Warning and Non-Publication Orders
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
DATE: 2025-04-09
COURT FILE No.: Oshawa 24 28104144
BETWEEN:
His Majesty the King
— AND —
K.B.
Before Justice Joseph Hanna
Reasons for Judgment released orally on April 7, 2025
Written Reasons released on April 9, 2025
K. Buker ................................................................................................. counsel for the Crown
K. Manitius .......................................................................................................... for the accused
Introduction
[1] This is a case involving serious domestic violence. K.B. pleaded guilty to three counts of assault, two counts of assault with choking, threatening to damage property, threatening death, and theft. The Crown elected to proceed by indictment.
[2] The Crown seeks a total sentence of 39 months and ½ months less credit for pre-sentence custody.
[3] The defence submits that a sentence in the range of 18–24 months less credit for pre-sentence custody would be appropriate.
[4] These are my reasons for sentence.
Circumstances of the Offences
[5] K.B. and A.M. began a dating relationship in July 2023. They lived together intermittently during the period when the offences occurred.
[6] On December 24, 2023, K.B. and A.M. were playfully pushing each other. At one point K.B. pushed A.M. with force that he agrees was beyond playful. A.M. pushed him back. K.B. then grabbed A.M.’s shirt and hit A.M. with the other hand. A.M. blocked some of the strikes. She did not suffer any injuries during this incident.
[7] On May 2, 2024, K.B. and A.M. got into an argument in Toronto. A.M. then took the train alone to Ajax. While she was on the train K.B. sent her text messages containing threats to blow up her jeep and set it on fire. When A.M. arrived in Ajax a passenger on the train drove her to her parked vehicle because there had been another passenger who had been harassing A.M. After she arrived at her vehicle K.B. approached A.M. He used one hand to grab her neck and applied enough pressure to cause A.M. to gasp for air. K.B. used his other hand to strike A.M. several times in her face. As a result, A.M. sustained slight bruising to her cheekbone, swollen lips, and a cut on her inner lip. She also experienced neck soreness, a sore throat, and difficulties swallowing.
[8] On May 3, 2024, K.B. and A.M. got into an argument. K.B. grabbed A.M.’s throat, threw her against a closet, and strangled her. Soon after, K.B. put A.M. into a headlock and applied pressure to her neck. He covered her mouth and nose. A.M. feared for her life. K.B. then stole A.M.’s phone from her person and demanded she provide him her password so that he could review her conversations contained on it. He later left the residence with A.M.’s phone.
[9] K.B. found messages on A.M.’s phone from her friends about encouraging her to contact the police. K.B. then contacted the complainant. He warned her that if one of her friends contacted the police, he would commit a murder suicide. He also stated that he might as well kill her now because he was not going to return to jail. Upon hearing a knock at the door, A.M. fled the residence through the back door and attended a neighbour’s residence where she contacted the police.
Facts Relating to the Offender
[10] K.B. is 36 years old.
[11] He grew up in Toronto.
[12] He has a criminal record. In April 2014 he was sentenced in Alberta for 32 domestic violence related offences arising from 21 incidents, which occurred over a 5-year period. These offences were: two counts of sexual assault, two counts of assault causing bodily harm, five counts of assault with a weapon, four counts of unlawful confinement, 12 counts of assault, six counts of uttering threats, and one count of possessing a weapon for a dangerous purpose. He received a total sentence of 9 ½ years imprisonment less credit for time served in pre-sentence custody. At the time sentence was imposed he had 79 and ½ months left to serve. The warrant expiry date on his sentence would therefore have been in early December 2020. He remembers being paroled in July 2018.
[13] After being paroled he returned to Ontario. He is a trained heavy-duty mechanic. He has been employed at Ontario Truck Centre since 2018. He holds a permanent full-time position as a Shop Foreman/Tower Operator. He earns a good wage and holds significant responsibilities at his work.
[14] The defence filed numerous letters of support from K.B.’s family. I received letters written from K.B.’s father, sister, brother, and mother. Collectively, they describe K.B. as a hardworking, respectful, helpful, and active person. His family members indicate through their letters that they will support K.B. in his rehabilitation by whatever means necessary. I have read all these letters and will only highlight a few additional portions of them.
[15] His sister, E.V.’s letter states that she believes it is a waste of time to lock her brother up. It is E.V.’s opinion that K.B. is not a danger to society and that he could improve with counselling. She advises that her son, K.B.’s nephew, has been impacted by K.B.’s incarceration.
[16] His brother, G.B., advises that K.B. has provided him support and guidance during difficult times. He describes K.B. as a determined individual who is capable of change.
[17] K.B.’s mother mentions that K.B. is a good son who regularly checks in on her and genuinely cares for her well-being.
[18] I also received a letter from V.B. She is K.B.’s former domestic partner and the mother of his child. V.B. was not the victim on K.B.’s previous offences. She has known K.B. for more than 12 years. She offers her support for him and opines that with a strong support system he will thrive.
[19] K.B. read out a letter in court, which was also filed as an exhibit. He apologized to A.M. for his actions and to his family for putting them through this situation. He indicated that he had been out of custody for 5 ½ years without any difficulties. Regarding that time, he says that he was able to identify triggers and use his support system and the tools he had learned to deal with relationship issues. He stated that on his current offence dates he failed to recognize his triggers and let anger get the better of him rather than rely on his supports. K.B. indicated that he had planned on proposing to A.M. and he described his jealousy when he saw her exiting the train with another man. He acknowledged that he should not have put his hands on A.M. He advised that he sometimes carelessly says stupid things that he does not actually mean. He said that he and A.M. wish to do couple’s counselling. K.B. feels as though he has learned his lesson. He is eager to return to work and contribute to society. He advised that he completed an 8-week healthy relationship course while incarcerated. K.B. stated he believes he would have better access to supports outside of custody rather than while incarcerated. He also described the harsh conditions he has experienced while in jail. He ended by stating that there was no excuse for his actions and by apologizing to A.M.
[20] K.B. has been in pre-sentence custody for 336 days. He has been triple bunked approximately 90 percent of that time and has regularly experienced lockdowns. The total lockdown time for his period of incarceration up until March 18, 2025, was 1022.5 hours. His counsel, Ms. Manitius, in her submissions, helpfully highlighted additional troubling aspects relating to K.B.’s time spent in pre-sentence custody, including him having experienced very long consecutive stretches of triple bunking and lockdowns.
[21] The defence filed certificates which show that while K.B. was incarcerated he completed a 1-hour anger management course on June 5, 2024, and a Building Healthy Relationships course through the Elizabeth Fry Society.
A.M.’s Input
[22] A.M. declined to submit a victim impact statement. The defence filed an affidavit from her, and emails written by her. In these statements, A.M. opines that K.B. is not a threat to society. She describes the positive features of her relationship with K.B. She blames herself for being difficult to live with and indicates that she would act out emotionally to get a reaction from K.B. She also states that she wishes to resume her relationship with K.B., that she is not in favour of the prosecution against K.B., and that she is not fearful of him. She asserts that the incidents involving K.B. were out of character for him. A.M.’s affidavit also describes the impact she believes K.B.’s incarceration would have on K.B.’s son, his father, and grandparents.
[23] Ms. Manitius indicated that the main purpose in filing these materials was to demonstrate some of the obstacles the prosecution’s case faced. The defence was clear that to the extent that any of A.M.’s statements could be seen as inconsistent with the facts admitted, K.B. was maintaining his agreement with the facts which formed the basis for his guilty pleas.
[24] A.M. was present for the sentencing hearing. She requested to address me, which I allowed. She made statements consistent with her emails and affidavit. She advised me that she does not wish to be referred to as a victim, and that she does not believe that K.B. is a risk to the community. She mentioned that when she has been in the community with K.B., she has never observed any problems between K.B. and other females. She advised me that she was upset to see K.B. take all the blame given that she did not know when to walk away or stop talking. She also assumed blame for poking at K.B. given that she knew he had triggers. She wanted me to know that she was not a 100 percent innocent in this situation.
General Principles
[25] Sentencing judges are required to blend and prioritize various sentencing objectives listed in s. 718(a)–(f) of the Criminal Code.
[26] Proportionality is the fundamental principle of sentencing. A sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": s. 718.1 of the Criminal Code.
[27] Sentencing involves balancing the aggravating and mitigating circumstances relating to the offence and the offender: Criminal Code, s. 718.2(a). Parity, totality, and restraint are also principles which must be considered when determining the appropriate sentence: Criminal Code, ss. 718.2(b)–(e).
The Aggravating Factors
[28] Generally, K.B. has a serious and related criminal record. Furthermore, his current offences involve intimate partner abuse: see s. 718.2(a)(ii) of the Criminal Code.
[29] I find the following additional aggravating factors relevant to the particular counts.
[30] Regarding the December 24, 2023 assault:
- K.B. struck A.M. more than once.
[31] Relating to the May 2, 2024 offences:
- The assault, which was motivated by seeing A.M. with another male, was a possessive act.
- K.B.’s assault involved multiple strikes to A.M.’s face.
- A.M. suffered significant injuries including bruising, swelling and a cut to her lip, neck soreness, and difficulties swallowing.
- The nature of the threat, namely that he was going to blow up the victim’s car, was serious.
[32] With respect to the May 3, 2024 offences:
- K.B. committed multiple acts which would have interfered with A.M.’s ability to breathe. He grabbed her by the throat, then strangled her, applied pressure to her neck while having her in a headlock, and later covered her mouth and nose.
- A.M. feared K.B. was going to kill her.
- The theft was an act of exercising control over A.M.
- K.B.’s examination of A.M.’s phone was a violation of her privacy.
- The nature of the threat towards A.M. was chilling.
Mitigating Factors
[33] The mitigating factors in this case are:
- K.B. pleaded guilty despite the presence of obvious triable issues.
- He experienced harsh jail conditions while in pre-sentence detention, such as triple bunking and numerous lockdowns: R. v. Marshall, 2021 ONCA 344, paras. 50–53.
- He expressed remorse when addressing the court. While I give this factor some weight, I am unclear whether K.B. has come to realize the full gravity of his conduct. He explained reasons why he acted the way he did, but I am unconvinced that he appreciates the terror his behaviour must have caused A.M. That said, I do find some evidence of remorse. This finding is reinforced by K.B.’s guilty pleas.
- He has taken counselling while in pre-sentence custody.
- He has support in the community.
- He is a skilled worker who has employment available to him upon his release.
- There is a gap in his record. There is no indication that K.B. was involved in any criminal activity for the period of five and a half years between his having been paroled and the December 2023 offence.
Collateral Consequences
[34] K.B.’s incarceration will have an impact on his family. There is evidence that he helps his parents and grandparents. His son and nephew will also be negatively affected by his imprisonment, though I note that K.B. is not the primary caregiver for either of them. While such consequences are relevant considerations, the sentence I impose must remain proportionate to the gravity of the offence and the responsibility of the offender: R. v. L.C., 2022 ONCA 863, para. 24.
The Sentencing Objectives Most Relevant to this Case
[35] Denunciation and deterrence, both specific and general, are of paramount importance in cases involving domestic violence: R. v. Boucher, 2004 ONCA 17719, para. 27.
[36] Specific deterrence is of special significance in K.B.’s case given his prior record for related offences. An offender must not be repunished for past offences: R. v. Calliou, 2019 ABCA 8, para. 8; R. v. Muyser, 2009 ABCA 116, paras. 7 and 8. That said, a sentence for the same type of offence should typically be higher than the previous sentence received because the last sentence was not effective in deterring the offender: R. v. U.A., 2019 ONCA 946, para. 12; R. v. Clarke, 2024 ONSC 436, para. 28; R. v. Daye, 2010 NBCA 53, para. 11; R. v. M.V., 2023 ONCA 724, para. 64.
[37] It must be stated that K.B.’s sentence in Alberta involved dozens of offences and included even more serious offences than the ones he is being sentenced for now. I also appreciate that there was a five-and-a-half-year gap between K.B. having been paroled and the December 2023 offence. That provides some evidence that K.B. was deterred from his previous sentence for a significant period and that he made rehabilitative progress.
[38] Still, I am troubled by the fact that the severe sentence he received before was insufficient to permanently deter him from reoffending so violently. I accept that K.B. has shown he has rehabilitative potential. The gap in his record, his willingness to engage in counselling, and the support of his family support this inference. I cannot find, however, as Ms. Manitius urges, that he has strong prospects for rehabilitation. It is reasonable to infer that K.B. would have been offered counselling and programming while in the penitentiary to address his risk factors. Despite the programming I infer he would have been offered, the lengthy sentence he had served, and his increased age – which one would hope corresponds to increased maturity, he reoffended. Moreover, his current offences were not minor momentary lapses in judgment. They were outbursts of serious violence. Overall, while I find there are signs for rehabilitative hope, I remain concerned about the risk K.B. presents.
The Appropriate Range
[39] The jurisprudence reveals a wide range of sentences in cases of serious domestic abuse involving multiple incidents and repeat offenders. See for example: R. v. Rush, 2010 BCCA 293; R. v. Gates, 2002 BCCA 128; R. v. Jeurissen, 2014 BCSC 1718, paras. 1–6, 449, and 456; R. v. A.D., 2024 ABCA 178, para. 53; R. v. Martin, 2009 ONCA 62; R. v. Fraser, 2016 ONCA 745; R. v. Smith, 2011 ONCA 564, para. 86; R. v. Edwards, 2012 ONCJ 519. Having regard to the facts in this case and the circumstances of the offender, I am satisfied that the appropriate sentence lies within the range of sentences proposed by the Crown and the defence.
Restraint and Totality
[40] In deciding whether to impose concurrent or consecutive sentences, I must first decide whether there exists a relationship between the various offences. This is a flexible test. Next, I am required to assess totality by ensuring that the total term is not excessive: R. v. Millard, 2018 ONSC 1299, para. 30; R. v. W.Q., 2006 ONCA 21035, paras. 11–15; Criminal Code, s. 718.2(c).
[41] Even when offences arise from the same transaction, it can be appropriate to impose consecutive sentences when the offences involve different legally protected interests. Though, totality must again be kept in mind: R. v. Bertrand Marchand, 2023 SCC 26, para. 97; R. v. Gillis, 2009 ONCA 312; R. v. Fournel, 2014 ONCA 305, para. 58.
[42] The principle of totality ensures proportionality. It also guards against rehabilitation being overshadowed by the competing objectives of denunciation and deterrence. Finally, it also incorporates the principle of restraint: R. v. George, 2024 ONSC 6016, paras. 89–90.
[43] When assessing totality, it is important to differentiate between the conduct underlying each count as doing so provides transparency and permits meaningful appellate review: R. v. J.H., 2018 ONCA 245, paras. 50–52; Bertrand Marchand, at para. 93. It is also essential to “identify the gravamen of the conduct giving rise to all of the criminal offenses” and ensure that the total sentence is proportional to the gravity of the offences and the conduct of the offender: R. v. Jewell, 1995 ONCA 1897, para. 27; R. v. Milani, 2021 ONCA 567, paras. 40–43; R. v. C.P., 2024 ONSC 6101, paras. 80–82.
[44] In this case the December 24, May 2, and May 3 offences each involve distinct incidents. Regarding the May 2nd incident, the assaults and threatening charge involve different delicts. With respect to the May 3rd incident, the assaults, the threatening charge, and the theft all involve different legally protected interests. That having been said, the principle of totality requires that I make several of K.B.’s sentences concurrent.
The Appropriate Sentences in this Case
[45] Having blended the relevant sentencing objectives and weighed the aggravating and mitigating factors, I have concluded that the total appropriate sentence in this case is 30 months jail, less credit for pre-sentence custody. I find this to be a proportionate sentence having regard to the seriousness of K.B.’s offences and his moral blameworthiness.
[46] In my view, the aggravating factors in this case would typically warrant a higher sentence. In arriving at a sentence of 30 months I have placed significant weight on the mitigating factors present, particularly K.B.’s guilty pleas in the face of a difficult prosecution and the harsh jail conditions he has experienced.
[47] K.B.’s total sentence of 30 months is the equivalent of 912 days. He has spent 337 days in pre-sentence custody for which he is entitled to 506 days of Summers credit.[^1] His sentence is broken down as follows:
- May 2, 2024, assault with choking: 270 days.
- May 2, 2024, assault: 180 days concurrent.
- May 2, 2024, threatening to property: 90 days concurrent.
- December 24, 2023, assault: 180 days concurrent.
- May 3, 2024, assault with choking: 136 days consecutive, in addition to 337 days of pre-sentence custody credited for 506 days.
- May 3, 2024, assault: 270 days concurrent.
- May 3, 2024, threatening: 270 days concurrent.
- May 3, 2024, theft under: 180 days concurrent.
[48] K.B.’s remaining time to serve is therefore 406 days.
[49] Following his release from custody K.B. will be placed on probation for a period of three years with the following terms:
[50] The terms of the probation will be as follows:
- In addition to the statutory terms, you will report to your probation officer within 2 days of your release and thereafter as directed.
- Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request.
- Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with A.M. except with her prior written consent filed in advance with the probation intake or the assigned probation officer. This may be cancelled by A.M. in any manner at any time.
- Do not be within 100 metres of any place where you know A.M. to live, work, go to school, frequent or any place you know her to be except with her prior written consent filed in advance with the probation intake or the assigned probation officer. This may be cancelled by A.M. in any manner at any time.
- Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer including, but not limited to:
- anger management;
- domestic violence, which may include Partners Assault Response (PAR) Program; and
- stress management.
- You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
- You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
- You shall not possess any weapons as defined by the Criminal Code.
[51] While in custody, pursuant to s. 743.21 you will be prohibited from contacting A.M. unless she has communicated to you in advance her consent to having contact. A.M. may revoke her consent at any time.
[52] I also make an order that you provide a DNA sample. Finally, pursuant to s. 109 of the Criminal Code there will be a weapons prohibition for life.
Released: April 9, 2025
Signed: Justice Joseph Hanna