COURT FILE NO.: (London) 348/18 DATE: 20231006 Delivered orally and in writing: October 6, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Nicholas Doering Offender

Counsel: Samuel Greene and Jason A. Nicol, for the Crown Alan D. Gold and Ellen C. Williams, for the Offender

HEARD: July 6, 2023

RULING ON APPLICATION TO RE-OPEN AND REASONS FOR SENTENCE

POMERANCE J.:

[1] At the conclusion of a judge alone trial, I found Nicholas Doering, an officer with the London Police Service (“LPS”), guilty of two offences: failing to provide the necessaries of life, contrary to s. 215 of the Criminal Code, R.S.C. 1985, c. C-46, as amended; and criminal negligence causing death, contrary to s. 219 of the Criminal Code. The charges arose out of the death of an Indigenous woman whom the accused had taken into custody. The Court of Appeal quashed the conviction for criminal negligence causing death (s. 219), while upholding the finding of guilt for failing to provide the necessaries of life (s. 215). The matter was remitted back to me, the original trial judge, for sentencing on the s. 215 offence.

[2] It took some time for the matter to come back before me. The Crown sought leave to appeal to the Supreme Court of Canada. The Crown and defence agreed that sentencing should await the outcome of the leave application. On February 9, 2023, the Supreme Court denied leave to appeal, and the parties came before me for a virtual hearing on July 6, 2023.

[3] At the hearing, the defence raised two issues. First, the defence said that I should decline to enter a conviction on the s. 215 count, because the reasons of the Court of Appeal compelled an acquittal for that offence. In the alternative, should I convict on the s. 215 count, it was said that I should impose a conditional sentence of imprisonment in the range of six to nine months.

[4] The Crown resisted both arguments. The Crown argued that there is no basis for setting aside the finding of guilt on the s. 215 count, and that I have no jurisdiction to do so. On the issue of sentence, the Crown urged a disposition of six to nine months real jail.

[5] I will deal with each of the arguments in turn.

Background

[6] I do not propose to set out a full recital of the facts as found at trial. For present purposes, it will suffice to set out a brief summary of the trial and appellate decisions.

The Trial Decision (2019 ONSC 6360)

[7] Debra Chrisjohn (“Ms. Chrisjohn”) was taken into custody by the accused because she was walking in a roadway in London, Ontario. Ms. Chrisjohn had ingested a toxic level of methamphetamine which ultimately caused her to have a heart attack. A paramedic arrived at the scene of her detention, but did not examine her, telling the accused that if Ms. Chrisjohn went to hospital they would just monitor her vital signs.

[8] The accused learned that the Ontario Provincial Police (“OPP”) had an outstanding warrant for Ms. Chrisjohn. The day before, an LPS officer had taken her into custody and had transported her to the hospital. However, the OPP refused to execute the warrant, reasoning that an officer would have to wait until her medical care was complete.

[9] The accused did not take Ms. Chrisjohn to the hospital. Nor did he obtain any medical care or attention for her, despite the fact that her condition drastically deteriorated over the 45 minutes that she was in his custody. The accused met the OPP at a pre-arranged transfer point, at which time Ms. Chrisjohn was non-responsive, lying prone, motionless in the back seat of the cruiser. The accused told the OPP that her condition had not changed during the time that she was with him. This was not true. I originally found that the accused offered a second misrepresentation to the OPP, but that finding was overturned by the Court of Appeal and is no longer part of the factual matrix.

[10] I found at the original trial that the accused’s failure to obtain medical assistance for Ms. Chrisjohn during the 45 minutes that she was in his custody amounted to a failure to provide the necessaries of life. It reflected a marked departure from the standard of care of a reasonably prudent police officer.

[11] I further found that misrepresentations to the OPP reflected a marked and substantial departure from the standard of care, and on this basis, found the accused guilty of criminal negligence.

Decision of the Court of Appeal

[12] The Court of Appeal reversed the finding of guilt on the count of criminal negligence causing death: see R. v. Doering, 2022 ONCA 559. First, the Court of Appeal found that one of my findings was unreasonable. I found that the accused had lied about the victim being seen by a paramedic at the point of transfer to the OPP. The Court of Appeal reversed that finding. Second, the Court of Appeal found that the misrepresentations to the OPP were not causally linked to the victim’s death. Absent causation, the conviction for criminal negligence causing death could not be sustained.

[13] While the Court of Appeal set aside the conviction for the s. 219 offence, it found that the finding of guilt on the s. 215 offence to be “unassailable”: see para. 147. The reasoning of the Court of Appeal included the following passages. I will quote liberally from the decision, as it sets the stage for the discussion that follows:

[42] The admission that Ms. Chrisjohn, because of her consumption of methamphetamine, “required medical treatment and intervention” while in the appellant’s custody, constituted an acknowledgement that medical treatment and intervention was a “necessary of life” within the meaning of s. 215(1)(c). Section 215(1)(c) imposed a duty on the appellant to provide that medical treatment and intervention.

[43] In any event, apart from the admissions at trial, I am satisfied that Ms. Chrisjohn’s physical condition when she arrived at the Tim Hortons, combined with her death from the effects of the consumption of methamphetamine a short time later, provide formidable circumstantial evidence that Ms. Chrisjohn was, as a matter of fact, in need of medical treatment and intervention while in the appellant’s custody: R. v. Romano, 2017 ONCA 837, at paras. 70-71.

[46] The parties agreed that Ms. Chrisjohn required medical treatment and intervention while in the appellant’s custody at Tim Hortons. His failure to provide that treatment or intervention inevitably delayed the providing of medical attention to Ms. Chrisjohn. On the Agreed Statement of Facts, that delay decreased Ms. Chrisjohn’s chances of survival. The appellant’s failure to provide medical treatment or intervention, which inevitably delayed Ms. Chrisjohn’s access to medical attention and treatment, increased the chances she would die. The increased risk of death constituted an endangerment of Ms. Chrisjohn’s life within the meaning of s. 215(2)(b): see R. v. Thornton, [1993] 2 S.C.R. 445.

[59] Counsel is correct that there was no expert evidence that the changes in Ms. Chrisjohn’s behaviour and physical condition actually reflected a meaningful deterioration in her medical status. In my view, the significant deterioration in Ms. Chrisjohn’s ability to perform basic physical functions such as walking, and her substantially reduced level of consciousness, would suggest to any prudent, reasonable police officer that Ms. Chrisjohn’s medical situation may well be changing for the worse. This conclusion would become all the more compelling to a reasonable, prudent police officer who knew, as the appellant knew, that Ms. Chrisjohn was “very high” and had consumed a dangerous and potentially lethal drug.

[60] In any event, the Crown was not required to prove that Ms. Chrisjohn’s medical condition had actually deteriorated. The question was whether the changes evident in her condition would have caused a reasonably prudent police officer to seek out the advice and assistance of those with the necessary medical training to properly assess the significance of the observed changes and provide any further needed medical response.

[61] The trial judge found as a fact that the changes in Ms. Chrisjohn’s condition required the appellant to revisit the need for medical assistance. As the trial judge pointed out, at paras. 114-15, there were no operational contingencies or other factors that would have interfered with the appellant’s ability to seek out medical advice based on Ms. Chrisjohn’s current condition. In addition, again as the trial judge observed, medical attention did not necessarily mean a trip to the hospital. It could have meant requesting a further assessment by EMS personnel who, unlike the appellant, had medical training.

[62] The trial judge’s conclusion that the changes in Ms. Chrisjohn’s condition by the time she reached Tim Hortons would have compelled a reasonable, prudent police officer, in the appellant’s circumstances, to seek medical assistance for Ms. Chrisjohn was neither unreasonable, nor based on any material misapprehension of the evidence. The trial judge’s factual findings were, however, a clear rejection of the defence position that a prudent, reasonable police officer would have continued to assume that Ms. Chrisjohn was choosing to be uncooperative and could “ride out” the effects of her methamphetamine consumption without medical intervention and without any risk to her life. I see no error in the trial judge’s fact-finding.

Should There Be a Conviction for Failing to Provide the Necessaries of Life?

What is the Effect of the Appellate Decision?

[14] While I found the accused guilty at trial on both the s. 215 and s. 219 counts, pursuant to the well-known “Kienapple principle,” I registered a conviction on the s. 219 count and imposed a conditional stay on the s. 215 count.

[15] The Court of Appeal quashed the conviction for criminal negligence and set aside the conditional stay. It did not, however, expressly enter a conviction for failing to provide the necessaries. Doherty J.A. said the following, at para. 10:

The appellant appeals conviction and seeks leave to appeal sentence. I would dismiss the appeal from the finding of guilt on the failure to provide necessaries charge, but would allow the appeal on the charge of criminal negligence causing death, and would enter an acquittal on that charge. The conditional stay on the failure to provide necessaries charge must be set aside. Submissions as to the appropriate disposition on the failure to provide necessaries charge are required.

[16] The defence says that, because the Court of Appeal did not expressly enter a conviction, it falls to me to enter the conviction if appropriate. The defence says first that it is not appropriate in this case, and urges me to decline to convict on that count. In the alternative, if a conviction was automatically entered when the conditional stay was lifted, the defence asks me to set such conviction aside.

[17] The Crown notes that convictions may be revived in various ways when a conditional stay is set aside. In some instances, the Court of Appeal will expressly enter the conviction; in others, it will refrain from doing so, leaving it to the trial judge to fulfill this task. In this instance, the court, while lifting the conditional stay, was silent on the question of who should register the conviction.

[18] It would seem implicit in the appellate decision that a conviction should attach to the s. 215 count. I was directed to sentence on that count, a procedure which presumes a finding of guilt.

[19] That said, I need not resolve this conundrum. Whether the conviction was automatic upon the lifting of the stay, or I must enter it myself, is academic for purposes of the defence application. If the conviction has not yet been entered, the defence can ask that I refrain from doing so. If the conviction attached by operation of law, then the defence can ask that I set the conviction aside.

Do I Have Jurisdiction to Entertain the Defence Argument?

[20] The thornier question is whether I have any jurisdiction to entertain the argument advanced by the accused. The defence argues that the finding of guilt on failing to provide the necessaries cannot be sustained, given the court’s reasons for quashing the criminal negligence count. However, there is a clear impediment to the defence request. The Court of Appeal found the conviction on the s. 215 count to be “unassailable.” Thus, in order for me to accede to the defence request, I must find that the Court of Appeal erred in its approach, a finding that is not open to me to make.

[21] The Crown argues that my jurisdiction in this case is limited to sentencing. That is what the Court of Appeal directed me to do and that is the full extent of my jurisdiction in this case. The defence argues that a trial judge sitting alone always has jurisdiction to entertain an application to re-open and that nothing in the appellate decision detracts from that reality.

[22] In the normal course, a trial judge does have jurisdiction to re-open a judge alone trial before sentence is imposed. This may occur, for example, if new evidence comes to light. This stands in stark contrast to jury trials. Where the jury has rendered a guilty verdict, the trial judge is generally functus officio but for the imposition of sentence: see Head v. The Queen, [1986] 2 S.C.R. 684 at 698; R. v. Gostick (1991), 62 C.C.C. (3d) 276 (Ont. C.A.) at 282; R. v. Burke, [2002] 2 S.C.R. 857 at paras. 52, 55, 68.

[23] While it is conceivable that a trial could be re-opened to consider fresh evidence, that is not the issue before me. In this case, the defence asks me to re-open the case to consider new legal arguments. These arguments were not advanced before me at trial. They were not apparently advanced before the Court of Appeal. They were not advanced by way of an application for leave to appeal to the Supreme Court of Canada. The defence did not seek leave to appeal. The defence says that the arguments did not crystallize until the Court of Appeal released its judgment. It is the reasoning of the Court of Appeal that gives rise to a fresh approach to the law.

[24] Yet, the reasoning of the Court of Appeal was the product of the argument made by the accused on appeal. The appellant argued that there was no causal link between the alleged misstatements made to the OPP and the death of Ms. Chrisjohn. The Court of Appeal accepted that argument as it related to the criminal negligence count. The defence now wishes to argue that, because there was no causation on the criminal negligence count, there could be no endangerment of life, and therefore, no conviction for failing to provide the necessaries. The argument now advanced before me is a direct and logical extension of the defence position in the Court of Appeal.

[25] In any event, even if it is a fresh concept, I do not have jurisdiction to give it effect. The crux of the defence position is that the Court of Appeal erred in its approach to the s. 215 offence. It is said that the Court of Appeal erred in finding that medical assistance was a necessary of life; and further, that the Court of Appeal erred in finding that the accused’s actions endangered Ms. Chrisjohn’s life. Whatever the scope of my jurisdiction as the original trial judge, it does not authorize me to review the reasons of the Court of Appeal.

[26] While I cannot sit in review of the Court of Appeal, the defence could have pursued other options. The most obvious path was an application for leave to appeal to the Supreme Court. The defence elected not to pursue this option. Defence counsel explained this by saying that the Supreme Court was unlikely to grant leave to appeal in a case such as this. That may or may not have been the case. Certainly, one way to find out would have been to bring the application. The defence may have been motivated by tactical considerations. If the accused had sought leave, it might have given credence to the Crown’s application. Whatever the reason, the defence declined to seek that relief, notwithstanding that it is the obvious route for challenging a decision of the Court of Appeal.

[27] The defence could have also sought leave to re-open the case in the Court of Appeal. I will not comment on the likely success of such an application. I simply note that the Court of Appeal is better placed to review its reasons than is a trial judge. As a trial judge, I have no jurisdiction to review an appellate decision that is binding upon me.

The Merits

[28] Given my lack of jurisdiction, I will not deal with the merits of the defence argument in any detail. I will, however, register my view that there is no basis for vacating the finding of guilt on the s. 215 offence.

[29] The Court of Appeal found there was no causal link between the accused’s conduct and the victim’s death. The defence says that, if there is no causal link between the conduct and the death, it cannot be said that the conduct endangered the victim’s life. Endangerment is an essential element of the s. 215 offence, but that section does not require proof of death. The defence argues that, while the Crown need not prove that the conduct caused death, a finding that the conduct did not cause death negates any possibility of endangerment.

[30] This is a creative argument, put forward by Mr. Gold with his usual eloquence. I am not, however persuaded that it applies on the facts of this case. That is because the s. 215 and s. 219 offences are based on different factual delicts. The Court of Appeal found that the criminal negligence count was based on the misrepresentations to the OPP. Having found that those misrepresentations did not cause death, the criminal negligence conviction could not stand.

[31] By way of contrast, the s. 215 count was based on a broader swath of conduct. It was based on the fact that the accused did not, at any time during the 45 minutes of custody, obtain medical assistance for the victim. The failure to do so clearly endangered the victim’s life. As Doherty J.A. noted, the point at which medical treatment was mandated was at the latest the time of the transfer point. In other words, the s. 215 offence was a fluid, continuing event with cumulative impact, rather than an event rooted in a single moment in time. The endangerment flowed from the failure to seek medical attention over the course of the 45 minutes that the victim was in the accused’s custody.

[32] Indeed, this fact was the subject of an agreement by Crown and defence at the first trial. The parties agreed that, with timely medical intervention, Ms. Chrisjohn might have been saved. The flip side of this assertion is that the failure to obtain such intervention prevented her life from being saved. Stated differently, the failure to obtain such intervention endangered her life.

[33] The Crown did not call any medical evidence to establish the extent to which medical intervention could reverse an overdose of methamphetamine. However, given the agreed facts, the Crown would have reasonably perceived that such evidence was unnecessary.

[34] For these reasons, I conclude that the invalidation of the conviction for the s. 219 offence did not invalidate the finding of guilt on the s. 215 offence. In other words, if I did have jurisdiction, I would decline to vacate the finding of guilt on the offence of failing to provide the necessaries of life.

Sentence

[35] In my original sentencing decision, I imposed 12 months real jail. However, that sentence was predicated on the fact that there was a conviction for criminal negligence. While both counts are serious, criminal negligence connotes a greater degree of moral blameworthiness. In my original sentencing decision, I emphasized the facts underlying that conviction, most notably, my findings that the accused deliberately lied to the OPP in order to ensure that they would take custody of the victim and relieve LPS of this responsibility.

[36] The post-appeal case is very different. I am no longer sentencing for criminal negligence. The foundation for that conviction has been dismantled in two ways:

1. The Court of Appeal held that one of the factual findings underlying the s. 219 conviction was unreasonable; and
2. The Court of Appeal held that there was not a sufficient causal link between the actions of the accused and the death of the victim.

Factual Findings: Deception

[37] At trial, I found that the accused misrepresented the facts to the OPP in two respects: 1) by saying that Ms. Chrisjohn had been “seen” by an EMS worker; and 2) by saying that her condition had stayed the same during the time that she was with the accused. The Court of Appeal found that the first of these was not sustainable on appeal.

[38] That leaves the second alleged misrepresentation. The Court of Appeal was prepared to uphold that finding as explained in the following passage, at paras. 117-119:

[117] In his conversation with the OPP officers, the appellant accurately conveyed to them his understanding of Supervisor Hill’s evaluation of Ms. Chrisjohn’s condition, an evaluation which, I repeat, the trial judge had earlier held the appellant was reasonably entitled to accept and rely upon. In my view, the trial judge’s finding that the appellant deliberately lied to the OPP officers by indicating Ms. Chrisjohn had been assessed by EMS personnel as not requiring medical attention is unreasonable in the face of her contradictory finding that the appellant honestly and reasonably believed, that in Supervisor Hill’s opinion, Ms. Chrisjohn did not need medical care.

[118] The trial judge’s second finding that the appellant lied to Constable Billing when he told her that Ms. Chrisjohn’s condition had not changed while she was in his custody does withstand appellate review. The finding was open on Constable Billing’s evidence and cannot be characterized as unreasonable or based on any misapprehension of the evidence. Constable Billing’s uncertainty in cross-examination as to exactly what was said and the context in which it was said does diminish the probative value of her testimony. It does not, however, render the trial judge’s finding on her evidence unreasonable.

[119] I am satisfied, however, that had the trial judge found only the single misrepresentation, she would not necessarily have reached the same conclusion on the criminal negligence charge. The two misrepresentations found by the trial judge worked in tandem. On the trial judge’s analysis, the first misrepresentation falsely indicated that Ms. Chrisjohn had been cleared by EMS, and the second misrepresentation falsely indicated there had been no change in Ms. Chrisjohn’s condition since she had been cleared by EMS. The Crown’s case on the criminal negligence causing death charge loses considerable force when the alleged misrepresentation as to the assessment by EMS is removed from the evidentiary mix. I cannot say that a trial judge would necessarily find that the appellant deliberately misrepresented Ms. Chrisjohn’s condition based only on Constable Billing’s evidence to the effect that the appellant told her that Ms. Chrisjohn had been in the same condition throughout the time he had custody of her.

[39] The Court of Appeal upheld the finding of deception as it related to the victim’s condition remaining the same over time. However, the court went on to find that that misrepresentation had no legal effect; that the one misrepresentation – as opposed to the two – would not suffice to ground liability for criminal negligence.

[40] The Crown argues that I should consider, as an aggravating factor, the deception that was upheld by the Court of Appeal. The defence argues that I should not attach any weight to that deception, because the reasons as a whole cast doubt on the correctness of that finding.

[41] I must obviously respect and defer to the Court of Appeal when defining the facts that govern this sentencing decision. On the one hand, the Crown is correct that the court upheld the finding of one deception. On the other hand, the court found that the single deception fell short of demonstrating a wanton and reckless disregard for the victim’s welfare. This creates something of an ambiguity as it relates to the facts that are currently at play. It seems to me that any ambiguity should be resolved in favour of the subject. The tenor of the Court of Appeal’s decision would suggest that the deceptions were beside the point. While I see merit in the Crown’s argument, I am inclined to adopt a more cautious approach, to avoid running afoul of the appellate decision.

[42] For these reasons, I will not consider the deception in assessing the factual basis for sentencing the accused.

What is a Fit Sentence?

[43] The analysis of sentence requires consideration of the aggravating and mitigating factors. I discussed those at length in the original sentencing decision, and much of that discussion continues to apply.

[44] In that original decision, I also observed, as have many before me, that sentencing is more art than science; it is not a mathematical or formulaic process. The determination of an appropriate penalty involves a delicate balancing of contrasting considerations, all rooted in the unique and individual facts before the court. The original sentence was for both offences, but it does not follow that I can somehow magically subtract the portion of the sentence attributed to the s. 219 offence. The answer does not lie in an empirical equation.

[45] It makes more sense to start at the beginning than at the end. In this case, the beginning – the preliminary question – is whether the offender is entitled to a conditional sentence pursuant to s. 742.1 of the Code. That is the disposition sought by the defence and opposed by the Crown.

[46] Some of the pre-conditions are readily satisfied. There is no mandatory minimum attaching to s. 215. The Crown is seeking a sentence below two years. There is no concern about safety should the accused serve his sentence in the community. The real question is whether a conditional sentence would, in this case, be consistent with the purposes and principles of sentencing.

[47] I had earlier found that it would not, given the gravity of the criminal negligence conviction. I found that the cumulative effect of the accused’s conduct, including, most particularly, the lies to the OPP, cried out for a sentence of real jail. Such a disposition was necessary to reflect the compelling need for deterrence and denunciation. Whereas failing to provide the necessaries of life is a crime of omission, the lies were crimes of commission, and substantially increased the moral blameworthiness of the accused’s actions.

[48] As noted above, the crimes of commission are no longer before the court. I am left to sentence the accused for his failure to obtain medical attention in circumstances where a reasonably prudent police officer would have done so. This is still a very serious offence. It represents a breach of the public trust reposed in police to protect and respect all members of the community. It reflects a patent disregard for the welfare of a vulnerable woman that had been taken into police custody. The victim was viewed as more of a “nuisance” than a human being who required medical assistance.

[49] It also bears repeating that the victim, Ms. Chrisjohn, was an Indigenous woman. As I stated in the original decision, the death of an Indigenous woman in police custody has impact beyond the parties before the court. There is a danger that this event will reinforce the perception amongst Indigenous communities that police are not their protectors, but rather, people to be protected from. There is no evidence that the accused was influenced by anti-Indigenous bias and therefore this factor does not increase the sentence. It is nonetheless a fact to be noted. As I put it in the original decision, truth is a pre-cursor to reconciliation and the courts have an obligation to speak that truth.

[50] On the mitigation side, the accused was a young, successful police officer with a bright future ahead. This was his first encounter with the other side of the criminal justice system. He has experienced significant collateral consequences as a result of the proceedings. He has lost his career. This case has also attracted considerable attention in the media, including social media, and there has been public shaming of the accused. These events are relevant though they only go so far in mitigation. Loss of career and/or status is not unusual in the face of a criminal conviction, whatever occupation the offender previously enjoyed.

[51] What I find more compelling for present purposes are Mr. Doering’s mental health struggles. The defence has filed evidence to indicate that Mr. Doering has been diagnosed with post-traumatic stress disorder. This is said to be a result of the death of the victim, though it is also undoubtedly a product of his concern over his own fate and future. The doctor who has been treating him advises jail is contra-indicated and that it would be counterproductive to Mr. Doering’s well-being and recovery.

[52] I add to this mix the fact that, as a former police officer, custody will have a harsher impact on this offender than it may on others. One can presume that Mr. Doering would be housed outside of the general population for his own protection. That would result in a more isolated experience and some degree of segregation. It would also potentially result in fear of the possibility of violence at the hands of other inmates. Traditionally, fitness of sentence is exclusively concerned with the duration of sentence, rather than the conditions in which it is served. However, both factors bear on the subjective experience of the offender.

[53] In my earlier decision, I recognized that real jail would be a harsher disposition for a former police officer than someone not in that profession. That factor weighed in favour of a shorter disposition when the sentence consisted of real jail. That same factor is of relevance now, in determining whether a conditional sentence should be imposed.

[54] The law is clear that a conditional sentence can be punitive and capable of meeting the needs of general deterrence and denunciation when restrictive conditions such as house arrest are imposed. I did not believe that anything less than real jail would suffice when the offences included criminal negligence. The case is now materially different, and I believe that a conditional sentence can achieve the relevant objectives of sentence in the current context. These include not only deterrence and denunciation but also rehabilitation and consideration of Mr. Doering’s fragile state of health.

[55] This decision should not be seen as devaluing Ms. Chrisjohn’s life. To the contrary, the events in question were tragic, and resulted in the death of a woman who was loved by many and who deserved to be treated with far more dignity than was offered to her. However, the purpose of a sentence is not to measure or quantify loss of life. No sentence could realistically bear that burden. The imposition of sentence involves a balancing of competing factors and considerations in the interests of achieving the critical yet sometimes elusive goal of proportionality.

[56] In this case, I find that proportionality is best achieved by the imposition of a conditional sentence. However, I am of the view that the sentence should be longer than that suggested by the defence. It was said that a conditional sentence of 6 to 9 months should be imposed. That would not adequately reflect the gravity of the offence, even taking into account the removal of the offence of criminal negligence.

[57] A conditional sentence for a term of 18 months is the more appropriate disposition. In addition to the statutory terms and conditions, I impose the following terms:

1. For the first nine months, remain within your residence daily except in the following circumstances: a) Attendance for work-related or education-related matters and travel directly related to such matters; b) Medical/dental appointments; c) Meetings with the conditional sentence order supervisor or treatment/counselling sessions as directed by the supervisor; d) On Saturdays between 10:00 a.m. and 2:00 p.m. to shop for necessities of life; e) In relation to any other matter as may be pre-approved in writing by the conditional sentence order supervisor.
2. Carry conditional sentence order with you whenever you are outside of the residence;
3. For the last nine months of the conditional sentence, remain in your residence between 10:00 p.m. and 6:00 a.m., except in the circumstances described in #1, above;
4. Reside at a location approved by conditional sentence order supervisor and advise of any change of address;
5. Attend counselling as directed by conditional sentence order supervisor and provide proof of attendance as required by the supervisor.

[58] As for ancillary orders, I decline to order a DNA sample for the reasons given in my earlier sentencing decision. A victim surcharge will be imposed in the amount of $200, with six months to pay.

Original signed by Justice Renee M. Pomerance

Renee M. Pomerance Justice

Released Orally and in writing: October 6, 2023

COURT FILE NO.: (London) 348/18 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Nicholas Doering Offender REASONS FOR SENTENCE Pomerance J. Released: Orally and in writing – October 6, 2023