Court File and Parties

COURT FILE NO.: CR-17-36 DATE: 2019/01/18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – J.M.

Counsel: Isabel Blanchard, Counsel for the Crown Paul Lewandowski, Counsel for the Accused

HEARD: October 29, 2018

Reasons on Sentencing

leroy, j.

Introduction

[1] Mr. J.M. was convicted after trial on June 22, 2018 on twenty-four counts out of a twenty-nine count Indictment involving domestic abuses targeting his spouse and children between 1963 and 2015. Today is for sentencing.

[2] The parties are far apart on what constitutes a fit sentence.

[3] Mr. and Mrs. M. are/were victims of alcoholism. They cohabited as spouses for fifty-two years. Mr. J.M. is eighty-three years of age and Mrs. E.M. is seventy-six. Mr. J.M. worked loyally for the City of Cornwall in transportation until retirement at age sixty. They separated in 2015 when Mrs. E.M. abandoned the marriage and moved closer to their child, S.M.1. Much of the misconduct attributed to Mr. J.M. coincided with alcohol impairment. He stopped drinking alcohol coincident with retirement in 1996.

[4] The convictions registered involve E.M., spouse, S.M.1, son, C.-A.D., daughter and S.M.2, daughter.

Circumstances of the Offences

S.M.1

[5] The context around S.M.1’s memories is summarized at paragraphs 53 – 55 of the reasons for judgment:

[53] S.M.1’s interest in retribution was palpable. He decided to report to police. He carries unresolved anger toward his father. He said he remembers dysfunction, alcoholism and domestic violence. He felt there was no love in his father.

[54] Although S.M.1’s animus was obvious, I am confident he testified to what his memories tell him happened. That said, those memories have aggrandized in force and effect.

[55] Much of what he said happened in the home was corroborated by the other complainants. The refrain is that S.M.1 took the brunt of corporal discipline – the belt discipline in the basement – both ends of the belt, the punch or backhand to the head over breakfast, the hair pulling, the role of intermediary during the hundreds of drunken arguments between his parents, including the Prowler incident and the disrespect inherent in physical response to less than perfect chore completion - incidents of pushing S.M.1 down stairs . Mr. J.M. confirmed the fundamentals of these incidents.

[6] One evening, between September 1977 and September 1979, in the course of a drunken fight inter se the parents, Mrs. E.M. escaped the house into the Prowler travel trailer. When Mr. J.M. started a fire under the front propane tank, S.M.1 intervened and doused the fire. Mr. J.M. threatened to kill S.M.1 and E.M..

[7] In 1977, when Mr. J.M. threatened E.M. and S.M.1 as part of the Prowler incident, the jurisprudence was that the means by which the threat was carried out to the recipient was an essential element of the offence depicted in s. 331(1) (a) of the Criminal Code. A purely oral threat made directly or face-to-face was not an offence within the section – R. v. Nabis (1974), 18 C.C.C.(2d) 296 (S.C.C.); RE REGINA and BASARABA (1975), 24 C.C.C.(2d) 296.

[8] The assaultive conduct involved in this incident is properly under the aegis of counts 20 and 21. Mr. J.M. will not be sentenced for the threatening charges identified in counts 22 and 23. Those convictions were in error.

[9] In the course of another evening of alcohol consumption in 1994 or 1995, S.M.1 and Mr. J.M. became angry with one another. Mr. J.M. struck S.M.1’s vehicle with a fire poker contrary to s. 430(4).

C.-A.D.

[10] The essential elements of an assault were made out. Mr. J.M. raised his hand to strike C.-A.D. but retreated when she advised him that if he carried though, he would never see her again.

S.M.2

[11] When S.M.2 was age 13, Mr. J.M. inserted two finger in S.M.2’s vagina while he was coating her body with a cream treatment for scabies. Days later, Mr. J.M. propositioned S.M.2 for anal penetration and when she declined, Mr. J.M. grabbed her arms, kicked her in the shins and pushed her away – indecent assault times two – subsection 231(2). As will be noted later, Dr. Gray concluded that misconduct towards S.M.2 was opportunistic, based on availability rather than predisposition for an age category.

E.M.

[12] The impression is that Mr. J.M. engaged in assaultive behaviour towards E.M., while intoxicated, multiple times over the fifty-two years. E.M. confirmed there were many. S.M.1 estimated in the range of twenty events. The assaults ranged from punching, a throttle, pushing, poking, grabbing, kicking, throwing household items, breaking beer bottles – Mr. J.M. was convicted of assault times six and assault causing bodily harm times four.

[13] E.M. was the only other adult in the M.. Of the witnesses, E.M. brought the most reliable perception of the family dynamic. Paragraphs 106 – 107 of the reasons for judgment set the context:

[106] My impression is that E.M. is ambivalent. E.M. and Mr. J.M. were together for fifty-two years. It wasn’t all bad. I note the last incident that she recounted involved a social outing with neighbours. They celebrated birthdays, Halloween and other special occasions. E.M. drank alcohol along with her husband that dissolved their respective inhibitions and exacerbated their misbehaviour. S.M.1 lamented the burden they placed on him to mediate their generally meaningless disputes.

[107] E.M. did not over sell her narrative. If anything, she tended to mitigate the brutality of Mr. J.M.’s behaviour. S.B. and the children said they observed many times when E.M. had to wear makeup to obscure facial and neck contusions. E.M. confirmed that Mr. J.M. struck her in the face one time and strangled her one time – after the Avon route. She did not deny routine assaultive behavior. She recounted how Mr. J.M. would target parts of the body that ordinary clothing obscured when he struck her.

[14] Mr. J.M. threatened E.M. with injury coincident with their separation contrary to paragraph 264.1(1)(a).

[15] Mr. J.M. was convicted of indecent assault arising from an incident when he forced E.M. to perform fellatio – s. 141.

Sentence Provisions

[16] The maximum sentence for an assault is imprisonment for a term of two years – 231(1)(a). No minimum sentence. In 1977, s. 245(1) provided that everyone who committed a common assault was guilty of an offence punishable on summary conviction. Section 266 provides a maximum sentence of five years.

[17] The maximum sentence for an assault causing bodily harm is imprisonment for a term of two years – 231(2) and in 1977 five years. No minimum sentence.

[18] The maximum sentence for mischief is imprisonment for two years – 430(4) – no minimum.

[19] The maximum sentence for indecent assault on a female was imprisonment for five years – 141(1); 149(1).

[20] The maximum sentence for threatening death or injury was ten years imprisonment in 2015 – 264.1(2).

Positions of Counsel

[21] The defence position is that in all the circumstances, a sentence of two years less one day to be served by conditional sentence is a sound option. If the court concludes that federal time is required, then it should be in the range of two and one-half years.

[22] Mr. J.M. was incarcerated for 111 days pre-sentence and should get credit for 166.5 days. He should get credit for a year of pre-sentence stringent bail.

[23] Crown counsel advocates global imprisonment of twelve years, DNA order, SOIRA twenty years, section 161 for ten years. A conditional sentence would not achieve the purposes of denunciation and deterrence required in this case.

Applicable Principles of Sentencing

[24] The fundamental principle of sentencing is proportionality. A sentence must be proportionate and broadly commensurate with the gravity of the offence and the moral blameworthiness of the offender (s. 718.1 Criminal Code). The two perspectives on proportionality should converge in a sentence that both speaks out against the offence and punishes the offender no more than necessary.

[25] This is achieved by an examination of any relevant aggravating or mitigating circumstances relating to the offence or the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. Mitigating and aggravating factors are only those that are related to the gravity of the offence or the moral blameworthiness of the offender. The absence of a factor is neutral.

[26] Sentencing objectives include denunciation – expressing society’s disapproval of the conduct through the sentence imposed; general deterrence – sending a message to others that this kind of behaviour is too costly to engage in; specific deterrence – sending a message to Mr. J.M. to intimidate him into not offending again; incapacitation – locking Mr. J.M. up to protect those of us who are not locked up; or rehabilitation and reintegration – trying to assist him in reforming so he does not offend again.

[27] Consideration must be given to similar sentences for similar offenders for similar offences in similar circumstances (s. 718.2 (b) Criminal Code). Attempts at parity will never be precise. The court is required to only consider cases involving the same offences with a similar constellation of mitigating and aggravating factors applying to the individual offender.

[28] Restraint is required for all offenders and particularly first offenders. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. The restraint principle requires consideration of all sanctions apart from incarceration. Where incarceration is necessary, the term should be as short as possible, tailored to the individual circumstances of the offender. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances (s. 718.2(d)).

[29] The inquiry is intended to justify the adverse consequences that are being imposed on an individual by society, while ensuring that those consequences are fair and constructive. The sentence ought to be broadly commensurate with contemporaneous sentencing norms.

[30] When sentencing for offences involving the abuse of children under the age of eighteen, the Court is required to give primary consideration to the objectives of denunciation and deterrence – s. 718.01. The Criminal Code was amended in 1996 to oblige courts to consider the abuse of a child or spouse and abuse of a position of trust as aggravating factors in sentencing.

[31] Consecutive sentences are generally appropriate where a) the offences arise out of separate and unrelated incidents and b) the offences are linked but concurrent sentences will not adequately reflect the overall criminality.

[32] Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh. The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is just and proportionate – R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para 42.

Circumstances of the Offender

[33] Mr. J.M.’s personal circumstances were compiled and depicted in a psychiatric assessment of his cognitive function, a psycho/sexual assessment and treatment options by Dr. Jonathon Gray, staff psychiatrist at the Royal Ottawa Health Care group.

[34] Mr. J.M. is an 83-year-old separated man, currently living at the Onyxx Center in Ottawa under bail supervision. He is in denial.

[35] Dr. Gray recounted his interviews with Mr. J.M.:

“Beginning with the earliest incident, I asked Mr. J.M. about each of the allegations contained in the police synopsis. He denied the facts of every single charge up until the partial admission of some of the facts of the 1994 incident, described above. Specifically, he denied pushing E.M. to the ground and kicking her in the stomach while she was pregnant with S.M.2 at around 1963. When it was pointed out to him that her sister had witnessed it, Mr. J.M. said that “S.M.1 had managed to get E.M.’s sister to say it”. He also denied pushing E.M. against the chair and taking a broken leg of the chair and threatening E.M. with it. He denied pushing E.M. against a tree at his son D.’s tenth birthday, saying that there was no tree in the front yard and this was discovered in court. He denied lifting E.M. off the floor with his wrist pushed against her neck.

Regarding the allegation that he hit his son S.M.1 and daughter C.-A.D. with his belt, he said that he had never hit any of his children with his belt. Asked if it is possible he just could not recall events that occurred decades ago, he said, “I can remember way back. Those kind of things stick in your mind and it didn’t happen”. He denied assaulting his son S.M.1 while wearing black boots in the 1970s. He denied pushing E.M., causing her head to strike against the toilet. He denied punching E.M. in the face causing her to have black eyes and wear sunglasses. He denied choking E.M. to the point where she almost passed out, even once, let alone “often” as was noted in the police synopsis.

There is an allegation of indecent assault against his daughter S.M.2 when she was 12 or 13. He said he could recall when she had scabies and that the physician had prescribed cream for them. He also admitted to putting cream “all over her body”, but noted in particular that he did not touch her “private parts”. He denied he would have inserted fingers into her vagina. He said the incident was entirely fabricated. He said he was never sexually attracted towards his daughter S.M.2 at any time. He similarly denied ever asking her for anal intercourse, as was alleged in the police synopsis.

Again, Mr. J.M. denied the allegations described in the incident listed number 11 that he punched S.M.1 in the face, causing his nose and mouth to bleed. With respect to incident number 12, he provided a different version of events in which S.M.1 had set fire crackers on fire and he needed to put out the fire. He denied threatening to light propane tanks in front of the trailer.

He denied assaulting his daughter C.-A.D. as described in incident number 13. He said that she moved out at the age of 19 for reasons that had nothing to do with him.

I asked Mr. J.M. about his perception of his relationship with his wife and children. He said he met his wife E.M. while he was driving a bus at the age of 37. She was aged 30 at the time and sat in the front seat of the bus when they met. They began to date for a year and then started living together. They married one year after moving in together. He described their relationship as “very good”. He said there was some stress over their financial situation at first because they both had only part-time jobs. At times, he said they got angry at each other, but he denied he had ever physically assaulted her at any time. He finally admitted that he might have “pushed her” once. He said that she, on the other hand, had hit him on the mouth with a telephone and showed me a small scar below his lower lip to back up this allegation.”

[36] The assessment concluded that a pedophilic disorder for Mr. J.M. is highly unlikely. It is more likely the misconduct towards S.M.2 was opportunistic based on availability rather than because he was targeting an age category. The incidents with S.M.2 occurred almost forty years ago and there have been no allegations of inappropriate sexual behavior towards younger subjects since.

[37] Dr. Gray concluded that Mr. J.M. is at low risk to re-offend and his complete denial of the substance of the sexual and violent offences together with the significant time lapse makes the prospect of therapeutic benefit to treatment poor.

[38] Dr. Gray suggested interventions as:

1. If Mr. J.M. is sentenced to community supervision on release, his relationships with future partners be monitored for signs of abuse;
2. Continued abstinence from alcohol should be a condition of his release given the correlation between alcohol and the events before the Court;
3. Notwithstanding the very low risk of future sexual offences against underage subjects, there should be conditions of release that limit his opportunity to commit a similar act in the future.

Mitigating and Aggravating Factors

Mitigating

[39] Mr. J.M. was a reliable family breadwinner. Before separation in 2015, he did not experience encounters with the criminal justice system. He is in that respect a first-time offender.

[40] Mr. J.M. was incarcerated for 111 days pre-sentence.

[41] Mr. J.M. has settled into routine under the auspices of the Onyxx program where he lived under house arrest for 350 days.

Aggravating

[42] The abuse in this case involved a spouse and persons under the age of eighteen and is aggravating.

[43] S.M.1 recalls a dysfunctional family growing up and attributes that as a factor in the etiology of his mental health issues including depression derived from Mr. J.M.’s violence and lack of expressing love.

[44] S.M.2 explained how the experience of observing the violence in the home eroded her self-esteem and anger management.

[45] E.M. expressed sustaining fear for her safety should Mr. J.M. have the opportunity to contact her. She attributes chronic knee pain to the time Mr. J.M. pushed her to the ground landing on her knees.

[46] Mr. J.M. accrued the pre-sentence constraint on liberty as the result of breaching release recognizance.

Jurisprudence

[47] The parties offered the following with a view to sentencing parity.

[48] In R. v. Thompson, 2011 ONSC 6050, the facts accepted by the Court were that the accused, age 72 at the time in a caregiving role, touched the nine-year-old complainant inappropriately three times in 30 days. On each occasion, the accused fondled the complainant’s breast, vagina and buttocks. On the second occasion, the accused put the complainant’s hand inside his boxer shorts. On the third occasion, the accused asked the complainant to lie down with him on a hammock and rub his belly.

[49] Mr. Thompson was sentenced to 30 days for invitation to sexual touching and an eighteen month conditional sentence for the sexual assaults.

[50] In R. v. S.D., 2013 ONCA 244, the offences included six counts of sexual assault, 14 counts of assault with a weapon, one count of assault causing bodily harm, four counts of assault, five counts of uttering threats, one count of possession of a prohibited weapon, and one count of breach of recognizance. S. D.’s behaviour placed him in the worst offender category. The ONCA concluded that a fit global sentence was 12 years imprisonment.

The offender sexually assaulted his common law partner, R.B. The sexual assaults occurred on three occasions in 2007 when he returned home drunk, called his partner a whore, and threatened to kill her if she refused to have sex with another man. Each time, S.D. forced his partner to have sex with this man and then with himself. On one occasion, S.D., a martial arts and weapons enthusiast, punched his partner in the face with the flat part of a sword handle when she initially refused to have sex with the stranger. On another occasion, he put the tip of a sword blade against her neck to force her to have sex with the other man. On the third occasion, the man paid the offender $50 for the sex with his partner.

The offender assaulted his partner and four of his five children on numerous occasions throughout a ten-year period. The assaults escalated over time. The assaults were violent and very dangerous, often involving weapons such as swords, knives, poles, an axe, a meat cleaver, and a homemade spear. They caused injuries to R.B. and the children. It was a “reign of terror” visited on R.B. and four young children, with devastating consequences.

[51] In R. v. T.D.D., 2007 ONCA 848, Justice Byers described T’s forty-years of terror as short of murder the worst case of domestic abuse over the longest period he had ever seen – T was moderate to high risk to re-offend. There were 25 counts of assault involving broken teeth, facial scaring, striking on head with hammer, insertion of curling iron in vagina together with two counts of indecent assault for which he was imprisoned 135 months in penitentiary. Mr. T was afflicted with progressive dementia.

[52] In R. v. F.D., [2005] O.J. No. 2148, the complainant was the appellant’s common law spouse of fifteen years. The events that underlaid the twelve charges involved shocking and offensive acts perpetrated against the complainant and the couple’s three-year-old son. They were depicted as “nothing less than a reign of terror” lasting for a period of nine months. He was a worst offender.

The offender dominated the relationship. He forced the victim to support the family as prostitute and exotic dancer. After the complainant disclosed an extra-marital affair to him his pattern of threats and physical abuse escalated virtually to the level of sexual and physical torture.

His conduct included:

• beating the complainant about the head and body on numerous occasions, including with objects such as a plunger, often leaving her with black eyes and bruising;
• writing words such as “pig”, “slut”, “liar” and “dirt bag” on her naked skin with an indelible marker, and refusing to permit her to remove them;
• threading a needle through her labia majora and threatening to “sew her up”;
• tying the complainant up in the garage, pouring gasoline on her, and threatening to kill her by lighting her on fire;
• handcuffing her to a banister so she could not escape while he slept;
• attacking her with a kitchen knife (on two occasions);
• threatening to burn her eyes out with a soldering gun and causing burns to her arm, shoulder and temple;
• pouring lighter fluid across her breasts, threatening to light her on fire, and then kicking her with his construction boots;
• repeatedly punching her in the vagina;
• holding their son to the burning fireplace and threatening to throw him in and kill him (on two occasions);
• waving an axe at her head;
• threatening to burn her with a blow torch; and
• cutting her vagina with scissors.

During this period, the complainant went to the hospital twice for treatment for her injuries. On each occasion, she fabricated stories to explain her condition, as she was instructed by the appellant to do. He was sentenced to fourteen years and two months in addition to the equivalent of twenty-two months of pre-trial custody.

[53] In R. v. Young, 2003 ONSC 5124, Mr. Young was sentenced to imprisonment for eleven years after credit of two years for pre-sentence custody of seventeen months.

[54] Mr. Young abused and terrorized his common law spouse on an almost daily basis for two years. The daily abuse was punctuated by several specific events of cruelty and horror. These included throwing the victim from the second floor balcony; placing the victim in a freezer while she was naked and sitting on the lid so she could not escape; and sexually abusing the victim in a series of sadistic and dehumanizing acts that went on over many hours.

There were no mitigating factors. Mr. Young had a terrible criminal record. He was an alcoholic prone to acts of violence while intoxicated. He had taken no steps to deal with his problem and had no real appreciation of the danger he posed when drinking.

Discussion and Conclusion

S.M.2

[55] The incidents with S.M.2 were uncharacteristic and opportunistic based on availability. They transpired within days of each other without antecedent or reprise. Justice of Appeal Tulloch did not comment on the merit of an 18-month conditional sentence followed by probation in Thompson.

[56] Although the facts in Thompson did not include digital penetration there were indicators of grooming and escalation consistent with premeditation. In that case a conditional sentence provided the requisite denunciation and deterrence and reflected proportionality between gravity of offence and Mr. Thompson’s moral blameworthiness.

[57] Count 16 involved a proposition and an assault in response to rejection that tainted what could have been viewed as clinical touching during the first incident. Although separated in time they are offences with a sufficiently close nexus to accord concurrent sentences.

[58] The sanction for sexual assault in general and against children in particular has increased over time. Imprisonment for indecent assault of the generic at bar would have been less than eighteen months had he been charged and convicted at the time.

[59] Denunciation and deterrence are important sentencing objectives. Although Mr. J.M. is not a risk to re-offend his actions need to be denounced. Mr. J.M. bears full responsibility for the assault and the sentence needs to promote acknowledgement of that responsibility. I don’t know that any sentence can repair the harm done to S.M.2.

[60] For the offences of indecent assault in counts 15 and 16 the fit sentence in all the circumstances is imprisonment for eleven months each to be served concurrently one with the other followed by three years of probation.

C.-A.D.

[61] The essential elements of an assault were made out. There was no contact, rather a threatening gesture by father towards his adult daughter. For this minor offence Mr. J.M. would receive a discharge, suspended sentence and probation or the like – Sentence is suspended on count 25. Mr. J.M. shall be on probation for a period of three years.

E.M.

[62] This was a fifty-two year marriage with good and bad times. Mr. J.M. stopped drinking twenty-three years ago – 1996. Save for date of separation incidents in 2014 involving a grab by the arm and a push and a push to the ground in 2011 the spousal abuse took place between 1963 and 1996 – thirty-three years.

[63] There were ten simple assault convictions, four assault causing bodily harm convictions, one indecent assault involving fellatio conviction and one threatening conviction.

[64] The assaultive behaviour included incidents that included:

• A push to the ground and kick to the stomach - 1963
• A strike to the face one time;
• Persistent poking with his fists directed at the arms and back -
• Pulling E.M.’s hair,
• Pushing E.M. resulting in her head striking a sink,
• Pushing E.M. against a tree,
• the incident when Mr. J.M. threatened to strike E.M. with a broken chair leg,
• Grabbing E.M.’s arms leaving contusion,
• the choking event over jealousy,
• twisting E.M.’s arm behind her back,
• kicking on the buttocks,
• the assault inherent in the Prowler event,
• the push from behind while they resided on L[…] so that E.M. struck her knees on stones causing injury from which she says are unresolved, and
• in 2014 when Mr. J.M. grabbed E.M. by the arm to prevent her from returning home; she pulled away and he pushed her.

[65] The threat included in count 29 was communicated after E.M. moved closer to S.M.1.

[66] This was not a reign of terror scenario. S.M.1 lamented his role as mediator between his parents when they drank and bickered, behaviour he ascribed on a weekly basis. Factoring in E.M.’s perspective regarding good and bad times the scenario might best be depicted as variable depending on alcohol consumption. Through the week when alcohol was not operative their home life was functional. On weekends when alcohol was operative the senior M.s bickered and their home life was dysfunctional. On occasions over the thirty or so years Mr. J.M. got physical. It is those times that are etched in the memories of witnesses.

[67] I do not wish to understate the seriousness of Mr. J.M.’s misconduct towards E.M. but the gravity of offence and constellation of aggravating factors in the case at bar are not in the same league as that in any of F.(D.), T.(D.D.), S.(D.) and Young. The case law submitted by the Crown involves factual situations far more serious than those involving Mr. J.M.. They are disturbing. If anything, these cases demonstrate that Mr. J.M.’s misconduct falls at the lower end of the spectrum.

[68] Mr. J.M.’s sentence ought to recognize societal norms when the offences were committed. The gravity of offences of domestic violence has not changed, rather societal perception has. When Mr. J.M. committed the more serious offences the element of domestic abuse was not statutorily underscored as an aggravating factor. The law tended to treat these affairs as private matters until the 1980’s. The way in which the criminal justice system responds to family violence evolved. The cyclical and recurrent nature of family violence wasn’t fully recognized at the time.

[69] E.M. cited chronic knee pain as a consequence of the last time Mr. J.M. pushed her to her knees. Knee pain is not atypical for the age group. There may be a nexus; however the assertion without independent confirmation is not proven beyond reasonable doubt.

[70] I accept that E.M. remains concerned should Mr. J.M. have freedom to roam. An extended period of supervision ameliorates that concern.

[71] Ms. Blanchard argued that the court should send a message to would be abusers to the point that the passage of time will not insulate today’s abuser; that when you are caught there will be consequences.

[72] Mr. J.M.’s moral blameworthiness vis a vis spousal domestic abuse, as a first offender, is reduced. He is a repeat abuser but not a repeat offender. He was never exposed to PARS or involved in specialized family violence courts. He was not accorded the resources to rehabilitate. He is eighty-three years of age so the utilitarian and normative goals of sentencing served by imprisonment are largely exhausted. The symbolic value of imprisonment as punishment for encroaching on our society’s basic code of values and deterrence is largely spent.

[73] The very fact of the prosecution brings significant denunciatory effect. Mr. J.M. conceptualized himself as a law abiding person. He finds himself in a situation wearing an ankle bracelet, abandoned by his family and subjected to the stigma of these proceedings at a time of life when none of it makes sense to him. The consequences of contemporary domestic assault are known in the community.

[74] A custodial sentence for a first offender should only be imposed where the circumstances are such or the gravity of the offence is such that no other sentence is appropriate. Save for the choking incident I am not convinced that individually the other assaultive behaviour, including the indecent assault and Prowler episode would have attracted imprisonment at the time. Most were properly in the category of summary conviction offence. Collectively it is a different matter and it is on that basis sentence is imposed.

[75] On counts 1, 2, 3, 4, 5, 7 11, 12, 13, 20, 28 and 29 the fit sentence on a collective basis is a period of imprisonment for twelve months consecutive to the sentences relating to S.M.2 and S.M.1 to be followed by probation for a period of three years. This sentence matches the gravity of the collective aspect of years of persistent low level abuse with moral blameworthiness inherent in such actions.

S.M.1

[76] Mr. J.M.’s offences against S.M.1 as child involved excessive discipline – the regular use of the belt, slap or punch to the face, hair pulling and the shoving down stairs. Mr. J.M. acknowledged these events but from his perspective S.M.1 embellished the extent of force applied. I accepted the fact of S.M.1’s contemporary memory but assuaged with recognition that it evolved over the years.

[77] While the criminal convictions relate to the assaultive misconduct, it is the emotional harm that repeated childhood experiences involving two uninhibited alcoholic parents sometimes ending in overt spousal assault caused.

[78] S.M.1 is much affected by the repeated imposition placed on him as mediator between two irrational parents deep into alcohol induced conflict. He could not know that in those circumstances no one’s intervention brought efficacy. The Prowler incident is representative. S.M.1 was tasked to pick up the pieces.

[79] The conflict between them carried over into S.M.1’s adulthood evidenced by the incident involving the poker and S.M.1’s car.

[80] Although by contemporary standard Mr. J.M.’s disciplinary method shocks sensibility, at the time not so much. In comparison, corporal discipline was allowed in the school setting administered by male principals. I am not convinced that had this behaviour been exposed when it happened charges would have been brought. Had charges been brought and if a court concluded Mr. J.M.’s disciplinary method extended into the realm of criminality sentencing would have reflected then contemporary standards.

[81] Denunciation and deterrence are mandated sentencing objectives arising from assaultive treatment amounting to breach of trust during S.M.1’s childhood. Individual deterrence is no longer a meaningful objective. Mr. J.M. will never be in a care-giving role. Reparation for harm done is a priority for S.M.1 as is imposition of an acknowledgement of the harm done

[82] There are six assault and one mischief conviction involving S.M.1 and Mr. J.M.. Although Mr. J.M. applied the belt to S.M.1 and pushed S.M.1 downstairs more than one time there is one representative conviction for each.

[83] S.M.1’s emotional development was impaired as the result of childhood experiences. No sentence can give that back and that is not the purpose of sentencing; rather it is denunciation, deterrence, acknowledgment of harm done and attempt at reparations for the harm done. In this case reparation is an elusive purpose.

[84] On a collective basis in respect to counts 8, 10, 18, 19, 21, 26 and 27 having regard to all the circumstances the fit sentence is a period of imprisonment for twelve months consecutive to the sentences relating to offences against S.M.2 and E.M. together with probation for three years.

Credit for Pre-sentence Incarceration and House Arrest

[85] Mr. J.M. was incarcerated for 111 days real pre-sentence time. He seeks credit at the rate of one and one-half times or 5.5 months.

[86] Mr. J.M. was under house arrest supervised by Onyxx for 350 pre-sentence days. He is seeking Downes one for one credit for this time period. I note that Mr. J.M. was initially released and it was a breach that lead to the real time and ensuing house arrest.

[87] The court in R. v. Downes, [2006] O.J. No. 555 wrote that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. As mitigating circumstance, there will be variations in its potential impact on the sentence, and the circumstances may dictate that little or no credit should be given for pre-trial house arrest. The jurisprudence eschews a rigid formula for calculating the amount of credit to be given because there can be such a wide variation in bail conditions, and even house arrest conditions. The amount of credit will depend upon a number of factors, including the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; and the ability of the offender to carry on normal relationships, employment and activity. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. Where the offender asks the trial judge to take pre-trial bail conditions into account, the offender should supply the judge with information as to the impact of the conditions.

[88] Mr. Ascani confirmed that Mr. J.M. was confined to house arrest and subject to video surveillance. He left the residence always under supervision to attend church and mental health programing. The impact on Mr. J.M.’s liberty while on house arrest was significant for a lengthy period of time.

[89] I allow 6 months for Downes credit and 5.5 months credit for pre-sentence incarceration to be evenly applied to the otherwise fit sentences in relation to the offences against S.M.2, E.M. and S.M.1.

[90] Accordingly after accounting for pre-sentence credit Mr. J.M.’s sentences are:

i. For the offences of indecent assault in counts 15 and 16 the sentence is imprisonment for seven months and nine days each to be served concurrently one with the other but consecutively to the sentences for offences against S.M.1 and E.M. followed by three years of probation. ii. On counts 1, 2, 3, 4, 5, 7 11, 12, 13, 20, 28 and 29 the sentence on a collective basis is a period of imprisonment for eight months and nine days consecutive to the sentences for offences against S.M.1 and S.M.2 to be followed by probation for a period of three years: iii. On a collective basis in respect to counts 8, 10, 18, 19, 21, 26 and 27 the sentence is a period of imprisonment for eight months and nine days consecutive to the sentences for offences against S.M.2 and E.M. together with probation for three years. iv. Ancillary orders will include a DNA order, s. 109 weapons prohibition for ten years, a SOIRA order for ten years and a s. 161(a.1) order prohibiting contact with S.M.2, S.M.1, C.-A.D., S.B. and E.M. for ten years.

[91] In total these sentences compile into twenty-three months and twenty-seven days. This outcome complies with the totality and restraint principles.

[92] The terms of probation will include the statutory terms. E.M., S.M.1, S.M.2, S.B. and C.-A.D. will be protected by s. 732.1(2)(a.1).

[93] Other terms will include reporting as required, residence at L[…] Street, Ottawa, abide by the rules of the Onyyx Community Service Program, do not attend Nova Scotia, abstinence from consumption of alcohol, attend counselling recommended by the probation officer and Onyxx, and to not contact or communicate in any way directly or indirectly with E.M., S.M.1, S.M.2, C.-A.D. and S.B. and not to be within 25 km of any place where you know any of these persons live, work or frequent. Mr. J.M. is required to report any domestic relationship to the probation officer with full particulars so the relationship can be monitored.

Conditional Sentence

[94] Serious consideration must be given to the imposition of a conditional sentence when the statutory pre-conditions are met.

[95] For those who assume a conditional sentence is a get-out- of-jail-free card, Parliament has said imprisonment should be a sanction of last resort and given the conditions there can be ample denunciation and deterrence. A CSO sentence maintains the Court’s control for longer – if there is a breach, the offender is brought before the Court and the offender may be forced to serve the remainder of the term in prison.”

[96] For the purposes of this sentencing exercise no offences before the court are excluded from the conditional sentencing regime, nor are there presumptions in favour of or against a conditional sentence for specific offences.

[97] Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[98] The term of imprisonment is less than two years. Mr. J.M. demonstrated over the last year that he is willing to honour stringent release conditions. The safety of the community would not be endangered by the offender serving the sentence in the community. By comparison Mr. Thompson was grooming his victim. In the case at bar Mr. J.M. succumbed to opportunistic temptation. Mr. J.M. has not offended in this way for over forty years. He has proven amenable to supervision.

[99] A conditional sentence with appropriate terms in my view balances the gravity of these offences and Mr. J.M.’s moral blameworthiness proportionately and so honours the fundamental principle of sentencing in s. 718 of the Criminal Code. He is a first offender and restraint is required. The restrictions on Mr. J.M.’s liberty will be stringent. As noted earlier in these reasons the utilitarian and normative goals of sentencing served by imprisonment in a provincial institution are largely exhausted.

[100] Mr. J.M. shall serve his sentence in the community. I was advised in submissions that Mr. J.M. may remain under the supervision of the Onyxx organization in their residence. They will continue as his jailers. In the first twelve months Mr. J.M. shall be on house arrest. Terms to include: reporting as required, residence at L[…] Street, Ottawa, abide by the rules of the Onyyx Community Service Program, do not attend Nova Scotia, do not access computer unless under direct Onyxx supervison, abstinence from consumption of alcohol, attend counselling recommended by the supervisor and Onyxx, and to not contact or communicate in any way directly or indirectly with E.M., S.M.1, S.M.2, C.-A.D. and S.B. and not to be within 25 km of any place where you know any of these persons live, work or frequent. Mr. J.M. is required to report any domestic relationship to the supervisor with full particulars so the relationship can be monitored. He will remain in the residence except for medical appointments, attendance at recommended counselling, sundry shopping, religous activity all to be pre-cleared in writing with his supervisor.

[101] Mr. J.M. will continue to wear the ankle monitor for the next twelve months.

[102] After twelve months house arrest is lifted. Mr. J.M. will be subject to curfew between 7:00 p.m. and 7:00 a.m. The other terms survive until the sentence is completed.

The Honourable Mr. Justice Rick Leroy Released: January 18, 2019