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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 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: July 6, 2018

Court File No.: Newmarket 17-01242

Between:

Her Majesty the Queen

— and —

AFFS

Sentencing

July 6, 2018

Counsel:

• Mr. Martin Dionne — counsel for the Crown
• Mr. Sina Shabestary — counsel for the defendant

Decision

KENKEL J.:

Convictions and Offences

[1] AFFS was convicted at trial of Assault with a Weapon s.267(a) and two counts of Threatening to Cause Death s.264.1(2) from an incident in Hamilton where he held a knife towards his pregnant girlfriend during an argument, threatening to kill her and kill their child. He was convicted of Assault s.266, Mischief Under s.430(4) and a further count of Threatening to Cause Death s.264.1(2) arising out of a chance meeting with his then ex-girlfriend in Aurora where he spit in her face, threatened to kill her and later attacked her car as she left causing significant damage.

Aggravating Factors

[2] Beyond the serious acts described in the offences, the following circumstances aggravate sentence:

• The offences are in the context of a domestic relationship
• With respect to the Hamilton offences the accused was in violation of a house arrest bail at the time
• In Hamilton the complainant and the witness were both pregnant
• The impact of the offences on the victim
• The impact of the Hamilton offences on the witness BL who was pregnant. Shortly after her intervention in the highly stressful knife incident she went to the hospital with bleeding.

Background of the Accused

[3] AFFS is 28 years of age, the second youngest of 5 sons. He lives at home with his family. He was last employed in 2016 as a labourer. He's had two children with the victim.

Mitigating Factors

[4] There are several mitigating factors:

• At the time of the offences the accused had no criminal record.
• He has a stable home and continues to enjoy the support of his family as shown in the letter provided by his brother
• None of the offences were planned. The accused did not bring a knife to Hamilton. He did not expect to meet the complainant in the Aurora bar.
• He has served pre-trial custody and also spent an extended period on house arrest

Sentencing Submissions

[5] The Crown submits a global sentence of 12 months in custody less credit for pre-trial custody would be appropriate. The defence submits that a global sentence of 3 months less credit would suffice.

Sentencing Principles

[6] For offences of violence in a domestic context, denunciation and general deterrence are the primary considerations on sentencing. That's particularly important for the offences where a knife was used. When a knife is pointed at a victim, threats of death are real and have significant impact even where the offender does not carry out the threat. The sentence for those offences must reflect that impact upon the complainant, the impact on the third party witness and the real risk of harm posed in those circumstances. The further death threat and other offences in Aurora must also be denounced. The impact on the complainant of those offences including the damage to her vehicle must be considered. The fact that the accused had no record, is relatively young and still has good potential for rehabilitation also contribute to a fit sentence. The sentence imposed must be proportional to the gravity of the offences and the circumstances of the offender.

Pre-Trial Custody Credit

[7] AFFS has 4 days pre-trial custody related to his arrest and subsequent arrests and s.524 proceedings on this Information. I'm satisfied that 8 days of his pre-trial custody on Information #18-04530 may be considered with respect to this sentence per R v Barnett 2017 ONCA 897. The fact that the accused is not in position to apply for bail on the new charges reasonably may relate in part to the fact of these charges and now findings of guilt on Information #17-01242. Given the fact that he is now in custody on other matters I cancelled his bail on this matter after the findings of guilt on June 13th. The accused now has 24 further days of pre-trial custody on this Information. His total pre-trial custody is 36 days (4 + 8 + 24). Both parties agree enhanced credit applies at 1.5/1 per R v Summers 2014 SCC 26. Total credit for pre-trial custody is therefore 54 days (36 x 1.5).

Restrictive Bail Credit

[8] The defence applies for further credit given the restrictive terms of the house arrest bail. See: R v Downes. AFFS was released on that bail on February 11, 2017. He was released after each allegation of breach. He spent 481 days or 1 year, 3 months and 27 days on those house arrest bails from February 11, 2017 to June 6, 2018. He's been in custody on other matters since June 6, 2018.

[9] AFFS was arrested in February 2017 and his three day trial began in February of 2018. In the interim he was on a house arrest bail that required he be with one of two people when he was outside the home. He was restrained from having any contact with the complainant except pursuant to a family court order and from possessing a weapon. It's not plain what impact the requirement that he be accompanied when outside the home had upon him. His brother's letter indicates that the fact that AFFS was home was a help to his ailing father and in one instance may have saved his father's life. The accused was twice arrested for breach in July and September of 2017 and pled guilty to one of those breaches. He was breaching a house arrest bail when he committed the Hamilton offences. I find these circumstances detract from the credit that can be given for the restrictive bail, but I agree with the defence that some consideration should still apply.

Sentence Imposed

[10] Taking into account all of the circumstances set out above, I find the least restrictive sentence that meets the purpose and principles set out in s.718 is a custodial sentence of 180 days apportioned as follows:

• Hamilton – Assault with a Weapon – 90 days
• Hamilton – Threatening to Cause Death – 90 days concurrent
• Hamilton – Threatening to Cause Death – 90 days concurrent
• Aurora – Threatening to Cause Death – 60 days consecutive
• Aurora – Assault – 10 days concurrent
• Aurora – Mischief – 30 days consecutive

[11] From the global sentence of 180 days I deduct 54 days enhanced credit for pre-trial custody leaving 126 days. I apportion 120 days credit for the time spent on a restrictive bail (481 x .25). That leaves a remaining sentence to be served of 6 days.

Probation and Conditions

[12] AFFS will be sentenced to serve 6 days further on each count concurrent. That will be followed by a period of probation for 2 years. In addition to the statutory conditions AFFS will be bound to:

• Report to probation within 5 business days of release and thereafter as required
• Not contact or communicate in any way, directly or indirectly by any physical, electronic or other means with the witness (named)
• Not to contact or communicate in any way, directly or indirectly by any physical, electronic or other means with the complainant (named) except through legal counsel or pursuant to a Family Court Order made after today's date
• Not be within 100m of any place where you know the complainant (named) or any member of her immediate family to live, work or go to school unless pursuant to a Family Court Order made after today's date
• Take counselling for anger management as directed by probation
• Take PARS counselling as directed by probation
• Sign any releases necessary for probation to monitor your counselling or other compliance with these conditions
• Not possess any weapons as defined by the Criminal Code

Firearms Prohibition and DNA Registration

[13] On the Assault with a Weapon charge there will be a s.109 order prohibiting the accused from possessing firearms or other items set out in that section for 10 years. Assault with a weapon is a primary, compulsory designated DNA offence pursuant to s.487.04. Threatening death, assault, mischief are secondary DNA offences. Even if it were the secondary offences alone, the circumstances of these offences plainly require registration in the public interest. I will order that the accused provide a sample of his DNA for registration on the national databank.

Victim Fine Surcharge

[14] Finally, a victim fine surcharge applies with respect to each count. AFFS will have 18 months to pay.

Delivered: July 6, 2018

Justice Joseph F. Kenkel