Ontario Court of Justice

Date: 2023 05 23 Court File No.: Toronto East 4519 998 22 30005163 4813 998 22 30005707

BETWEEN:

HIS MAJESTY THE KING

— AND —

YOGATHAS YOGARAJAH

Before: Justice R. Wright

Heard on: May 11, 2023 Reasons for Judgment released on: May 23, 2023

Counsel: P. Rutherford, counsel for the Crown S. Yogeswaran, counsel for the defendant Yogathas Yogarajah

R. WRIGHT J.:

[1] On April 13, 2023, I sentenced Mr. Yogarajah for seven offences:

(1) Assault on Vinothini Yogathas Nov. 7, 2022;

(2) Assault on Vinothini Yogathas Nov. 7, 2022;

(3) Assault on Vinothini Yogathas Nov. 7, 2022;

(4) Failing to Comply with a condition of Probation Nov. 7 2022 (keep the peace and be of good behaviour);

(5) Failing to Comply with a condition of a Release Order Dec. 12, 2022 (house arrest);

(6) Failing to Comply with a condition of a Release Order Dec. 12, 2022 (no communication with Vinothini Yogathas or Harshana Yogathas);

(7) Failing to Comply with a condition of a Release Order Dec. 12, 2022 (not to be within 100 m of Vinothini Yogathas or Harshana Yogathas).

[2] I accepted a joint submission for a 12-month Conditional Sentence Order (“CSO”) that included conditions preventing Mr. Yogarajah from attending his partner's address or communicating with her. It also included a condition permitting him to leave his house arrest in order to enter a 28-day rehabilitative program which was to commence upon his release.

[3] When Mr. Yogarajah was released, he attempted to enter the 28-day treatment program, but was turned away due to a communication error (he had not received a letter while he was in custody that required him to confirm his attendance in advance).

[4] Rather than abiding by the remaining terms of his CSO, he breached the non-attendance and non-contact provisions by going to his wife's residence.

Facts of the Breach

[5] On Sunday, April 16th, 2023, the Complainants Vinothini Yogathas and her daughter Harshana Yogatha were at their residence located at […] Crescent, City of Toronto.

[6] Mr. Yogarajah attended […] Crescent and began pounding on the back door, shouting, "let me in!" The complainants left the house and called police. Police attended and found the residence to be unsecured. Police entered […] Crescent and located the accused hiding in a closet.

[7] Mr. Yogarajah was bound by a 12-month CSO made by me on April 13, 2023, with conditions that he remain within his residence (with several exceptions, none of which were applicable at the time), that he not be within 500 m of anywhere Vinothini Yogathas was known to him to reside, and that he not have any contact with Vinothini Yogathas.

[8] Mr. Yogarajah has been on continuous probation since 2018. He has 12 adult convictions with 10 of them being domestic related (the other two are for impaired driving). The victim of all his domestic violence convictions is Ms. Vinothini, his wife and mother of his three children. After my Order of April 13, he was bound by four court orders including the CSO, and has been being supervised in the Intensive Supervision Stream since October 2, 2019, because he is assessed at the highest risk of re offending.

[9] The underlying offences for which he received the CSO include:

(1) On Monday, November 7th, 2022, at about 4:00 am, Mr. Yogarajah and the victim were in the bedroom of their residence at […] Crescent, City of Toronto. The accused had been drinking and became involved in an argument with the victim as to why she had always been calling the police on him. The accused then tackled her as she was laying in her bed. Police were not called at this time. No injuries were sustained.

(2) Later that day at about at around 11:30 am, Mr. Yogarajah and the victim were in the living room of their residence. The victim spoke about wanting to go to an appointment and Mr. Yogarajah struck, kicked and pushed her against a wall and glass sliding door. This incident was witnessed by their 11-year-old daughter. No injuries were sustained.

(3) Within an hour, Mr. Yogarajah and the victim were in the bathroom of their residence. Mr. Yogarajah assaulted the victim and when their eldest daughter came to intervene, the accused grabbed his daughter by her hair. The victim told her daughter that the accused had just assaulted her and gestured with punches to her head. The victim complained of head soreness but did not seek medical attention.

(4) Mr. Yogarajah was bound by a Probation Order on Nov. 7, 2023. He was released on a Release Order for these offences, which he breached in three ways on Dec. 12, 2022 (house arrest, non-contact, not to be within 100m).

Law

[10] In R. v. Ramsaran, [2008] O.J. No. 3163, Hill J. provided an excellent summary and analysis of what he referred to as the overarching principles that should apply to breach of conditional sentence hearings. I reproduce and adopt those principles as follows:

63 As described by Charron J. in McIvor, 2008 SCC 11, [2008] S.C.J. No. 11, at para. 12, a conditional sentence order breach hearing is somewhat of a hybrid between a sentencing and a pure revocation proceeding:

A breach proceeding under s. 742.6 is not simply a hearing to obtain information about the offender's background in order to fashion a fit sentence. If any analogy may be usefully drawn, conditional sentence breach proceedings are more akin to a prosecution for breach of probation, coupled with a revocation hearing to lift the suspension of a sentence.

64 In some measure, a s. 742.6(9) disposition is considered to be a "sentence" (s. 673 of the Criminal Code). The court's disposition pursuant to s. 742.6(9), on finding one or more breaches of a conditional sentence order, may justifiably carry an element of sanction depending on the nature of the offender's misconduct. At para. 44 of the Proulx decision, Lamer C.J. stated:

In order for incarceration to serve as a punishment for breach of a conditional sentence, logically it must be more onerous than a conditional sentence.

65 Judicial experience with breaches of conditional sentences and s. 742.6(9) has led to the emergence of some guiding and overarching principles including the following:

(1) A conditional sentence disposition is an order for imprisonment and accordingly, "conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty ... Conditions such as house arrest ... should be the norm": R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) at para. 36.

(2) "[C]onditional sentences are only to be imposed on offenders who would otherwise have been sent to jail": Proulx, at para. 37. Where house arrest is a term of a conditional sentence order, and limited exceptions are ordered to apply, an offender's presence in the community pursuant to such permission is exceptional.

(3) Where a conditional sentence order is breached, there is a rebuttable presumption in favour of incarceration -- the "constant threat of incarceration" fosters compliance, albeit coercively, with the order's terms and conditions. In the Proulx decision, at paras. 21, 38 and 39, Lamer C.J. observed:

In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6. If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

The punitive nature of the conditional sentence should also inform the treatment of breaches of conditions. As I have already discussed, the maximum penalty for breach of probation is potentially more severe than that for breach of a conditional sentence. In practice, however, breaches of conditional sentences may be punished more severely than breaches of probation.

More importantly, where an offender breaches a condition without reasonable excuse, there should be a presumption that the offender serve the remainder of his or her sentence in jail. This constant threat of incarceration will help to ensure that the offender complies with the conditions imposed ... It also assists in distinguishing the conditional sentence from probation by making the consequences of a breach of condition more severe.

This philosophy has been consistently confirmed: McIvor, at paras. 13, 15; Filippelli, at paras. 24, 27; R. v. Dolan, [2008] B.C.J. No. 583 (C.A.) at para. 22; R. v. Starratt, [2007] N.S.J. No. 59 (C.A.) at para. 24; R. v. Peekeekoot, [2005] S.J. No. 741 (C.A.) at para. 6; R. v. L.(T.E.) (2005), 2005 BCCA 478, 202 C.C.C. (3d) 431 (B.C.C.A.) at para 4; R. v. Booh (2003), 2003 MBCA 16, 171 C.C.C. (3d) 108 (Man. C.A.) at para. 15.

(4) Because the presumption of incarceration is rebuttable, not every breach need attract such a disposition: L.(T.E.), at para. 6; Booh, at para. 16. In some instances, for example where extenuating circumstances exist, other less drastic options may fulfil the necessary objectives of sanctioning the particular breach of a conditional sentence order: R. v. Kluke, [2008] O.J. No. 940 (C.A.) at para. 4; R. v. Ballantyne (2006), 36 M.V.R. (5th) 182 (Sask. C.A.) at paras. 13-14; R. v. McKenzie (2006), 2006 SKCA 13, 206 C.C.C. (3d) 569 (Sask. C.A.) at para. 22; R. v. Tssessaze, [2006] S.J. No. 150 (C.A.) at paras. 18-20. The appropriate exercise of discretion requires that each case fall to be assessed on its own circumstances.

(5) A primary consideration in the exercise of discretion pursuant to s. 742.6(9) is the seriousness of the breach(es) and certainly where the offending conduct itself amounts to the commission of a criminal offence as described in the Filippelli case at para. 25:

In a case some three years earlier than Proulx, Rosenberg J.A. of this court fully supported the concept that where the court finds a breach of condition, particularly if the breach involves the commission of a further criminal offence, it is appropriate for all or a portion of the unexpired term of the offender's sentence to be served in custody. In the aforementioned case, R. v. Wismayer (1997), 33 O.R. (3d) 225 (C.A.), Justice Rosenberg stated at 238:

In my view, Parliament intended that committal to prison be a real threat both to indicate to the offender the seriousness of violation of the terms and to reassure the community.

This procedure which is set out in s. 742.6 reinforces the point that this is a sentence of imprisonment that the offender is permitted to serve in the community. It is appropriate that if the offender breaches the order, and particularly if the breach represents the commission of a further offence or endangers the community, all or a portion of the unexpired term of the sentence be served in prison.

The same approach is identified in the Starratt decision at paras. 26-7 (breach leads to jail "especially if that breach involves the commission of another offence") and the Dolan case at para. 22 (termination of order appropriate where offender "persisted in criminal conduct").

(6) There is, however, no exhaustive list of relevant factors. In L. (T.E.) at para. 13, the court catalogued a number of important considerations:

... the task of the court at a disposition hearing is to consider the nature of the offence; the nature, circumstances, and timing of the breach; any subsequent criminal conduct and sentences for that conduct; changes in the plan for community supervision; the effect of termination on the appropriateness of the sentence for the original offence; and the offender's previous criminal record, in determining whether the presumption of termination for breach is to be applied.

Given that a s. 742.6(9) disposition is considered a sentence, I would add to this list other considerations of Part XXIII of the Code, including denunciation, specific and general deterrence, risk to community safety, and rehabilitation, although given the need "to maintain the integrity of the conditional sentence regime" (Filippelli, at para. 26), the latter principle will not generally be as robustly applied as at the original sentencing hearing. Segments of the public remain suspicious that conditional sentences are not imprisonment and that the terms of the orders are not rigorously enforced. Breach hearing dispositions should contribute to public confidence in s. 742.1 sentences.

Analysis

[11] The breach hearing was conducted and I heard submission on disposition May 11, 2023. The Crown seeks that I terminate the conditional sentence and direct that Mr. Yogarajah be committed to custody to the end of his sentence. The Defence seeks that I consider the time he has spent in custody since the breach and take no action or make minor changes to the optional conditions. In the alternative, the Defence submits a lesser time in custody and a return to the CSO following the custodial portion would be appropriate.

[12] I adjourned this hearing for an additional 12 days to allow me to complete my written reasons. By my calculation, this means that Mr. Yogarajah has now served 38 days in custody.

[13] In my view, the breaches must be considered to be serious breaches. While not amounting to new violent offending, there is an element of violence in the form of the contact, and the victims felt they had to flee the residence. There is also a further, if uncharged, crime on the facts; after his wife and daughter fled the house, Mr. Yogarajah was then found by police inside the abandoned residence, hiding in a closet. The history of breaches and further offending while on release order is also a factor here. The conditions prohibiting contact and attendance were in place to protect Mr. Yogarajah’s wife and children from him. They had every right to expect he would obey those conditions.

[14] It should be remembered that for a Court to be satisfied that a conditional sentence is appropriate in the first place, the offender should not be seen as a risk to commit additional offences, if permitted to serve the sentence in the community.

[15] From the standpoint of general deterrence, specific deterrence, and the extremely important issue of public confidence in the conditional sentencing scheme in the Criminal Code, I must respectfully disagree with the Defence that I should simply release Mr. Yogarajah today. Given his criminal record, 38 days in custody is woefully insufficient to reflect the seriousness of his breaches.

[16] At the same time, I must also respectfully disagree with the Crown submission that I should suspend the conditional sentence order and direct that Mr. Yogarajah serve the unexpired sentence in custody. Under the circumstances of this breach, and the antecedents of the offender, such a disposition would, in my view, adversely affect the propriety of the sentence for the original offences. It would also ignore the rehabilitative intent of the original sentence.

[17] The conditional sentence was arrived at to attempt promoting rehabilitation by attendance at a residential alcohol program. It is clear that Mr. Yogarajah’s abuse of alcohol is what has fueled his offending. Left untreated, his risk of reoffending is significantly higher.

[18] In my view the appropriate disposition is to invoke s. 742.6 (9) (c) (i) and (ii) of the Criminal Code and direct that Mr. Yogarajah serve an additional 120 days of the unexpired portion of his sentence and that the conditional sentence should resume on his release from custody. This strikes the appropriate balance between deterrence and rehabilitation, and maintains the integrity of the conditional sentence regime.

[19] I will also vary the optional conditions of the Order in the following manner:

(1) Condition 6, “Attend at Renacent Paul J. Sullivan at 90 Colston Avenue, Brooklin on April 14, 2023 and remain in the 28-day program until completion” is removed.

(2) Condition 6 is replaced with “Reside at an address approved of by your Conditional Sentence Supervisor, which may include residing at any 28-day residential treatment program to which you are accepted”.

Released: May 23, 2023 Signed: Justice R. Wright