Court and Parties

DATE: 2024-07-24 Toronto

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

VIKTOR LIPINSKI

Before: Justice Mara Greene

Reasons for Judgment released July 24, 2024

Counsel: S. Rothman …………………………..……………………………………… for the Crown V. Lipinski ……………………………..…………………….…….......……..for V. Lipinski

Reasons for Judgment

[1] On January 19, 2024 I sentenced Mr. Lipinski to a conditional sentence for two years less one day on two counts of impaired driving causing bodily harm. It was a very strict conditional sentence that included house arrest for the entire two years less one day. For the first 18 months there were very limited exceptions to the house arrest. Notably, there was no exception for Mr. Lipinski to work or attend school. I stated clearly in my sentencing decision, that a jail sentence served in the community would only be appropriate given the gravity of the offences if the conditional sentence mirrored the liberty restrictions of jail as much was possible.

[2] Mr. Lipinski’s conditional sentence supervisor filed an application to vary the house arrest term to allow Mr. Lipinski to attend school and to work. The Crown opposed the application, and a hearing was held to determine whether the conditions should be varied. Mr. Lipinski was self-represented at the hearing but was assisted by his conditional sentence supervisor.

[3] The basis for the variation as articulated by the conditional sentence supervisor is that the supervisor “believes this will allow for a more stable environment that will aid the subject with managing his mental health issues effectively and to further maintain a better relationship with his parents. Furthermore, having the subject engaged with both employment and school will contribute in improving the subject’s quality of life in the community and the possibility of staying out of the Criminal Justice System”.

[4] During submissions, it became clear to me, that Mr. Lipinski’s conditional sentence supervisor was focused on Mr. Lipinski’s rehabilitation without any knowledge of the essence of my decision and the reason why I imposed house arrest with so few exceptions. It is my view that Mr. Lipinski’s conditional sentence supervisor had not turned her mind to the fact that Mr. Lipinski was serving a jail sentence in the community as opposed to a probation order.

[5] Mr. Lipinski wrote a letter in support of the application expressing his poor mental health since the imposition of my sentence. He expressed concern about having lost his job and that he is a financial burden on his parents, who are not financially able to support him. During the hearing it became clear that his parents were able to financially support Mr. Lipinski but it was placing a significant financial strain on them.

[6] The final document filed in support of the application was a letter from Mr. Lipinski’s psychiatrist dated March 7, 2024. In this letter, Dr. Palmanidis wrote that Mr. Lipinski suffers from a Mood Disorder and is on medication with regular follow up assessments. On March 7, 2024, Mr. Lipinski appeared to be depressed, anxious and not sleeping well. Dr. Palmanidis attributed this to the terms of what he believes to be a probation order. Dr. Palmanidis wrote that it is in the best interest of Mr. Lipinski’s mental health wellbeing to be permitted to attend work and school. Dr. Palmanidis further wrote that Mr. Lipinski’s inability to do these things has “exacerbated his illness and is contributing to a deterioration in his mental health”.

[7] Crown counsel strongly opposed the application for very principled reasons. Firstly, he argued that the request exposed a real lack of appreciation of the reasons why I imposed the house arrest condition. Secondly, the request being sought strikes at the core of the sentence and would result in a substantive change which would lead to an unfit sentence. Thirdly, there has not been a material change in circumstances to justify such a substantive change.

[8] Pursuant to section 742.4 of the Criminal Code an offender may apply for a variation of a conditional sentence order. While a judge is permitted to change a condition of the order without a hearing, it is open to the court to hold a hearing at the request of either party or by the court’s own motion.

[9] The only guidance provided by Parliament on variation applications is that the supervisor may bring an application if the supervisor is of the opinion that there has been a change in circumstances. A judge may grant the application or make any change that the sentencing judge deems appropriate. No guidance is provided on what factors the court is to consider.

[10] In the few cases where judges have considered the conditional sentence variations, the courts draw a distinction between technical and substantive variations. In the case of the latter, hearings are encouraged to ensure that there is in fact a material change in circumstance and to ensure that any variation granted is consistent with the intention of the original sentence (R. v. Kosbar, 2004 ABQB 817 at para 26).

[11] The variation being requested in this case, in my view is substantive. The proposed variation, if granted, will significantly water down the original sentence. In my view, the house arrest term on Mr. Lipinski’s sentence should only be varied if there is a material change in circumstances, if the variation does not materially change the original sentence and if the variation does not transform what was a fit sentence into an unfit sentence.

[12] The first hurdle, therefore, is assessing whether there has been a material change in circumstances. This is an important first step. This is because an application for a variation is not an appeal of the original sentence. The presumption is that the original sentence was a fit sentence. A variation is only permissible and justified if there has been a material change in circumstances.

[13] In the case at bar, Mr. Lipinski advised that not being able to work is placing financial strain on his parents. Mr. Lipinski wants to be able to support himself and return to school. Mr. Lipinski’s conditional sentence supervisor advised that it would be better for Mr. Lipinski’s rehabilitation if he was able to work and attend university.

[14] In my view, these are not material changes in circumstances. These complaints at their core are that complying with the conditional sentence is imposing a hardship on Mr. Lipinski. As was noted in R. v. Penner [2002] A.J. No. 649 at para 15, the conditional sentence is intended to have that effect. It is important to remember that a conditional sentence is not just a harsher form a probation. It is a period of incarceration that is served in the community.

[15] I was also advised that Mr. Lipinski has been a model offender, following all the terms of my sentence. In my view, this also is not a material change in circumstances. It is expected that Mr. Lipinski will comply with the terms of my order.

[16] The letter from Mr. Lipinski’s psychiatrist, in my view, does provide me with evidence to find that there has been a material change in circumstances. In his letter, Dr. Palmanidis wrote,

I believe in the best interest of his mental health and as part of his rehabilitation he should be allowed to leave his home to seek employment or attend school. His sentencing has deterred him from doing these and has exacerbated his illness and is contributing to a deterioration of his mental health.

[17] As I read this letter, the sentence I imposed is exacerbating Mr. Lipinski’s pre-existing mental illness. This was not expected and as such, it is my view that this is a material change in circumstances. One of the reasons I imposed a conditional sentence in this case was because of information received from Dr. Palmanidis about the harmful effect incarceration in a jail would have on Mr. Lipinski’s pre-existing mental illness. While this was not the sole or determining factor, it was a relevant and important consideration. The sentence I imposed was aimed at imposing a meaningful period of incarceration to address the gravity of the offence and the objectives of deterrence and denunciation while being mindful of his mental illness.

[18] The next step is for me to consider what type of variation can be granted that will not be inconsistent with the substance of the original sentence and will not transform the sentence into an unfit sentence.

[19] Mr. Lipinski was sentenced on January 19, 2024. He has now spent six months under a near complete house arrest. I am satisfied that Mr. Lipinski has spent the past six months serving a jail sentence in his own home. He has not had any of the benefits of being “free”. This was the intention of my sentence. My sentence, also, was intended to create a meaningful sentence, that could meet the objectives of deterrence and denunciation without exacerbating Mr. Lipinski’s mental illness. In light of Dr. Palmanidis’ evidence about the impact of my sentence on Mr. Lipinski’s mental health, it is clear to me that my sentence did not achieve this.

[20] There can be no doubt that granting the variation requested will water down the original sentence. The question is whether this variation is appropriate and whether the variation will still result in the imposition of a sentence that meets the objectives of deterrence and denunciation.

[21] In my view, Mr. Lipinski’s conditional sentence should be varied to address the impact that the near complete house arrest has had on Mr. Lipinski’s overall mental health. As noted above, the intention of my original sentence was to limit the detrimental effect of a jail sentence on Mr. Mr. Lipinski’s pre-existing mental illness. A jail sentence is not meant to be easy. There are times when rehabilitation must yield to other more important objectives. This is particularly so where the objectives of deterrence and denunciation are paramount, and the rehabilitative aims run contrary to these objectives. If the sole purpose of the variation was to allow Mr. Lipinski to engage in rehabilitative exercises earlier, I would not allow the variation. There is a difference, however, between putting an offender’s rehabilitation on hold while he serves the punitive portion of his sentence and imposing a sentence that makes a pre-existing mental illness worse.

[22] As I understand Dr. Palmanidis’ letter not permitting Mr. Lipinski to work or attend school is “exacerbating” his mood disorder. Given the significant impact the house arrest has had on Mr. Lipinski’s mental health, in my view, it is appropriate to reduce the period of complete house arrest and allow for the exception of attending school and/or employment to start earlier than the 18 months outlined in my original order. In my view, given the impact of the house arrest on Mr. Lipinski’s mental health, the near complete loss of liberty experienced by Mr. Lipinski during the past six months and the overall objectives of sentencing, I am satisfied reducing the time before Mr. Lipinski can work and attend school to eight months instead of 18 months is appropriate. This is one third of the total sentence. It is still a meaningful time frame. Moreover, while the house arrest term will be relaxed so that Mr. Lipinski can attend school and work, he will still not be able to go out socially, attend extracurricular programs at school, or enjoy any of the other benefits of freedom. In my view, increasing the exceptions to the house arrest conditions at 1/3 of the sentence to allow Mr. Lipinski to attend work and school still results in the imposition of a meaningful jail sentence in the community that addresses the objectives of deterrence and denunciation. It is also directly related to the material change in circumstances.

[23] I therefore vary Mr. Lipinski’s sentence so that as of September 19, 2024 there will be an exception to the house arrest term on his conditional sentence to allow him to attend work and school.

Released July 24, 2024

Justice Mara Greene