Court File and Parties

Ontario Court of Justice

Date: 2017-12-19

Court File No.: Central East Region: Oshawa Court: 17-00013

Between:

Her Majesty the Queen

— and —

Charles Gibson

Before: Justice Peter C. West

Guilty Plea: August 16, 2017

Submissions: October 10, 2017

Reasons for Judgment Released: December 19, 2017

Counsel

For the Crown: G. Hendry, Ms. Herbert

For the Defendant: A. Maini

Judgment

WEST J.:

[1] Guilty Plea and Crown Submissions

On December 9, 2016, Charles Gibson assaulted Ijaz Muhammad, without provocation and caused bodily harm. On August 16, 2017, Mr. Gibson pled guilty to the charge of assault causing bodily harm, pursuant to s. 267(b) of the Criminal Code. A pre-sentence report was ordered and submissions were adjourned to October 10, 2017. Submissions were heard on October 10, 2017. It was the Crown's submission the appropriate sentence was 4-6 months in custody to be followed by 18 months' probation. The Crown also sought a s. 110 order for 5 years and a DNA order. The defence submitted a conditional sentence of 9 months was the appropriate sentence given the Crown proceeded summarily and it was Mr. Gibson's first offence. The defence agreed that probation should follow the conditional sentence and took no issue with the ancillary orders sought by the Crown. After submissions sentencing was adjourned for an assessment for the Electronic Supervision Program.

Factual Background

[2] The Assault

On December 9, 2016, Mr. Gibson was intoxicated by alcohol and drugs and was wandering residential streets in Ajax. Shortly after midnight he approached Mr. Muhammad who was standing at the end of his driveway and asked for a lighter. Mr. Mohammad advised he did not have a lighter. Mr. Gibson, without being provoked, spontaneously sucker punched Mr. Mohammad in the face knocking him to the ground. The assault caused Mr. Mohammad's nose to be fractured with a laceration on the bridge of his nose, which required 6 or 7 stitches to close. Mr. Mohammad's teeth were loosened by the punch and subsequently, three teeth had to be removed. Exhibit 1 are two photographs of Mr. Muhammad showing his injuries after receiving treatment at the Emergency Department of Ajax/Pickering Hospital.

[3] Investigation and Apprehension

Mr. Mohammad did not know Mr. Gibson and the assault was completely random. Footprints at the scene matched Mr. Gibson's footwear and property of Mr. Gibson's was left behind at the scene and located. Mr. Gibson was discovered in close proximity to Mr. Mohammad's address and the description of assailant provided by Mr. Muhammad matched Mr. Gibson. A K-9 tracking dog was also used and led directly to where Mr. Gibson was attempting to hide.

[4] Search Incident to Arrest

During the search incident to arrest a small quantity of THC liquid, approximately 3 millilitres was found on Mr. Gibson.

Background of the Offender

[5] Family Background

Mr. Gibson had just turned 25 when he assaulted Mr. Muhammad. He is the oldest of three siblings. His parents separated when he was 12 years of age. He resided with his mother and his two sisters until he entered grade nine. He described having difficult relationships with his father's girlfriend and his stepfather. He remains close to his mother, who was interviewed for the preparation of the PSR.

[6] Residential History

After completing high school he moved to Banff with his then girlfriend. He returned to Aurora after eight months and lived with his mother for one year. He then moved to Toronto for one year and has since returned to live in Aurora with his mother.

[7] Educational and Behavioural History

When Mr. Gibson was a young boy he was diagnosed with Attention Deficit Hyperactivity Disorder and from ages 8 to 14 was prescribed medication. Unfortunately the medication caused him to feel like a "zombie" and he refused to continue taking the medication when he was in high school. He had difficulty in school, in that he struggled with behavioural issues, which caused him to be suspended for fighting and he was the victim of bullying from his peers. These behavioural issues were never addressed or diagnosed during that time.

[8] Employment History

Mr. Gibson is currently employed as a model in Toronto. From ages 16 to 19, while in high school, he was employed in the restaurant business. He was employed in the construction industry as a stone mason from the time he was 19 but he has been unable to work in this field as a result of a sports injury he sustained. He has also worked at his mother's place of employment, off and on, from 14 to 23 years of age. He has worked as a model since he turned 20 and has obtained work in Toronto, New York and London, England. While in Banff he was employed as a snowboard instructor. He has always been gainfully employed.

[9] Substance Use History

Mr. Gibson was first introduced to alcohol and marihuana at age 13 by his friends and older cousins at his family's cottage. He regularly used these substances on weekends during high school. He has experimented with psilocybin, ecstasy and cocaine. He described using marihuana four to five times a week. Between ages 20 and 23 he was regularly involved in the club scene and binge drinking was a common activity. He admitted using MDMA daily for a period of three months. He used ecstasy on a habitual basis until 2008 or 2009. He was introduced to cocaine in high school and reintroduced when he started modelling. Many of his friends during that time were involved in partying and substance abuse.

[10] Post-Offence Substance Abstinence

He has not attended any treatment or counselling for alcohol or substance abuse. He advised the probation officer he has not used drugs since the night of the offence and only occasionally consumes beer. He advised the probation officer he has reduced his circle of friends to those who do not engage in partying, clubbing or substance abuse. This was all confirmed by his girlfriend.

[11] Pre-Sentence Report and Psychological Assessment

The PSR is quite positive and it reflects an awareness by Mr. Gibson as to there being a connection between his alcohol and drug use and his assaultive behaviour. In July 2017, Mr. Gibson arranged and paid for a psychological risk assessment with Dr. G. Ilacqua, C. Psych. Dr. Ilacqua's report, dated July 31, 2017, was provided to the probation officer and was marked as Exhibit 4, together with a further letter from Dr. Ilacqua, dated October 6, 2017, marked as Exhibit 5.

[12] Mental Health Issues

Mr. Gibson has also experienced sleep difficulties (insomnia) since he was four or five years old. He used marihuana to assist him with his ability to sleep but is no longer using marihuana. He has not consulted a doctor about this, nor has he taken part in a sleep study. He described to Dr. Ilacqua experiencing panic attacks, which started two years ago, at least once a week. He also described that he experiences depressive and manic symptomatology, being unable to get out of bed, to feeling like he could conquer the world on other days.

[13] Psychological Testing - Depression and Anxiety

Mr. Gibson admitted to being intoxicated by alcohol and under the influence of cocaine at the time of the commission of the offence. Dr. Ilacqua performed numerous psychological tests with Mr. Gibson. On the Depression Anxiety Stress Scales (DASS) he scored in the moderate range for anxiety and stress and in the severe range for depression. In the Clinical Assessment of Depression (CAD) he scored as a significant clinical risk range for Depressed Mood, Diminished Interest and Cognitive and Physical Fatigue scales and in the very significant clinical risk range on the Anxiety/Worry scale. Dr. Ilacqua concluded Mr. Gibson is suffering from several hallmarks of depression.

[14] Psychological Testing - Substance Use and Psychopathy

The Beck Depression Inventory-Second Edition (BDI-II) produced a total score suggesting he is currently experiencing a moderate level of depression. The Beck Anxiety Inventory (BAI) produced a total score suggesting he is currently experiencing a severe level of anxiety. Both the Drug Use Questionnaire (DAST-20) and the Alcohol Use Questionnaire (ADS) had scores that fell within the substantial level. Similarly the Substance Abuse Subtle Screening Inventory-4 (SASSI-4) scores are suggestive of a high probability of having a substance use disorder and a high probability of prescription drug abuse.

[15] Risk Assessment - Psychopathy and Violence

On the Hare Psychopathy Checklist-Revised, 2nd Edition (PCL-R) Mr. Gibson did not meet the criteria for psychopathy as his score is in the low range. On the Historical Clinical Risk-20 (HCR-20) Mr. Gibson scored in the low/moderate risk range for the involvement in future violent behaviours.

[16] Risk Assessment - Overall Recidivism Risk

The Inventory of Offender Risk, Needs and Strengths (IORNS) is a 130-item self-report measure that assesses static risk, dynamic risk/need, and protective strength factors as they relate to recidivism, treatment need and management. Mr. Gibson's Overall All Risk Index (combines static, dynamic and protective strength factors) suggests he is in the high risk range to reoffend. His Static Risk Index (includes historical events related to recidivism) suggests he is in the very high risk to reoffend.

[17] Risk Assessment - Legal System Involvement

The Level of Service Inventory-Revised (LSI-R) provides an actuarial estimate of the risk an individual poses to society and is a comprehensive risk/needs assessment through the analysis of dynamic and historical variables contributing to law-breaking behaviours. On the LSI-R Mr. Gibson scored in the low/moderate risk range (22.4%) for future involvement in the legal system.

[18] Dr. Ilacqua's Opinion and Recommendations

In his report Dr. Ilacqua indicated, in his opinion, Mr. Gibson appeared to be struggling with unrecognized mental health issues that had not been adequately treated. He identified Mr. Gibson currently was dealing with mild depressive symptomatology and panic attacks. In addition at the time of the commission of the offence Mr. Gibson had been struggling with substance abuse issues for a number of years. In his opinion Mr. Gibson's self-report on the psychological testing was valid in light of the results of the various tests performed. It was his opinion that Mr. Gibson met diagnosis criteria for Substance Dependence (Alcohol and Marihuana). On a positive note, Mr. Gibson was willing to attend group and individual psychotherapy sessions, as well as Alcoholics Anonymous meetings.

[19] Ongoing Psychological Treatment

In Exhibit 5, Dr. Ilacqua indicates Mr. Gibson has been attending individual psychological therapy sessions at his clinic and was highly motivated and cooperative.

[20] Dr. Ilacqua's Assessment of Risk and Prognosis

A concern identified by Dr. Ilacqua relates to Mr. Gibson's level of risk for future violent offences and behaviours, which based on the psychological tests is in the moderate range. However, Dr. Ilacqua also indicates "Mr. Gibson does not present with any characteristics of an individual with malicious or criminal intent. He did not demonstrate any aggressive behaviour or ideation. He did not present, either during clinical interview or on a psychometric testing with any characteristics typically associated with individuals who are 'malicious, dishonest, unsympathetic or angry when not intoxicated.'" It was Dr. Ilacqua's opinion, with appropriate monitoring, structure and interventions put towards Mr. Gibson's dynamic factors, the risk level would likely decrease. Dr. Ilacqua stated Mr. Gibson was insightful as to the events leading to his offence and accepts responsibility for his actions and behaviour. He is motivated to attend group and individual treatment.

[21] Dr. Ilacqua's Recommendations

Dr. Ilacqua made a number of recommendations at the end of his 16 page report, which include:

1. Mr. Gibson should participate in psychological treatment for purpose of monitoring and gaining insight into his actions, which he has commenced with Dr. Ilacqua;

2. He should consult with a psychiatrist to address the issues identified in the risk assessment;

3. He should participate in group counselling to assist with emotional regulation, coping strategies for emotionally stressful situations and assertiveness training;

4. He should be encouraged to find a family physician he regularly consults;

5. He should participate in a sleep study;

6. He should abstain from alcohol and illicit drug use, participate in aftercare program, like Alcoholics Anonymous;

7. He should make better use of his spare time and would benefit from participation in organized prosocial activities with an association, team or through volunteering.

Victim Impact Statement

[22] Victim's Injuries and Psychological Impact

Mr. Muhammad did not know Mr. Gibson and this incident has caused Mr. Muhammad to be afraid to go outside. His children are afraid to go to school because they think this could happen to them. The nose fracture caused Mr. Muhammad to have difficulty breathing. He had stitches on the bridge of his nose which prevented him from wearing his glasses. He suffered bruising on his face and two black eyes. He needs to have some of his teeth replaced due to damage caused and there is a reference to implants.

[23] Economic Impact

There has been an economic impact of Mr. Gibson's crime as Mr. Muhammad's cell phone was damaged and his eye glasses were broken. He was off work for two months and is currently not working full-time hours. He had to purchase pain killers and medicine to assist with his physical injuries.

Mitigating and Aggravating Circumstances

[24] Mitigating Factors - Guilty Plea and Remorse

Mr. Gibson does not have a criminal record or any previous involvement with the police. Mr. Gibson entered a plea of guilty to the charge of assault causing bodily harm. Mr. Gibson's guilty plea is a reflection of his remorse and an acceptance of responsibility on his part for his conduct. Mr. Gibson also expressed remorse and regret for his actions to the probation officer, to Dr. Ilacqua and in Court, which I find to be sincere and genuine. These are mitigating circumstances to be considered in determining an appropriate sentence. Additionally, his guilty plea has reduced the court time and the cost required to deal with this matter.

[25] Mitigating Factors - Youth and Rehabilitation Prospects

Mr. Gibson is a youthful first offender who at the time of the commission of the offence was dealing with addictions to alcohol and illicit substances. He has commenced counselling to assist him in his decision not to consume alcohol or illicit substances in the future. He is highly motivated to be assessed by a psychiatrist to identify any undiagnosed mental health issues and then to follow through with treatment.

[26] Mitigating Factors - Positive Response and Insight

Mr. Gibson's PSR is quite positive and reflects insight into the connection between his drinking and drug use and his behaviour. To that end he has stopped using illicit substances and has significantly reduced his consumption of alcohol. The steps he has taken and is continuing to take to address his alcohol and drug use and his mental health issues in my view are significant and will ultimately provide future protection to the public. His acceptance of the psychological risk assessment is important for Mr. Gibson's future rehabilitation, as is his motivation to continue to take the steps necessary to prevent a recurrence of his behaviour in the future.

[27] Mitigating Factors - Family Support and Employment

Mr. Gibson has a close and supportive relationship with his mother and girlfriend. Mr. Gibson has always been gainfully employed, which is a mitigating circumstance.

[28] Aggravating Factors - Victim Impact

There is no doubt the impact on Mr. Muhammad of Mr. Gibson's criminal conduct has been quite significant.

[29] Aggravating Factors - Unprovoked Assault and Serious Injuries

The unprovoked nature of Mr. Gibson's assault on the victim is an aggravating factor to consider on sentence. As indicated above, his assault resulted in Mr. Muhammad sustaining serious injuries, which, although not life threatening, caused Mr. Muhammad considerable pain and discomfort and expense.

[30] Sentencing Principles - Deterrence and Rehabilitation

Although deterrence and denunciation are significant sentencing principles to be applied in a case involving assaultive behaviour that caused bodily harm, rehabilitation continues to be an important consideration in sentencing Mr. Gibson because of his relative youth and the fact he is a first offender.

The Appropriate Sentence

[31] Initial Assessment

Mr. Gibson has no criminal record. He has taken the initiative to seek out a psychological risk assessment to better understand why this incident occurred. Mr. Gibson recognized his abuse of alcohol and marihuana, as well as his use of other illicit substances, including cocaine, played a significant role in his unprovoked assault on Mr. Muhammad. Further, Mr. Gibson was concerned his previous diagnosis of ADHD and anxiety also played a role in conduct he had difficulty explaining or understanding. In my view, these initial steps and Mr. Gibson's desire to continue receiving psychological/psychiatric counselling are important in assessing the impact of the criminal justice system on this young man's future conduct and behaviour. He also has strong family support in his mother and in his current girlfriend and friends who have assisted him since this incident occurred.

[32] Principle of Restraint for First Offenders

An added feature in Mr. Gibson's sentencing is he is a relatively youthful first offender. As such, it is important to consider the principle of restraint. In R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont. C.A.) at page 377, Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence:

It is the view of the Court that the sentence imposed upon the appellant does reflect an error in principle. 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. In our view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to be imposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence. [Emphasis added]

[33] Minimum Necessary Intervention

In R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.) Rosenberg, J.A. made the following comments concerning R. v. Stein, supra, (at paras. 18 and 19) as well as addressing the issues raised in sentencing a first offender:

As the Stein case shows, 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".

The principle embodied in now s. 718.2(e) was of particular significance in this case. It provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders".

[34] Restraint Principle and Rehabilitation

In R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34, the Ontario Court of Appeal reaffirmed the judgment in Priest and further held:

…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.

…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender. [Emphasis added]

[35] Conditional Sentence Availability

As a result of the Crown electing to proceed by summary conviction, if I determine a period of incarceration is appropriate, any sentence I impose will be below 18 months or less. Indeed, the Crown is only seeking a four (4) to six (6) month sentence. Mr. Maini is seeking a conditional sentence of imprisonment. Mr. Hendry and Ms. Herbert conceded a conditional sentence is an available sentence in this matter. Consequently, I must consider the appropriateness of a conditional sentence pursuant to s. 742.1 of the Criminal Code.

[36] Prerequisites for Conditional Sentence

There are five prerequisites for the imposition of a conditional sentence.

(1) The offender must be convicted of an offence that is not specifically excluded (e.g. sexual assault, when prosecuted by indictment).

(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 sentence of imprisonment that is less than two years.

(4) The safety of the community would not be endangered by the offender serving the sentence in the community.

(5) The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[37] Application of Prerequisites

The facts of this case meet the first four pre-conditions. The Crown did not proceed by indictment, there is no minimum sentence applicable, the Crown is seeking a four (4) to six (6) month sentence and the safety of the community would not be endangered by Mr. Gibson serving the sentence in the community. It is my view the safety of the community would not be endangered by permitting Mr. Gibson to serve a custodial sentence in the community for the following reasons. Mr. Gibson has no criminal record. He is relatively youthful and is currently 25 years of age. Mr. Gibson has been on bail for just over a year and has not breached any of its terms, which supports Mr. Maini's submission that Mr. Gibson will comply with court orders.

[38] Serious Consideration of Community-Based Sentences

In R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6, at para. 127, #7, the Supreme Court directed that where the first four pre-conditions of s. 742.1 are met, sentencing judges must give serious consideration to community based sentences. The only pre-condition remaining therefore is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[39] Fundamental Purpose of Sentencing

The purpose of sentencing is set out in s. 718 of the Criminal Code. I am of the view it is important to indicate what this section sets out and the sections that follow because I believe this is where the applicable principles of sentencing are defined for criminal cases. Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

a) Denounce the unlawful conduct;

b) Deter the offender, and others, from committing such an offence;

c) Separate the offender from society, where necessary;

d) Assist in the rehabilitation of the offender;

e) Provide reparation for harm done to "victims", or the community; and

f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

How much weight I place on any one objective will depend on the facts of each individual case.

[40] Fundamental Principle of Proportionality

The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary

[41] Proportionality and Fairness

As Rosenberg J.A. held in R. v. Priest, [1996] O.J. No. 3369, at para. 26:

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.

[42] Aggravating and Mitigating Circumstances

Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances, which I have set out above. This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

[43] Individual Deterrence and Rehabilitation

As indicated above, Mr. Gibson is a first offender and I am guided by the principles reflected in Dubinsky and Batisse referenced above, which held individual deterrence and rehabilitation are important sentencing principles and should not be ignored in determining an appropriate sentence.

[44] Conditional Sentence as Punitive Sanction

In R. v. Proulx, supra, at para. 22, the Supreme Court held a conditional sentence is a "punitive sanction capable of achieving the objectives of deterrence and denunciation." In para. 127, #8, the Court held:

A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.

[45] Availability of Conditional Sentences

Initially the SCC held in Proulx that a conditional sentence was in principle, although not always in practice, available for all offences where the prerequisites were met as no specific offence or category of offence was presumptively excluded from the conditional sentence option: R. v. Proulx, supra, at paras. 79-81 (see also R. v. Jacko, 2010 ONCA 452, [2010] O.J. No. 2583 (C.A.), at para. 69). The current legislation sets out specific offences and categories of offences that are not eligible for the imposition of a conditional sentence. A conditional sentence is available for an assault bodily harm offence, where the Crown has proceeded by way of summary conviction. Therefore, a conditional sentence, depending on the severity of the conditions, may nonetheless be consistent with the fundamental purpose and principles of sentencing, even where deterrence and denunciation are the predominant sentencing principles (see Jacko, supra, at para 71).

[46] Punitive and Restorative Objectives

Lamer C.J., in Proulx, supra, at para. 100, explained that a conditional sentence can achieve both punitive and restorative sentencing objectives:

To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstance

[47] Principle of Restraint and Conditional Sentences

The principle of restraint set out in s. 718(2)(d) and (e) has taken on a new prominence as a result of the introduction of conditional sentences pursuant to s. 742.1. In R. v. Gladue, [1999] S.C.J. No. 19, at para. 40, Cory J. said:

... The availability of a conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only when no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in s. 718.2(e) must be construed and applied in this light.

[48] Sentencing Range for Assault Causing Bodily Harm

The jurisprudence indicates a range of sentence for assault causing bodily harm ranging from conditional discharges to conditional sentences, where the Crown proceeds by summary conviction, to sentences in the upper reformatory, and in rare cases, low penitentiary sentences where the injuries are serious, the offender has a criminal record for similar offences and the Crown has proceeded by indictment.

[49] Individualized Sentencing

It is clear that any sentence must focus on the protection of the public by the imposition of a penalty that denounces this type of conduct and provides for both general and specific deterrence. At the same time, the sentence must be individualized, as well as reflect and encourage as much as possible any apparent rehabilitative prospects. The appropriate sentence is determined by the circumstances surrounding the commission of the offence, including the nature of the assault and the seriousness of the injury caused and the individual circumstances of the accused, including the accused's background, mental health issues, addictions, or criminal record.

[50] Mr. Gibson's Positive Response

Mr. Gibson has responded in a positive way to being charged with this serious offence with a great deal of motivation and determination to gain insight and awareness into the reasons why he engaged in this unprovoked assaultive behaviour towards a stranger. The report of Dr. Ilacqua and the Presentence Report are both positive and in my view bode well for Mr. Gibson's continued rehabilitation. He is currently engaged in psychological counselling and is motivated to continue this counselling and to follow Dr. Ilacqua's recommendation to be assessed by a psychiatrist. He has stopped consuming illicit substances and significantly reduced his consumption of alcohol. He has support from his mother and girlfriend.

[51] Compliance with Court Orders

As I indicated above, Mr. Gibson has been subject to conditions of release on an undertaking and he has had no further involvement with the police since his arrest in December of 2016. Further, he has not had any contact with the victim. In my view, this demonstrates and supports the fact he will comply with a court order, such as a conditional sentence.

[52] Nature of Conditional Sentences

It is important to note that a conditional sentence can be for a longer duration than a 'real' jail sentence, which will result in the imposition of restrictions for a longer period of time. In fact, in Proulx, the Supreme Court indicated where a conditional sentence is consistent with the fundamental purpose and principles of sentencing, the more serious the offence and the greater the need for denunciation, "the longer and more onerous the conditional sentence should be" (at para. 106). It is important to recognize that a conditional sentence is a jail sentence, which is permitted to be served in the community to allow an offender to maintain employment, continue receiving counselling and treatment to address issues such as addiction or mental health, which form the underlying cause for the commission of the offence.

[53] Balancing Factors and Restraint Principle

I am of the view that on a careful balancing of all of the relevant factors neither a community based jail sentence with onerous conditions nor a custodial sentence as proposed by the Crown can be said to be unfit. In those circumstances, what tips the balance between the two alternatives is the important principle of restraint that underlies s. 742.1 and 718.2(d) and (e), (see R. v. Wismayer, [1997] O.J. No. 1380 (C.A.), at paragraphs 67-68 and R. v. Proulx, at para. 100). Further, it is my view the principles of deterrence and denunciation can be properly addressed by a 9 month conditional sentence with restrictive conditions involving house arrest and community service. Finally, it is my view the principle of rehabilitation, protection of the public and reparations to the community together with the promotion of a sense of responsibility on Mr. Gibson's part, can also be best addressed through a conditional sentence as opposed to a 'real' jail sentence, followed by lengthy period of probation.

[54] Conditional Sentence Order

Consequently, it is my view a conditional sentence in the circumstances of this case can and does meet all of the five prerequisites set out in s. 742.1 of the Criminal Code. I will discuss with counsel the restrictive conditions I anticipate imposing respecting this conditional sentence.

[55] Probation Following Conditional Sentence

The conditional sentence will be followed by two years of probation and I will discuss the conditions with counsel.

[56] Ancillary Orders

Finally there will be two ancillary orders: first a weapons prohibition pursuant to s. 110 for three years and Mr. Gibson will provide a DNA sample pursuant to s. 487.051, as assault bodily harm (s. 267(b)) is a primary designated offence.

Released: December 19, 2017

Signed: Justice Peter C. West