same concern about the effectiveness of incarceration as a general deterrent was recently reiterated by the Supreme Court of Canada in the decision of the Court in Nur and Charles.

[44] That said, there can be little argument that a sentence of institutional incarceration represents a more profound expression of denunciation than any form of non-custodial disposition including a conditional sentence.

Youthful First Offender

[45] When sentencing a youthful first offender the paramount considerations are rehabilitation and specific deterrence. The court should be wary of placing undue emphasis on general deterrence. In R v Stein, Martin J.A. said this:

In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate.

[46] To similar effect, R v Priest, Justice Rosenberg said this:

The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.

[47] Referencing the Stein decision, in Priest Justice Rosenberg added this:

It has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now been codified in the recently proclaimed sections 718 and 718.2 of the Criminal Code. Section 718 (c) instructs that separation of offenders from society is an appropriate objective of sentencing "where necessary". Section 718.2 (d) directs that an offender should not be deprived of liberty "if less restrictive sanctions may be appropriate in the circumstances".

Availability of Conditional Sentence

[48] A conditional sentence of imprisonment is available if:

1. The offence does not have a mandatory minimum sentence;
2. The appropriate sentence is less than two years and more than a suspended sentence with probation;
3. The court is satisfied that serving the sentence of imprisonment in the community would not endanger the safety of the community; and,
4. The imposition of a conditional sentence of imprisonment is consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code

[49] The leading authority on conditional sentences is the Supreme Court of Canada decision in R v Proulx. In R v Zhou, Justice O'Marra summarizes some of the important principles to be derived from the Proulx decision:

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

There has been some confusion among members of the judiciary and the public alike about the difference between a conditional sentence and a suspended sentence with probation. This confusion is understandable, as the statutory provisions regarding conditions to be attached to conditional sentences (s. 742.3) and probation orders (s. 732.1) are very similar. Notwithstanding these similarities, there is an important distinction between the two. While a suspended sentence with probation is primarily a rehabilitative sentencing tool, the evidence suggests that Parliament intended a conditional sentence to address both punitive and rehabilitative objectives.

Despite the similarities between the provisions and the fact that the penalty for breach of probation is potentially more severe than for breach of a conditional sentence, there are strong indications that Parliament intended the conditional sentence to be more punitive than probation. It is a well accepted principle of statutory interpretation that no legislative provision should be interpreted so as to render it mere surplusage. It would be absurd if Parliament intended conditional sentences to amount merely to probation under a different name. While this argument is clearly not dispositive, it suggests that Parliament intended there to be a meaningful distinction between the two sanctions. I will now consider more specific arguments in support of this position.

The conditional sentence is defined in the Code as a sentence of imprisonment. The heading of s. 742 reads "Conditional Sentence of Imprisonment". Furthermore, s. 742.1(a) requires the court to impose a sentence of imprisonment of less than two years before considering whether the sentence can be served in the community subject to the appropriate conditions. Parliament intended imprisonment, in the form of incarceration, to be more punitive than probation, as it is far more restrictive of the offender's liberty. Since a conditional sentence is, at least notionally, a sentence of imprisonment, it follows that it too should be interpreted as more punitive than probation.

In light of the foregoing, it is clear that Parliament intended a conditional sentence to be more punitive than a suspended sentence with probation, notwithstanding the similarities between the two sanctions in respect of their rehabilitative purposes. I agree wholeheartedly with Vancise J.A., who, dissenting in R. v. McDonald, stated, at p. 443, that conditional sentences were designed to "permit the accused to avoid imprisonment but not to avoid punishment".

Accordingly, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest or strict curfews should be the norm, not the exception. As the Minister of Justice said during the second reading of Bill C-41, "[t]his sanction is obviously aimed at offenders who would otherwise be in jail but who could be in the community under tight controls" (emphasis added).

Analysis

Aggravating and Mitigating Factors

[50] The aggravating features of the offence include:

• The fact that the victim was under the age of 18 and the offender was 6 years older
• The fact that the offender persisted with the sexual activity after the victim had asked him to stop

[51] The mitigating factors include:

• The offender is young
• The offender has no prior criminal history and there is no indication that this episode was part of a larger pattern of behaviour
• The offender has expressed genuine remorse and empathy for the victim – although it is noted that his remorse was not expressed until after a trial at which the victim was obliged to testify

[52] There is no indication that this offence was the result of any form of planning and deliberation. Based on the evidence of the victim it appears that the offence was prompted in some measure by alcohol intoxication. These facts are neither aggravating nor mitigating but they are part of the context in which the offence occurred.

Suitability of a Conditional Sentence of Imprisonment

[53] The offence does not carry a mandatory minimum sentence. The offence was not prosecuted by indictment. No weapon was used. The offence did not result in bodily harm. A conditional sentence is not otherwise statutorily foreclosed.

[54] The appropriate sentence is, by virtue of the Crown election to proceed summarily, necessarily less than 2 years. The Crown request for a sentence of 12 months incarceration confirms that the appropriate sentence is less than 2 years. A suspended sentence with probation would not be proportionate to the seriousness of the offence.

[55] The offence was committed in October of 2015. More than two years have passed since then during which time Christopher has been living in the community in accord with conditions of release to which he has adhered. The delay in reaching trial was not of his making. He has not re-offended. He has addressed through counselling and voluntary admission to a residential treatment program his issues with the abuse of alcohol which were a primary underlying cause of the commission of this offence. I am satisfied that the community will not be endangered if Christopher Laidman is permitted to serve a sentence of imprisonment within the community subject to conditions.

[56] For the same reasons set out in the preceding paragraph separation from society is not a sentencing objective that factors into the calculus in this case.

[57] While the victim impact statement attests to the emotional distress and psychic harm suffered by J.A. as a result of the offence, the commission of the offence was not accompanied by extraneous violence or the infliction of physical harm.

[58] Although there is an age difference of 6 years, Christopher and J.A. met on a relatively equal footing. Both are physically slight in both height and stature. Only a few years prior to the offence, Christopher, by reason of a troubled chaotic upbringing coupled with parental rejection, had sought shelter and refuge at B.H. While less is known of J.A.'s background it is a reasonable inference that he was a resident of B.H. at the time of the offence for similar reasons. Both thought of the other as a friend. While Christopher was clearly the aggressor in the episode culminating in the offence their respective backgrounds made both of them emotionally vulnerable. This was not an instance of predatory behaviour nor is it a situation where a position of trust is implicated.

[59] Christopher has already taken steps within the community to address concerns relating to individual deterrence. The abuse of alcohol was a part of Christopher's life from infancy. It developed into a personal problem for Christopher beginning at age 15. According to his close friends the drinking is emotionally triggered and was increasing in the time period surrounding the date of the offence. According to both J.A. and Christopher alcohol was a major contributing factor to the commission of this offence.

[60] The letters from Wayside are impressive and confirm active participation and successful completion of an intensive residential treatment program as well as continuing and committed involvement in a supportive follow up program.

[61] As Justice Lamer noted in Proulx, "generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim and the community."

[62] The cogency of that observation in the context of this case is reinforced by the fact that Christopher's sexual orientation and diminutive stature will make incarceration in the general population of a correctional institution both difficult and potentially dangerous and will increase the likelihood of segregation and isolation with commensurate limitations on access to rehabilitative programs within the institution.

[63] The difficult question that remains is whether the imposition of a conditional sentence of imprisonment in this instance would be inconsistent with the appropriate application of the related principles of general deterrence and denunciation.

[64] In R v Wismayer, Justice Rosenberg began his analysis of the impact of general deterrence with this statement: "In my view, the enactment of the conditional sentence regime represents a concession to the view that the general deterrent effect of incarceration has been and continues to be somewhat speculative and that there are other ways to give effect to the objective of general deterrence". Later in the same judgement he said: "In view of its extremely negative collateral effects, incarceration should be used with great restraint where the justification is general deterrence". In support of his view Justice Rosenberg cites with approval the following statement from a 1977 study commissioned by the Solicitor General of Canada: "Growing evidence exists that, as educational centres, our prisons have been most effective in educating less experienced, less hardened offenders to be more difficult and professional criminals".

[65] These comments are consistent with the observations made by Justices Charron and Lamer referenced earlier at paragraphs 42 and 43 herein.

[66] The general deterrent effect of a conditional sentence is achieved by the fact that it is a sentence of imprisonment that is readily distinguishable from other forms of community dispositions such as a suspended sentence by the streamlined process for adjudication of a breach coupled with the lower standard of proof to establish a breach and the potential, upon a finding of breach, for incarceration for the entire balance of the term of the sentence. General deterrence is also achieved through the imposition of appropriate restrictive conditions such as house arrest.

[67] The same considerations apply to the denunciatory aspect of a conditional sentence. As noted by Justice Rosenberg in Wismayer:

The offender's liberty remains significantly curtailed for the full duration of the sentence. The offender is under the strict control of the supervisor and remains under the shadow of incarceration through termination or suspension of the conditional sentence order if he or she reoffends. Most importantly, the goal of denunciation continues to operate for the reasons expressed by Chief Justice Lamer.

Rousseau-Houle J.A. was of a similar view in R. v. Maheu, supra, note 2. At para. 49, she pointed out that it is wrong to consider a conditional sentence order as a lenient sentence. The offender will serve the total sentence under conditions that restrict the offender's liberty, often by requiring that the sentence be served as a form of house arrest and by requiring community service. The offender is also under the constant threat of imprisonment should he or she violate the conditions. As Rousseau-Houle J.A. put it, the sentence of imprisonment is suspended like a sword of Damocles over the offender. In some ways the conditional sentence order can be a much heavier sentence than a brief sentence of imprisonment from which the offender will be paroled after one-third has been served. Accordingly, I cannot accept that a conditional sentence of imprisonment is unavailable where the paramount consideration is denunciation of the offender's conduct.

[68] I conclude that the imposition of a conditional sentence of imprisonment in this case is consistent with the mindful application of the fundamental purpose and principles of sentencing as set out in sections 718 to 718.2 for the following reasons:

• Christopher is a youthful first offender which means that considerations of individual deterrence and rehabilitation take increased prominence in the sentencing calculus
• The offence represents a single isolated and apparently uncharacteristic event
• Concerns pertaining to individual deterrence and rehabilitation have been addressed in the community in a significant manner and the continuation of such treatment is more likely to be effective in the community than in a prison
• The effect of the prison environment is likely to be harsher for this offender than for others and it may compromise or defeat the gains made to date in the realm of rehabilitation
• In the two years subsequent to the date of the offence Christopher has not re-offended, he has had no contact with the victim, he has adhered to the conditions of his release and has thereby demonstrated a capacity and willingness to obey court orders
• The objective of reparation to the community is better addressed through the imposition of community service hours as a part of the conditional sentence order than by time spent in a jail cell
• The circumstances of the offence are relatively unique to the individuals involved and in that sense the uncertain effect of general deterrence is unlikely to have wide application
• The principles of general deterrence and denunciation are addressed here by the imposition of a sentence of imprisonment, by the term of the imprisonment, by the potential for incarceration for the entire term in the event of a breach, by the imposition of community service hours and by a lengthy period of house arrest and a subsequent curfew

[69] If I were not persuaded that a conditional sentence was an appropriate disposition I would have sentenced Christopher to actual incarceration of 6 months which given his antecedents and the circumstances of the offence would have been both proportionate and more than enough to address general deterrence and denunciation.

[70] Inasmuch as this is a conditional sentence I set the term of imprisonment within the community at 12 months as an element of the denunciatory effect of the sentence.

[71] The conditions of the sentence, additional to the statutory terms will include:

a. Reside at a location approved by the conditional sentence supervisor

b. House arrest subject to the usual exceptions including attendance on treatment for 6 months

c. Curfew of Midnight to 6 am for the balance of the term

d. Attend upon treatment with Wayside House and provide conditional sentence supervisor with any consents or releases required to monitor progress

e. Attend upon and complete the PARS program

f. Perform 50 hours of community service to the satisfaction of the conditional sentence supervisor

g. Have no contact, direct or indirect with J.A.

[72] Additionally, orders will issue for DNA, a section 110 weapons prohibition for 10 years and a SOIRA order having a term of 10 years.

Released: November 21, 2017

Signed: Justice George S. Gage