Ontario Court of Justice

Date: 2021 07 12 Court File No.: Brampton 20-6016

Between:

HER MAJESTY THE QUEEN

— AND —

SHERLOCK DOWNEY

Before: Justice Paul T. O’Marra

Heard on: May 3 and June 29, 2021 Reasons for Sentence, released on: July 12, 2021

Counsel: A. Simitsis, counsel for the Crown A. Domacina, counsel for the accused Sherlock Downey

P. T. O’MARRA J.:

Introduction

[1] On May 3rd, 2021, Mr. Downey pleaded guilty to 4 criminal offences, specifically Assault Cause Bodily Harm by strangulation x2, uttering a threat to cause death and breach of a probation order. I ordered a PSR and a Gladue report as I raised the issue of Mr. Downey's aboriginal heritage. I also judicially pre-tried this matter on several occasions. On June 29, the Crown and Defence made sentencing submissions. A letter was provided by Amanda General, the Gladue writer from Toronto Aboriginal Legal Services that set out two reasons that a Gladue report could not be completed in this case. Firstly, the Aboriginal Legal services were unsure, as Mr. Downey was, of his aboriginal ancestry. Secondly, even if Mr. Downey's aboriginal ancestry was confirmed it would be very difficult to establish how being an indigenous person has impacted Mr. Downey's life experiences.

[2] After hearing submissions, I adjourned sentencing to today in order to prepare my reasons. For all intents and purposes this is a joint submission for Mr. Downey to be sentenced to imprisonment for a period of two years less one day, minus his dead time, followed by a three year probation order, a DNA order, pursuant to section 487.051 and a 20 year weapons prohibition pursuant to s. 109 of the Code. The only substantive issue to be decided is how much pre-sentence credit should Mr. Downey receive.

The Facts and Other Circumstances

[3] Before I begin, I must say that acts of violence committed by Mr. Downey were brutal, unprovoked, gratuitous, prolonged and sadistic. If it was not for the intervention of Peel police officers, there was very much a real possibility that Ms. Christie may have been strangled to death.

[4] The facts and circumstances of the offences were submitted in an agreed statement of facts which also included other facts that I have been asked to take into consideration as aggravating factors on sentence.

[5] Mr. Downey and the Victim, Nicole Christie were involved in an intimate relationship for approximately one year. They had been broken up for approximately 2 months.

[6] There had been previous domestic violence within the relationship that went unreported for some time. Police had attended for domestic related incidents between the parties on five different occasions; however, the victim did not report the abuse as she was fearful of Mr. Downey. Ms. Christie described Mr. Downey as jealous, controlling and possessive during their relationship.

[7] Ms. Christie is 5'2, and approximately 100 pounds. Mr. Downey is 5'5 and approximately 160 pounds.

[8] Mr. Downey was placed on a probation order by Justice Kerr of the Ontario Court of Justice in Sudbury on May 22, 2020 for a period of 18 months for Assault and Human Trafficking. He was also subject to a release order for robbery.

[9] Mr. Downey has significant substance abuse problems. He is more violent when under the influence of drugs. On the day of his arrest, Mr. Downey had been consuming crack cocaine and alcohol.

[10] While providing a KGB statement in relation to the most recent Assault on June 29th, 2020, Ms. Christie advised police of several unreported historical domestic assaults. Ms. Christie advised there was an excess of 50 incidents where she was physically abused by Mr. Downey during their one-year relationship.

[11] In October 2019, Ms. Christie and Mr. Downey were together at a residence in Brampton. An argument between the two parties ensued. The argument escalated to the point where the Mr. Downey twisted a black pair of tights and placed it around the Ms. Christie's neck and began to strangle her. As the she was losing consciousness, Mr. Downey stated, "I will kill you and put your body in the dumpster." He also stated, "I will go to jail for killing you" while he strangled her. Mr. Downey asphyxiated Ms. Christie with her tights until she lost consciousness. Ms. Christie regained consciousness a short time later.

[12] In December 2019, Ms. Christie and Mr. Downey were together at a residence in Brampton. They began to argue. The argument escalated to the point where Mr. Downey punched Ms. Christie in the ribs several times. He then proceeded to kick her twice in the crotch area. As a result of this assault, Ms. Christie suffered redness and bruising.

[13] On June 29th, 2020 at approximately 10:00 p.m., Mr. Downey and Ms. Christie were in the rear of St. Andrew's Church located at 44 Church Street, Brampton. This area is frequently used by persons of no fixed address as a place to sleep.

[14] At approximately 11:05 p.m., Mr. Downey became enraged with Ms. Christie for speaking to another male. He slapped her across her face which caused swelling to her lip. Immediately, Mr. Downey mounted Ms. Christie. As she attempted to kick and break free, and Mr. Downey started choking her. As Mr. Downey strangled Ms. Christie, he stated several times as she was losing consciousness due to asphyxiation "This is it, this is it, I've been waiting for this." Mr. Downey strangled Ms. Christie for a sustained period, which ultimately caused her to lose consciousness.

[15] Peel Police happened to be patrolling the area when they heard noises that sounded like wheezing. They heard the Mr. Downey screaming "you fucking bitch." As police came around the corner, they observed Mr. Downey straddled over top of Ms. Christie, as she laid unconscious, he was strangling her while her limbs were loose. Police issued verbal commands to Mr. Downey. They yelled at him to 'let her go, she's unconscious', but he would not comply. Police described Mr. Downey as 'rag dolling' Ms. Christie. As a result, a taser was deployed and used on Mr. Downey to get him to release her. Mr. Downey rolled off Ms. Christie and he screamed "see what you did bitch."

[16] There was drug paraphernalia strewn on the ground and Mr. Downey's breath smelled of alcohol.

[17] Ms. Christie sustained neck pain, cuts, abrasions, bruising, swelling and a sore throat. She was medically cleared by ambulance on scene.

[18] As she cried, Ms. Christie to the police afterwards that they saved her life.

Mr. Downey's Criminal Record

[19] Mr. Downey has an extensive criminal record which is replete with violence and breaches of court orders. His record starts in 1994 and there are criminal convictions consistently to the present. Prior to this matter being resolved; Mr. Downey has accumulated 45 convictions. He is now one conviction shy of 50 criminal convictions. Currently, he has 5 convictions for assaults, 2 robberies, a forcible confinement, human trafficking, 6 property related offences, 3 driving offences and 28 breaches of various court orders.

[20] He has already been sentenced to the maximum period of incarceration in the Provincial correctional system. In 2013, Mr. Downey was sentenced to two years less a day for robbery and breach of recognizance. Recently in 2019, Mr. Downey received the equivalent of an 18-month jail sentence for human trafficking and assault.

[21] His criminal record is as follows:

1994-08-08 Dartmouth, N.S. (youth court) Robbery sec 344cc 2 mos & probation 15 mos & 100 hrs comm serv work

1998-01-28 Halifax, N.S. Theft Under $5000 sec 344 (b) cc $100

1998-01-19 Halifax, NS Fail to Attend Court sec 145(2)(b) cc 2 charges 1 day on each chg conc

1999-05-28 Brampton, ON (1) Driving while ability impaired sec 253 (a) cc (2) Assault with Intent to Resist Arrest sec 270 (1) (b) cc (3) Obstruct Peace Officer sec 129 (a) cc (1) 60 days & proh drive 3 years (2-3) 60 days on each chg conc & conc

2000-06-09 Halifax, NS (1) Poss of property obtained by crime sec 354 (1) cc (2) Poss of a schedule I substance sec 4(1) cds act (3) Fail to comply with understating sec 145 (3) cc (4) Driving with disqualified sec 259 (4) cc (1-3) 90 days intermittent on each chg conc & probation 2 yrs (4) 90 days intermittent conc & probation 2 years & prohibition from operating a motor vehicle sec 259(1) cc for 18 mos

2001—01-23 Dartmouth, NS (1) Assault sec 266 cc (2) Fail to comply with probation order sec 733.1 cc (1) $600 & probation 18 mos (2) $200

2002-07-30 Dartmouth, NS Assault sec 266 (b) cc 8 mos conditional sentence order & probation 12 mos

2004-02/18 Dartmouth, NS Theft Under $5000 Sec 334 (b) cc 1 day

2004-07-07 Dartmouth, NS (1) Fail to comply with recognizance sec 145 (3) cc – 2 charges (2) Mischief Under $5000 sec 430(1) (a) (4) cc (1-2) time serves (1 day) & probation 1 yr

2004-07-28 Halifax, NS Assault sec 266 (a) cc 30 days intermittent

2006-02/16 Dartmouth, NS Unlawfully at large 14 days

2008-06-06 Dartmouth, NS Fail to comply with recognizance sec 145 (3) cc – 3 charges Time served (1 day)

2008-12-03 Dartmouth, NS (1) Mischief under $5000 sec 430(4) cc (2) Fail to comply with probation order Sec. 733.1 (1) (a) cc – 2 charges (1) 5 days (2) 15 days on each chg conc & conc

2008-12-10 Dartmouth, NS Fail to comply with recognizance sec 145(3) cc 45 days

2009-02-02 Dartmouth, NS Fail to comply with probation order Sec. 733.1(1)(a) cc Time served (1 day)

2009-02-26 Dartmouth, NS Fail to comply with recognizance sec. 145(3) cc Time served (1 day)

2012-06-26 Dartmouth, NS Fail to comply with recognizance sec 145(3) cc 1 day

2012-08-31 Dartmouth, NS Fail to comply with recognizance sec 145(3) cc – 3 chgs 65 days on each chg conc

2013-11-06 Dartmouth, NS (1) Fail to comply with recognizance sec 145(3) – 2 chg (2) Robbery – sec 344 cc (1) 9 days on each chg conc (2) 2 years less a day conc & probation 2 years

2014-12-16 Halifax, NS (1) Fail to attend court sec 145 (2)(a) cc (2) Fail to comply with probation order sec 733.1(1) cc (1-2) 60 days on each chg conc

2016-07-28 Dartmouth, NS (1) Fail to comply with probation order sec 733.1(1)(a) cc (2) Breach of Recognizance sec 811 cc (3) Driving with more than 80 mgs of alcohol in blood sec 253 (1)(b) cc (4) Forcible confinement sec 279(2) cc (1-2) 30 days conc (3) $1,500 1-D 22 days & probation 18 mos & prohibition from operating a motor vehicle for 3 years (4) (4 mos pre-sentence custody) & mandatory weapons prohibition sec 109 cc

2019-05-22 Sudbury, ON (1) Assault sec 266 cc (2) Material Benefit Resulting from Trafficking in persons sec 279.02 cc (1-2) 1 day & probation 18 mos (540 days pre-sentence custody) & mandatory weapons prohibition sec 109 cc

2021-01-25 Brampton, ON Theft under $5000 sec 334 (b) cc 1 day & probation 18 mos (credit for the equivalent of 116 pre-sentence custody)

2021-01-25 Brampton, ON Fail to comply with probation order Sec. 733.1(1) cc 1 day (credit for the equivalent of 116 days pre-sentence custody)

2021-02-12 Brampton, ON Fail to comply with probation order Sec. 733.1(1) cc 1 day (18 days pre-sentence custody)

Victim Impact/Evidence

[22] Ms. Christie did not provide a victim impact statement. However, she was contacted in preparation of the Pre-Sentence Report (PSR). Ms. Morgan stated the following in the PSR;

The victim, Nicole Christie, did not want to speak to this writer. She explained that she wants to put the incident behind her. Before ending the brief conversation, she said that the offender is a good person and she knows his actions were the result of the drugs that they were both using. She says that she wants to resume their relationship once he is released into the community. Furthermore, because they are related through their grandparents, there will be occasions to see each other at family events. Ms. Christie reports that she has taken steps to deal with her addiction and she wants him to do the same.

Positions of the Parties

[23] Both the Crown and the Defence agree that a fit and appropriate sentence on the facts of this case and based on Mr. Downey's personal circumstances is two year less a day imprisonment, but less his pre-sentence custody. Followed by probation for the maximum period of three years. Mr. Downey was detained in custody on December 21, 2020. He has used some of this time for other matters that appear on his record. I am advised that his dead time for these offences commenced on January 26, 2020. Therefore, Mr. Downey has served are 161 days presentence custody that is attributable to these charges. Mr. Downey is entitled to a minimum credit of 1.5 days credit which when calculated equals 242 days.

[24] The only substantive issue that I have been asked to address is whether Mr. Downey is deserving of more pre-sentence credit due to serving this time during the Covid-19 pandemic. I will return to that issue later in my reasons.

[25] Counsel consents to the DNA order and the weapons prohibition order.

Mr. Downey's Personal Circumstances and Background

[26] Mr. Downey is 45 years old. He was born in Toronto but was taken by his maternal aunt from his mother when he was two months old and was brought to his maternal grandmother in Nova Scotia. His mother was addicted to drugs and was unable to care for any of her children. Eventually they were all taken away from her and were sent to Nova Scotia to live with their grandmother. He has four other siblings from his mother's liaisons. His youngest brother was stabbed to death at a party at the age of 18. This incident was one of many traumas that Mr. Downey experienced during his developmental years.

[27] Mr. Downey's life in Nova Scotia was brutal and hard. He lived in substandard conditions in a segregated black community of North Preston. He lived in abject poverty. His home did not have indoor plumbing and he had to bathe in a basin and used a bucket to go to the washroom. They did not have electricity. There were rats in the ceiling, and they fell while he slept. During the winter, snow would accumulate on the interior of their thin walls.

[28] Typically, the white community had better social services and access to medical assistance, whereas the black community had to travel far to receive assistance.

[29] Mr. Downey's grandfather was not his maternal grandfather. He was an alcoholic that brewed his own beer. He was abusive towards Mr. Downey and his grandmother.

[30] Mr. Downey's life changed when he was 14 years old as a result of two events. First, he met his biological father during a summer visit to his aunt's home. When he was there, he spoke to his father by telephone, but upon his return to his grandparent's home, they terminated all contact with his father. He has made several unsuccessful attempts to find his father. Secondly, Mr. Downey discovered that the person he thought was his sister was in fact his mother. The moment he discovered this, he ran from the room, straight into a glass door. As a result of his injury, Mr. Downey has a scar on his forehead.

[31] Mr. Downey left home when he was 19 years old. This move coincided with the birth of his first child.

[32] Mr. Downey has been involved in 5 long term relationships which ended due his substance addiction or infidelity. Mr. Downey has been physically assaultive to three of his partners and was charged with domestic violence.

[33] It seems that many of his family members, including his mother, siblings, cousins and uncles have had contact with the criminal justice system. Many are addicted to drugs just like Mr. Downey.

[34] With respect to Mr. Downey's education, he left high school after grade 10. While in high school Mr. Downey was exposed to racial and ethnic tension. He was involved in numerous altercations as a result of racist comments and actions.

[35] He has not exhibited any interest in resuming his education or exploring employment skill development courses.

[36] Mr. Downey subsists on social assistance for income and shelter. He has worked in the past, but mainly it was short-term employment, such as construction, and landscaping. He has lost several jobs due to his failure to not show up or was under the influence of drugs and alcohol.

Substance Abuse and Addictions

[37] Mr. Downey started abusing illegal drugs in high school. He tried many kinds of illicit substances. He is chronic user of crack cocaine. He started drinking at a very early age since beer was brewed in his home. He readily admits that he has a substantial addiction issue. He uses drugs and alcohol to cope with his relationship and financial problems and his unpleasant life experiences. Mr. Downey was clean and sober for two years while in Dartmouth, Nova Scotia after he completed a substance abuse program. However, he quickly relapsed after the sudden death of his brother.

[38] While Mr. Downey was incarcerated in Nova Scotia, he attended and successfully completed various programs for anger management, substance abuse management, self discovery, and mental health coping strategies. However, after his release into the community both in Nova Scotia and Ontario, it seems that Mr. Downey has not complied with the requirements to complete community-based treatment programs.

[39] In the past he has declined the assistance of the methadone harm reduction program to address his addiction. He attempted treatment at the Withdrawal Management Centre in Brampton, but he left after three days.

Character and Behaviour

[40] Collateral sources verified that when Mr. Downey is not under the influence of drugs and alcohol, he is kind and caring individual who is willing to help anyone that is in need.

[41] He does suffer from depression that has kept him in bed for days.

[42] Mr. Downey has been diagnosed with Hepatitis C. He is being treated with medication while in custody.

[43] Mr. Downey has reached the crossroads of a high reformatory or a penitentiary sentence. It is obvious that there is an absolute need to separate him from society. Paragraph 9 of the Pre-Sentence Report (PSR) outlined the conundrum for Mr. Downey,

To his credit, he was able to successfully focus on treatment when he was incarcerated for a substantial period. However, when he is in the community compliance is minimal. Upon his return to the community, the offender does not have confirmed residence or employment. Most of his family and friends are impediments to his recovery because of their pro-criminal lifestyles. The victim, of this offence, is a member of his family and any non-association conditions might be hard to enforce during family gatherings. His actions towards the victim shows an escalation in violence when he is under the influence of drugs and alcohol. If the police were not present, the impact on the victim might have been irremediable. Therefore, the offender must deal with his addictions. He has acknowledged that he does not cope well with stress and therefore would need structured discharge planning to arrange community supports with various stakeholders such as John Howard Society or St. Leonard’s House.

Legal Principles & Analysis

[44] The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society." (See s.718)

[45] Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community. (See s. 718(a) - (f))

[46] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. (See s. 718.1) This means that, for the sentence I impose to be appropriate, it must be tailored to Mr. Downey's circumstances, and the circumstances of the offence(s) he committed.

[47] In determining an appropriate sentence, it is helpful to consider any relevant aggravating or mitigating circumstances that are presently at play. (See s. 718.2(a)) This would include features of Mr. Downey's background, features of the crime(s) he has committed, the timing of his guilty plea, and any other evidence I have received during this sentence hearing. It would also include any legal direction, whether found in the Criminal Code, for example section 718.2(a), or provided by the higher courts, with regard to particular aspects of this case that I must give significant consideration to. For example, this is a case that where specific deterrence and public denunciation are primary, and the principle of rehabilitation is secondary. Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I note the following aggravating and mitigating features of this case.

[48] I consider the following as aggravating factors in this case:

• A series of relentless attacks on an intimate partner for over a year.
• Two acts of strangulation that led to asphyxiation whereby Ms. Christie passed out. The attacks continued despite her lack of resistance.
• Ms. Christie is diminutive in stature compared to Mr. Downey size and physique.
• The second strangulation was as close to attempted murder as one can get. The acts of strangulation were accompanied by threats to kill.
• Despite the verbal commands of the police to stop the attack, Mr. Downey continued his attack and needed to be tazered to halt the strangulation of Ms. Christie.
• Ms. Christie was rendered unconscious and suffered bruising, abrasions and a cut lip.
• Mr Downey's criminal record is appalling. He has absolutely no regard for court orders.
• At the time of the offence on June 29, 2020, Mr. Downey was subject to both a Recognizance of Bail and a Probation Order.

[49] I consider the following as mitigating factors in this case.

• Mr. Downey pleaded guilty.
• Mr. Downey has a significant drug addiction to crack cocaine.
• He demonstrated a degree of insight and remorse for his actions during the preparation of the PSR and his allocation.
• He has a desire to rebuild his relationships with his children and grandchildren.
• During his formidable years Mr. Downey was subject to abject poverty and systemic racism.

[50] I am prepared to accept that Mr. Downey self identifies as Metis/Micmac. Therefore, section 718.2 (e) is a factor in sentencing. However, I am not placing as much emphasis on this factor as there is virtually no evidence before me as to how Mr. Downey's indigenous background impacted his life experiences. In my view, what has shaped and molded his life was the alcoholism, poverty, racism and bigotry. In my view, Mr. Downey's skin colour subjected him more to racism than his purported aboriginal ancestry.

[51] Having said all of that, the recommended joint sentence for imprisonment for a period of 2 years less one day, in my view, is on the lower end of the range, but nevertheless it is within the range. However, Mr. Downey was very near to the imposition of a penitentiary sentence.

[52] The primary principles of sentencing in this case is specific, general deterrence and public denunciation that only a substantial jail sentence can address. Mr. Downey's drug fueled, and alcohol rage nearly led to the death of Ms. Christie. Although no victim impact statement was provided by Ms. Christie and her physical scrapes, bruises and cuts most likely have mended, I am more than satisfied that the abusive relationship and these cowardly, unprovoked attacks on Ms. Christie has had a profound psychological impact.

[53] Mr. Downey will have to carry with him the awful life experiences and the physical and emotional scars, for the rest of his life, but in these circumstances, he needs to be incarcerated in order that he receives the type of treatment that is required. I have little confidence that Mr. Downey will take any community-based treatment while on the outside. His only true success in counselling occurred when he was incarcerated for a lengthy period. Currently, Mr. Downey is a high risk to re-offend with out treatment, considering that his violence escalates when he is using drugs and alcohol. Unfortunately, Mr. Downey is on a very short path to a long-term offender designation, if he does not make significant changes to his life.

[54] Taking into consideration both the totality and the 'step up' principles, I am satisfied that the overall sentence that is in keeping with Mr. Downey's culpability is 2 years less a day imprisonment.

[55] Mr. Downey has served 161 days presentence custody that is attributable to these charges. Mr. Downey is entitled to a minimum credit of 1.5 days credit which when calculated equals 242 days.

[56] With respect to any Covid/ Duncan credit as a mitigating factor (See: R. v. Marshall, 2021 ONCA 304), I am satisfied that the pandemic has impacted living conditions in the jail. I agree that with increased vaccination and remedial measures, break outs have been curtailed if not eliminated. Although, counsel has not filed records from Maplehurst, I have seen enough evidence over this time frame and heard submissions on the number of lockdown, inability to shower and exercise that I am prepared to give Mr. Downey .25 days credit for each of the 161 days served in presentence custody which is 40 days further credit. Mr. Downey will be given a total credit of 282 days or approximately 9 months. Therefore, Mr Downey will be sentenced to a further 15 months. I am recommending that Mr. Downey serve the remainder of his sentence at the Ontario Correctional Institute, Brampton.

[57] Following his release from custody, Mr. Downey will be subject to a Probation order for three years with the following conditions:

• Keep the peace and be of good behaviour.
• Appear before the court when required to do so by the court.
• 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 in employment or occupation.
• (Covid reporting) Report to a Probation Officer within 7 working days if there are COVID restrictions in place by telephone at 905-874-4058; from 8:30 a.m. to 5:00 p.m., and thereafter as required and directed by the Probation Officer.
• Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Nicole Christie. If Mr. Downey proves that he can comply with a probation order, and specifically while on probation he addresses his substance abuse addiction, he can always apply for a variation of the contact ban.
• Do not attend any place where you know Niccole Christie to live, work, go to school, frequent or any place you know the person(s) to be.
• Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for:
  • Drug and/or alcohol abuse, including relapse prevention
  • Domestic violence which includes the PARS program.
  • Anger Management
  • Life skills
  • Trauma counselling
• You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
• You shall make reasonable efforts to find and maintain suitable full-time employment and show proof
• Do not possess any weapon(s) as defined by the Criminal Code (for example, a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).

Corollary Orders

[58] There will be a non-communication order pursuant to section 743.21. While Mr. Downey is serving his sentence in custody, he will be prohibited from communicating with Nicole Christie.

[59] I order that he is prohibited from (a) possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance effective today and for the next 20 years and (b) possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition, for life.

DNA

[60] Assault causing bodily harm by choking is classified as a primary designated offence. There will be a DNA order pursuant to section 487.051(2) of the Code.

[61] For clarity, Mr. Downey is sentenced to two years less one day imprisonment on both choking counts (less his presentence custody), 4 months concurrent on the breach of probation count and 6 months concurrent on the uttering death threat count.

[62] The victim surcharge is waived.

Released: July 12, 2021 Justice Paul T. O’Marra