Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 04 01 COURT FILE No.: College Park, Toronto #21-75003597

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CHRISTOPHER NAVAS

Sentencing Judgment

Before: Justice B. Jones Heard on: April 1, 2022 Reasons for Judgment released on: April 4, 2022

Counsel: V. Gallegos, counsel for the Crown D. Cristovao, counsel for C. Navas

Jones J.:

Introduction

[1] Christopher Navas entered a guilty plea to one count of failing to comply with a release order contrary to Criminal Code section 145(5).

[2] The Crown sought a conditional discharge with one year of probation. The Crown also requested a DNA order pursuant to Criminal Code section 487.051(3) as the offence is a secondary designated offence.

[3] Ms. Cristovao argued for an absolute discharge and opposed the DNA order.

[4] I provided oral reasons in court on April 1, 2022. These are my written reasons.

The Offence

[5] On January 11, 2021, Mr. Navas was charged with assault and mischief. He had been in a brief intimate partner relationship with the complainant. He attended at the complainant’s home. There was an altercation between them that resulted in the complainant making a report to the police.

[6] On February 22, 2021, Mr. Navas turned himself in at 55 Division in Toronto and was arrested and charged. He was held for a show cause hearing. He was placed on a release order which included a term that he not attend at 6 S.W., Toronto. This was the address of the complainant.

[7] On July 6, 2021, he attended at 2 S.W., an adjacent building, and made his way to 6 S.W. He never interacted with the complainant. His presence there was recorded on a video surveillance camera. This was brought to the attention of the police and on July 8, 2021, he was arrested for failing to comply with his release order. He was released on an undertaking.

[8] Since this offence occurred, the complainant has indicated a desire to have further contact with Mr. Navas.

Background of the Offender

[9] Mr. Navas has no prior criminal record. He was 29 years old at the time of the offence.

[10] He had a troubled upbringing, and experienced physical abuse as a child. He suffers from a series of mental health conditions including depression and anxiety. He continues to have difficulty processing the effects of the trauma associated with that abuse.

[11] His mental health issues drove him to experiment with drugs and he became an addict. Sadly, that resulted in financial difficulties which culminated in him becoming homeless for years. He has also experienced discrimination as he has struggled with his own sexual identity. He was diagnosed with HIV several years ago.

[12] Ms. Cristovao filed a book of defence materials for this sentencing hearing which included several letters from persons involved in providing treatment and support to Mr. Navas. They include a letter from his family doctor, Dr. Arbess, dated June 4, 2021. In Dr. Arbess’ opinion Mr. Navas suffered from major depression and addiction. That letter was written only four weeks prior to him being arrested for failing to comply with his release order.

[13] A series of letters from Ms. Simran Kaur, a coordinator at the Toronto Linkage to Care Program at Fife House were also made exhibits. The Linkage to Care program is a collaborative project between the Ontario HIV Treatment Network, Toronto Public Health, and the Ontario Ministry of Health. Fife House provides secure and supportive affordable housing and services for clients living with HIV in the Toronto area. Ms. Kaur is a social worker who has been assisting Mr. Navas since August 2020. In her letters she explained that the Linkage to Care program provides short-term intensive help to clients, as well as the coordination of health care services, including access to mental health, substance abuse, and other supports in the community. In her most recent letter, dated January 7, 2022, she wrote that Mr. Navas recently graduated from the Linkage to Care program.

[14] Ms. Kaur observed that Mr. Navas’ mental health issues and substance abuse problems led him into a period of significant personal instability over the last few years of his life. After beginning his sessions with her, he started to develop strong community supports and reconnected with his family. He has attended counseling sessions regularly and recently moved into a transitional housing program. He was referred to a psychiatrist at St. Michael’s hospital for further clarification of his mental health needs and to develop a suitable treatment plan. He is now receiving prescribed medication to address his physical and mental health conditions.

[15] He has also been able to obtain stable housing. Following a successful nine month period at Fife House he was able to move to the Huntley Transitional Housing program in January 2022 which offers a higher level of support. He will be able to reside there until June 2023 and will work with staff to develop the skills he needs to live independently.

[16] A letter from Megan Robertson, Mr. Navas’ case manager at Huntley Transitional Housing, dated March 28, 2022, noted that Mr. Navas has maintained a healthy and close relationship with his family. She has witnessed major improvements on his behalf and a sustained effort towards him achieving his goals.

LAW and ANALYSIS – CONDITIONAL vs. ABSOLUTE DISCHARGE

[17] A sentence must be proportionate to “the gravity of the offence committed and the degree of responsibility of the offender”: R. v. Suter, 2018 SCC 34 at para. 4; Criminal Code section 718.1. Sentencing is a highly individualized process that must consider the offender’s personal circumstances and degree of moral blameworthiness: see R. v. Parranto, 2021 SCC 46 at paras. 16 and 40.

[18] A discharge represents an opportunity for an offender to avoid a formal criminal conviction. The test for a discharge is contained in Criminal Code section 730(1):

(i) The court must be satisfied that it is in the best interests of the accused; and (ii) the court must be satisfied that it is not contrary to the public interest that the accused receive a discharge.

[19] The offence will not be eligible for a discharge if there is a mandatory minimum sentence or if it is punishable by a sentence of 14 years’ imprisonment or for life.

[20] Even for a person with no prior criminal record, not every case justifies the imposition of a discharge. A discharge is typically reserved for cases where the offence is minor and the circumstances surrounding it are sufficiently mitigating that a conviction would be an unduly harsh penalty. The court should consider if a conviction would carry with it significant adverse repercussions for the offender: see R. v. Campbell, 2013 BCCA 43, at para. 27.

[21] While it will typically be in the best interests of the accused to receive a discharge, it must also not be contrary to the public interest. Courts consider factors including whether the offender is otherwise of good character, has strong community supports and has demonstrated pro-social behaviour.

[22] In R. v. Taylor (1975), 24 C.C.C. (2d) 551, the Ontario Court of Appeal held that a discharge is appropriate when an offence seems “out of character” or that the offender was struggling with “mental turmoil or some unusual disturbance in his life’s routine”: see p. 552. Recently the Alberta Court of Appeal held that a discharge should be imposed when a crime is an “aberration attributable to stimuli that will probably never exist” in the future: see R. v. Turner, 2022 ABCA 11, at para. 38.

[23] When considering the appropriateness of a discharge, the personal background and moral culpability of the offender should be given great weight. Mr. Navas was suffering from significant mental health challenges at the time this offence occurred. I am satisfied his offending behaviour was directly tied to his mental illness and that must be considered a mitigating factor in sentencing: see R. v. Fabbro, 2021 ONCA 494, at para. 25.

[24] In Suter, supra the Supreme Court held that courts should examine the collateral consequences of a sentencing decision. A collateral consequence includes “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender”: see para. 47. Relevant collateral consequences include the sentence’s potential impact on the offender’s employment prospects, ability to access public housing and social services, and future educational or volunteer opportunities.

[25] The parties agree that a conviction would impose a disproportionate hardship on Mr. Navas. Ms. Cristovao submits that a conditional discharge would also impose disproportionate and unnecessary collateral consequences on Mr. Navas. She raised concerns about a conditional discharge affecting Mr. Navas’ ability to obtain certain forms of employment in the future, and that his continued access to the Huntley Transitional Housing program could be jeopardized. The housing services he has received over the past year have allowed him to stabilize. The Crown submits that a conditional discharge is appropriate because there is a need for a probation order, as Mr. Navas requires continuing supervision and will be incentivized to maintain his path to rehabilitation. The Crown further submits that while he did not enter a guilty plea to the charge of assault, the background of this fail to comply offence included that he was involved in a physical altercation with his intimate partner and this raises legitimate safety concerns. A term on a probation order prohibiting him from contact with the complainant, unless the complainant filed his prior, written, orally revocable consent would be appropriate. These are reasonable considerations.

[26] There will, of course, be cases where a probation order is required as part of a conditional discharge order to confirm that an offender receives necessary counseling or programming for his rehabilitation. It will also be appropriate when an offender should be supervised in the community for a period of time while subject to appropriate conditions crafted to ensure the safety of a victim.

[27] This is not such a case. There is simply no need for a probation order here as Mr. Navas is already engaging with appropriate community resources and undergoing treatment as well as therapy: see R. v. C.C., 2004 ONCJ 388. If an offender has made progress towards addressing the underlying factors that led to his offending behaviour, for example through the completion of counseling or medical treatment, he has demonstrated his commitment to his own rehabilitation. That is powerful evidence with which to evaluate the public interest component of the test for a discharge: see D. Robitaille and E. Winocur, Sentencing: Principles and Practice, (Toronto: Emond Publishing, 2020), Chapter 5, at p. 145. It is also a significant factor to weigh when deciding if a conditional discharge including probation is truly required.

[28] Furthermore, there are no ongoing victim safety concerns in this case. The complainant has indicated he wishes to have further contact with Mr. Navas. No evidence was presented before me that suggested Mr. Navas has any prior history of violent or threatening behaviour. The circumstances that existed in his personal life when this incident occurred are simply no longer present. If conditions are no longer required to achieve an appropriate sentence, they should not be imposed: see R. v. Holder-Zirbser, 2018 ONCJ 59 at para. 12.

[29] When considering between an absolute and conditional discharge, I note the retention period of these records is very different under the Criminal Records Act. A record of an absolute discharge is kept for one year, whereas a record of a conditional discharge is kept for 3 years “since the day on which the offender was ordered discharged on the condition prescribed in a probation order”: see section 6.1. Following that retention period, the existence of the discharge cannot be disclosed without the prior approval of the Minister of Public Safety and Emergency Preparedness: R. v. Montesano, 2019 ONCA 194 at para. 9.

[30] Extending the retention period of his discharge would be contrary to Mr. Navas’ long-term rehabilitative prospects. His employment options, ability to access public housing, and even educational opportunities may be affected by the longer retention period associated with a conditional discharge: see R. v. L.A.Q., 2021 BCPC 288 at para. 72. In Ontario, the Police Records Checks Reform Act, S.O. 2015, c. 30, establishes standards that govern how police record checks are conducted. A record of a discharge may be released depending on the level of record check requested or required. [1] That act came into force on November 1, 2018.

[31] This offence was causally linked to Mr. Navas’ difficult personal circumstances including his mental health challenges. Given the tremendous progress he has made, including his ongoing treatment for his mental health and addiction challenges, promotion of his long-term rehabilitation should be the focus of my decision. That will ensure he remains a productive member of society engaged in pro-social activities. That is indisputably is in the public interest.

[32] Ms. Cristovao put it very well when she said that person who committed the offence was not the same person who comes before me today. I agree. Mr. Navas’ efforts at rehabilitation have been nothing short of exemplary. I have no reason to be concerned he poses any risk to the safety of the community in the future. His path to a positive future should remain unobstructed.

[33] In all the circumstances, I grant an absolute discharge.

DNA ORDER – Secondary Grounds

[34] The Crown requested a DNA order as failing to comply with a release order is a secondary designated offence. A DNA order is not a sentence and nor is it a form of punishment: see R. v. R.C., 2005 SCC 61, at para. 39; R. v. Lawson, 2019 BCCA 290 at para. 37.

[35] A court may order that an offender provide a DNA sample for a secondary designated offence if the court is satisfied that “it is in the best interest of the administration of justice to do so”: Criminal Code section 487.051(3)(b). The court shall consider the offender’s criminal record, the circumstances surrounding the commission of the offence, and the impact the order would have on his privacy and security of the person. An offender has a diminished expectation of privacy following a criminal conviction, and there are very important interests served by the DNA databank. Various appellate courts have held that it will usually be in the best interest of the administration of justice to impose such an order: see, for example, R. v. F. (P.R.) at para. 25. However, where an offender has no prior criminal record, and the circumstances of the offence are relatively minor, a court may exercise its discretion to not impose the order: F. (P.R.) at para. 24; R. v. Aceto, 2017 ONSC 7325 at paras. 34-38.

[36] This was a relatively minor breach which occurred due to the very difficult personal circumstances in Mr. Navas’ life that are no longer present. Considering his lack of a prior criminal record and his impressive efforts at rehabilitation, I decline to grant the order for this secondary designated offence.

Released: April 4, 2022 Signed: Justice Brock Jones

[1] The Act authorizes a “criminal record and judicial matters check” and a “vulnerable sector check.” In both cases, an absolute or conditional discharge can be disclosed, subject to the applicable retention period.