COURT FILE NO.: 18-A11737

DATE: 20210407

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANGELIQUA MARMONTEL

Accused

Malcolm Savage, for the Crown

Paolo Giancaterino, for the Accused

HEARD: March 31, 2021

REASONS FOR JUDGMENT RE SENTENCE

Aitken J.

Nature of Proceedings

Nature of Proceedings

1On September 14, 2020, Angeliqua Marmontel pled guilty to perjury under s. 132 of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”) that she committed during the preliminary inquiry relating to a murder charge against her former boyfriend, Brayton Kennedy. It is now my task to sentence Ms. Marmontel for this offence. Both Crown and Defence counsel agree that the sentence should be in the range of 18-24 months. Where they differ is as to whether the sentence should be served in prison or in the community.

Agreed Statement of Facts

Agreed Statement of Facts

2On September 24, 2016, Jacob Thompson was shot and killed at a residence in the City of Ottawa. On April 10, 2017, the Ottawa Police Service (“OPS”) arrested Brayton Kennedy and charged him with second degree murder. Mr. Kennedy is the son of the deceased’s then-girlfriend, Geneva Andrea Kennedy.

3On October 3, 2016, as part of the investigation, Sergeant Chris O’Brien interviewed Brayton Kennedy’s girlfriend, Angeliqua Marmontel. This interview was conducted under solemn affirmation. During the interview, Ms. Marmontel stated that on September 24, 2016, she was visiting with family in Montreal. Ms. Marmontel stated that she had not spoken to Brayton Kennedy during the night of September 23, 2016 or during the early morning hours of September 24, 2016. Ms. Marmontel stated that Mr. Kennedy had lost his cell phone sometime earlier on September 23, 2016. She confirmed Mr. Kennedy’s cell phone number.

4The OPS later obtained Brayton Kennedy’s phone records by way of a production order and discovered that Ms. Marmontel had lied to them during her October 3, 2016 interview. Mr. Kennedy’s phone records showed that between 18:22 on September 23, 2016 and 01:44 on September 24, 2016, Ms. Marmontel and Mr. Kennedy exchanged 64 text messages. At 01:51 on September 24, 2016, Mr. Kennedy placed a phone call to Ms. Marmontel which lasted approximately six minutes. Based on the timing, the OPS believed that Ms. Marmontel had been on the phone with Mr. Kennedy at the time of the shooting. After the shooting, Ms. Marmontel called or texted Mr. Kennedy six more times before Mr. Kennedy’s phone went dead at 02:22.

5Based on this information, on April 5, 2017, Ms. Marmontel was arrested for perjury and obstruction of justice. After having had the opportunity to speak with legal counsel, Ms. Marmontel was interviewed by Sergeant Pascal Labine. During that interview, Ms. Marmontel stated that on the night of the shooting, she had in fact received a call from Mr. Kennedy. Ms. Marmontel advised that Mr. Kennedy sounded as though he was drunk and that she did most of the talking. At that point, Ms. Marmontel heard Geneva Andrea Kennedy in the background and Brayton Kennedy asked his mother what was wrong. Ms. Kennedy responded that nothing was wrong. Ms. Marmontel then stated that she heard Jacob Thompson state that he loved Brayton Kennedy’s mother and that he would never hurt her. Mr. Thompson then stated: “I love you. Brayton, chill – she’s fine.” Ms. Marmontel could also hear Nolan Pichette tell Brayton Kennedy to just leave and Mr. Kennedy responded: “no it’s my mom and she is crying.”

6Ms. Marmontel stated that this went on for about three minutes. Mr. Kennedy kept asking his mother what was wrong and she kept telling him that she was fine. Mr. Thompson continued telling Mr. Kennedy that he would never hurt his mother. At one point, the argument stopped and Ms. Marmontel heard one gunshot. After the shot, she could hear Geneva Andrea Kennedy yelling: “oh no Jacob..... Jacob no!”. Then the phone was disconnected.

7Much of the above information from Ms. Marmontel was supported by other witness statements and forensic evidence recovered at the scene. Given that Ms. Marmontel had provided detailed information about the telephone call, Sergeant O’Brien decided to release her unconditionally with no charge.

8On June 18, 2018, Brayton Kennedy’s preliminary inquiry commenced before Alder J. of the Ontario Court of Justice. Angeliqua Marmontel was called as a witness by Crown counsel, despite her refusal to meet with him prior to the hearing. Ms. Marmontel’s testimony started on June 21, 2018, continued over several days, and concluded on July 11, 2018. During her testimony, Ms. Marmontel changed her evidence from what she had told Sergeant Labine. Ms. Marmontel admitted that she was on the phone with Mr. Kennedy at the time of the shooting, but she claimed that she was intoxicated and had fallen asleep. As such, she did not hear any argument. Ms. Marmontel advised that she only awoke when she heard the sound of the gunshot and that the phone then went dead. Ms. Marmontel stated that she had lied to police during her interview on April 5, 2017 when she stated that she had heard an argument before the shooting. The claim about falling asleep appeared ridiculous on its face as the phone call was only about six minutes long. The call was also preceded by 64 incoming and outgoing text messages between Ms. Marmontel and Mr. Kennedy. The call was then followed by one text message and five calls from Ms. Marmontel to Mr. Kennedy by 2:11.

9Aside from the above-noted perjured testimony, Ms. Marmontel’s oral evidence was replete with contradictory statements, inconsistencies, implausibilities, and general hostility towards the Crown. Given all of this, on June 25, 2018, Alder J. found Ms. Marmontel to be an adverse witness as per s. 9(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5. At several times in her evidence, Ms. Marmontel was warned by Crown counsel and Alder J. that there were legal ramifications for lying under oath, and she was advised that she should speak with independent legal counsel. At three points during her testimony, Ms. Marmontel was given the opportunity to speak with duty counsel.

10In the end, Ms. Marmontel testified at the preliminary inquiry on seven different days. Immediately after the completion of her testimony on July 11, 2018, Ms. Marmontel was arrested for perjury and obstruction of justice. Later the same day, Sergeant O’Brien spoke with Ms. Marmontel when she was in her cell – asking if she wanted to “come clean with the truth” and warning Ms. Marmontel as to what would follow if she persisted on the course she had chosen. Ms. Marmontel declined to change her version of events.

11Following the preliminary inquiry, on September 24, 2018, Braydon Kennedy pled guilty to manslaughter in the killing of Jacob Thompson.

Nature of the Offender

Nature of the Offender

12Ms. Marmontel is about to turn 23 years of age. At the time of the killing of Mr. Thompson, she was 18 years of age. When she testified at Mr. Kennedy’s preliminary inquiry, she was 20 years of age. Ms. Marmontel is single and has no children.

13A Pre-sentence Report was completed for Ms. Marmontel in October 2020 by the Ministère de la Sécurité publique Québec in Montreal, where Ms. Marmontel has been living with her father and step-mother since January 2020. The information that follows is from that report. Neither Crown nor Defence counsel took any issue with the contents of the report.

14Ms. Marmontel is one of four children of a mother born in Quebec and a father born in Haiti. Her parents separated when she was eight or nine and she and her siblings remained with her mother in Ottawa. Her father returned to Montreal. Following the separation, Ms. Marmontel maintained a positive relationship with both of her parents and saw her father regularly.

15Ms. Marmontel described having a normal childhood. Her material and emotional needs were met within her family. She did not suffer any abuse, violence, or neglect. She attended school, participated in community activities and sports, and respected parental authority. She did not display any behavioural problems during her childhood or adolescence.

16Ms. Marmontel’s older brother did not fare as well. He had a history of hanging out with the wrong crowd and got into trouble with the law. In October 2020, he was serving a federal sentence.

17Ms. Marmontel acknowledged that since her adolescence, her social network had included individuals (including her brother) who had been involved in criminal activities and who had interacted with members of street gangs. Some of those individuals had been involved in prostitution. Ms. Marmontel asserted that she was never involved in the criminal activities of members of her social circle and, prior to this offence, she had no criminal record. At this point, her social network is primarily limited to members of her family and to childhood friends who, to the best of her knowledge, do not have criminal records.

18Ms. Marmontel reported that she has consumed alcohol on an occasional basis since the age of 16 while partying with friends, though she does not consider herself to have any issues with alcohol abuse. With respect to drugs, she does not consume any aside from cannabis, which she has used since her late teens. A number of individuals who are part of her social network consumed cannabis on a regular basis during adolescence and early adulthood. Although her use of cannabis has not impacted Ms. Marmontel’s academic results, it has reduced her motivation and interest in working and studying. Ms. Marmontel also acknowledged that, at times, she made excessive use of marijuana to help her cope with negative emotions and thoughts. By October 2020, she claimed to have greatly reduced her consumption, though she still spent between $100-$120 per week for her personal use. At that time, she did not plan on reducing her consumption but she indicated a willingness to participate in a program designed to manage emotions.

19With respect to education, Ms. Marmontel liked school and achieved good academic results. She never failed a grade and was never suspended or expelled from an educational institution. She completed her secondary school by the age of 18 and was taking a break from studying with the idea that, at a future date, she would enrol in university.

20Between 2016 and 2017, Ms. Marmontel held different jobs, including working as a cashier at an A&W restaurant, then as an orderly and housekeeper. She went through a period of unemployment between 2017 and 2018 when Brayton Kennedy was facing the murder charge, Ms. Marmontel’s older brother was in detention, and Ms. Marmontel herself was facing this perjury charge. At this time in her life, Ms. Marmontel was depressed, was consuming a lot of cannabis, and had lost interest in working. As part of her release conditions on the perjury charges, Ms. Marmontel was required to live with her aunt in Halifax. During her stay in Nova Scotia, Ms. Marmontel worked as a salesperson at a Bentley store.

21In approximately April 2019, Ms. Marmontel returned to Ottawa to live with her mother. She did not work over the next eight months. From December 2019 to January 2020, Ms. Marmontel was in custody because she had failed to comply with her release conditions.

22Upon her release in January 2020, Ms. Marmontel went to live with her father and step-mother in Laval, Quebec. She found work at a ceramics store in early 2020 but quickly ended up unemployed after the pandemic arrived. From July 13, 2020 to at least October 2020, Ms. Marmontel worked at a call centre on a full-time basis earning $17 per hour. It is unclear when that employment ended. At the sentencing hearing, evidence was provided of temporary work Ms. Marmontel had during December 2020 and January 2021 for Fuze HR Solutions Inc. at an hourly rate of $16. It is my understanding that, at the time of the hearing, Ms. Marmontel was unemployed.

23Ms. Marmontel uses her income to pay $400 per month in rent to her father and step-mother, $50 per month for her cell phone, and $150 per month to pay off a furniture loan. In October 2020, Ms. Marmontel had additional debts of approximately $400 on a credit card.

24During the interview leading to the Pre-sentence Report, and again at the sentencing hearing, Ms. Marmontel assumed responsibility for what she had done and did not try to minimize or justify her actions when she committed perjury. She acknowledged that her actions demonstrated a lack of judgment on her part.

25The author of the Pre-sentence Report expressed some concerns that, despite Ms. Marmontel’s having benefitted from a good upbringing and not having any significant psychosocial problems during her childhood, her previous social network with individuals involved in criminal activities, and her regular use of cannabis, constitute risk factors from a criminological perspective. On the positive side, however, Ms. Marmontel has taken steps to remove herself from a negative social network; she has benefitted from the support of her family, particularly her father; she has sought and obtained employment over the last year despite the problems created by COVID-19; she plans to return to college or university in the fall, if possible; and she has expressed an openness to start therapy to help her better manage her emotions. In the opinion of the author of the Pre-sentence Report, Ms. Marmontel presents a low risk of re-offending if she maintains the recent changes in her life.

Legal Principles

Legal Principles

26Under s. 132 of the Code, the maximum sentence that can be imposed for perjury is 14 years. There is no minimum sentence prescribed. Although s. 742.1(c) of the Code states that a conditional sentence is not available if the offence is one prosecuted by way of indictment for which the maximum term of imprisonment is 14 years or life, this subsection of the Code was declared unconstitutional in R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, [2020] S.C.C.A. No. 311. Thus a conditional sentence is available in this case if I am satisfied that: (1) a sentence of less than two years is fit and just, and (2) the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718-718.2 of the Code. One of those principles, expressed in s. 718.2(d) of the Code, is that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. Another, as expressed in s. 718.2(e) of the Code, is 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, with particular attention to the circumstances of Aboriginal offenders.

27Crown and Defence counsel are in agreement that the appropriate range of sentence for this offence and this offender is 18-24 months – a proposition with which I agree (see the cases referred to in R. v. King, 2019 ONSC 2166, at paras. 13-22).

28There is no evidence or information that would suggest that having Ms. Marmontel in the community would endanger the safety of the community, and Crown counsel is not relying on this consideration in arguing against a conditional sentence.

29The real issue on this sentencing is whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. Before answering this question, it is important to review, in relevant part, the guidance regarding conditional sentences provided by the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 127:

• Conditional sentences were introduced to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing.

• Conditional sentences include both punitive and rehabilitative aspects. Conditions such as house arrest should be the norm, not the exception.

• There should be no presumptions in favour of or against a conditional sentence for specific offences.

• A conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.

• A conditional sentence can provide significant denunciation and deterrence. Generally, the more serious the offence, the longer and more onerous the conditional sentence should be. In some cases, the need for denunciation and deterrence is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future.

• Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim and the community.

• Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate that incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction.

• A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances.

• No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances.

30The case of R. v. Jordan, 1986 ABCA 168, 72 A.R. 167, leave to appeal refused, [1987] S.C.C.A. No. 36, is considered the leading case to set out the sentencing framework to apply regarding the offence of perjury. Laycroft C.J.A. stated, at paras. 6-7:

Perjured testimony strikes at the very heart of the judicial system. The court has always taken a most serious view of such offences and lengthy sentences are the usual course.

A number of different factors enter into a consideration of the length of sentence for perjury. Without in any way being an exhaustive list, the following are some of these factors:

(1) The relative seriousness of the offence with respect to which the perjured testimony was given.

(2) The effect, if any, on the outcome of the trial by reason of the perjured evidence.

(3) Whether the testimony dealt with a vital part of the evidence.

(4) Whether the perjured evidence led to the implication of an innocent person in a crime, which would ordinarily be a most aggravating factor.

(5) Whether the perjury was planned and deliberate or the result of a sudden temptation in the course of giving evidence.

31The following chart illustrates the sentences given to some offenders who committed perjury in earlier homicide cases:

R. v. Jordan,

[1986 ABCA 168](https://www.canlii.org/en/ab/abca/doc/1986/1986abca168/1986abca168.html), 72 A.R. 167, leave to appeal refused, [1987] S.C.C.A. No. 36

Jordan and Sager provided false alibi evidence in a first-degree murder case after having spoken to the accused and been told by him to read transcripts from the preliminary inquiry but to deny having done so if questioned. The perjury was planned, deliberate, counselled by the accused and vital to the accused’s alibi defence.

Jordan was the accused’s girlfriend and under his domineering influence. She had a minimal criminal record. She received 2.5 years jail. Sager, with a more significant record received four years jail.

R. v. Dorn,

2010 ONSC 2631

Dorn gave contradictory evidence during the murder trial of 4 of his friends. The evidence had implications for the degree of responsibility of the accused and was part of a sustained campaign to benefit his friends. It made the jury’s job more difficult and did emotional harm to the victim’s family.

Dorn had a very positive PSR, had separated himself from his prior associates, had two young children whom he supported, and pled guilty. He was sentenced to two years in prison.

R. v. Bermudez,

[2013 ONCJ 113](https://www.minicounsel.ca/ocj/2013/113)

Bermudez gave contradictory evidence in proceedings relating to his former common-law spouse’s second-degree murder charge regarding the death of her two-year old child. The contradictions resulted in delays in the proceedings. They were motivated by his desire to assist his partner. He had been abusing substances at the time.

Bermudez pled guilty to eight counts of giving contradictory evidence. He had prior convictions for fraud and breach of probation. He had a supportive family and employment. He was sen- tenced to three years in prison.

R. v. King,

[2019 ONSC 2166](https://www.minicounsel.ca/scj/2019/2166)

King testified as a jailhouse informant in a first-degree murder case. During the investigation and at the preliminary inquiry, he falsely claimed that he had never been a jailhouse informant in the past and he had never previously testified when, in fact, he had acted as a jailhouse informant on multiple occasions in the past.

King was 50 years old, grew up in an abusive home, had an extensive criminal record, had good family support, and was a suitable candidate for community supervision. King was sentenced to two years in prison. The key factor was the importance of complete transparency in the evidence of jailhouse informants.

32In all of these cases, the courts emphasized the critical importance of witnesses giving accurate and truthful evidence in murder cases, not only for the benefit of the accused, who is facing the most serious penalty allowed under our law, but also for the victims’ families and for society as a whole so that confidence in the justice system is maintained. As stated by the Saskatchewan Court of Appeal in R. v. Desnomie, 2005 SKCA 148, 275 Sask. R. 167, at para. 7:

The investigation of who caused a homicide is one of the most significant that a court can undertake and one that must be carried out with openness and with the greatest attention to seeking the truth in order to preserve society’s respect for the judicial system. It is fundamental in any judicial proceeding that witnesses treat the process with respect and tell the truth, and that if they do not, the court deal with them appropriately to show not only other witnesses, who may potentially do the same, but society that it takes extremely seriously the process of ascertaining the truth. This can no where be more important, both for the system itself and for the respect society gives to the system as a means of resolving disputes in society, than in the case of a homicide.

33It is generally agreed that denunciation and general deterrence are the most compelling objectives in sentencing someone for perjury. Although it has been held in R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35, and Sharma, at para. 171, that conditional sentences may be available even in cases where deterrence and denunciation are the paramount sentencing objectives, I observe that in none of the cases cited above was a conditional sentence given for perjury or for providing contradictory evidence in homicide cases. In those cases, the courts decided that a conditional sentence would not adequately convey the seriousness of the crime committed.

34Defence counsel referred me to two perjury cases where conditional sentences were given, R. v. Reid, 2021 ONCJ 149 and R. v. Posthumus, 2020 ONCA 760, however, neither involved perjury in a homicide case and the factual frameworks were so different that they are of minimal assistance in this sentencing.

Aggravating Circumstances

Aggravating Circumstances

35There are a number of aggravating circumstances:

• The perjury occurred in the context of a murder investigation.

• Ms. Marmontel lied to the police during her initial interview, was caught in the lie when the police obtained phone records, and was “given a break” by the investigating officer not charging her for perjury or obstruction of justice after she “came clean” in a subsequent interview and explained the course of communications between herself and Mr. Kennedy on the night of the killing of Mr. Thompson. In other words, Ms. Marmontel was specifically warned of the seriousness of not being truthful when she lied during the course of police interviews. Despite being armed with this knowledge, she went on to lie to and mislead the court during the course of the preliminary inquiry.

• Ms. Marmontel was warned numerous times during the preliminary inquiry about the importance of being truthful and accurate in providing her evidence. She was given the opportunity of speaking to counsel to ensure that she fully understood the significance of what she was doing and the concomitant risk she was taking.

• Ms. Marmontel’s actions were deliberate and not just a spur-of-the-moment misstep.

• Ms. Marmontel’s inaccurate and contradictory evidence resulted in her testimony taking much longer than would otherwise have been the case. It was heard over several days.

• The Crown has not proven beyond a reasonable doubt that, as a result of Ms. Marmontel’s contradictory and untruthful evidence at the preliminary inquiry, the Crown agreed to Mr. Kennedy’s subsequent manslaughter plea, rather than proceeding to trial on second degree murder. Nevertheless, I accept that the way in which Ms. Marmontel conducted herself at the preliminary inquiry was one factor that the Crown would have taken into account in arriving at this decision.

• There is no evidence that another aggravating factor listed in Jordan was present in this case, namely, that the perjured evidence led to the implication of an innocent person in a crime. The essence of Ms. Marmontel’s refusal to be honest and forthcoming in giving her evidence was her desire not to tell what she heard, rather than making up evidence as to what she heard or observed, implicating others, or providing false alibis. That type of aggravating factor was not present.

Mitigating Factors

Mitigating Factors

36There are several mitigating factors to consider:

• Ms. Marmontel was 18 years of age when the homicide occurred and the investigation was underway. She was 20 years of age when she testified at the preliminary inquiry. She was young, immature, and overwhelmed by what was being asked of her.

• Ms. Marmontel was motivated by the goals of not being involved in what happened when Mr. Thompson was killed and of not being drawn into the criminal proceedings. She loved her boyfriend, who was a neighbour and someone she had known since childhood. She did not want to be the cause of his being found guilty of murder. Her brother, whom she also loved, had recently been convicted of a serious criminal offence landing him in penitentiary. Their social network included those involved in street gangs. In making these observations, I am not suggesting that any of these factors excuse Ms. Marmontel’s conduct; I am simply putting her conduct in the context of a youthful offender being caught in challenging circumstances.

• Ms. Marmontel had no criminal record prior to the perjury offence.

• Ms. Marmontel pled guilty to perjury.

• Ms. Marmontel had led a pro-social lifestyle until these events. She had done well at school and had graduated with plans for further education. Since the age of 16, she has worked part-time or full-time to support herself and, over the last year, despite COVID-19, she has managed to find work from time to time. Although when she was a teenager in Ottawa, members of her social network were involved in criminal activity, she managed not to engage in such activities. Since January 2020, she has been living with her father in Laval – away from negative influences in her life – and has been abiding by the terms of her release order. It is her intention to continue to reside in Laval and to pursue on-line education.

• Ms. Marmontel has the support of her family and friends.

• Ms. Marmontel does not present any significant risk of re-offending in any fashion.

37A further mitigating factor is the presence of the COVID-19 pandemic in our community. Different courts have approached this factor in different ways when sentencing offenders. 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.

38First, 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.”

39Second, 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.

40Third, 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. explained:

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.

41Fourth, 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.

42In Hearns, Pomerance J. released the offender with a sentence of time served. At para. 24, 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. [Emphasis in original.]

Disposition

Disposition

43It is always challenging to balance all of these considerations in arriving at a fit and just sentence for the particular offender and the particular offence. Without question, Ms. Marmontel’s actions undermined the court’s ability to pursue the truth, render just decisions based on the evidence, and hold someone who has taken another’s life accountable to the full extent of the law for this most serious of offences. Additionally, it must have been excruciatingly difficult for the friends and family of Mr. Thompson to sit through several days of garbled, contradictory, and unhelpful evidence from Ms. Marmontel at a time when they were seeking justice for their loved one. How angry, hurt, and despairing they must have been listening to Ms. Marmontel’s evidence.

44Would a conditional sentence be adequate to meet the paramount objectives of denunciation and deterrence in the circumstances of this case? In my view, if properly crafted, it will be.

45Counsel have agreed, quite appropriately, that the appropriate range of sentence is 18 months to two years. If Ms. Marmontel were being sentenced to incarceration in prison, I would have chosen a sentence of 18 months. I have determined, however, that a less restrictive form of custody than imprisonment would be appropriate and reasonable in the circumstances of this offence and this offender and could still adequately address the harm done to the community. Given that the form of custody will be less restrictive, I will increase the length of the sentence to two years less a day less 50 days of credit which I give for Ms. Marmontel’s 33 days of real time pre-sentence custody. In my view, a conditional sentence of two years less a day (less pre-sentence custody credit) can be as effective as imprisonment of 18 months in achieving the goals of denunciation and deterrence.

46There are a number of other benefits of a conditional sentence in the circumstances of this case which are not afforded by a term of imprisonment. First, a conditional sentence will assist in Ms. Marmontel’s rehabilitation by allowing her to build on the progress she has made, particularly over the last year, in separating herself from associates with criminal leanings. Second, a conditional sentence will foster Ms. Marmontel’s integration as a contributing member of society through employment. Third, a conditional sentence will enable Ms. Marmontel to pursue on-line learning at college or university to pursue career goals. Fourth, keeping Ms. Marmontel out of prison will reduce the risk to her (and others in the prison system) of becoming infected with COVID-19. In some cases, the length of sentence has been reduced to take into account the mitigating circumstance of an inmate having to live in the conditions now present in institutions as a result of the pandemic. In this case, I have concluded that the most appropriate way to take the pandemic into account is not to reduce the length of sentence but to have the sentence served in the community under strict conditions.

47Thus, I am sentencing Ms. Marmontel to a conditional sentence of two years less a day, which I calculate as 729 days, less 50 days as credit for real time pre-sentence custody of 33 days, for a sentence left to serve of 679 days.

48The conditions that shall apply are the following:

• Keep the peace and be of good behaviour.

• Appear before the court when required to do so by the court.

• Report within five working days to a supervisor as directed by the court and thereafter report when required by the supervisor and in a manner directed by the supervisor.

• Remain in the provinces of Quebec and Ontario unless you have prior written permission from the court or the supervisor to leave these provinces.

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

• Sign any releases necessary to permit the supervisor to monitor your compliance with the conditional sentence order and provide proof of compliance with any condition of this order to your supervisor upon request.

• Live at 3277 Boulevard Lévesque Est, Laval, QC or at a place approved by the supervisor and not change that address without obtaining the consent of the supervisor in advance.

• Be subject to house arrest for the first 365 days of the sentence, and remain on the property of your residence at all times, subject to the following exceptions:

o Between 13:00 and 16:00 every Sunday (or such other day of the week as determined with your supervisor) 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 work, school, court attendances and legal, medical, or dental appointments;

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

o You will confirm your schedule in advance with the supervisor setting out the times for these activities;

o For other reasons with the prior written approval of the supervisor with you carrying the written approval with you during those times;

• During your period of house arrest:

o Present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.

• Following your house arrest, and for the balance of this conditional sentence order, you shall be subject to a curfew and must remain on the property of your residence at all times daily between the hours of 11:00 p.m. and 6:00 a.m., subject to the following exceptions:

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

o Travelling directly to, from, and while at work; or

o With the prior written permission of your supervisor.

• 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.

• You shall 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.

• You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed by your supervisor.

• Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with: Brayton Kennedy, Geneva Andrea Kennedy, and Nolan Pichette.

Aitken J.