ONTARIO COURT OF JUSTICE DATE: 2021·08·27

BETWEEN:

Her Majesty the Queen

— and —

Nigel Jordan

Judgment

E. Evans ............................................................................................... Counsel for the Crown M. Engel ........................................................................................... Counsel for the Defendant

Felix J.:

Table of Contents: R. v. Jordan

I. Introduction

A. Introduction

B. Position of Counsel

C. Sentence

II. Reasons for Sentence

A. Evidentiary Record on Sentence

B. Background of the Defendant

1. Criminal Record

2. Psychiatric Report

3. Evidence of Parole Officer

C. Aggravating and Mitigating Factors

1. Aggravating Factors

a) Status at the Time of the Offence

b) Criminal Record

c) Institutional Misconduct

d) Performance on the LTSO

2. Mitigating Factors

a) Guilty Plea

b) Credit for Stringent Judicial Interim Release Conditions

3. Factors – Neither Mitigating nor Aggravating

a) Credit for Pre-sentence Custody

(1) Amount of Pre-Sentence Custody

(2) Enhanced Credit for Pre-Sentence Custody

b) Credit for Harsh Custodial Conditions (“Duncan Credit”)

c) Collateral Consequences

(1) Impact on Employment

(2) COVID -19

d) Absent Aggravating Factors

e) Reason for Contact

D. Purpose and Principles of Sentencing

1. Purpose of Sentencing

2. The Fundamental Principles of Sentencing

E. The Sentencing

1. Statutory Guidance

2. The Approach to Sentencing

3. Case Law

F. The Sentence

1. The Rationale for the Conditions

2. The Complainant

3. Rehabilitation

4. Assessment by Correctional Staff

5. Electronic Monitoring

6. Conclusion

I. Introduction

A. Introduction

[1] The defendant pled guilty to three breaches of a Long-Term Supervision Order (LTSO), prosecuted by indictment, contrary to s. 753.3(1) of the Criminal Code. These matters involve the defendant’s intimate partner of 15 years who I will refer to as the complainant. The defendant and the complainant are not married and have never lived together. They have a 14-year-old son together.

[2] On April 18, 2016 the defendant was convicted of several criminal offences in relation to the complainant. On December 19, 2017 the defendant was found to be a Long-Term Offender and sentenced to a seven-year LTSO in addition to a jail sentence of 2 years, eleven months, and 5 days.

[3] The first breach involves the defendant’s attendance at the complainant’s residence on January 16, 2020. According to the admitted facts on the guilty plea, the defendant arrived unannounced at 8:30 AM and stayed for the day at the residence. According to a statement contained in the sentencing materials attributed to the complainant, she initiated contact with the defendant to discuss important issues. In the afternoon there was an argument between the defendant and his partner regarding their son’s girlfriend. The argument also centred around the fact that their son had impregnated his girlfriend. The complainant called 911. The police attended and observed surveillance video showing the defendant, his son, and his son’s girlfriend attending the complainant’s unit in the building. The surveillance video also showed the defendant leaving the scene.

[4] The complainant presented as upset and distraught to the attending police officers. There was some evidence of injury. The complainant spoke to the officers but refused to provide a formal statement. Based on a conversation with the complainant, the police obtained grounds to believe that the defendant had entered her apartment. The complainant would not consent to SOCO photos of injury observed by the police. The complainant declined the police offer of medical attention. While the police were present in the complainant’s apartment, they overhead the defendant contacting the complainant by phone.

[5] In committing the first breach, the defendant also violated two other conditions of his LTSO. First, he entered the geographic area of 51 division -- Toronto Police Service. This provision was imposed to prevent the defendant from being in geographical proximity to the complainant. Second, he failed to reside at the Keele Centre on January 16, 2020. While he was in contact with his parole officer via cellphone, he did not return to the Keele Centre until the next day at 6:24 PM.

[6] The defendant has a lengthy criminal record. As a subset of his criminal record, the defendant has several convictions for criminal offences involving his intimate partners. Finally, as a further subset, there are several convictions involving the complainant. The LTSO is geared toward addressing the defendant’s risk as it concerns intimate partner criminality in general, and the complainant in particular.

B. Position of Counsel

[7] The Crown Attorney seeks a concurrent three-year custodial sentence given the nature of the LTSO breaches and the link between the breaches and the defendant’s risk to intimate partners.

[8] Defence counsel seeks a suspended sentence and probation. Defence counsel submits that the defendant was performing well under the supervision of his parole officer until these offences. Defence counsel highlights the fact that the complainant contacted the defendant and the issue concerned their child impregnating his girlfriend.

C. Sentence

[9] Having regard to the offences before the Court, I find that the defendant’s criminal record in relation to intimate partners generally, and the complainant in this case particularly, mandates an exemplary sentence.

[10] A sentence of four years in the penitentiary would be appropriate in the case. Were it not for several factors that I will explain, I would impose that sentence. In the circumstances, it is not necessary to notify counsel of this preliminary position (in excess of the Crown position) or to provide an opportunity for submissions: R. v. Mohiadin, 2021 ONCA 122; R. v. Blake-Samuels, 2021 ONCA 77.

[11] For all of the reasons outlined in this judgment, I will sentence the defendant to a lower sentence. Of particular consideration is the approach of Defence counsel in presenting evidence of rehabilitation from the defendant’s parole officer. While rehabilitation is not the central focus of this sentencing, this evidence deserves some weight. The second major consideration is the mitigating factor of a guilty plea. The defendant’s guilty plea spared the complainant from having to testify. The defendant’s guilty plea was also advanced in circumstances where I infer the prosecution encountered some difficulty with securing the complainant as a cooperative witness at trial. In my view, the defendant should receive significant credit for his guilty plea.

[12] I find that a fit and proportionate sentence is a penitentiary sentence of three (3) years. I direct the Clerk of the Court to record the sentence in days on the Information and the warrant of committal. The sentence in days is 1095. The sentence is concurrent on all three counts.

[13] I credit the defendant with pre-sentence custody of 212 days calculated as one day for each day of pre-sentence custody.

[14] There will be no “Downes credit”. There will be no “Duncan credit”;

[15] I credit the defendant an additional 50 days because of the collateral consequences of COVID-19 and impact on the defendant’s employment.

[16] This leaves a sentence to serve of 833 days.

[17] The Crown has proceeded by indictment on all three counts. Breach of a LTSO is a secondary designated offence: (See definition of secondary designated offence in s. 487.04 c.(xi.23) of the Criminal Code). I grant the DNA order in relation to each count.

[18] The defendant already has a lifetime weapons prohibition pursuant to s.109 of the Criminal Code. Given the background information concerning the defendant’s criminal convictions involving the complainant I am satisfied that a weapons prohibition for life is mandated pursuant to s.110(2)(a) of the Criminal Code. The lifetime prohibition applies to all of the weapons described in s.110(1) of the Criminal Code.

[19] The complainant has not provided any victim input to this Court. Pursuant to s.743.21(1) of the Criminal Code I prohibit the defendant from communicating directly or indirectly with the complainant during the custodial period of this sentence. The only exception to this order will be communications in writing (including electronic writings) or by telephone. These communications must be with the express permission of the defendant’s parole officer or his or her designate. The defendant will notify his parole officer or his or her designate prior to initiating such communications. [1]

[20] I am satisfied that this sentence will impair the defendant’s ability to pay the victim surcharge because of the length of the prison sentence and the impact on his ability to secure employment: s. 737(2.1) of the Criminal Code. The victim surcharge is waived.

[21] I direct that a copy of this decision, affixed to the Information today, be conveyed to the correctional authorities as the reasons for sentence.

II. Reasons for Sentence

A. Evidentiary Record on Sentence

[22] The Crown filed a large volume of material on sentencing including:

1. Criminal Record;
2. Criminal Profile Report;
3. Psychiatric Report authored by Dr. Klassen – February 3, 2017;
4. Transcript of Sentencing – December 19, 2017; and,
5. Correctional Plan.

[23] Defence counsel called the defendant’s parole officer as a witness on sentencing.

[24] The defendant was sentenced by Justice A. Tuck-Jackson on the predicate offence reported at R. v. Jordan, 2017 ONCJ 880 [Jordan]. I adopt the thorough and detailed examination of the defendant’s background provided by my senior colleague. As a result, I am able to address this sentencing more expeditiously as it pertains to the background of the defendant.

B. Background of the Defendant

1. Criminal Record

[25] The defendant has a lengthy, varied, and concerning criminal record. I adopt the recital provided by Justice Tuck-Jackson in the sentencing judgment: Jordan, 67-101. I will not take up time detailing the multitude of criminal convictions on the defendant’s record. For the purposes of this sentencing, his abysmal record for disregarding court orders and his history of criminality concerning intimate partners is the relevant focus on sentence.

[26] On December 19, 2017 the defendant was sentenced by A. Tuck-Jackson, J. in relation to the circumstances leading to the imposition of the LTSO. He received a sentence of 60 days custody on top of 670 days of pre-sentence custody for the offence of forcible seizure. The defendant received a concurrent sentence of 60 days custody on top of 670 days of pre-sentence custody for the offence of breach probation. He was subjected to a LTSO for seven years in addition to his custodial sentence.

[27] In September 2014 the defendant was convicted of assault, criminal harassment, uttering threats, and breach of recognizance in relation to his domestic partner. He received a sentence of nine months jail on top of 498 days of pre-sentence custody consecutive to a sentence he was already serving. He received six months jail consecutive for the criminal harassment and two months consecutive for the failed to comply with reconnaissance. On the same day he was convicted of theft in relation to domestic partner and received two months jail.

[28] In July 2009 the defendant was convicted of breach probation and breach recognizance in relation to his domestic partner. He received a jail sentence of 75 days jail on top of 15 days pre-sentence custody.

[29] In May 2009 the defendant was convicted of assault and receive 30 days jail. This assault was in relation to a different intimate partner.

[30] In June 2001 the defendant was convicted of assault with a weapon, fail to comply, and utter threats in relation to another intimate partner. The defendant received 18 months jail on top of six months of pre-sentence custody.

[31] In February 2001 the defendant was convicted of other uttering threats and breach of probation in relation to an intimate partner. He received four months jail.

[32] In March 1999 the defendant was convicted of uttering threats, dangerous operation, and assault with a weapon in relation to an intimate partner. He received nine months jail on top of 235 days of pre-sentence custody.

[33] In January 1997 the defendant was convicted of assault on an intimate partner. In recognition of 45 days of pre-sentence custody, the Court suspended the passing of sentence and placed the defendant on probation for 12 months.

[34] In February 1996 the defendant was convicted of assault and received a $500 fine in recognition of three days pre-sentence custody.

[35] In January 1996 the defendant was convicted of forcible confinement and received 45 days jail on top of 31 days of pre-sentence custody.

2. Psychiatric Report

[36] Forensic Psychiatrist Dr. Philip E. Klassen authored an assessment of the defendant on February 3, 2017. The report documents the defendant’s upbringing and family circumstances, his educational history, his employment history, and his institutional records.

[37] Dr. Klassen diagnosed the defendant with a personality disorder with antisocial personality traits and borderline narcissistic personality traits. He documented the defendant’s poor response to treatment and counselling. [2] Dr. Klassen was unable to opine as to whether the defendant had a substance abuse disorder however noted it was documented that the defendant has had difficulties with both alcohol and non-medically prescribed drugs.

[38] Dr. Klassen administered the following tests and obtained the following results:

• PCL-R - moderate score of 24 out of 40 demonstrating average risk.
• VRAG - scored nine meaning 58% chance of violent recidivism over ten years. This risk is an overestimate.
• ODARA - scored 10, greater than 90th percentile, 70% chance of violent recidivism over five years.
• D-VRAG - scored 21, 97 th percentile, 71% chance of violent recidivism.

[39] Dr. Klassen concluded that the defendant presented a significantly high risk to commit criminal defences against his domestic partners. He also concluded that the defendant presents a moderate risk of violence to the general public and a moderate risk of criminality in general.

3. Evidence of Parole Officer

[40] The sentencing materials include a comprehensive correctional plan. This document details the cumulative correctional assessment of the defendant which was adopted by this witness.

[41] The defendant’s parole officer testified that the defendant was compliant in the community prior to January 2020. He was in the process of completing programming to address his risk factors when he arrived at the Keele Centre. The defendant successfully completed the Integrated Correctional Program Model (ICPM) and the ICPM community maintenance program on October 28 th , 2019. The defendant improved throughout the course. The defendant’s parole officer testified that the world-wide health pandemic interrupted the defendant’s progress in rehabilitation.

[42] The defendant’s parole officer testified that the defendant had employment at two jobs prior to being arrested. He was a member of a union. The defendant’s parole officer conducted work site visits. The employers were aware of the defendant’s status and provided information that assisted her with supervising the defendant.

[43] This witness testified that there have been no issues with alcohol consumption or non-medically proscribed drugs. The defendant has strong familial support. There is no question that he cares for his children and extended family.

[44] The correctional plan identifies the defendant as a “high-risk, high-needs” offender. The defendant’s parole officer testified that re-integration was going well until the incident before the Court. During her testimony, the defendant’s parole officer moderated this stance somewhat with her optimism for future progress and success in counselling and treatment. This witness also emphasized that she was exploring further opportunities to relax the terms of the defendant’s LTSO.

C. Aggravating and Mitigating Factors

1. Aggravating Factors

a) Status at the Time of the Offence

[45] The defendant was subject to parole and LTSO conditions at the time of the offence which is deemed aggravating: s. 718.2 (a)(vi) of the Criminal Code.

b) Criminal Record

[46] As outlined above in more detail, the defendant’s prior criminal record is generally aggravating. It is particularly aggravating that the defendant has several convictions for criminal conduct in relation to intimate partners. The defendant has been found guilty of criminal offences of violence concerning three of his five known intimate partners. [3] It is also aggravating that the defendant has eight prior convictions involving the complainant in this case. [4]

[47] The defendant’s criminal record also demonstrates a history of failing to comply with Court-imposed conditions of release or probation. This record includes prior contact with the complainant in violation of Court orders.

c) Institutional Misconduct

[48] I accept the record of institutional misconduct filed by the Crown. I characterize this factor as only mildly aggravating on sentence.

[49] As I will expand upon below, the central focus of this sentencing must be the defendant’s risk to intimate partners. Key to this consideration is the severity of the breach, the nature of the breach, and how the conditions breached are tied to mitigating the risk of re-offending. I find institutional reprimands for talking back to officers or refusing to enter a cell are relevant background considerations, but such conduct is not intimately connected to the gravamen of the breach offences before the Court.

d) Performance on the LTSO

[50] I generally agree with Defence counsel’s submissions concerning the defendant’s performance on the LTSO and how I should view prior breaches of the terms.

[51] Initially, the defendant struggled with the LTSO conditions including curfew. The defendant apparently breached terms prohibiting the consumption of drugs or alcohol in October 2018. [5] The offences before the Court were not committed while under the influence of drugs or alcohol. While it is true that curfew problems can be linked to controlling the geographical whereabouts of the defendant, and a curfew breach is not a minor circumstance, I am persuaded by Defence counsel’s submissions that older curfew problems are remotely connected to the current concerns around mitigating the risk of intimate partner violence.

[52] In September 2018 the defendant’s LTSO was suspended after he consumed alcohol and valium. I agree with Defence counsel’s submission that this breach, occurring in the aftermath of the sudden death of the defendant’s brother, is not probative of his risk to intimate partners.

[53] In January 2019 the defendant’s LTSO was suspended based on allegations that he had contact with the complainant. Correctional staff took the position that the defendant’s risk was management with electronic monitoring and geographical restrictions. This is a relevant prior circumstance for consideration at this sentencing.

[54] The sentencing materials document circumstances around the death of the defendant’s son in July 2019. I did not rely on these circumstances to inform the approach to sentencing in this case.

[55] In September 2019 an electronic monitoring alert disclosed that the defendant was not abiding by a term to remain in Toronto. The defendant provided what was described as a questionable explanation, but correctional staff felt his risk was manageable in the community. This is a relevant prior circumstance for consideration at this sentencing,

[56] I rely on the general body of information showing the defendant has breached his LTSO on prior occasions. However, I temper this reliance with the recognition that only the January and September 2019 incidents are material to this sentencing in that they are relevant to the LTSO object concerning protection of the complainant and intimate partners. I note that the defendant was not alleged to have committed a violent criminal offence in either circumstance.

2. Mitigating Factors

a) Guilty Plea

[57] While the guilty plea occurred on the first day of trial, I am also aware that the Crown position changed on the day of trial. The Crown Attorney proceeded with three of nine counts on the Information. The Crown Attorney withdrew other allegations of a domestic nature. It is apparent that the complainant was not a cooperative witness. In these circumstances, the guilty plea, even on the morning of trial, is deserving of great weight.

b) Credit for Stringent Judicial Interim Release Conditions

[58] A sentencing court has a duty to examine judicial interim release terms pursuant to R. v. Downes (2006), 79 O.R. (3d) 321 [Downes]. Judicial interim release conditions always infringe on a defendant’s liberty interests. A sentencing judge must consider the mitigating circumstance of time spent under stringent bail conditions: Downes, at paras. 26-33; R. v. Bullens, 2021 ONCA 421. There is no mathematical formula. The sentencing judge must consider the case-specific circumstances and explain the exercise of discretion: Downes, at para. 33; R. v. Phronimadis, [2006] O.J. No 3993 (C.A.).

[59] I have examined the defendant’s judicial interim release terms. The terms were appropriate having regard to the defendant’s antecedents. There is no justification for Downes credit.

3. Factors – Neither Mitigating nor Aggravating

a) Credit for Pre-sentence Custody

(1) Amount of Pre-Sentence Custody

[60] The defendant was in custody from January 17, 2020 until May 7 th , 2020 whereupon he received judicial interim release. The Crown submits this totals 111 days. Defence counsel submits this totals 112 days. I find that the total is 112 days.

[61] The parties dispute the approach to another period of detention. On May 23, 2021 the defendant was charged with a new allegation involving the same intimate partner – the object of the LTSO conditions. The defendant has been in custody from May 23, 2021 until August 27 th , 2021 on these new allegations. No bail hearing has occurred. Defence counsel advises that the Crown provided notice of a s. 524 application in anticipation of a bail hearing. The intention was for the Crown to move to cancel his release on the matters before this Court if the defendant sought bail on the new allegations. Defence counsel submits that this is additional time for which the defendant should receive credit. The Crown objects.

[62] Section 719(3) of the Criminal Code provides discretion to consider pre-sentence custody:

Determination of sentence

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

[63] The Crown Attorney objects to the application of credit. There is support for the Crown position: R. v. Ceasor, 2021 ONCA 54, at paras 7-8; R. v. Latif, 2019 ONCA 309, at paras. 15-22. The defendant did not plead guilty to the new allegation before me. The new Information was not before the Court. In these circumstances, the Crown objection was warranted.

[64] On the other hand, there is support for the Defence position: R. v. Barnett, 2017 ONCA 897, at 21 to 42 [Barnett]. While neither counsel had the opportunity to address this case, I am satisfied that it supports the Defence submission. I am satisfied that there is a sufficient link between the outstanding allegation and the sentencing matters. The Crown gave notice of a s.524 application and the defendant did not apply for bail. There is a sufficient nexus between the outstanding allegation and the sentencing matters: Barnett, at paras. 27-30. Finally, I am not concerned that this distorts the sentencing process or contributes to “double-counting” of pre-sentence custody. The Crown may take this written decision and present it to the jurist on the outstanding allegations if the defendant is convicted. Defence counsel is obligated to acknowledge the credit assessed on this case if the defendant is convicted. There is no risk of “double-counting”.

[65] I credit the defendant with 112 days of pre-sentence custody on the criminal offences he pled guilty to before this Court. I credit the defendant with 100 days of pre-sentence custody on the new allegation(s). The credits total 212 days of pre-sentence custody.

(2) Enhanced Credit for Pre-Sentence Custody

[66] Defence counsel submits that the defendant should receive enhanced credit for his pre-sentence custody. While no specific authority for this proposition was advanced, I am aware of precedent for this approach: (See the authorities cited in R. v. Hoshal, 2020 ONCJ 345, at paras. 38-47). The Crown opposes credit in excess of one day for each day of pre-sentence detention.

[67] The Criminal Code caps the maximum statutory enhanced credit for pre-sentence detention pursuant to s. 719(3.1) of the Criminal Code: (See R. v Summers, 2014 SCC 26, at paras. 7, 34, 68-80, aff’g, 2013 ONCA 147).

[68] I decline to consider enhanced credit. I credit the defendant with one day for each day of pre-sentence custody for the reasons outlined by the Ontario Court of Appeal in R. v. Bourdon, 2012 ONCA 256, at paragraphs 17-19.

[69] The total credit for pre-sentence custody remains 212 days.

b) Credit for Harsh Custodial Conditions (“Duncan Credit”)

[70] A sentencing court should provide enhanced credit for “particularly harsh pre-sentence incarceration conditions” based on the impact on the defendant: R. v. Duncan, 2016 ONCA 754, at para. 6. Further, where lockdown conditions have had an "adverse effect" on the defendant, credit is available: R. v. Rajmoolie, 2020 ONCA 791, at paras. 14-16; R. v. Omoragbon, 2020 ONCA 336, at para. 32; R. v. Henry, 2016 ONCA 873, at para. 9. There is no mathematical formula. The appropriate credit is left to the discretion of the sentencing judge.

[71] The defendant has not adduced any evidentiary record toward the conditions in custody. I decline to grant credit for harsh custodial conditions.

c) Collateral Consequences

[72] Determining a proportionate sentence may require an examination of the collateral consequences including those consequences that arise from the commission of the offence, the conviction for the offence, or the sentence imposed: R. v. Suter, 2018 SCC 34, at para. 47 [Suter]. Collateral consequences are integrally connected to the goal of an individualized proportionate sentence as the focus concerns whether the impact of the sentence would have a more significant impact on the offender because of the offender’s circumstances: Suter, at para. 48

[73] In determining the weight of this factor there is no rigid formula or test involved, but it is important not to overemphasize this factor thereby leading to a disproportionate sentence: Suter, at para. 56. I characterize this factor as neither mitigating nor aggravating: Suter, at para. 48.

(1) Impact on Employment

[74] The sentencing materials support my finding that the defendant can be a productive and hardworking person. He is also a member of a union. In arriving at the final sentence, I take into account the fact that my sentence will impact the defendant’s employment and his ability to support his children.

(2) COVID -19

[75] I take judicial notice of the health pandemic and the guidance of other courts. I endorse the analysis of Pringle J. in R. v Marsan, 2020 ONCJ 638, at paragraphs 39 to 42. I also accept the guidance provided by R. v. Hearns, 2020 ONSC 2365 and R. v. Morgan, 2020 ONCA 279. There is no formula. I prefer to set out the specific amount of credit for clarity. In arriving at the final sentence, I find it appropriate to credit the defendant with 50 days of credit because of the COVID-19 health pandemic and the impact on those serving prison sentences.

d) Absent Aggravating Factors

[76] The Crown Attorney submits that the Court should find that the defendant engaged in an aggressive confrontation with the complainant and that the injury on the complainant observed by police is corroborative. The Defence position is that this finding is unavailable on the record adduced. I agree with the Defence position.

[77] The defendant faced a number of allegations on the Information. The defendant did not plead guilty to an offence of overt violence. I may not consider the text of the other allegations contained on the Information as the text of the counts on the Information is not evidence.

[78] The admitted facts on the guilty plea include that the complainant displayed some indication of injury. The specifics of those injuries have not been adduced into evidence on the guilty plea. The complainant did not consent to SOCO photos. The facts admitted by the defendant include the fact that the complainant called 911. The 911 call has not been adduced into evidence on the guilty plea.

[79] I find that the prosecution has not proven beyond a reasonable doubt that the fact of any injury or that any injury was caused by the defendant. I am satisfied that the complainant and the defendant had a confrontation. I am satisfied that the complainant was upset and emotional upon police attendance. I may infer that this dispute caused the complainant to contact 911.

[80] These circumstances are not mitigating on sentence. These circumstances are properly characterized as the absence of an aggravating factor (assault on the complainant) that would serve to aggravate the sentence.

e) Reason for Contact

[81] The Defence position is that the sentence should be mitigated because of the unique circumstances in this case namely: (1) the complainant initiated contact with the defendant and invited him to attend her residence; and (2) their child had impregnated his girlfriend. I accept that these are stressors, and I have taken these factors into consideration generally when arriving at an appropriate sentence. But these factors should not be characterized as mitigating. They are not valid excuses for ignoring the conditions of the LTSO.

[82] The defendant is not entitled to blame the complainant for initiating contact and his subsequent failure to follow his conditions. The defendant is subject to these conditions, not the complainant. In any event, the defendant’s criminal record makes it clear that he has little difficulty disregarding court orders. Furthermore, if there was a parenting issue to address, the proper approach (as adverted to by the defendant’s parole officer when testifying) was for the defendant to speak to his parole officer to seek assistance. The terms of the LTSO as administered by correctional staff contemplated authorizing contact with the complainant to address familial issues.

[83] I reject these circumstances as mitigating circumstances. The defendant is a fifty-year old offender who must take responsibility for his actions, rather than blame his intimate partner.

D. Purpose and Principles of Sentencing

1. Purpose of Sentencing

[84] Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to protect society, prevent crime, promote respect for the law, and support a just, peaceful, and safe society. These aims are achieved by promoting sanctions that have certain objectives. In this case, the sentence should: (1) denounce unlawful conduct; (2) specifically deter the defendant; (3) separate the defendant from society; and (4) promote a sense of responsibility in the defendant.

[85] Any breach of a LTSO may attract denunciation and deterrence considerations because persons subject to a LTSO are likely to have significant criminal records. In this case, specific deterrence is of keen concern given the defendant’s disregard for Court-imposed rules generally, and his approach to LTSO conditions specifically as they concern the complainant.

2. The Fundamental Principles of Sentencing

[86] Section 718.1 of the Criminal Code mandates that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 of the Criminal Code provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[87] Sentencing is highly individualized. A sentencing court must tailor sentences to the circumstances of the offence and the offender: Suter, at para. 46. The defendant should not be unduly deprived of liberty if appropriate less restrictive sanctions could achieve the aims of sentence. All reasonable sanctions, other than imprisonment, should be considered.

[88] In this case an exemplary penitentiary sentence is the only proportionate sentence. As explained in this judgment, the length of this penitentiary sentence is mitigated to a great degree by the defendant’s guilty plea and the evidence adduced by Defence counsel from the defendant’s parole officer.

E. The Sentencing

1. Statutory Guidance

[89] Section 753.3(1) of the Criminal Code (Breach of LTSO) is a hybrid offence. When prosecuted by indictment it is punishable by a maximum of ten years in prison.

2. The Approach to Sentencing

[90] In a recent decision I set out my view of the proper approach to sentencing in breach of LTSO cases: R. v. Walton, 2021 ONCJ 209. I am sentencing this defendant only two weeks later. I adopt the same approach and most of the following is copied from my earlier decision.

[91] The Supreme Court of Canada recently re-stated the important considerations in sentencing an offender for breach of a LTSO in R. v. Bird, 2019 SCC 7, at paragraph 37:

37 In Ipeelee, this Court recognized two specific objectives of long-term supervision: (1) to protect the public from the risk of re-offence by long-term and dangerous offenders; and (2) to rehabilitate these offenders and reintegrate them into the community (para. 48). An LTSO controls the risk to public safety posed by long-term and dangerous offenders in the community, which is why the breach of an LTSO is deemed to be a more serious offence than the breach of a probation order (Ipeelee, at paras. 53-54). As G. R. Clewley, P. G. McDermott and R. E. Young note in Sentencing: The Practitioner's Guide (loose-leaf): "[t]he breach of a long-term supervision order is taken very seriously, because by definition the offenders on these orders have committed violent and/or sexual offences and pose some risk to the community" (p. 13-57). Under s. 753.3(1) of the Criminal Code, the breach of a condition of an [page433] LTSO is an indictable offence punishable by a term of imprisonment of up to 10 years.

[92] The approach to sentencing offenders for LTSO breaches is assisted by the guidance in Ipeelee. While lengthy quotations from cases are seldom welcome, at times, the guidance is so critical that a clear statement is necessary. In paragraph 36 of Ipeelee the Court noted the overarching applicability of the sentencing principles contained in the Criminal Code. In paragraph 37 the Court noted the fundamental principle of sentencing – proportionality – and how this ties into the purpose of sentencing. The Court then addressed the objectives of long-term supervision in paragraph 48:

48 Reading the Criminal Code, the CCRA and the applicable jurisprudence together, we can therefore identify two specific objectives of long-term supervision as a form of conditional release: (1) protecting the public from the risk of re offence, and (2) rehabilitating the offender and reintegrating him or her into the community. The latter objective may properly be described as the ultimate purpose of an LTSO, as indicated by s. 100 of the CCRA, though it is inextricably entwined with the former. Unfortunately, provincial and appellate courts have tended to emphasize the protection of the public at the expense of the rehabilitation of offenders. This, in turn, has affected their determinations of what is a fit sentence for breaching a condition of an LTSO.

[93] The Court then explained the purpose of a LTSO in paragraph 50:

50 The foregoing characterization of the long-term offender regime is incorrect. The purpose of an LTSO is two-fold: to protect the public and to rehabilitate offenders and reintegrate them into the community. In fact, s. 100 of the CCRA singles out rehabilitation and reintegration as the purpose of community supervision including LTSOs. As this Court indicated in L.M., rehabilitation is the key feature of the long-term offender regime that distinguishes it from the dangerous offender regime. To suggest, therefore, that rehabilitation has been determined to be impossible to achieve in the long-term offender context is simply wrong. Given this context, it would be contrary to reason to conclude that rehabilitation is not an appropriate sentencing objective and should therefore play "little or no role" (as stated in W. (H.P.)), in the sentencing process.

[94] The Court explained that a sentencing judge is to consider all of the sentencing principles when sentencing for a breach of a LTSO, including rehabilitation: (See Ipeelee, at para. 51; See also R. v. Matte, 2012 ONCA 504, at paras. 28, 34-38 [Matte]). At paragraphs 52 to 55 of Ipeelee, the Court addressed the central considerations on sentence:

52 It would be imprudent to attempt to determine in the abstract the gravity of the offence of breaching a condition of an LTSO. The severity of a given breach will ultimately depend on all of the circumstances, including the nature of the condition breached, how that condition is tied to managing the particular offender's risk of re-offence, and the circumstances of the breach. However, a few comments may be instructive.

53 Breach of an LTSO is an indictable offence punishable by up to ten years' imprisonment. This can be contrasted with breach of probation which is a hybrid offence with a maximum sentence of either 18 months or two years' imprisonment. In each of the present appeals, the Crown places significant emphasis on this distinction, suggesting that the high maximum penalty indicates that breach of an LTSO is a particularly serious offence warranting a significant sentence. My colleague, Rothstein J., reiterates this point at para. 123 of his reasons, concluding that the "necessary implication is that Parliament viewed breaches of LTSOs as posing such risk to the protection of society that long-term offenders may have to be separated from society for a significant period of time".

54 The lengthy maximum penalty certainly indicates that Parliament views the breach of an LTSO differently (and more seriously) than the breach of a probation order. However, it would be too much to suggest that the mere existence of a high statutory maximum penalty dictates that a significant period of imprisonment should be imposed for any breach of an LTSO. Breaches can occur in an infinite variety of circumstances. Parliament did not see fit to impose a mandatory minimum sentence. Where no minimum sentence is mandated by the Criminal Code, the entire range of sentencing options is open to a sentencing judge, including non-carceral sentences where appropriate. In its recommendations, the Task Force specifically stated that a key factor to the success of a long-term offender regime is "a speedy and flexible mechanism for enforcing the orders which does not result in lengthy re-incarceration in the absence of the commission of a new crime" (p. 19 (emphasis added)).

55 It is the sentencing judge's duty to determine, within this open range of sentencing options, which sentence will be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The severity of a particular breach of an LTSO will depend, in large part, on the circumstances of the breach, the nature of the condition breached, and the role that condition plays in managing the offender's risk of reoffence in the community. This requires a contextual analysis. As Smith J.A. states in R. v. Deacon, 2004 BCCA 78, 193 B.C.A.C. 228, at para. 51, "the gravity of an offence under s. 753.3 must be measured with reference not only to the conduct that gave rise to the offence, but also with regard to what it portends in light of the offender's entire history of criminal conduct". Breach of an LTSO is not subject to a distinct sentencing regime or system. In any given case, the best guides for determining a fit sentence are the well-established principles and objectives of sentencing set out in the Criminal Code.

[95] The Supreme Court of Canada directed the sentencing judge to assess a proportionate sentence based on a contextual analysis of the circumstances including the conduct involved in the offence and what the conduct foreshadows given the offender’s prior criminality. The Court rejected the singular focus on protection of the public and consequential demotion of rehabilitation endorsed in R. v. W. (H.P.), 2003 ABCA 131 [W.(H.P)]. The Court otherwise implicitly endorsed several relevant sentencing considerations identified by the Alberta Court of Appeal.

[96] Based on the guidance in Ipeelee, W.(H.P), and the discussion in R. v. Bourdon, 2018 ONSC 3431, aff’d 2012 ONCA 256, I synthesize the following relevant principles guiding my sentencing decision:

• The conditions attached to a LTSO are concerned with management of risk and protection of society in contrast with probation orders primarily directed at rehabilitation efforts;
• LTSO conditions are applied to offenders who have engaged in serious criminality and are being sentenced to at least two years incarceration thereby satisfying a high test in the Criminal Code;
• A breach of a LTSO is more serious than a breach of a probation order as evidenced by the available 10-year sentence and the LTSO status of the offender;
• Key to the analysis is characterizing the role of the condition breached;
• The sentencing judge must contextually assess the severity of a breach based on “all of the circumstances, including the nature of the condition breached, how that condition is tied to managing the particular offender's risk of re-offence, and the circumstances of the breach”: Ipeelee, at para. 52;
• If the condition is central and integral to the management of the offender’s recidivist risk, then the breach may be characterized as serious;
• If the condition is ancillary to the central aim in managing the offender’s recidivism, then breach may be characterized as less serious; and,
• While denunciation, general deterrence, and specific deterrence are central concerns, rehabilitation is also a relevant consideration.

3. Case Law

[97] Counsel filed cases to assist the Court with an applicable range of sentence. I have also considered a number of other cases.

[98] I embrace the analysis provided by my colleague M. Greene J. in R. v. Middleton, 2019 ONCJ 280, in arriving at a general range of sentence between nine months and five years for breach of a LTSO: R. v. Middleton, 2019 ONCJ 280, at paras. 37-42 [Middleton]. Sentence ranges are important when considering the parity principle. That being said, sentence ranges are simply collected summaries of minimum and maximum sentences: R. v. Lacasse, 2015 SCC 64, at para. 57. Sentencing is an individualized process. Every defendant is owed a customized sentence. The challenge for a sentencing judge is to impose a fit and proportionate sentence having properly evaluated the relevant factors: R. v. M. (C.A.), [1996] S.C.J. No 28, at para. 90.

[99] In R. v. H.P.W., 2003 ABCA 131 [6], the Court overturned a four-month jail sentence because the sentencing court failed to properly assess whether a condition to abstain from alcohol was an integral condition of the LTSO connected to the mitigation of risk. The Court substituted a sentence of one year.

[100] In Matte, the Ontario Court of Appeal did not disturb the functional equivalent of a two-year sentence (380 days pre-sentence custody plus 350 days imprisonment).

[101] In R. v. Whalen, 2017 ONCJ 43, the Court imposed a 7-month jail sentence on an aboriginal defendant convicted of breaching his LTSO by consuming cocaine. The Court characterized the breach as not the most serious breach. The defendant did not engage in any other criminal conduct or acts of violence at the time. The Court held that it was not surprising that an addict would relapse and that the risk of cocaine use was being managed in the community by way of random urinalysis.

[102] In R. v. S.L.S., [2018] O.J. No 4874 (C.J.) the Court imposed an 18-month sentence in intimate partner circumstances where the Court found that the offender breached a condition designed to address the defendant’s long history of violence against women.

[103] In R. v. Verge, [2014] O.J. No 6313 (C.J.) the Court imposed a three-year jail sentence on a defendant who breached a condition of his LTSO designed to address his risk of violence toward female partners.

[104] In R. v. MacDonald, 2014 ONSC 4671, the Court recognized significant progress achieved by the defendant and the fact that he had completed his LTSO in sentencing the defendant to a conditional sentence of two years less one day. I have not found any other case where a conditional sentence was imposed for breaching a LTSO. I find it significant that the defendant had 15 months of pre-sentence custody credited at the time of sentence.

[105] There does not exist a large body of reported sentencing cases for breach of a LTSO. The caselaw generally demonstrates that breaching a LTSO condition is viewed as a serious criminal offence. A LTSO breach is certainly not a breach of probation. While all of the sentencing tools are available, Courts tend to impose exemplary sentences in recognition of the fact that the defendant has already been designated a long-term or dangerous offender and has breached conditions designed to address protection of the public, rehabilitation, and re-integration into society: Ipeelee, at para. 47. I also endorse the pragmatic approach expressed in Middleton, that where an offender has been doing well and engaging in meaningful rehabilitation, a breach might be viewed as a “blip” deserving a shorter sentence. Where the offender demonstrates consistent non-compliance, lengthier jail sentences are required: Middleton, at para. 42.

F. The Sentence

1. The Rationale for the Conditions

[106] The focus of this sentencing must be denunciation, general deterrence, and specific deterrence. A central consideration for a breach of a LTSO is the rationale for the conditions. The LTSO conditions in this case were designed to provide protection for the complainant and the defendant’s intimate partners. The conditions are central and integral to this goal.

[107] I adopt Justice Tuck-Jackson’s endorsement at paragraph 135 of Jordan:

135 Mr. Wilson makes a compelling point. It is aptly expressed at para 22 of his written submissions and bears reproduction in full:

In the past, Mr. Jordan has received the equivalent [custodial] sentences of 1 year and 4.5 months (1999), 4 months (2001), 2 years (2001) and 19 months (2014) for acts of domestic violence. None of those sentences were significant enough to deter Mr. Jordan from committing the predicate offence. The multitude of sentences Mr. Jordan has received for other, non-domestic crimes, have not deterred him from engaging in further criminal acts. Court orders are not deterrent to Mr. Jordan. The fact that in 2014, following his conviction for acts of violence committed against [the complainant], the Crown sought to commence proceedings for the purpose of having Mr. Jordan declared a Dangerous or Long-Term Offender, did not deter Mr. Jordan from committing a future act of domestic violence against the very same victim.

[Emphasis in the original] [Redaction applied removing the name of the complainant]

[108] This concise statement is still applicable today. The defendant has demonstrated that he requires a specific deterrence message from the Court that he must comply with the terms of his LTSO. This requires the imposition of an exemplary sentence tempered somewhat by balancing the defendants’ ongoing rehabilitative efforts. These rehabilitative efforts are important given the defendant is a serial domestic violence offender who presents great risk to his intimate partners.

2. The Complainant

[109] The defendant’s criminal record as it pertains to violent criminal conduct against intimate partners is extensive and concerning. The sentencing materials document the defendant’s risk to intimate partners in general as well as the risk to the particular complainant in this case.

[110] In some cases, a sentencing Court may have assurance that a complainant will focus on protection and support the conditions imposed. In this case, the complainant contributed to the risk by permitting the defendant to remain proximate to her for the entire day before calling 911. The complainant was not totally cooperative with the police efforts to investigate the circumstances of her injury. The complainant did not provide a statement to the police.

[111] The materials filed at sentencing document the malleable nature of the complainant’s report concerning historical incidents. There are several circumstances where the complainant declined to provide a statement or recanted aspects of a complaint she presented. The comprehensive record presented on sentencing shows that the complainant may not be relied upon to support the LTSO conditions and assist with enforcing the conditions. As noted by Justice A. Tuck-Jackson in her sentencing judgment, there is a power imbalance in this relationship. These circumstances present a serious risk to the complainant.

[112] In these circumstances, the Court must be more protective of the complainant and other potential intimate partners. While this might smack of paternalism, I find that I must act to mitigate risk. Correctional staff must also act to mitigate risk. If not, a central object of this LTSO – to prevent the re-occurrence of intimate partner violence – will continue to be frustrated.

3. Rehabilitation

[113] Defence counsel called the defendant’s parole officer on sentence. I am grateful that Defence counsel took this approach and presented evidence of the defendant’s efforts at rehabilitation.

[114] The imposition of a LTSO means that the Court believes that the defendant’s risk may be manageable in the community. A central consideration when sentencing for a breach of a LTSO involves this defendant’s response to counselling and treatment directed at intimate partner violence. I see the defendant’s current approach to counselling and treatment to be generally positive. But for the evidence adduced by Defence counsel on this issue I would have sentenced the defendant to a lengthier sentence.

4. Assessment by Correctional Staff

[115] Against the backdrop of the complainant’s presentation, I overlay the correctional services opinion that the defendant is “high-risk” and “high-needs” because of his extensive criminal record, deplorable community supervision record, and the history of criminality as it concerns intimate partners.

5. Electronic Monitoring

[116] Having addressed the defendant’s background, the complainant’s presentation, and the correctional assessment that the defendant is “high-risk, high- needs”, it is perplexing that the defendant has not been subject to electronic monitoring recently. As an objective evaluator of the body of information presented a sentencing, it is unclear why correctional staff would disavow electronic monitoring.

[117] The sentencing materials show that electronic monitoring has been used to effectively monitor the defendant’s movements in the past. For example, the correctional plan update notes that at times the defendant travelled close to his exclusion zone and that “[s]uspicions surrounding his travel in the vicinity has not led to any breaches.” [7] Further, in September 2019 the defendant detected outside of his permitted jurisdiction. These examples demonstrate the efficacy of electronic monitoring.

[118] When the defendant committed the offences before this Court, he was not subject to electronic monitoring. According to the defendant’s parole officer, even while on judicial interim release for these offences, he was not subjected to electronic monitoring. The defendant’s parole officer essentially endorsed the presumption of innocence as an explanation for this approach.

[119] While I endorse the parole officer’s approach overall, I disagree with her views on electronic monitoring. I recognize that managing an offender is a challenging task without clear guidelines or defined rules. Each offender requires a particularized approach. But the defendant’s antecedents place him in a high-risk category for domestic violence against intimate partners. This is particularly important where, as here, the defendant’s parole officer is peculiarly aware of the complainant’s vulnerability. [8] The malleability of the complainant as a witness is not a justification for relaxing the approach to electronic monitoring. This feature of the complainant’s presentation does not decrease risk – it increases risk.

[120] The risk presented by the defendant’s antecedents, and the complainant’s presentation is a serious concern. I respectfully observe that anyone with experience in the criminal justice system would recognize that these circumstances present the risk of significant harm to the complainant (and other intimate partners). I do not require expert criminology or sociology evidence to recognize that these circumstances, at times, provoke the spectre of domestic homicide.

[121] It is also important that correctional staff consider that part of the rationale for Justice Tuck-Jackson’s LTSO was the defendant’s violation of a perimeter restriction on two probation orders and the fact that the defendant exploited dominance within the relationship to facilitate committing criminal offences against the complainant: Jordan, at para. 130. The Court was aware that the defendant even dared to violate s.516(2) of the Criminal Code by contacting the complainant from the Toronto South Detention Centre while awaiting final sentencing and disposition of the Long-Term Offender application. The sentencing Court was well aware that the defendant presented a grave risk separate and apart from Dr. Klassen’s actuarial assessment as evidenced by a pattern of criminal offences: Jordan, at para. 147.

[122] I find that electronic monitoring is clearly an integral part of effectively managing the defendant’s risk to the complainant and intimate partners in general. While respect for the presumption of innocence is an admirable consideration for a parole officer to support, the risk presented by allegations should be the central focus.

[123] There are several other good reasons to impose electronic monitoring. First, the defendant has made progress in rehabilitative efforts supported by his parole officer. These gains are placed at risk when the defendant is re-incarcerated. Second, the defendant must know that his movements are being effectively monitored as a deterrent to his persistent decision to flout conditions. Third, in Whalen, a case cited by the Defence, the Court held that the offender’s cocaine use could be effectively managed in the community through effective controls such as urinalysis. By way of general analogy, Mr. Whalen’s risk was adjudged manageable under the longer-term offender provisions through the effective use of urinalysis as a tool. The tool was necessary to prevent recidivism. In a similar manner, I suggest that the electronic monitoring tool is needed to manage the defendant in the community.

[124] Finally, it is notable that the defendant attended sentencing submissions from prison. He has been arrested and charged with new allegations of contact with the complainant while awaiting sentence for these matters. The evidentiary record suggests that he was not subject to electronic monitoring. While I am not sentencing the defendant in relation to the outstanding allegation, I suggest that this is further conformation for view that electronic monitoring is an integral and necessary part of managing the defendant in the community.

[125] With the goal of mitigating risk to the complainant and promoting rehabilitation, I strongly recommend that an electronic monitoring term be considered by correctional staff in additional to geographic perimeter conditions. If the LTSO tools are not used effectively, a future Court may question whether or not a LTSO is effective. Refusing to impose such a condition does not assist the defendant – it appears to embolden him.

6. Conclusion

[126] A sentencing judge should consider the least intrusive sentences that could achieve the aims of sentence and then move up the “ladder” of sentencing options. A discharge or a non-custodial sentence would be grossly disproportionate having regard to all of the circumstances and the sentencing principles applicable to this case.

[127] I find that a sentence of imprisonment is the only available option to address the relevant factors in this case. I am required to consider a conditional sentence as it is available pursuant to statutory criteria outlined in s.742.1(b)–(f) of the Criminal Code. Imposing a conditional sentence would offend the fundamental purpose and principles of sentencing.

[128] The breaches in this case violate the core object of the LTSO – protection of the complainant. As an ancillary impact, the breaches undermine the trust built between the defendant and his parole officer, a parole officer who is attempting to provide the defendant with an opportunity to rehabilitate and earn the elimination of restrictions on his liberty. The evidentiary record on sentence demonstrates that the defendant has little regard for the conditions as they relate to the complainant. These circumstances are highly aggravating and call for an exemplary sentence.

[129] These are the reasons for my sentence imposed today.

Released: August 27, 2021 Signed: “Justice M.S. Felix”

[1] I approve of the term described in the correctional plan update at page 3 prohibiting direct or indirect contact with the complainant unless communications are necessary for the purpose of judicial procedures, the exercise of parental rights, mediation sessions or other such requirements with the prior written permission of your parole supervisor. [2] Page 14. [3] I adopt the recital in Justice Tuck-Jackson’s decision. See Transcript of Proceedings, December 19, 2017 at paras. 68-101 [4] Para 130 [5] Correctional Plan Update, page 6. [6] Described by the Court in Ipeelee as the leading appellate authority at the time in paragraphs 48 and 49. [7] Correctional Plan Update, page 7. [8] For example, this witness carefully noted conversations with the complainant in her report.