COURT FILE NO.: 19-18120

DATE: 20210406

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DUSTIN DALEY

Accused

Lia Bramwell, for the Crown

Joshua Clarke, for the Accused

HEARD: March 1 and 9, 2021

REASONS FOR SENTENCE

Aitken J.

[1] On July 20, 2020, Dustin Daley pled guilty to assault causing bodily harm of Angela Korbiel contrary to s. 267(b) of the Criminal Code, R.S.C. 1985, c. C-46 (“the Code”) and breach of recognizance under s. 145(3) of the Code. Sentencing submissions were heard on March 1 and 9, 2021.

Background Facts Regarding the Offences

Assault Causing Bodily Harm

[2] Dustin Daley and Angela Korbiel were in an on again, off again, relationship for approximately four years before the events in question. They never lived together, though they spent a lot of time together. The relationship was volatile; in fact, both considered it toxic.

[3] On April 29, 2017, Ms. Korbiel attended a work gala with a female co-worker. Mr. Daley had asked her not to go without him because there would be other males present. Ms. Korbiel agreed to see Mr. Daley after the event and texted him early in the evening asking that he pick her up at around 11:30 p.m. Mr. Daley ignored Ms. Korbiel’s request and told her to go home on her own; he would see her later. Ms. Korbiel decided to stay later at the gala. Mr. Daley called and texted Ms. Korbiel numerous times calling her a “bitch” or a “slut” and telling her that she should be at home.

[4] Mr. Daley drove to the convention centre parking lot and waited for Ms. Korbiel to exit the gala. At approximately midnight Ms. Korbiel exited the convention centre to have a cigarette with a male attendee at the gala. She saw Mr. Daley in his car. Mr. Daley then drove his vehicle slowly past Ms. Korbiel and yelled out the words “bitch” and “slut”.

[5] Mr. Daley drove to a nearby pub, where he ran into an old friend. Mr. Daley told the friend that his girlfriend was cheating on him and asked her if she would drive past the convention centre so that his girlfriend would see him with another woman. Mr. Daley’s friend agreed. Mr. Daley texted Ms. Korbiel and asked her to come outside, as he would be there soon. Mr. Daley and his friend drove past the convention centre a second time so that Ms. Korbiel could see the female in the front passenger seat of his car. As he did so, Mr. Daley reached across his friend and yelled at Ms. Korbiel through the open window “bitch” and “slut”.

[6] Ms. Korbiel stopped responding to Mr. Daley’s texts. She went back into the convention centre where she stayed until approximately 1:00 a.m., when she took an Uber home. By this point, Ms. Korbiel was worried that Mr. Daley may come over to her home in an angry state. She ensured that all of her windows and doors were locked, and she kept the lights off inside the apartment so that it would appear that she was not home.

[7] Mr. Daley and his friend returned to the pub where they had a drink and Mr. Daley told his friend about Ms. Korbiel’s suspected infidelities and abusive nature. His friend sympathized with him. Mr. Daley’s friend left the pub at approximately 1:45 a.m. after advising Mr. Daley not to go over to Ms. Korbiel’s home but, instead, to stay away from her and go straight home.

[8] Unfortunately, Mr. Daley did not take his friend’s advice. Shortly after 2:00 a.m., he went to Ms. Korbiel’s residence and began banging on the windows and yelling to be let in. Ms. Korbiel pretended that she was not home. She called a friend, who stayed on the phone with her while Mr. Daley was continuing to bang on and kick the bedroom windows of Ms. Korbiel’s basement apartment, breaking two.

[9] Mr. Daley let himself into Ms. Korbiel’s apartment. No evidence was provided as to how Mr. Daley gained entry to the apartment and the Statement of Agreed Facts is silent on this subject.

[10] Once Mr. Daley was in the apartment, he ran down the stairs and tackled Ms. Korbiel to the floor. Mr. Daley then punched and kicked Ms. Korbiel repeatedly in her chest, stomach and face. The assault lasted approximately five minutes. Mr. Daley stopped beating Ms. Korbiel, walked back toward the stairs, and began to cry, saying: “why can’t you just be a good girl? Why can’t you love only me?”

[11] Ms. Korbiel took the opportunity to run past Mr. Daley and out of her apartment. She banged on her neighbour’s door, seeking help, but was not heard. Mr. Daley fled the scene in his car. Ms. Korbiel returned to her apartment and called 911.

[12] Ms. Korbiel suffered extensive injuries as a result of the beating. She had broken ribs resulting in a partially collapsed lung and pneumothorax; bruising to her face, chest, breasts, stomach, back, shoulders, arms, wrists, hands, legs, and feet; and a swollen and blackened right eye. The photographs entered as an exhibit at the sentencing hearing attest to the seriousness of the assault. Ms. Korbiel’s partially collapsed lung made it difficult for her to breath and speak. The charges against Mr. Daley might have been much more serious had Ms. Korbiel not been able to call 911 and get immediate medical help. Ms. Korbiel experienced significant pain and had to have a chest tube for days. She was treated at the hospital on a number of occasions.

Breach of Recognizance

[13] Mr. Daley entered a recognizance on September 18, 2017, with a condition not to communicate in any fashion with Ms. Korbiel. Mr. Daley breached this recognizance as follows:

• On August 5, 2018 at approximately 4:00 a.m., Mr. Daley called Ms. Korbiel, said “I’m so sorry”, and hung up;

• On August 26, 2018, at approximately 3:04 a.m., Mr. Daley called Ms. Korbiel, said “I miss you”, and hung up;

• On August 26, 2018 at approximately 3:13 a.m., Mr. Daley called Ms. Korbiel and said “Hey girl”. When Ms. Korbiel asked who it was, Mr. Daley replied “Dustin” and then hung up;

• On September 1, 2018 at approximately 3:10 a.m., Mr. Daley called Ms. Korbiel approximately four times and said “some chapman brother”, “are you taping”, “would love to chat with no one around”, and finally “get another cell phone number”; and

• On September 2, 2018, Mr. Daley called Ms. Korbiel approximately eight times between 3:00 a.m. and 4:30 a.m. Mr. Daley said: “I want to talk to you with no one around, I’m scared”, “I would have never pinned you as the person to put me in jail for years”, “you spent all my money and I have none left”, “you have ruined my life”, “people come out of jail 10 times worse”, “you are an evil person”, “I love you”, and “I am ready now; I wasn’t ready before, but I am now”.

Position of the Crown and the Defence

[14] The Crown is seeking a global sentence of 30 months with credit for pre-sentence custody but no credit for the time Mr. Daley has been on bail. In the alternative, the Crown is seeking a sentence of two years less a day plus three years probation. In either case, the Crown is seeking a restitution order of $1,020.38 in favour of Ottawa Victim Services (who paid for the repair to Ms. Korbiel’s windows), a DNA order, and a mandatory weapons prohibition order for life.

[15] Defence counsel asks me to be creative in my sentencing to accomplish something akin to what might be possible were conditional sentences available for the offence of assault causing bodily harm. He suggests a sentence for assault causing bodily harm based on the following: (1) credit of 12 days for pre-sentence custody of 8 days real time; (2) credit of six months to one year for approximately four years on bail; and (3) an intermittent sentence of 90 days. He suggests a 12-month conditional sentence for breach of recognizance, half of which would be house arrest. The sentences would be followed by probation for at least one year.

Circumstances of the Offender

[16] The available information is that Mr. Daley had a good childhood free of any form of violence, abuse, or neglect. His parents were high school sweethearts who modelled a loving relationship. Mr. Daley continues to live at home with his mother; his father having died on New Year’s Eve 2010. Mr. Daley has one older, married, sister, and he is close to her and her husband. He is also close to his two nieces, whom he babysits and takes to various activities in the community. In short, Mr. Daley has the benefit of a tightly knit, highly supportive, and pro-social family.

[17] Mr. Daley’s father was diagnosed with cancer when Mr. Daley was 19 years of age and he was very sick until his death. Mr. Daley provided his father with care as he was dying and was, and continues to be, a strong emotional support for his mother. The death of Mr. Daley’s father hit Mr. Daley particularly hard and he is still struggling with his loss.

[18] Mr. Daley graduated from a college business administration program. For the last 15 years, he has worked for the Beer Store – most of the time in a supervisory position. In recent years, Mr. Daley has been bored with his work; however, he has seemingly been unwilling to branch out and find more interesting work for himself. While at school, Mr. Daley participated in a variety of organized sports, including football, hockey and rugby, and he enjoyed a good social life with friends. Mr. Daley still has many male friends whom he sees on weekends when he is able to.

[19] Mr. Daley had three long-term relationships before entering the relationship with Ms. Korbiel in May 2013. There were no reported incidents of violence or abuse in the earlier relationships and each ended for understandable reasons. Mr. Daley stays in contact with two of the women.

[20] Mr. Daley met Ms. Korbiel on a social media dating site. By all accounts, their four-and-a-half-year relationship was tumultuous and toxic, with neither party treating the other well and with neither party being happy. There were numerous separations and reconciliations, but neither party seemed able to walk away. Mr. Daley’s mother, sister, brother-in-law, and friends all pressured Mr. Daley to leave the relationship but, despite realizing that the relationship was unhealthy, for some reason, Mr. Daley could not leave it.

[21] Ms. Korbiel described to the probation officer a side of Mr. Daley which she did not think anyone else saw. With her, Mr. Daley was controlling and jealous of any other man with whom she interacted in her life.

[22] Mr. Daley is generally in good health, aside from intermittent episodes of tachycardia which sometimes requires medical intervention. He does not have an alcohol or drug dependency, though he and Ms. Korbiel both acknowledged that they were drinking and partying too much during their relationship.

[23] Leading up to the assault on Ms. Korbiel, Mr. Daley had shown some signs of depression that may have been related to a combination of his troubled relationship with Ms. Korbiel and the sale of the family home by his mother the previous week. Mr. Daley had found his father’s anti-depressants in the medicine cabinet and had begun taking them for a few days prior to the assault. There is no evidence to the effect that his taking these drugs may have impacted Mr. Daley’s behaviour in any significant way.

Pre-Sentence Report

[24] The probation officer described Mr. Daley as being remorseful for what he had done and guilt-ridden for having brought additional stress and shame to his family. The probation officer provided the following assessment:

It is the opinion of this writer that this case is unique in that all interviewed for the purpose of this report advise that the index offense is not only out of character for the subject but in no way shape or form is consistent with any patterns of behaviour or thinking that they have observed from the subject in his entire life.

It is the opinion of this writer that the subject has shown motivation to engage in the rehabilitative process by immediately attending the New Directions Program …

Additionally, it struck this writer that the subject commented on how good it felt to speak with someone about his feelings around his father’s death and the anxieties that he felt day to day. This suggests to this writer that the subject would deeply benefit from the rehabilitative process – this process would inevitably be seriously disrupted if the subject loses his job ergo his benefits.

This writer agrees that the subject needs counselling and support and he is at a place where he has a readiness to accept it. Based on all the information available to this writer at the time of this report the subject would be assessed as a low risk to reoffend and would assert he is the ideal candidate for community supervision.

Report of Dr. Booth

[25] The Defence retained Dr. Brad Booth of the Integrated Forensic Program of the Royal Ottawa Health Care Group to complete an independent medical evaluation. The evaluation is based on Dr. Booth’s lengthy interview with Mr. Daley, Mr. Daley’s results on various psychological tests, and court-related documents provided to Dr. Booth.

[26] Dr. Booth observed that Mr. Daley was generally down, anxious, and emotionally inhibited throughout the evaluation. Otherwise, he did not demonstrate anything abnormal from a mental health status or psychiatric perspective. Dr. Booth concluded that Mr. Daley likely suffered from a moderate depression with anxiety heading into the time of the assault on Ms. Korbiel. He continued to have unresolved grief around his father’s death, distress due to the unhealthy nature of his relationship with Ms. Korbiel, dissatisfaction at his workplace, and likely some self-esteem issues with a tendency to suppress emotions. Since the assault on Ms. Korbiel, Mr. Daley has developed a major depressive disorder with anxious distress and panic attacks.

[27] Regarding the risk of Mr. Daley re-offending, Dr. Booth observed that, unfortunately, there are no well-validated risk assessment measures for individuals who commit domestic violence, in part because the recidivism rate is very high. Nevertheless, Dr. Booth used three assessment tools in an effort to gauge where Mr. Daley is on the risk continuum: the Ontario Domestic Assault Risk Assessment (ODARA), the Spousal Assault Risk Assessment Guide (SARA), and the Violence Risk Appraisal Guide – Revised (VRAG-R) . Dr. Booth estimated Mr. Daley’s risk of reoffending as being low using ODARA, moderate to low using SARA, and low using VRAG-R.

[28] Dr. Booth made a variety of recommendations for Mr. Daley, including supportive counselling and cognitive behavioural therapy for his depression; relaxation therapy; social and physical activity outside of the house; grief counselling; alternate employment; and possibly some medications for depression, anxiety and sleeping. Clearly, Dr. Booth did not see Mr. Daley as needing or benefitting from incarceration; he believed that services that might be helpful to Mr. Daley were available in the community.

New Directions Report

[29] During the New Directions Program that Mr. Daley completed last fall, he admitted that violence and abuse existed in his relationship with Ms. Korbiel, he accepted responsibility for the abuse, and he identified the effects his abuse had on Ms. Korbiel and others. That being said, the description Mr. Daley provided at New Directions as to the damage he inflicted on Ms. Korbiel is a water-downed version of what is evident from the photographs submitted as an exhibit at the hearing. As well, what is disconcerting is Mr. Daley’s description of other behaviour he exhibited during his relationship with Ms. Korbiel, including: swearing; name calling; slamming doors when leaving; ignoring Ms. Korbiel; yelling at her; insulting her family or friends; accusing her of having an affair; threatening to have an affair and leave the relationship; listening to her phone conversations; checking her emails or Facebook page; asking her a lot of questions about where she was, who she was with, and what she was doing; withholding affection; throwing, kicking or breaking something when angry; punching a wall, table, or door; and pushing Ms. Korbiel. It appears the assault we are dealing with was the culmination of controlling and abusive behaviour that spanned a number of years, and that has to be of concern in terms of Mr. Daley’s rehabilitation.

Victim Impact Statement

[30] Ms. Korbiel submitted a victim impact statement in which she said:

I do believe that when this situation occurred in April 2017 that Dustin was in a bad spot in his life and was struggling with a lot of his own issues and grieving his fathers death. I do think there is good in him and I have forgiven him. I do believe that people make mistakes but also deserve a second chance in life and not to be robbed of their life and dignity. I have moved on with my life and have slowly healed over the years. Four years ago I was in a completely different spot than I am in now physically and emotionally.

I do not fear Dustin anymore and don’t think or look at him as a threat to me.

[31] Ms. Korbiel suffered significant physical and emotional consequences from the assault. She had to deal with on-going pain and her injuries required rehabilitation. Ms. Korbiel relocated to be close to her family. Despite these challenges, Ms. Korbiel has moved on in her life. Although Ms. Korbiel does not want Mr. Daley to get away with the offence, she did not want to see him go to jail for one to three years; she considered that a little extreme, especially for a first-time offender.

Aggravating Factors

Assault Causing Bodily Harm

[32] The fact that Mr. Daley abused his intimate partner is an aggravating circumstance under s. 718.2(a)(ii) of the Code in regard to assault causing bodily harm. That Mr. Daley abused a position of trust is also an aggravating circumstance under s. 718.2(a)(iii) of the Code. The fact that the assault on Ms. Korbiel had a significant impact on her health and her financial well-being is another aggravating factor under s. 718.2(a)(iii.1).

[33] Mr. Daley entered Ms. Korbiel’s apartment well after midnight knowing that she did not want him there. The facts remain unclear as to how Mr. Daley gained entry to Ms. Korbiel’s apartment – the suggestion is that he banged on the window to get her attention to let him in and, when she did not respond, he let himself in by some means. The evidence is insufficient to allow me to conclude that his entering the apartment was a break and enter or home invasion scenario. The charge of break and enter was withdrawn by the Crown as part of the resolution leading to Mr. Daley’s guilty pleas to assault causing bodily harm and breach of recognizance. Nevertheless, it is an aggravating factor that Mr. Daley was in Ms. Korbiel’s apartment, knowing she did not want him there, and that he abused her in her own home – the one place where she was entitled to feel safe and in control.

[34] Although the assault causing bodily harm of Ms. Korbiel may have been a one-off event, the jealousy that led to it had been present for years, as had the controlling and abusive behaviour that characterized the couple’s relationship. In that sense, the assault was not an isolated event. It was the culmination of a pattern of behaviour.

Breach of Recognizance

[35] There are several aggravating factors in regard to the offence of breach of recognizance. Although Mr. Daley was charged with only one count of breach of recognizance, in fact, he engaged in approximately 15 breaches on five different days over a period of approximately one month. Mr. Daley knew that what he was doing was prohibited under the terms of his release order and was wrong – yet he repeatedly did it over a period of time.

[36] The breaches engaged all of the concerns that led to the condition that he not communicate in any fashion with Ms. Korbiel. First, the breaches compounded the damage done by the initial offence of assault causing bodily harm. Second, the communications increased the risk that Ms. Korbiel and Mr. Daley might meet on their own – something that was against her best interests. Third, in some of the communications, Mr. Daley put pressure on Ms. Korbiel by guilting her for having reported the assault which could have landed Mr. Daley in jail for a number of years. This could be seen as an effort on his part to tamper with a witness.

Mitigating Factors

Mitigating Factors Not in Dispute

[37] There are a number of mitigating factors relating to both offences:

• Mr. Daley has no criminal record.

• Mr. Daley pled guilty after the preliminary inquiry.

• Mr. Daley has already taken a New Directions Program. He has expressed remorse for his actions. He has acknowledged what he did and has taken responsibility for it. He feels shame – not only for his behaviour toward Ms. Korbiel, but also for turning his back on the values that were instilled in him by his family.

• Mr. Daley has been a pro-social member of our community throughout his life. He worked hard at school. He engaged in sports. He developed long-lasting friendships. He was a devoted son for both of his parents and a much-loved brother and uncle. He worked part-time while he was at school and then attending college. He graduated from college and has been gainfully employed ever since with the same employer. He has the support of his family and friends. Mr. Daley has a lot to offer society if he can put behind him whatever tendencies led him to stay in a toxic relationship, become overtaken by feelings of insecurity and jealousy, and feel entitled to control Ms. Korbiel’s life and affections.

Restrictive Bail Conditions

[38] Mr. Daley was arrested on April 30, 2017 and released on bail on May 1, 2017, subject to the following conditions, that: he reside with his mother who was also his surety, he be subject to a curfew from 11:00 p.m. to 6:00 a.m., he not operate a motor vehicle, and he not consume alcohol.

[39] On June 9, 2017, the terms of Mr. Daley’s release were varied on consent to be as follows, that: he be subject to a curfew from 1:00 a.m. to 6:00 a.m. unless in the company of his surety, he be allowed to operate a motor vehicle with the permission of his surety, and he be allowed to consume alcohol in his residence.

[40] On July 27, 2017, the terms of Mr. Daley’s release were again varied on consent to allow him to move to a new address with his mother as surety.

[41] On September 18, 2017, an administrative error in the previous release order regarding curfew times was corrected.

[42] On January 29, 2018, the Crown would not consent to a number of variations that Mr. Daley wanted to his release conditions. Mr. Daley did not pursue a contested bail variation.

[43] On September 27, 2018, Mr. Daley was charged with breaching his recognizance, as detailed above. On October 2, 2018, Mr. Daley was released on strict house arrest conditions after a contested bail hearing.

[44] On November 28, 2018, the bail conditions were varied on consent to allow Mr. Daley to attend his employment, to sign in at the police station once per week instead of three times per week, to be out with his mother or his sister, and to use a cell phone or a computer under the supervision of his mother or surety.

[45] On September 11, 2019, the bail conditions were further varied on consent to remove the reporting condition.

[46] On January 10, 2020, the bail conditions were again varied on consent to facilitate Mr. Daley’s employment by removing the house arrest condition and replacing it with a curfew from 10:00 p.m. to 6:00 a.m., allowing him out after curfew with his mother or sister, removing the restrictions on his ability to drive, and removing the restrictions on his ability to use a cell phone or computer.

[47] On July 20, 2020, there was a final variation on consent to require Mr. Daley to attend New Directions.

[48] In summary, Mr. Daley has been on bail, living in the community, for almost four years while awaiting trial. Aside from the cluster of incidents in August and September 2018, when he breached the terms of his recognizance by contacting Ms. Korbiel, Mr. Daley has been in full compliance with the terms of his release.

[49] In R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), at para. 33, Rosenberg J.A. directed that “time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. … [I]t is incumbent on the sentencing judge to explain why he or she has decided not to take pre-sentence house arrest into account.” At para. 37, Rosenberg J.A. provided the following guidance:

… credit for pre-trial bail conditions should be approached in the following manner:

• Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.

• As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.

• The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.

• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.

• The amount of credit will depend upon a number of factors including, the length of the time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.

• Where the offender asks the trial judge to take pre-sentence conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

See also R. v. Ijam, 2007 ONCA 597.

[50] Mr. Daley has waited four years for his criminal charges to be dealt with – that is a long time to be subject to restrictions on one’s lifestyle. The delay from March to July 2020 was largely due to COVID-19. The delay from July 2020 to March 2021 was largely due to the time it takes to get a pre-sentence report and a psychological assessment. But prior to COVID-19 becoming a factor, three years had elapsed regarding the charge of assault causing bodily harm. That was a long time to complete a case that was straight-forward, with uncomplicated disclosure requirements, a minimal number of witnesses, and few legal issues.

[51] Of greatest concern is the period during which Mr. Daley was on house arrest. He was on strict house arrest for two months following the breach of his earlier recognizance – an outcome that was of his own making. Mr. Daley then continued on house arrest for a further 14 months with the only reduction in restrictions being that he could work, be out of the house in the presence of his mother or sister, and use a computer and cell phone under the supervision of his mother or sister. Mr. Daley’s bail restrictions were lessened significantly in January 2020 and, as he reported to Dr. Booth, he was able to work to the extent he wished and once again play a number of sports and socialize with friends. There is no justification for providing any credit relating to bail from January 2020 forward – particularly when all of society has been subject to limitations due to COVID-19.

[52] The Crown argued that the court had not been provided with evidence as to the impact the earlier stringent bail restrictions had on Mr. Daley’s life, as is required if bail is to be seen as a mitigating factor (Downes, at para. 37, Ijam, at paras. 29-30; and R. v. McNelis, 2007 ONCA 777, at para. 5). At the sentencing hearing, I was provided with minimal direct evidence as to the impact house arrest had on Mr. Daley. However, I was provided with information from which I can infer that the restrictions inherent in his house arrest had a very real impact on his life.

[53] There was much information as to how Mr. Daley loved to play sports, like hockey and baseball, with his friends and did so regularly, not only on weekends but also during the week. He also was in the habit of playing golf every weekend in season, often with his father’s friends. In addition, he had an active social life with friends. Finally, since he was a teenager, Mr. Daley had normally been in a relationship with a woman. Sports, socializing, and dating were activities that Mr. Daley could not pursue while on house arrest and while subject to bail conditions which prevented his leaving his home (except to work) unless in the company of his mother or sister, and which prevented him from driving. There was also a period of time when Mr. Daley could not use a cell phone or computer unless supervised by his mother or sister – thereby reducing his ability to stay connected with friends virtually. Although Mr. Daley did not provide direct evidence as to the impact this loss of normal activities had on him personally, I do have evidence that he found even the lesser restrictions to which he was subject in January 2018 onerous enough that he asked Crown counsel to consent to a variation of bail conditions – a request to which the Crown did not accede. There is also evidence that by the fall of 2020, when Dr. Booth completed his psychological evaluation of Mr. Daley, Mr. Daley was suffering from a depression that had worsened since the time of the offence. Thus, while it would have been preferable for direct and specific evidence to have been tendered by Mr. Daley explaining the impact on him of the restrictions to which he was subject over a lengthy period of time, I have sufficient information to conclude on a balance of probabilities that the impact was significant.

[54] Taking these considerations into account, I conclude that it would be appropriate to recognize the mitigating factor of restrictive bail conditions by reducing the sentence that Mr. Daley would otherwise receive by six months.

Constraints on Sentencing

[55] I must be mindful of s. 718.2(d) of the Code, which holds that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and s. 718.2(e) of the Code, which states that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.

[56] Despite these long-standing directives given in s. 718.2(d) and (e) of the Code, s. 742.1 of the Code now lists several offences for which a conditional sentence is unavailable. Of relevance in this case is s. 742.1(e)(i), which provides that conditional sentences are available if “the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that … resulted in bodily harm” [emphasis added]. Here, the offence of assault causing bodily harm under s. 267(b) of the Code carries a maximum term of imprisonment of 10 years. Mr. Daley was prosecuted by indictment. Clearly, the offence caused bodily harm. Thus, until such time as this provision in the Code is declared unconstitutional, it precludes my considering a conditional sentence for Mr. Daley for the offence of assault causing bodily harm.

[57] The Crown took the position that a conditional sentence in the circumstances of this offence and this offender would be inappropriate in any event in regard to the offence of assault causing bodily harm. The Defence took the position that, if a conditional sentence had been available, it would have been appropriate for that offence in this case and, in any event, it is available for the offence of breach of recognizance. Defence counsel advised that Mr. Daley did not have the financial resources to mount a constitutional challenge to the provision in the Code rendering a conditional sentence unavailable for assault causing bodily harm. Consequently, in determining a fit and appropriate sentence for that offence, the option of a conditional sentence is off the table. That is unfortunate.

[58] As I advised counsel, I consider a sentence of two years less a day to be in the range of appropriate sentences for Mr. Daley’s assault causing bodily harm. As well, I am satisfied that Mr. Daley poses minimal risk of re-offending. I would have welcomed fulsome submissions as to whether a conditional sentence in the circumstances of this case would have met the requirements under s. 742.1(a) that it not endanger the safety of the community and that it be consistent with the fundamental purpose and principles of sentencing set out in ss. 718-718.2 of the Code.

COVID-19

[59] A very real factor that must be taken into account when sentencing is the presence of COVID-19 in our community. In this regard, I adopt the approach so ably explained by Pomerance J. in R. v. Hearns, 2020 ONSC 2365, released a year ago. It is even more pertinent in today’s context where the number of infections in Ontario and Quebec are rising so quickly that the province of Ontario will be in lockdown over the next month and portions of the province of Quebec will also be in lockdown.

[60] First, Pomerance J., at para. 14, took judicial notice of the fact that: “we are experiencing a worldwide pandemic; that control of the pandemic requires that individuals practice social distancing; that social distancing is very difficult to maintain in custodial settings; that inmates are consequently at a greater risk of infection; and that the risk of COVID-19 in prison settings translates into an increased risk for the community at large.”

[61] Second, Pomerance J., at para. 12, concluded that the lack of evidence that an offender has enhanced vulnerability to the virus flowing from age or underlying medical conditions, does not negate the concern as to the consequences to the offender of being incarcerated during the pandemic.

[62] Third, Pomerance J., at para. 15, acknowledged that, although the pandemic does not do away with well-established statutory and common law principles in sentencing, it may impact on the application of those principles because the current circumstances of a potential spread of a deadly virus in our custodial institutions is without precedent. For this reason, our concept of what is a fit sentence is impacted. At para. 16, Pomerance J. explains:

Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

[63] Fourth, at paras. 22-24, Pomerance J. emphasized that the issue is whether, looking forward, the pandemic warrants reduction or modification of the conditions of the sentence yet to be imposed. The pandemic does not justify a sentence that is disproportionately lenient, or drastically outside the sentencing range. The balancing act to be done by sentencing judges must still respect the objectives of sentencing, including the protection of the public.

[64] In Hearns, Pomerance J. was dealing with a very serious incident of aggravated assault by an offender with a lengthy criminal record and earlier convictions for violent offences. Ultimately, Pomerance J. released the offender with a sentence of time served, even though in non-COVID times, she may have imposed a lengthier term of imprisonment in the circumstances. She explained her decision in philosophical terms, which I adopt:

During these challenging times, people are being asked to call upon their sense of community, decency and humanity. That humanity must obviously extend to all individuals, including those incarcerated due to criminal charges or convictions. There will be cases where release from custody is not a viable option. There must be consideration of the safety of the community and the need for a proportionate sentence. Where, however, a period of time served can address sentencing principles, even imperfectly, our sense of humanity tells us that release from prison is a fit and appropriate response.

[65] Despite the arrival of vaccines that may curb the devastating toll that COVID-19 is taking in our society, congregate living situations – such as jails – continue to present increased risk of infection, serious illness, and possible death from this virus. The more crowded those facilities are, the greater the risk to both inmates and staff. Keeping the number of inmates in correctional facilities as low as reasonably possible without jeopardizing the safety of society, is one way that the criminal justice system can support public health efforts during these challenging times. As indicated above, Mr. Daley has been assessed as posing a low risk of reoffending and, therefore, his incarceration is not required in order to protect society.

[66] There is no evidence that Mr. Daley has any underlying medical conditions that would put him at increased risk of having serious complications from a COVID-19 infection. That being said, as we are constantly learning, no one can predict with any certainty how any individual will fare once infected with COVID-19, and the prevalence of variants of COVID-19 in our community makes that reality even more apparent.

Assault Causing Bodily Harm

[67] A number of sentencing objectives are at play here. Denunciation is a very important consideration. Violence perpetuated against women in intimate relationships is pervasive in our society and our culture, despite all of the attention it has garnered over the last 40 years and all of the efforts that have been taken to eradicate it (R. v. Ibrahim, 2011 ONCA 611, at para. 15, and R. v. Manship, 2015 ONCA 837, at para. 15).

[68] General deterrence is also an important consideration. The message has to get through to would-be abusers that violence toward someone with whom you have an intimate relationship is wrong. It is never justified. It is a criminal offence that will not be tolerated under our system of justice (Ibrahim and Manship).

[69] Considering the assessments in the Pre-sentence Report, Dr. Booth’s Report, and the New Directions Report that Mr. Daley presents a low risk of re-offending, I do not consider specific deterrence as important an objective as denunciation and general deterrence in the circumstances of this case. Nor do I consider it necessary to remove Mr. Daley from society because he presents an on-going significant safety risk. Finally, Mr. Daley has assumed responsibility for his actions and recognizes the harm that he has caused – not only to Ms. Korbiel, but to others in society.

[70] Rehabilitating Mr. Daley so that it is unlikely that he will objectify future partners and attempt to control their lives and affections is very important. This rehabilitation would appear to involve improving Mr. Daley’s self-esteem and supporting him in getting counselling for depression, anxiety, and unresolved issues relating to his father’s death. It is only if Mr. Daley learns how to engage in healthy intimate relationships that we can be assured that he will never again exhibit toward a partner the behaviour that he exhibited toward Ms. Korbiel.

[71] In short, I am left to craft a sentence that is strongly denunciatory and operates as a deterrent but which, at the same time, works to protect society in the future through the successful rehabilitation of Mr. Daley. I have found this to be a particularly difficult task. I must take into account the seriousness of the offence, the need for denunciation of the crime, the harm done to Ms. Korbiel at many levels, Ms. Korbiel’s request that the court show restraint in sentencing, the length of time during which Mr. Daley has been subject to bail conditions, the remorse shown by Mr. Daley, his capacity to be rehabilitated, his work history, his strong family and community support, the fact that he is a first-time offender, and the presence of COVID-19 in our community. Had a conditional sentence been available for this offence, I would have given it serious consideration. In the end, my focus is more on the future than the past. It is on what, I believe, will ultimately make society a safer place – particularly for any women with whom Mr. Daley enters intimate relationships.

[72] Both the Crown and the Defence have provided me with numerous cases where offenders have been sentenced for assault causing bodily harm. The sentences ranged from a few months to several years in penitentiary.

[73] Several of the Crown’s cases dealt with home invasions or assaults associated with break and enters. That aggravating factor has not been proven beyond a reasonable doubt in this case. Other cases dealt with offenders with lengthy criminal records. In some cases, the assault in question was one of several assaults on the same victim. In some cases, there was more than one victim. In some cases, the offender was being sentenced for a variety of serious offences and not just one instance of assault causing bodily harm. It is very difficult to use these cases as an indication of what would be an appropriate sentence in the facts of this case.

[74] In regard to the offence of assault causing bodily harm, in addition to the time served of 12 days, and allowing for a reduction in sentence of six months for the time Mr. Daley was on stringent bail conditions, I am sentencing you, Mr. Daley, to 90 days jail to be served intermittently on weekends. Until this sentence has been completed, and for one year following the completion of this sentence and the conditional sentence order I will make for breach of recognizance, you shall be subject to a probation order the terms of which are that you:

• keep the peace and be of good behaviour;

• appear before the court when required to do so by the court;

• notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;

• report to a probation officer within five working days after the making of this probation order and thereafter when required by the probation officer and in the manner directed by the probation officer;

• live at 122 Rustwood Private, Ottawa or at another place approved by the probation officer and not change that address without obtaining the consent of the probation officer in advance;

• remain within Ontario unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;

• remain in your residence or on the property of your residence at all times daily between the hours of 12:00 a.m. and 6 a.m. unless these hours of curfew are changed by your probation officer and except:

o for any medical emergency involving you or any member of your immediate family; or

o with the prior written permission of your probation officer.

• abstain from contacting or communicating in any way, directly or indirectly, by physical, electronic or other means, with Angela Korbiel, except with her written revocable consent;

• abstain from being within 500 metres of any place where you know Angela Korbiel to live, work, go to school, frequent or any place you know Ms. Korbiel to be, except with her written revocable consent;

• abstain from owning, possessing, or carrying a weapon, as defined by the Code;

• 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;

• 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;

• provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

• make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the probation officer; and

• make restitution of $1,020.39 to Ottawa Victim Services, to be paid in full within six months of the date of this order.

Breach of Recognizance

[75] On five separate days over roughly a period of a month, Mr. Daley contacted Ms. Korbiel in the middle of the night. On the last two occasions, he made several phone calls to her on the same night. These incidents occurred approximately 15 months after the assault causing bodily harm – at a time when Ms. Korbiel may have just been starting to put the horrific night of the assault behind her. Instead, she was hauled back to the trauma by waking up to Mr. Daley’s calls in the middle of the night.

[76] During those calls, Mr. Daley engaged in emotional blackmail. At times, Mr. Daley tried to rekindle Ms. Korbiel’s affection for him. At times, he sounded remorseful. He invited her to disregard the terms of his release order and speak with him. He asked her to meet with him on her own – something clearly forbidden by his release order and not in her best interests. At other times, he blamed her for ruining his life and suggested that she would be responsible if he ended up in jail for years. Ms. Korbiel would have been buffeted with mixed emotions – fear, anger, pity, guilt, concern, confusion. Without a doubt, these calls from Mr. Daley were harmful to Ms. Korbiel and thwarted her ability to move on from the assault.

[77] Denunciation, general deterrence, and specific deterrence are all important objectives of sentencing for these numerous incidents that led to the charge of breach of recognizance. Denunciation is important because many offenders do not take their promises under recognizances seriously and minimize the detrimental effect breaches have on victims. General deterrence is important because this is one crime where people have the time to reflect on their actions and to consider the ramifications that await them if they engage in this unlawful behaviour. Specific deterrence is also important to bring home to Mr. Daley that – under no circumstances – is he to communicate with Ms. Korbiel while he is under a court order not to do so, whether that is in the form of a release order, a probation order, or a conditional sentence order.

[78] I am sentencing you, Mr. Daley, to a conditional sentence of 12 months for breach of recognizance and this sentence is consecutive to the sentence for assault causing bodily harm. The conditions that shall apply to you are the following:

• keep the peace and be of good behaviour;

• appear before the court when required to do so by the court;

• notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation;

• report to the supervisor within five working days of the commencement of this conditional sentence and thereafter when required by the supervisor and in the manner directed by the supervisor;

• live at 122 Rustwood Private, Ottawa or at another place approved by the supervisor and not change that address without obtaining the consent of the supervisor in advance;

• remain within Ontario unless written permission to go outside that jurisdiction is obtained from the court or the supervisor;

• abstain from contacting or communicating in any way, directly or indirectly, by physical, electronic or other means, with Angela Korbiel, except with her written revocable consent;

• abstain from being within 500 metres of any place where you know Angela Korbiel to live, work, go to school, frequent or any place you know Ms. Korbiel to be, except with her written revocable consent;

• abstain from owning, possessing, or carrying a weapon, as defined by the Code;

• attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor;

• sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

• provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

• make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the supervisor;

• during the first six months of the conditional sentence order, you shall be subject to house arrest, subject to your being allowed to be away from your place of residence for the following purposes:

o between the hours of 1:00 p.m. and 4:00 p.m. on Sundays (or on such other day of the week as arranged in advance with your supervisor) in order to acquire the necessities of life;

o for any medical emergencies involving you or any member of your immediate family;

o for going directly to and from or being at school, employment, court attendances, religious services, and legal, medical, or dental appointments;

o for going directly to or from and being at assessment, treatment or counselling sessions;

o with the prior written approval of your supervisor, which written approval you shall carry with you during these times; and

o for carrying out any legal obligations regarding compliance with this conditional sentence order.

• following the period of house arrest, and for the balance of the conditional sentence order, you shall be subject to a curfew and shall remain in your residence or on the property of your residence at all times daily between the hours of 12:00 a.m. and 6 a.m. unless these hours of curfew are changed by your supervisor and except:

o for any medical emergency involving you or any member of your immediate family; or

o with the prior written permission of your supervisor, which written approval you shall carry with you during these times.

Period of Supervision

[79] These sentences will result in Mr. Daley being under the supervision of the state – in one form or another – from May 1, 2017 to some time in 2024 – a period of seven years. Although, if he abides by these orders, Mr. Daley will not spend a lot of time in prison, he will have paid a very heavy price for the offences he committed – a price that signals denunciation and promotes deterrence. At the same time, these sentences will allow Mr. Daley to have some semblance of a normal life in the community, maintaining his employment and supportive family and social relationships.

[80] In crafting these sentences, I relied on R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674, a case where the Supreme Court of Canada upheld a trial judge’s decision at a single hearing to sentence an offender to 90 days’ imprisonment, to be served intermittently, for an assault causing bodily harm that occurred in September 2004, and two concurrent 18-month conditional sentences for uttering a death threat and pointing a firearm in February 2005, plus three years of probation. As was stated by the Court at paras. 45-47, 53, intermittent and conditional sentences can be effectively combined to take appropriate advantage of their complementary purposes.

Ancillary Orders

[81] The following ancillary orders are also made:

• An order under s. 743.21 of the Code prohibiting Mr. Daley from communicating, directly or indirectly, with Angela Korbiel during the custodial period of his sentence;

• A weapons prohibition order under s. 109(1)(a):

o for 10 years in regard to any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance; and

o for life in regard to any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition; and

• A DNA order.

Aitken J.

Released: April 6, 2021