Indictment No. CR-13-0003957

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

SHILOH PETTIPAS-LIZAK

REASONS FOR SENTENCE

BEFORE THE HONOURABLE MADAM JUSTICE M. FUERST

On August 29, 2018, at NEWMARKET, Ontario

APPEARANCES:

J. McIntyre Counsel for the Crown M. Luft Counsel for Shiloh Pettipas-Lizak

ONTARIO COURT OF JUSTICE

TABLE OF CONTENTS

Reasons for Sentence Page 1

Transcript Ordered: September 4, 2018

Transcript Completed: September 23, 2018 – Sent for Judicial Review

Ordering Party Notified: October 3, 2018

WEDNESDAY, AUGUST 29, 2018

R E A S O N S F O R S E N T E N C E

FUERST, J. (Orally):

[1] ## Introduction

Shiloh Pettipas-Lizak pleaded guilty to pointing a firearm without lawful excuse, at his girlfriend, who I shall refer to as Ms. C.P.

Crown and defence counsel agree that a period of imprisonment is required, but differ as to whether it should be served in jail, or conditionally in the community.

[2] ## The Circumstances of the Offence

On a date between March 1st and October 31st, 2012, Mr. Pettipas-Lizak entered the home of his girlfriend, Ms. C.P., in the middle of the night. She was in the house, along with her two young children, who were asleep.

[3] Mr. Pettipas-Lizak was drunk and high on drugs. He was in a very emotional state.

[4] Ms. C.P. noticed a bulge in his shirt and asked what it was. He pulled out a black Walther P38 handgun. Ms. C.P. became fearful. She picked up a cordless phone and tried to leave the room.

[5] Mr. Pettipas-Lizak started yelling and waving the gun around. He took the phone from Ms. C.P. and ripped the batteries out.

[6] Ms. C.P. sat on the bed while Mr. Pettipas-Lizak stood, holding the gun. At one point his mother telephoned on another phone. He told Ms. C.P. to answer and say that everything was fine. She did so. He spoke to his mother, but became angry.

[7] After the call ended, he was even more emotional. He waved the gun around. He had a magazine with bullets in it, which he kept putting in and out of the gun. He oscillated between raging anger and tearful despondency. During one rage, he spoke of killing everyone including himself. He was standing close to Ms. C.P. and pointed the gun at her head. She heard a click. She was terrified.

[8] Mr. Pettipas-Lizak kept Ms. C.P. in the bedroom for several hours. She continued to talk to him. She told him that she loved him, and that everything would be okay. He finally calmed down, and agreed to take his medication and go to sleep. He put the gun, holster and two magazines down near the bed.

[9] The next morning, he told Ms. C.P. that he stole the gun from a guy he met the previous night at a pub, when the man took Mr. Pettipas-Lizak to his home to sell him drugs. Mr. Pettipas-Lizak said that he and Ms. C.P. were both lucky because when he pulled the trigger, the gun jammed, it was broken.

[10] When Mr. Pettipas-Lizak went out, Ms. C.P. found the gun and holster in her bedroom closet. The gun was in four pieces including an empty magazine, but there were no bullets. She hid the items in the garage.

[11] When Mr. Pettipas-Lizak noticed that the items were missing, he demanded that Ms. C.P. return them or dispose of them. She refused to return them. He had a friend accompany Ms. C.P. to dispose of them. Ms. C.P. cut up the holster, then she and the friend went to a community college campus where she threw the holster pieces in a treed area, and the gun pieces into a lake.

[12] Some time later the police recovered some of the holster pieces and a magazine, but not the other gun pieces. The magazine was real and could only be used in a Walther P38 handgun, which is a restricted firearm.

[13] Mr. Pettipas-Lizak was charged with offences including assault, forcible confinement, theft, dangerous driving, and firearms offences. The trial judge directed acquittals on the firearms charges. The jury found Mr. Pettipas-Lizak guilty of assault and forcible confinement. In February 2017 Mr. Pettipas-Lizak was sentenced, after credit for the equivalent of 11 months of pre-trial incarceration due to time in custody plus restrictive bail conditions, to a suspended sentence with 2 years' probation.

[14] The Crown successfully appealed the directed verdicts on the firearms charges. In November 2017, the Court of Appeal ordered a new trial. Without setting a date for a new trial, Mr. Pettipas-Lizak resolved the matter by his guilty plea to the offence of pointing a firearm.

[15] ## The Victim Impact Information

Ms. C.P. provided two Victim Impact Statements. Some of the information in them falls outside the scope of a proper Victim Impact Statement. I have ignored, in particular, those portions that expressed a view as to the sentence that Mr. Pettipas-Lizak should receive, and that purported to provide statistical information about domestic violence.

[16] Ms. C.P. clearly expressed that the offences permanently changed her and her family. She lives with what happened every day and wakes up every night in a panic. She wrote,

There has not been a single day that has passed that I have not thought about being held in that bedroom all night. Not a day goes by without me wondering what would have happened to my kids if that night ended differently for me. I have lived in prison since this happened. I live in my own personal hell every day.

[17] ## The Circumstances of Mr. Pettipas-Lizak

Mr. Pettipas-Lizak was 31 years old when he committed the offence. He now is 36 years old. He is divorced. He has two daughters with his ex-wife, and also two sons from an earlier relationship.

[18] Mr. Pettipas-Lizak believes that his father was of indigenous background, but that information could not be confirmed by Aboriginal Legal Services. Mr. Pettipas-Lizak specifically waived his right to obtain a Gladue report.

[19] Mr. Pettipas-Lizak's childhood was described by the pre-sentence reporter as marked by abuse, violence, and exposure to a criminal lifestyle. His parents were addicted to substances. His father committed suicide. His relationship with his mother is limited, because of her lifestyle. He is, however, close to his brother.

[20] Because of his home environment, Mr. Pettipas-Lizak was encouraged to use substances from a young age. Long-term substance abuse significantly affected his education, employment, relationships, and involvement with the criminal justice system. He struggled with addiction issues, and poor decision-making.

[21] He has a previous criminal record that includes two convictions for assault and one conviction for assault causing bodily harm.

[22] The pre-sentence reporter, who has been supervising Mr. Pettipas-Lizak since his probation began in February 2017, advises that he has demonstrated compliance and has met all conditions to her satisfaction. He continues to demonstrate a pro-social lifestyle. He is in a stable and supportive relationship with a woman who has known him since 2014. She relates that he has a responsible and positive attitude. He is employed full time as a press operator at a car parts manufacturer. He is described as a hard worker. He received a raise after a performance review. He recently joined the health and safety committee at his workplace. He reports that he loves his job. In addition, he and his partner purchased a tanning salon at which they share work hours.

[23] Mr. Pettipas-Lizak told the pre-sentence reporter that his last substance use was in November 2012. She confirmed this with reliable sources. He attends one on one counselling and completed a trauma-based group. He has demonstrated a commitment to making changes and healing from past trauma.

[24] Mr. Pettipas-Lizak has reconnected with his sons. Additionally, he sees his daughters every other weekend. His ex-wife reports that while she doubted him initially, since he came back into their daughters' lives in 2015, she has seen a side of him that she did not know existed. He picks up his daughters every second weekend, returns them home as scheduled, often bringing groceries to assist his ex-wife with their care, and calls them during the week. His ex-wife believes that he has changed for the better.

[25] His brother reports that Mr. Pettipas-Lizak has worked hard to turn his life around. He maintains a healthy lifestyle. He is a caring and loving father.

[26] The pre-sentence reporter assessed Mr. Pettipas-Lizak as suitable for future community supervision.

[27] In court, Mr. Pettipas-Lizak apologized to Ms. C.P. for the trauma he caused her. He expressed his commitment to maintaining sobriety and being a better person.

[28] ## The Positions of the Parties

On behalf of the defence, Mr. Luft seeks a conditional sentence of imprisonment of 18 months, with a curfew rather than house arrest, or at least house arrest limited to the first one-third of the sentence. He points out that Mr. Pettipas-Lizak pleaded guilty and spared Ms. C.P. from having to testify again. He emphasizes that in 2012 when Mr. Pettipas-Lizak committed this and the related offences, he was in the throes of an addiction to alcohol and drugs. He was in pre-trial custody until he was released on a house arrest bail in 2014, and in February 2017 he was placed on probation, which has continued to be in effect. He did not violate his bail conditions, nor has he breached the probation order. He took rehabilitative steps while on bail and probation, including counselling, and completely turned his life around. He is not the same person who committed the offence. To return him to jail, even on weekends, would undermine his rehabilitation, in particular because it would jeopardize his relationship with his daughters.

[29] On behalf of the Crown, Ms. McIntyre seeks a sentence of 90 days in jail, which could be served intermittently so as not to interfere with employment, plus a section 109 order and a DNA order. She agrees that Mr. Pettipas-Lizak should be credited with 11 months for pre-trial custody and restrictive bail conditions, even though it was considered when he was sentenced in February 2017, because it was attributable to all offences with which he was then charged. She concedes that there are mitigating factors, but she emphasizes the aggravating circumstances. Mr. Pettipas-Lizak entered the victim's home in the middle of the night when her children were present. He was high on drugs and alcohol. He kept the victim in the home for a sustained period while armed with a firearm, which he pointed at her. She suffered significant emotional harm. Mr. Pettipas-Lizak has a prior criminal record for offences of violence. Ms. McIntyre adds that if I impose a conditional sentence of imprisonment, the range is 18 months to two years less a day, and there should be a period of house arrest followed by a period of curfew.

[30] ## The Principles of Sentencing

The objectives of sentencing long recognized at common law have been codified in section 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

[31] Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 of the Criminal Code provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those 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.

[32] Section 742.1 of the Criminal Code as it was framed when this offence was committed permits a court to order that an offender serve a sentence of imprisonment of less than two years in the community, subject to strict conditions, where certain statutory prerequisites are met. Those prerequisites are:

1. The offender must be convicted of an offence that is not a serious personal injury offence, or a terrorism or criminal organization offence prosecuted by indictment and carrying a maximum jail sentence of 10 years or more;

2. The offence must not be punishable by a minimum term of imprisonment;

3. The court must impose a term of imprisonment of less than two years;

4. The safety of the community would not be endangered by the offender serving the sentence in the community; and

5. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[33] In 2012, the offence of pointing a firearm was not punishable by a minimum term of imprisonment. It carried a maximum sentence of five years in jail. Accordingly, it is not a serious personal injury offence within the meaning of section 742.1. Further, there is no dispute between Crown and defence counsel that the sentence of imprisonment I impose should be one of less than two years.

[34] ## Analysis

I agree with Crown counsel that there are important aggravating circumstances in this case. They include the following:

1. The offence occurred in the victim's own home, in the middle of the night;

2. Her children were in the home at the time, although apparently asleep and not witnesses to the events;

3. There was a domestic context to the offence, as it was committed against the offender's girlfriend;

4. The events extended over a period of hours;

5. The events, most particularly the pointing of the firearm at her, were terrifying for the victim. They understandably caused her lasting psychological harm;

6. Mr. Pettipas-Lizak has a criminal record for acts of violence.

[35] There are, however, significant mitigating factors. Mr. Pettipas-Lizak pleaded guilty and did so without setting a new trial date. He spared the victim from having to testify again and relive the events in a public courtroom, many years after they occurred. He expressed remorse for his offence, which I find is genuine. While I do not consider his substance abuse as a mitigating factor in and of itself, I do take into account that he grew up in an environment where as a child he was subjected to substance use and abuse, violence, and criminality. Over this he had no control. Since his release on bail, followed by the imposition of a probation order, he has made impressive rehabilitative strides. He is in a stable and supportive relationship. He also has the support of his brother, with whom he spends time. He holds steady employment and is doing well at his job. He maintains sobriety and attends counselling to address his various issues. He has reconnected with his children, and now is a consistent presence in his daughters' lives. He assists his ex-wife with their support. He has not been charged with any criminal offence since his release from custody in the spring of 2014, over 4 years ago. He abided by his bail conditions and is abiding by his probation conditions. The pre-sentence reporter who is also his probation supervisor verifies that he continues to demonstrate a pro-social lifestyle.

[36] The firearms offence that Mr. Pettipas-Lizak committed was serious. It attracts a significant period of imprisonment. I note that Mr. Pettipas-Lizak has already served the equivalent of 11 months in jail. As to whether he should spend a further period of time in a custodial setting, it is important that two circumstances of this case set it apart from others involving similar offences. The first is that some six years have passed since Mr. Pettipas-Lizak committed the offence. In that period, much about him has changed, and changed for the better. The person before me for sentencing is not the same person who committed the offence. The second is that because of a judicial error, the offence that is before me was separated from those for which Mr. Pettipas-Lizak was sentenced in February 2017. Consequently, he has faced two sentencing proceedings, some 18 months apart, rather than a single global proceeding.

[37] There can be no dispute that the sentence I impose must meet the needs of deterrence, both general and specific, and denunciation. However, it is also true that by encouraging rather than discouraging Mr. Pettipas-Lizak's efforts at rehabilitation, the objective of the protection of society is achieved.

[38] In the peculiar circumstances of this case, I find that the pre-conditions to imposition of a conditional sentence of imprisonment are met. I find that the safety of the community would not be endangered if Mr. Pettipas-Lizak serves his sentence in the community, given the rehabilitative steps he has taken. I also find that a conditional sentence with strict terms would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[39] ## Conclusion

Mr. Pettipas-Lizak, please stand.

On count 1, I sentence you, after crediting you with the equivalent of 11 months of pre-sentencing custody, to a conditional sentence of imprisonment of 21 months. The conditions are the statutory conditions plus the following:

1. For the first seven months, remain within your residence or on the property of your residence at all times, except for the purpose of: meeting with your conditional sentence supervisor; attending at any treatment or counselling as your conditional sentence supervisor directs; attending at a place of employment for work or a pre-arranged job interview; medical emergencies of yourself or your domestic partner or your children; medical and dental appointments for yourself; obtaining the necessities of life which shall be limited to four hours per week and arranged according to a schedule approved by your conditional sentence supervisor in writing in advance; picking up one or more of your children at their residence to bring them directly to your residence for an access visit and returning them directly to their residence at the end of the access visit; or for any other reason approved by your conditional sentence supervisor in writing in advance. These exceptions include direct travel to and from the applicable location;

2. For the second seven months of the sentence, observe a curfew to be inside your residence from 12 midnight to 6:00 a.m. daily, except for the exceptions set out above;

3. Reside at an address approved by the conditional sentence supervisor and not change it without the prior written approval of the conditional sentence supervisor;

4. Have no contact direct or indirect with the named victim, Ms. C.P.;

5. Not purchase, possess or consume alcohol or non-prescription drugs;

6. Attend any treatment or counselling for substance abuse, trauma, or other issues as your conditional sentence supervisor may direct and not stop without the prior written approval of your conditional sentence supervisor;

7. Execute a release of information from your counsellor or treatment provider in favour of your conditional sentence supervisor so that they can discuss your progress;

8. Make yourself available either by telephone or in person as may be required at any time during the conditional sentence and in particular, answer your telephone and present yourself at the door of your residence to police services, or your conditional sentence supervisor;

9. Carry a copy of your Conditional Sentence Order with you at all times when you are out of your residence.

[40] There is a section 109 order for life and a DNA order.

FORM 2

Certificate of Transcript Evidence Act, subsection 5(2)

I, Alicia Bouwman, certify that this document is a true and accurate transcript of the recording of R. v. PETTIPAS-LIZAK in the Superior Court of Justice, held at Newmarket, Ontario, taken from Recording No. 4911_401_20180929_083954_10_FUERSTM.dcr, dated August 29, 2018 which has been certified in Form 1.

Date (Authorized Transcriptionist)

Alicia Bouwman

ACT ID# 3088882977 905-868-4256 aliciadbouwman@gmail.com