R. v. Fernandes, 2025 ONSC 2066

COURT FILE NO.: CR-24-10000247-0000 DATE: 20250401 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – IVO MIGUEL GARRIDO FERNANDES Debra Moskovitz, for the Attorney General of Ontario Jason Dos Santos, Counsel for Ivo Miguel Garrido-Fernandes HEARD: February 12, 2025 HIMEL J. reasons for SENTENCE

1Ivo Miguel Garrido Fernandes, entered pleas of guilty to the following charges: assault on Ana Garrido Fernandes Faria Da Silva contrary to s. 266 of the Criminal Code of Canada , R.S.C. 1985, c. C-46 and to utter a threat to cause bodily harm to Ana Garrido Fernandes Faria Da Silva, contrary to s. 264.1(1)(a) of the Code. He had elected to be tried by a judge sitting alone.

2The plea inquiry pursuant to s. 606(1) of the Criminal Code was satisfied. Mr. Fernandes confirmed that he was entering these pleas voluntarily, that he understood that the pleas were an admission of the essential elements of the offences, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the pleas, and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence. Mr. Fernandes was also advised of the immigration consequences of pleading to these charges. Counsel have made their submissions on sentence. The following are my reasons for sentence.

FACTUAL BACKGROUND

3## Factual Background

The facts were admitted pursuant to s. 655 of the Criminal Code . Mr. Fernandes and the complainant, Ana Cristina Faria Da Silva Garrido Fernandes, were married on July 4, 2015. They have a son, Liam Da Silva Garrido, in common. There are no prior domestic reports on file between Mr. Fernandes and the complainant.

4Between January 1, 2016, and December 31, 2018, while residing at the complainant’s parents’ residence, Mr. Fernandes was in the washroom in the shower. The complainant entered the washroom and an argument ensued. Mr. Fernandes shoved the complainant hard causing her to fall to the ground causing injury. Between January 1 and February 27, 2023, the complainant told her brother that Mr. Fernandes assaulted her. The complainant’s brother contacted Mr. Fernandes and confronted him about the assault. Mr. Fernandes met the complainant’s brother and told him, “If I hit her, she would be out cold for three days.” A few weeks later, the complainant and Mr. Fernandes were attending a confirmation ceremony in Burlington, Ontario. An argument ensued over the complainant and Mr. Fernandes being late for the confirmation ceremony as he was dawdling playing with their son. During the argument, Mr. Fernandes mentioned the conversation with the complainant’s brother and stated, “If I hit you, you would be out cold for three days.”

5The victim reported this to police and on February 13, 2023, Mr. Fernandes attended 11 Division and surrendered. He was arrested on these charges.

EVIDENCE ON THE SENTENCING HEARING

6## Evidence on the Sentencing Hearing

Counsel filed an Agreed Statement of Facts which has been marked as an exhibit. Ms. Moskovitz read aloud to the court statements made by the complainant to the Victim Witness Support worker regarding the impact of these events on her. She wrote that she has issues trusting other men, that she has difficulty sleeping and eating, and that Mr. Fernandes took away the joy of being a first-time mother. The statement was marked as an exhibit. Crown counsel advised the court that Mr. Fernandes has no criminal record.

7Mr. Fernandes apologized to the court for his actions.

POSITIONS OF THE PARTIES

8## Positions of the Parties

The Crown takes the position that an appropriate disposition in this case is a suspended sentence with a term of three years of probation with conditions, a s. 110 order for 5 years and an order that a DNA sample be taken from Mr. Fernandes in accordance with s. 487.051(3) of the Code .

9Ms. Moskovitz requests that the court impose a suspended sentence given the serious nature of the offence which involves intimate partner assault and that is an aggravating factor under the Criminal Code . It is not an isolated incident but occurred over the course of the relationship. The events have had an impact on the complainant and thus, a conviction is appropriate. Crown counsel requests that there be no contact direct or indirect between the accused and the complainant with an exception that access with their son take place through a Family Court order and/or the WIZARD app. She also asks the court to impose a no weapons condition, that Mr. Fernandes not attend where the complainant is known to be, that he not apply for a firearm licence, that he report to a probation officer and attend counselling as directed.

10Counsel for the defence submits that it is in the interests of Mr. Fernandes and not contrary to the public interest for the court to impose a conditional discharge. Mr. Dos Santos provided the background of Mr. Fernandes and emphasizes that he is a Permanent Resident, and a discharge would allow him to stay in Canada and to support his son. He argues that this arose in a domestic context but that the events are relatively minor. Mr. Fernandes is taking responsibility for his actions. He is very involved with his son and wants to continue. Counsel explains that Mr. Fernandes and his former wife fell out of love, that they were experiencing financial difficulties, had to live with her parents and that this led to separation and divorce.

11Mr. Fernandes has no criminal record. Counsel submits that he is a contributing member of society. He has been on bail since his arrest on February 13, 2023, and has complied with the conditions not to have contact with the complainant. He lives alone and does not have close family in Canada. He has access to his son as outlined by the Family Court and sees him every Wednesday and every other weekend. Should he receive a conditional discharge, he would be able to remain in Canada and have a relationship with his son. He supports a no contact order with his former wife.

12Counsel objects to the court making a DNA Order in these circumstances as he submits it is not justified. He does not oppose the s. 110 order. Mr. Dos Santos submits that the period of probation be for one year and that the frequency of reporting be left to the probation officer. He does not oppose a term of counselling. Counsel advised the court that the service Abrigo provides counselling to Portuguese speaking people but will not commence until there is a finding of guilt.

ANALYSIS AND THE LAW

13## Analysis and the Law

Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code . It is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section which include denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

14A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity reflected in s. 718.2(b). Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh otherwise known as the principle of totality reflected in s. 718.2(c). The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders. These are known as the principles of restraint reflected in ss. 718.2(d) and (e).

15I now turn to the relevant jurisprudence on sentencing applicable to the offences in this case. The Criminal Code defines “intimate partner” as a “current or former spouse, common-law partner and dating partner”. Where the offence involves intimate partner violence, this is an aggravating factor particularly, where there is significant bodily harm inflicted and where there is persistent or repetitious and escalating violence towards the spouse: see R. v. Inwood (1989) , 48 C.C.C. (3d) 173 (Ont. C.A.). In the case of R. v. Mullin (1990) , 56 C.C.C. (3d) 476 (P.E.I.C.A.), the court held that while jail terms will usually be imposed in domestic assaults, where the assault is very minor in nature or there are strong extenuating circumstances, a conditional discharge may be appropriate provided that it is in the interests of the accused and not contrary to the public interest.

16Section 718.3(8) sets out a framework by which an offender convicted of an offence involving intimate partner violence may be sentenced to a term of imprisonment in excess of the applicable maximum if the offender has a previous conviction for an offence of that nature. Domestic violence is a serious problem and the courts must denounce such offences in order to deter such conduct by the accused or by others.

17In the case of Mr. Fernandes, there were no previous incidents reported and he has no criminal record. While the assaults are clearly troubling, in the spectrum of domestic violence, they were of a more minor nature.

DECISION

18## Decision

Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust , 2000 SCC 18 , [2000] 1 S.C.R. 455 at para. 44 . The sentencing process is an individualized one, but the court must remain mindful of the sentencing ranges discussed in the jurisprudence.

19In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Fernandes.

20Mr. Fernandes is 36 years of age and was born on January 24, 1989 in Portugal. He immigrated to Canada and became a Permanent Resident in 2017. Following his marriage to the complainant, they had a son Liam in 2020. Mr. Fernandes works as a roofer and in construction which is seasonal work only. The parties attended Family Court where the court settled support and access. He has access every other weekend and every Wednesday with his son. The access is arranged to be done through a neutral pick-up spot such as the school.

21Mr. Fernandes surrendered to police on February 13, 2023, and was released on a recognizance with terms not to have contact with the complainant and to advise the officer in charge of any change of address. There have been no issues with bail.

22Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor in determining the length of sentence. The amount of credit 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 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. The failure of a trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle. Where the offender seeks to rely on the pre-sentence bail conditions, the offender should supply the judge with information as to the impact of the conditions: see R. v. Downes (2006) , 205 C.C.C. (3d) 488 (Ont. C.A.). In the case of Mr. Fernandes, the terms of his release were not so stringent to affect the length of the sentence imposed. However, that he complied with the terms and there is no suggestion of any breach, is a mitigating factor that is considered when deciding whether a period of community supervision is appropriate.

23In the case at bar, there are many factors in mitigation including that Mr. Fernandes pleaded guilty to the charges and has demonstrated remorse. He is taking responsibility for his actions. He has saved valuable court resources at a time when resources are scarce because of the aftermath of the COVID-19 pandemic. Mr. Fernandes has made efforts at rehabilitation. He has no criminal record. The offences, while serious, are of a more minor nature. He is working and attempting to support himself and his son.

24The aggravating factor includes the domestic context of the offences and the impact of the offences on the victim.

25While a sentence for these offences must emphasize denunciation and deterrence, courts must also take into account the circumstances of the offender including his role in providing financial and emotional support to the child.

26Where the statutory provisions are met under s. 730, the court may consider imposing a discharge on sentence. In the case of R. v. Sanchez-Pino (1973) , 11 C.C.C. (2d) 53 (Ont. C.A.), the court provided some guidance on when a discharge is indicated:

…The granting of some form of discharge must be “in the best interests of the accused”. I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally, he will be a person of good character or at least of such character that the entry of a conviction against him may have some significant repercussions. It must not be “contrary to the public interest” to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence—a standard part of the criteria for sentencing.

27The case of R. v. Fallofield (1973) , 13 C.C.C. (2d) 450 (B.C.C.A.) further provides criteria as to the appropriateness of a discharge which is available for any offence other than one for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life or by death.

RESULT

28## Result

Mr. Fernandes shall be sentenced as follows: for the offence of assault, in light of the fact that he has been found guilty of an offence other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, and I consider it to be in the best interests of Mr. Fernandes and not contrary to the public interest, I direct that he shall be discharged on conditions prescribed below: he shall be placed on probation for a period of 18 months; he shall reside at 570 Oakwood Avenue, Toronto, Ontario or such place approved by his probation officer, he shall advise his probation officer of his place of work; he shall attend any counselling recommended by his probation officer and sign any necessary releases; he shall report forthwith and thereafter as often as required. He shall not have any contact with the complainant and not be within 100 metres of where she works, lives or is known to be, except with respect to his son and access with his son shall continue to be determined by court order or on a Wiz app. He shall not possess any weapons or apply for a firearm acquisition licence or certificate.

29For the offence of utter threats, Mr. Fernandes shall be discharged on conditions which are the same as outlined above. This sentence is served concurrently to the sentence for the assault.

30In accordance with s. 110 of the Code , I also order that Mr. Fernandes not possess any weapons for a period of 10 years.

31Finally, Crown counsel has requested that the court order that Mr. Fernandes provide a sample of his DNA under s. 487.051(3) of the Code . The Code provides that it is in the judge’s discretion whether to make such an order on the application by the prosecutor. In deciding whether I am satisfied that it is in the best interests of the administration of justice to do so, I am to consider the person’s criminal record, the nature of the offence and circumstances surrounding the commission of the offence along with the impact of such an order on the person’s privacy and security of the person. In light of the circumstances of Mr. Fernandes, that he has no criminal record, and in light of the circumstances of the offences, and in consideration of his privacy and security, I am of the view that an order that Mr. Fernandes provide a sample of his DNA pursuant to s. 487.051(3) of the Criminal Code is not warranted under this provision and I decline to make the order.

Himel J.