R. v. Westlin, 2023 ONCJ 577

ONTARIO COURT OF JUSTICE

Date: 2023 12 21 Court File No.: Central East Region: Courthouse: File # 22 28107070

BETWEEN:

HIS MAJESTY THE KING

— AND —

TYLER WESTLIN

Before: Justice Peter C. West

Oral Submissions Heard: December 12, 2023 Reasons for Judgment Given on: December 21, 2023

Counsel: Mr. G. Black, counsel for the Crown Ms. S. Kissova, counsel for the accused, Tyler Westlin

WEST J.

[1] Tyler Westlin pleaded guilty to a charge of assault bodily harm that occurred on November 10, 2022, at the Marriott Inn, 160 Consumers Drive, Whitby. After Mr. Westlin’s guilty plea a pre-sentence report was ordered. The PSR received from Alberta probation was marked as Exhibit 1. The victim of the assault was Syed Sirajul Alam, a staff person at the hotel. Officers responded and were met in the lobby by Mr. Alam, who was holding his hands to his face with blood covering his upper and lower lips around his mouth, as well as a swollen tongue, and having difficulty being able to talk. He was observed to be experiencing pain. Mr. Westlin had been with his girlfriend, Rebecca Nicholson, at the hotel in Room 308. They had gotten into an argument where she did not feel safe and wanted Mr. Westlin to leave. Mr. Westlin was under the influence of alcohol. When Mr. Alam, who worked at the hotel, asked Mr. Westlin to leave, Mr. Westlin began punching him in the face several times. Mr. Alam told police he was punched over 20 times in the face. Mr. Westlin was sitting in the lobby and was arrested by police without incident. The original charge of assault was upgraded to assault causing bodily harm when the police were advised Mr. Alam’s jaw had been broken.

[2] I was provided at the judicial pretrial with SOCO photos of Mr. Alam’s injuries but they were not filed as an Exhibit. An excerpt from the medical records was provided as part of the facts, which indicated Mr. Alam was presented at Mount Sinai Hospital with facial injury and admitted on November 11, 2022 by the Oral and Maxillofacial surgery service for definitive surgical management. On November 16th 2022, Mr. Alam was taken to the OR at Mount Sinai Hospital where open reduction and internal fixation of his bilateral mandible fractures was completed as planned under general anesthetic without complication. Mr. Alam was evaluated in the OR, transferred to PACU in stable condition for post operative monitoring. He was transferred to surgical wards where nursing and maxillofacial teams followed him closely. He remained in hospital until November 16, 2022, when he was discharged to his home in stable condition. A Victim Impact Statement authored by Mr. Alam was filed by the Crown as Exhibit 2 where Mr. Alam related he had a second surgery as well. I will address the VIS later in my reasons.

Background of Tyler Westlin

[3] Mr. Westlin was born and raised in Breton Alberta, where his parents still reside. He is 32 years of age and has a sister who is three years his junior. He returned to Alberta after the charge of assault causing bodily harm was laid. He has three children (8, 5, and 2) from three different women. He has access to each of his children every second weekend and he must pick them up from three separate communities on Fridays, returning them on Sunday. He had relationships with each of the mothers of his children. At the time of the commission of the offence he was in a relationship with Rebecca Nicholson, who had been living with him in his house. The charge arose when he had travelled with Ms. Nicholson to Ontario and they had an argument and when he was asked to leave he responded by becoming violent with Mr. Alam, a hotel employee who requested he leave the hotel. All of the collateral sources contacted by the probation officer confirmed Mr. Westlin is a good father, who provides and cares about his children. He is in a new relationship, which the collateral sources described as a positive one.

[4] He dropped out of high school and began working in the oil fields at the age of 14. He later took college courses, which resulted in his becoming licensed as a heavy-duty mechanic. He worked for one company, Earls Truck Repair for 3 ½ years and advanced to the position of shop manager. I was advised he owns his own company, 2266436 AB Inc., which obtains contracts with various companies that he travels to and provides mechanical services.

[5] He has a criminal record related to operating a motor vehicle with more than 80 mgs of alcohol in 100 ml of blood (2010) and a drive disqualified in 2011, for which he received a 30 day intermittent sentence. Both offences were committed in Alberta. There is a 12 year gap between this record and my sentence.

[6] His friends and family think highly of him, see his charge as being out of character but recognized his impulsivity and consumption of alcohol has at times cause him difficulty. Mr. Westlin has demonstrated insight and awareness about this concern, he has taken two anger management courses since returning to Alberta, (the first he registered for immediately upon returning to Alberta on his own initiative and the second he completed through the Salvation Army on November 8, 2023, certificates were marked Exhibit 4a and 4b), he has begun taking anti-depressant medication he was prescribed in 2015 through some counselling he was involved in then for depression and anxiety, through his doctor and his family and friends have observed him since this incident to be calmer in social interactions. He has strong support from his family and friends. I received two character letters (Exhibit 5a and 5b), which describe a very caring individual, who is a great father, and a loyal and trustworthy friend.

[7] I was provided an apology letter written by Mr. Westlin (Exhibit 3), which in my view reflects awareness and insight on Mr. Westlin’s part as to why this incident occurred and reflected sincere remorse on his part of the serious impact his action had on Mr. Alam and Mr. Alam’s family members. In my view it also demonstrated a willingness and preparedness on Mr. Westlin’s part to address these issues to ensure another similar incident does not occur in the future. This willingness to change on his part was also observed by Mr. Westlin’s family and friends. I will refer to this again later in my reasons.

Victim Impact Statement

[8] Mr. Syed Alam provided a VIS (Exhibit 2), which reflected the significant impact Mr. Westlin’s conduct had on him in terms of the injury caused to his mouth and jaw and his extended recovery, both in hospital and at home. He also reflected how Mr. Westlin’s conduct not only impacted him, but it also negatively impacted his wife and his two children. He related how he was in Mount Sinai Hospital for a week in downtown Toronto and his family members were required to pay for parking each day. He also related how he had to undergo a second surgery, had numerous doctor’s appointments, had to pay for some of the medication he was required to take, and how he had to fight with WSIB by hiring lawyers. He related owing thousands of dollars to his landlord because of his inability to work. His family members were required to increase their work to assist in covering the family’s expenses. He described how each member of his family was greatly impacted by Mr. Westlin’s conduct of injuring Mr. Alam. Each of them had to take extra responsibility for obtaining employment to try to meet the financial needs of their family as a result of Mr. Alam being unable to work. He described being on a liquid diet after the first surgery for 4 months and similarly for 2 months after the second surgery.

[9] Mr. Alam could not fathom why Mr. Westlin would have assaulted him in the manner he did. Mr. Westlin did not know him and he was only requesting him to leave the hotel because Ms. Nicholson was requesting this, as she did not feel safe. Despite having every reason to be angry and upset towards Mr. Westlin because of what he did to Mr. Alam, Mr. Alam wrote in the VIS that he hoped and prayed Mr. Westlin would be able to change and stop himself the next time someone made him get angry and he hoped everything that has happened to Mr. Westlin since his assault on Mr. Alam has made Mr. Westlin a “better man”. He asked Mr. Westlin to remember there is a family, a good religious family to whom he did something unforgiveable, he hoped Mr. Westlin’s own guilt for what he did would shape him into a better person.

[10] When the matter returned for submissions I made inquiries of the Crown whether Mr. Alam had raised anything concerning restitution for the costs he incurred because of Mr. Westlin’s criminal conduct. Ultimately there was discussion between the Crown and Ms. Kissova and a restitution amount was agreed upon, which I will discuss later in my reasons.

Aggravating and Mitigating Circumstances

[11] It is a statutorily mandated aggravated circumstance under s. 718.2 (iii.1) where the offence had a significant impact on the victim’s health and financial situation, which is clearly evident from his injuries and his VIS filed in this case.

[12] Further, in my view the seriousness of the injuries caused by Mr. Westlin to Mr. Alam’s face and mouth and jaw were quite serious, requiring two surgeries and two stays in hospital. It affected Mr. Alam’s ability to work for a period of time and continues to affect how long he is able to work. Further, the fact Mr. Alam still has effects from the injuries to the present time is a serious aggravating circumstance.

[13] A further aggravating circumstance is the fact Mr. Westlin’s criminally violent aggressive conduct towards Mr. Alam also had significant impact to his wife and two children.

[14] The fact Mr. Alam was a stranger to Mr. Westlin and was just engaged in his job as someone who worked in the hotel in my view increases the seriousness of this offence.

[15] Although Mr. Westlin is not a first offender, his two prior convictions are 12 years old, which is a significant gap. Mr. Westlin has been a contributing member of the community in terms of being gainfully employed and this to some extent is mitigating, as is his support from family and friends within his community.

[16] His guilty plea demonstrates his remorse, as does his comments in the PSR, as well as his letter of apology to Mr. Alam, Exhibit 3 and his comments to me after I heard submissions from counsel before I imposed my sentence all demonstrated his remorse for his conduct, which I accept is sincere. His friends and family’s observations as to his remorse supports this as well. He has accepted responsibility for his actions and has taken concrete steps to attempt to address his conduct for the future. All of this is mitigating. His guilty plea also saved court time and obviated the need for Mr. Alam to have to testify and relive the horrific events that caused his injuries.

Position of the Parties

[17] The position of the Crown in this matter is that a six (6) months jail sentence, followed by 2 years probation, is the appropriate disposition. The Crown argues that given the aggravating circumstances present in this matter, denunciation and deterrence ought to be the primary sentencing principles to be emphasized by the court.

[18] The defence does not attempt to diminish in any way the seriousness of the assault by Mr. Westlin. It is the defence position however, that in addition to denunciation and deterrence I must consider other factors which must be balanced in arriving at a proportionate sentence. Mitigating factors such as the gap between his criminal record from 2012 and this incident, his guilty plea which demonstrates his remorse and acceptance of responsibility and the counseling he has already completed since his arrest militate against a sentence that simply emphasizes punishment and retribution. It is the defence position that a proportionate sentence having regard to all of the circumstances is a conditional sentence of 12 months. A conditional sentence, with appropriate restrictions, can properly reflect and address the principles of denunciation and deterrence, while exercising restraint and giving effect to supporting Mr. Westlin’s rehabilitation.

Applicable Sentencing Principles

[19] As a result of the Crown electing to proceed by summary conviction, if I determine a period of incarceration is appropriate, any sentence I impose will be below two years less a day. Indeed, the Crown is only seeking a 6 month custodial sentence. Consequently, I must consider the appropriateness of a conditional sentence pursuant to s. 742.1 of the Criminal Code.

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3 [conditions of conditional sentence order], if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 [general sentencing provisions];

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(c) the offence is not an offence under any of the following provisions:

(i) section 239, for which a sentence is imposed under paragraph 239(1)‍(b) (attempt to commit murder),

(ii) section 269.‍1 (torture), or

(iii) section 318 (advocating genocide); and

(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;

1992, c. 11, s. 16; 1995, c. 19, s. 38, c. 22, s. 6; 1997, c. 18, s. 107.1; 2007, c. 12, s. 1; 2012, c. 1, s. 34; 2022, c. 15.

[20] The facts of this case meet conditions (b), (c) and (d). There is no minimum sentence applicable, the Crown is seeking an 6 month sentence and the offence he is being sentenced on does not fall within one of the few prescribed offences in (c) and (d) where a conditional sentence is not available. In my view the safety of the community would not be endangered by Mr. Westlin serving the sentence in the community given the fact he has been on release for over 12 months and he has not been in any further difficulty with the police. It is my view the safety of the community would not be endangered by permitting Mr. Westlin to serve a custodial sentence in the community for the following reasons. Mr. Westlin has a dated criminal record from 2010 and 2011. He is currently 32 years of age. Despite dropping out of high school he went back to college for four years and currently is a licensed heavy-duty mechanic. He has been gainfully employed for many years and has a strong support system in Alberta of family and friends. He has demonstrated remorse and acceptance of responsibility for his conduct through his guilty plea and has gained insight into the origins of his offending behaviour through anger management counselling he has taken since being charged. He has recognized his consumption of alcohol contributed to his violent and aggressive actions and conduct towards Mr. Alam and according to his family and friends they have observed his consumption has been reduced since this charge was laid. He has three children from three different women and has regular access to them and provides financially for them. Consequently, where these pre-conditions are met, in R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6, at para. 127, #7, the Supreme Court directed that sentencing judges must give serious consideration to community based sentences. The only pre-condition remaining therefore is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[21] The purpose of sentencing is set out in s. 718 of the Criminal Code. I am of the view it is important to indicate what this section sets out and the sections that follow because I believe this is where the applicable principles of sentencing are defined for criminal cases. I will preface what these sections set out by indicating in Canada revenge is not an appropriate sentencing principle. Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victims and the sanction imposed by the Court. Rather, the Court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Criminal Code, determine a fit sentence in the circumstances of the case. This is our tradition in Canada, a tradition which has a long and respected history both in Canada and other free and democratic societies throughout the world.

[22] Nothing I do in terms of Mr. Westlin’s sentence will in any way undo the damage and injuries his conduct caused Mr. Alam. His violent behaviour towards Mr. Alam occurred and it cannot be undone. It is my hope Mr. Alam can move forward from today, put aside what Mr. Westlin did to him and not allow Mr. Westlin’s actions to continue to affect his life adversely or negatively.

[23] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to: (a) Denounce the unlawful conduct; (b) Deter the offender, and others, from committing such an offence; (c) Separate the offender from society, where necessary; (d) Assist in the rehabilitation of the offender; (e) Provide reparation for harm done to “victims”, or the community; and (f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community. How much weight I place on any one objective will depend on the facts of each individual case.

[24] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[25] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances, which I have set out above. This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[26] The jurisprudence indicates a range of sentence for assault causing bodily harm from conditional discharges to conditional sentences, where the Crown proceeds by summary conviction, to sentences in the upper reformatory, and in rare cases, low penitentiary sentences where the injuries are serious, the offender has a criminal record for similar offences and the Crown has proceeded by indictment. Recently the Supreme Court in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64, at paras. 57-58 and 60, made it clear that sentencing ranges are simply guidelines and all sentences must be individualized to the particular case:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered 'averages', let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case...

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. (R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 44.)

In other words, sentencing ranges are primarily guidelines, and not hard and fast rules. (Emphasis added)

[27] It is clear that any sentence must focus on the protection of the public by the imposition of a penalty that denounces this type of conduct and provides for both general and specific deterrence. At the same time, the sentence must be individualized, as well as reflect and encourage as much as possible any apparent rehabilitative prospects. The appropriate sentence is determined by the circumstances surrounding the commission of the offence, including the nature of the assault and the seriousness of the injury caused and the individual circumstances of the accused, including the accused’s background, mental health issues, addictions, or criminal record.

Determining a Proportionate Sentence

[28] In R. v. Proulx, 2000 SCC 5, supra, at para. 22, the Supreme Court held a conditional sentence is a "punitive sanction capable of achieving the objectives of deterrence and denunciation." In para. 127, #8, the Court held:

A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. [Emphasis added]

[29] A conditional sentence is in principle, although not always in practice, available for all offences where the prerequisites are met, no specific or category of offence is presumptively excluded from the conditional sentence option: R. v. Proulx, 2000 SCC 5, supra, at paras. 79-81 (see also R. v. Jacko, 2010 ONCA 452, [2010] O.J. No. 2583 (C.A.), at para. 69). Therefore, a conditional sentence, depending on the severity of the conditions, may nonetheless be consistent with the fundamental purpose and principles of sentencing, even where deterrence and denunciation are the predominant sentencing principles (see Jacko, 2010 ONCA 452, supra, at para 71).

[30] Lamer C.J., in Proulx, 2000 SCC 5, supra, at para. 100, explained that a conditional sentence can achieve both punitive and restorative sentencing objectives:

To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstance.

[31] The principle of restraint set out in s. 718(2)(d) and (e) has taken on a new prominence as a result of the introduction of conditional sentences pursuant to s. 742.1. In R. v. Gladue, 1999 SCC 679, [1999] S.C.J. No. 19, at para. 40, Cory J. said:

... The availability of a conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only when no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in s. 718.2(e) must be construed and applied in this light.

[32] In my view it is important to note that the most recent iteration of s. 742.1 has returned to the form and content of the original provision created by Parliament in 1996, when conditional sentences were first introduced. A conditional sentence is a custodial sentence where the accused is permitted to serve his jail sentence in the community with restrictive provisions such as house arrest with only certain exceptions, dependent on the individual and unique circumstances of the offender being sentenced. It is open to a sentencing Judge, where the pre-requisites are met, to impose a conditional sentence in respect of the vast majority of offences.

[33] As I indicated above, Mr. Westlin has been subject to conditions of release for over 12 months and he has had no further involvement with the police. He has not had any contact with the victim, in part because he has moved back to Alberta where he is from. In my view, this demonstrates that Mr. Westlin is very likely to comply with a court order, such as a conditional sentence. He arranged and attended an anger management course immediately upon his return to Alberta, as a result of his conduct in Ontario towards Mr. Alam and his being charged with assault causing bodily harm. He had been prescribed anti-depressants previously in his life and he once again obtained prescriptions from his doctor to address this area of his life. His comments to the probation officer reflect insight and awareness on his part concerning how his consumption of alcohol impacts his conduct and behaviour and further, it demonstrates his willingness to pursue counselling to ensure similar conduct does not occur in the future.

[34] I am also mindful of the principle of restraint reflected in R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34. While Mr. Westlin is not a first offender, there is a significant gap between his criminal record until the commission of this offence and although in serious cases involving violence, general deterrence and denunciation are clearly significant factors to be considered in determining a proportionate sentence, the Ontario Court of Appeal has ruled in R. v. Dubinsky, 2005 ONCA 5668, [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation.

[35] The principle of parity is an important and laudable objective, but it is important to note that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C. A.), 1996 SCC 230, [1996] 1 S.C.R. 500, at paragraph 92.

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. (Emphasis added)

[36] Consequently, a proportionate sentence in each case, in large measure, is determined by the specific and unique facts and circumstances surrounding the offender and the commission of the offence. Although precedents involving similar cases can provide guidance in determining a proportionate sentence they should not dominate the sentencing process. In R. v. Rawn, 2012 ONCA 487, [2012] O.J. No. 3096 (C.A.), at paras. 29 and 30, the Ontario Court of Appeal cautioned that:

It goes without saying that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parity principle, a principle that, by definition considers another sentence imposed on another offender, to dominate the determination of a fit sentence.

[37] I am of the view that on a careful balancing of all of the relevant factors, neither a community based jail sentence with onerous conditions nor a jail sentence served in a custodial facility as proposed by the Crown can be said to be unfit. In those circumstances, what tips the balance between the two alternatives is the important principle of restraint that underlies s. 742.1, (see R. v. Wismayer, 1997 ONCA 3294, [1997] O.J. No. 1380 (C.A.), at paragraphs 67-68 and R. v. Proulx, 2000 SCC 5, at para. 100). Further, it is my view the principles of general deterrence and denunciation can be properly addressed by a 12 month conditional sentence with restrictive conditions involving house arrest and community service, “so that it is not life and business as usual" for the offender.

[38] Finally, it is my view the principle of rehabilitation and reparations to the community together with the promotion of a sense of responsibility on Mr. Westlin’s part, can also be best addressed through a conditional sentence as opposed to a jail sentence. It is significant that Mr. Westlin entered a plea of guilty and accepted responsibility respecting his actions towards Mr. Alam. His acceptance of responsibility and what I find to be his sincere remorse through his recognition of how his violence negatively impacted Mr. Alam and that he alone was responsible for what took place. Mr. Westlin recognized his anger and impulsiveness were contributing factors to his commission of the offence and immediately upon returning to Alberta he registered for an anger management course in January 2023, and he also took a second anger management program with the Salvation Army. He also recognized his alcohol consumption played a role in the offence and he has reduced his consumption, which his father corroborated through his observing his son to be much calmer in his social interactions. Mr. Westlin also took steps to support his mental health, which he first addressed in 2015, when he attended psychological counselling. He took anti-depressant medication then and has commenced taking this medication again.

[39] It is my view a jail sentence to be served in a custodial facility would prevent him from continuing his rehabilitation and from being able to meet his financial obligations, particularly in respect of his three young children. Consequently, in my judgment, a conditional sentence in the circumstances of this case can and does meet all of the prerequisites set out in s. 742.1 of the Criminal Code and is a proportionate sentence. I will discuss with counsel the restrictive conditions I anticipate imposing respecting this conditional sentence.

Released: December 21, 2023 Signed: Justice Peter C. West