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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of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.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

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: 2020-11-26

Court File No.: Halton 19-1243

Between:

Her Majesty the Queen

— and —

M.M.

Before: Justice D.A. Harris

Heard on: February 27, October 13, 2020

Reasons for Sentence released on: November 26, 2020

Counsel:

• Charon Kerr and Amy Stevenson, counsel for the Crown
• Gloria Dykstra and Brendan Neil, counsel for the defendant M.M.

Decision

D.A. HARRIS J.:

INTRODUCTION

[1] M.M. pled guilty to assaulting her three-year-old son R.D.

[2] Crown counsel had elected to proceed summarily.

[3] M.M. is before me today to be sentenced.

[4] Crown counsel suggested that I should suspend sentence and place M.M. on probation for three years.

[5] She also requested a weapons prohibition and a DNA order.

[6] Counsel for M.M. suggested that I grant her a conditional discharge.

[7] I find that a conditional discharge running for three years is the appropriate sentence.

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

• (1) The law regarding conditional discharges,
• (2) The fundamental purpose and principles of sentencing,
• (3) The facts underlying the offence,
• (4) The background of M.M., and
• (5) Analysis.

CONDITIONAL DISCHARGE

[9] Section 730(1) of the Criminal Code provides that:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[10] There is no minimum sentence here. The offence is not punishable by imprisonment for 14 years or life. So, I can grant M.M. a conditional discharge if I consider it to be in her best interests and not contrary to the public interest.

[11] In Regina v. Sanchez-Pino, the Ontario Court of Appeal stated that:

16 … In my view, the primary purpose of Parliament in enacting that section was to provide that an individual, although found guilty of what may loosely be described as a "less serious" offence, would not have a conviction recorded against him in all cases. In other words, he would not "have a criminal record" as a result of the occurrence.

17 The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing.

18 Obviously the section is not confined to "simple cases of possession of marijuana". It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.

[12] In R. v. Fallofield, the British Columbia Court of Appeal made a number of observations regarding the discharge provisions, including the following:

• (1) Discharges are not limited to technical or trivial violations;
• (2) Generally, the requirement that a discharge would be in the best interest of the accused would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions; and
• (3) While the public interest in the deterrence of others must be given due weight, it does not preclude the judicious use of the discharge provisions.

[13] In R. v. Meneses, the Ontario Court of Appeal took into account:

• (1) that the appellant was a widow with children;
• (2) that she has had a good standing in the community;
• (3) that she has no criminal record;
• (4) that her misconduct was an isolated one and out of keeping with her past good character; and
• (5) that a conviction might have a detrimental effect on her ability to obtain gainful employment in the profession of dentistry of which she already has some expertise.

[14] It was in the public interest for this woman to be given every opportunity to become a useful person in the community and earn a livelihood for herself and her family.

[15] Further:

The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way when other considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit such an offence. A conviction and a fine would not be a deterrent to a professional shoplifter, but, of course, such a person would not receive either an absolute or conditional discharge.

[16] Finally:

It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing the offence. In this case the accused is subject to the terms of the probation order, and in the event that the terms of the probation order are met, she will have earned her discharge.

[17] I also note the following comments by Justice Hill of the Ontario Superior Court of Justice in two summary conviction appeals:

• (1) Discharges are not restricted to trivial matters;
• (2) Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction;
• (3) Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration;
• (4) A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge.

[18] The above comments were referred to recently in R. v. Berseth, a Summary Conviction Appeal before Durno J. where he wrote:

In R. v. Hayes, [1999] O.J. No. 938 (S.C.J.), Hill J. provided the following summary with regards to discharges. Discharges are not restricted to trivial matters. Where an offender has acted out-of-character, perhaps in the context of unusual pressure or stress a discharge may be fit. Where a criminal record will have a tendency to interfere with employment or perhaps important travel, a discharge may be given serious consideration. A suspended sentence is not necessarily a greater deterrent than a discharge.

[19] Before I can determine whether a conditional discharge is in M.M.'s best interests and not contrary to the public interest, I must consider the fundamental purpose and principles of sentencing.

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

[20] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code 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.

[21] 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.

[22] 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.

[23] 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.

[24] 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.

[25] 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.

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

[27] Section 718.01 of the Criminal Code came into effect in 2005 and 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.

[28] 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.

[29] Section 718.2(a)(ii.1) provides that evidence that an offender, in committing an offence, abused a person under the age of 18 years, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[30] 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.

[31] Section 718.2(a)(iii.1) provides that it is an aggravating circumstance if the offence had a significant impact on the victim, considering his age and other personal circumstances, including his health and financial situation.

[32] The Supreme Court of Canada (in R. v. Friesen) and the Ontario Court of Appeal (in R. v. Lis) have provided a detailed analysis of how these statutory sentencing principles are to be applied in cases where an adult has abused a child.

[33] I start by noting that while R. v. Friesen was a case involving the sexual abuse of a child, it is clear that the term "abuse" in that decision is not limited to sexual abuse.

[34] Both decisions stress that the enactment of section 718.01 means that it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence.

[35] In addition, Parliament has identified the abuse of persons under the age of 18 as a statutory aggravating factor and identified the abuse of a position of trust or authority as an aggravating factor.

[36] The Court of Appeal stated that:

Parliament's choice to prioritize denunciation and deterrence as the sentencing objectives for offences involving the abuse of children reflects a reasoned response to the inherent wrongfulness of these offences, the enhanced moral blameworthiness, and the serious harm that these offences cause to the most vulnerable in our community. A sentence that expresses denunciation condemns the offender for encroaching on our society's basic code of values: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81. As an objective of sentencing, deterrence refers to the imposition of a sentence for the purpose of discouraging the offender and others from engaging in criminal conduct. When general deterrence is factored into the determination of a fit sentence, an offender is punished more severely. Not necessarily because she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity: R. v. P. (B.W.), 2006 SCC 27, [2006] 1 S.C.R. 941, at para. 2.

[37] The Supreme Court of Canada does however make it clear that other relevant sentencing objectives that may reduce an offender's moral culpability must still be considered. Assault, as an offence embraces a wide spectrum of conduct and an offender's conduct will be less morally blameworthy in some cases than in others. Further, the personal circumstances of offenders can have a mitigating effect.

[38] Section 718.2(d) provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[39] Section 718.2(e) provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[40] 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.

[41] In R. v. Priest, supra the Ontario Court of Appeal made it clear that much of this is simply a codification of the existing law, especially with respect to youthful first offenders. That case also made it clear however that this principle is of much less importance in cases involving very serious offences and offences involving violence. The case before me is certainly one of those cases.

[42] Recently, the Ontario Court of Appeal stated the following in R. v. Disher:

The principle of restraint, as reflected in ss. 718.2 (d) and (e) of the Criminal Code, directs that a first period of incarceration imposed on a young first offender should be as short as possible, while giving adequate weight to the principles of general deterrence and denunciation: R. v. Rocchetta, 2016 ONCA 577, [2016] O.J. No. 3871, at para. 35. As s. 718.2(e) specifically directs, while the restraint principle should be considered for all offenders, particular attention should be given to the circumstances of Aboriginal offenders, a class of offenders to which Ms. Weaver belongs. Sentencing judges are to give effect to the principles in s. 718.2(e) even where the offence is serious and the sentence involves imprisonment: R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at para. 36.

[43] The Supreme Court of Canada noted in Gladue v. The Queen 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.

[44] At the time of this offence, the maximum sentence for assault was imprisonment for six months when the Crown elects to proceed summarily.

[45] Before applying these principles, I must take into account the facts underlying the offence and the background of M.M.

THE OFFENCE

[46] R.D. was 3 years old and lived with his mother, M.M. He began attending a daycare on November 12, 2018.

[47] On November 19th, 2018 while assisting R.D. in the washroom a daycare worker noticed a small, light coloured bruise to one side of his buttocks. When she asked what happened, R.D. told her that he "fell off mommy's bed".

[48] On November 23rd, 2018, the worker observed bruising on his forehead at his hairline, a small bruise on his cheek, a small bruise on the right side of his neck under the jawline and bruising on his ears. She became concerned and took him to the washroom. There she discovered that his entire buttocks area was covered with extensive bruising.

[49] She contacted her employer which prompted contact with the Halton Children's Aid Society and ultimately with Halton Regional Police.

[50] R.D. was examined at McMaster Hospital where he was examined by Dr. Jessica Gantz, at the Child Advocacy and Assessment Program. She confirmed that the injuries were highly suspicious of being the result of significant inflicted trauma.

[51] R.D. made comments implicating J.G., a male friend of M.M.

[52] On March 9, 2019 J.G. was arrested. He was subsequently released on a Promise to Appear and Undertaking.

[53] On March 25th, 2019 M.M. attended a police station and admitted to striking her son multiple times out of frustration on the buttocks thereby causing the extensive bruising. She further admitted to grabbing R.D. by the face and screaming at him during the same incident because she was frustrated and exhausted and he would not go to sleep.

[54] When she learned that J.G. was charged with assaulting R.D., she felt that she needed to come forward.

[55] M.M. was arrested and charged and subsequently released on a Promise to Appear and Undertaking with conditions not to contact her son.

VICTIM IMPACT

[56] There was no formal Victim Impact Statement filed.

[57] M.M.'s mother provided input as the legal guardian of R.D. She indicated that R.D. was doing well with her.

[58] She expressed the hope that M.M. will be able to reunite with him someday soon.

BACKGROUND OF M.M.

[59] I received a Pre-sentence Report and a letter from the Children's Aid Society which provided me with the following information about M.M.

[60] She is 26 years old.

[61] She was the youngest of three sisters.

[62] Her parents separated when M.M. was approximately 2 years old. The divorce was "messy". Mother had full custody of the girls who rarely saw their father, and never spent a night at his home.

[63] Her mother remarried J.B., who had two children from a previous relationship.

[64] M.M. always felt loved by her stepfather who "always took care" of them.

[65] She grew up in Limehouse on a country property. She had a stable and happy childhood filled with sports such as soccer, volleyball and hockey.

[66] She completed high school in Georgetown with honours in 2012. She then attended Mohawk College in Hamilton for Child and Youth Worker. At that time, she met B, the father of her son. She quit college after first year to reside with B.

[67] This relationship was "unhealthy" and he was very controlling. They moved in together in 2014. They relocated to Alberta in January 2015 and R.D. was born in May 2015.

[68] In May 2018, she left B and returned with her son to her parents' home. M.M.'s mother stated that B telephoned her and her husband and threatened to kill them, and that after M.M. broke up with him, he burned her belongings and posted it on Facebook. She is uncertain of the amount of abuse M.M. endured as she has not told them.

[69] M.M. reported that while she was living with B she experienced some controlling behaviour by him. She noted she felt that she took care of the children while he "did nothing". She said that he did not physically abuse her, but they had very little income and were always fighting. She last spoke to him in the summer of 2018.

[70] M.M. remained in the family home from May to October 2018 when her parents relocated to Fenelon Falls, Ont. M.M. then relocated to Milton. She currently resides in a basement apartment, paying $1,000.00 per month rent. She would like to remain in Milton.

[71] After college, M.M. worked at a few menial labour positions and then as a real estate assistant from 2016 to 2017. She was unemployed from June to November 2018, at which time she commenced working for a cleaning company for one month. She was then employed as a housekeeper at a hotel from February to July 2019. From July 2019 to January 2020, she was employed in customer service for a trucking company. Since January 2020 to present, she has been employed at another local trucking company in the sales department. An employment confirmation letter dated March 18, 2020 stated she earns an annual salary of $45,000.

[72] M.M. started using alcohol in high school, at the age of 15 years. She drank socially on weekends with friends. She does not drink alcohol often and that she "never really" used drugs.

[73] She has always suffered from anger management issues. When she was residing on her own with her son she was always worried about money. Further, she became depressed after her separation from B. At that time her parents helped with the care of her son, but when she relocated on her own to Milton, her depression became worse. She described feeling frustrated with R.D., who always seemed to be crying, and did not want to go to sleep. She admitted that on a "few" occasions she "hurt" R.D. She acknowledged that this was wrong, but she did not know how else to handle the situation.

[74] She has been under the care of her physician and is currently taking Wellbutrin for depression daily since February 2020. She has seen a psychiatrist.

[75] She has been involved with Halton Children's Aid Society since the offence date. She has been cooperative with the society and she has completed their "parenting with love" program.

[76] M.M. saw Michaela Schwandner, therapist, with Thrive Counselling on three occasions from September to November 2019. They discussed her abusive relationship, depression, anger issues and irritability. M.M. discontinued counselling after the three sessions and several attempts to contact her proved unsuccessful.

[77] CAS has indicated that she needs to continue to follow their requirements and that they recommend further psychiatric therapy and anger management counselling. She appears willing to continue to take the necessary steps towards recovering care of her son and to promote her mental health.

[78] She lost custody of R.D. due to the assault charge. He was placed in Kinship with her parents since December 2018 and he is apparently thriving in their home. She had no contact with him after she was charged in March 2019. Following her guilty plea, her release terms were varied on consent and as of February 27, 2020 she began having telephone calls with him. This has progressed to in-person access supervised by her mother. These changes were approved of by the Children's Aid Society who wrote the following in February 2020:

I am writing this letter for you at your request in regards to our involvement with your family and a letter to support supervised access.

The Society became involved with your family due to the concerns that you had physically abused R.D. There were charges laid and you had a no contact order with R.D. R.D. was placed with maternal grandmother in Kawartha Haliburton Region. The society decided to open an ongoing file with you on Jan 2019.

While working with the Society you have been very remorseful regarding your actions and have taken the necessary steps to ensure an incident like this does not occur again. You have completed a parenting program through our agency, access individual counseling through Thrive, followed up with your family doctor regarding your mental health challenges, and also connected with psychiatrist. Since you are accessing the supports, on medication, and making a positive change in your life the Society would support your request for bail variation to allow supervised access by a third party approved by the Society. The society will continue to stay involved with your family to help ensure R.D. is safe and you are referred to the appropriate supports where required.

ANALYSIS

[79] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.

[80] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."

[81] The primary objectives in sentencing M.M. are deterrence and denunciation given the nature of the offence. I cannot however lose sight of the other principles of sentencing.

[82] I must craft a sentence that is proportionate to the gravity of the offences committed and the degree of responsibility of M.M. and yet, at the same time, one that is responsive to her unique circumstances.

[83] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[84] The aggravating factors are found in the facts of the offence itself.

[85] M.M. struck her three-year-old son on the buttocks.

[86] She struck him hard enough that his buttocks were bruised.

[87] She lashed out at her child because she was tired and frustrated and angry.

[88] This was an egregious breach of trust. She was supposed to protect her son from harm. Instead she physically abused him.

[89] There are mitigating factors.

[90] She was and still is a young woman.

[91] She has no prior criminal record.

[92] She pled guilty. I take that to be an acceptance of responsibility and an expression of remorse.

[93] She accepted responsibility and expressed her remorse initially when she went to the police and admitted that she was the guilty party here rather than J.G.

[94] Her actions made it unnecessary for anyone to have to go through the added stress of a trial.

[95] She continued to express her remorse to the Children's Aid Society, to the author of the Pre-sentence Report, and to this court.

[96] M.M. had been in an abusive relationship with the father of R.D. She was experiencing financial difficulties. She was stressed and having difficulty coping with the demands of being a single parent.

[97] None of this constitutes a mitigating factor. The mitigating factor is that she has since recognized that she has these various issues and that she has taken and continues to take steps to address them. She has seen her family doctor and a psychiatrist. She is taking antidepressant medication. She has taken courses recommended by the Children's Aid Society and is prepared to continue to take whatever courses they require of her in the future.

[98] She has already experienced significant consequences for what she did.

[99] She lost not only custody but also access to her child for almost one year. She has gradually earned increased access to him, but custody still eludes her. She realizes that she has to prove herself to the Children's Aid Society before this will change.

[100] Crown counsel has agreed that these circumstances are such that M.M. need not go to jail. She asked me to suspend sentence.

[101] Counsel for M.M. asked me to grant her a conditional discharge.

[102] So, one issue before me is whether a conditional discharge can serve as a sufficient deterrent and adequately denounce M.M.'s behaviour.

[103] I am satisfied that the loss of custody and access to her child has had a greater impact on her than either a suspended sentence or a discharge will.

[104] She has clearly learned that her behaviour will not be tolerated in our society and that it cannot be repeated. Even more than that, she realizes that she must do much better in the future if she hopes to resume a life with her son. She has matured greatly and learned much since she committed this offence two years ago.

[105] Accordingly, I am satisfied that the principle of specific deterrence has been addressed already.

[106] With regard to general deterrence, I remind myself that appeal courts in Ontario have stated that a suspended sentence is not necessarily a greater deterrent to others than a conditional discharge.

[107] I am satisfied that in the circumstances of this case, a conditional discharge does satisfy the principles of denunciation and deterrence of others who might contemplate committing a similar offence.

[108] That then leaves the ultimate issue in this case.

[109] After considering all of the above, I am satisfied that a conditional discharge would not be contrary to the public interest.

SENTENCE

[110] For all of the above reasons, I sentence M.M. to a conditional discharge for three years. The conditions will require that M.M.:

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 to a probation officer within two 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 her supervision;

5. cooperate with her probation officer. She must sign any releases necessary to permit the probation officer to monitor her compliance and she must provide proof of compliance with any condition of this order to her probation officer on request;

6. for the first six months of this order, she will remain in her residence or on the property of her residence at all times daily between the hours of 11:30 pm and 5:00 am except for any medical emergency involving her or any member of her immediate family, or travelling directly to and from and while at work, or with the prior written permission of her probation officer;

7. any contact or communication in any way, either directly or indirectly, by any physical, electronic, or other means, with R.D. will be in accordance with an agreement with the Halton Children's Aid Society or pursuant to a family court order;

8. attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, including anger management, parenting, stress management, life skills or any other program recommended by her probation officer;

9. make reasonable efforts to seek and maintain suitable work.

[111] I also make the following ancillary orders.

1. This is a secondary designated offence and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from M.M. of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

2. Pursuant to section 110 of the Criminal Code, for the next five years M.M. is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

Released: November 26, 2020

Signed: Justice D.A. Harris