Reasons for Judgment

Court File No.: CR-24-10000055-00AP
Date: 2025-04-08
Ontario Superior Court of Justice

Between:
His Majesty the King
– and –
Jennel Christie

Appearances:
T. Monteiro, for the Crown
J. Fennell, for Ms. Christie

Heard: 18 February 2025
Released: 8 April 2025

Judge: S.A.Q. Akhtar

Factual Background and Overview

On appeal from the sentence imposed on 30 July 2024 by Justice V. Rondinelli of the Ontario Court of Justice.

Introduction

[1] On 30 July 2024, the respondent, Jennel Christie, pleaded guilty to the offence of assault causing bodily harm contrary to s. 267(b) of the Criminal Code, R.S.C., 1985, c. C-46.

[2] The sentencing judge imposed an absolute discharge, a DNA order, and an order prohibiting the possession of weapons for a period of 5 years pursuant to s. 110 of the Criminal Code. The Crown appeals the sentence.

[3] For the following reasons, I allow the Crown’s appeal and find that the sentence imposed was demonstrably unfit.

Background Facts

[4] The respondent and the victim were involved in what was described as an “on and off” relationship. They are the parents of a child who, at the time of the incident, was six months old. The victim was also seeing another woman, Renee Simpson, as well as appearing to be in contact with other women on social media. Shortly prior to the incident, Ms. Simpson had told the victim that she was seven weeks pregnant and that he was likely the father of her child.

[5] In June 2023, the respondent visited the victim’s residence because she wished to travel to Jamaica with their child and needed him to sign the necessary paperwork that would allow her to do so. After arriving at the victim’s apartment, the respondent told the victim that she needed to collect some food from the building lobby and left the apartment. She returned a short time later with four women: her sister, Janelle Christie, Ms. Simpson, and two other women. All four began to argue with the victim about his alleged infidelity with Ms. Simpson and other women on social media. During the course of the argument, the respondent went to the victim’s room and came out with their child and gave him to her friend.

[6] The argument became physical and the respondent ripped a portion of the victim’s shirt off. Believing that his phone had been stolen, the victim grabbed the respondent’s arm demanding it be returned. The respondent refused. As the victim continued to demand its return, Janelle Christie punched him in the face. The respondent joined the attack and during the course of the assault bit the victim’s scrotum through his trousers. The respondent grabbed a nearby chair and lifted it as if to strike the victim but a third-party, the victim’s roommate, intervened and told the women to leave the apartment.

[7] The victim was transported to hospital where he was treated for his injuries. It was discovered that he had a 12 cm laceration on his scrotum. His left testicle was exposed because of the cut. The laceration required 14 stitches as treatment.

[8] At the sentencing hearing, the Crown asked for a nine month conditional sentence with the first five months requiring the respondent to remain within her house except for employment, medical purposes, and travel to and from the child’s daycare. The Crown’s submission also contained an exception permitting a weekly exemption to obtain necessities of life such as grocery shopping. The remaining four month portion of the sentence would remove the “house arrest” condition and replace it with a curfew between 9 pm and 6 am. Moreover, the respondent would be required to take counselling as directed by her conditional sentence supervisor.

[9] The defence argued for an absolute discharge to be imposed. The defence cited the respondent’s immigration consequences and indicated that if the respondent received any conviction she would be inadmissible under s. 36 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[10] The sentencing judge acceded to the defence request, finding it was in the best interests for the respondent to get a discharge because of the immigration consequences. He also observed that her employment might be affected, stating that there “might be some issues if they have to deal with vulnerable person checks, and it being a condition discharge versus an absolute discharge”.

The Sentence Was Demonstrably Unfit

[11] In R. v. Lacasse, 2015 SCC 64, para 12, the Supreme Court of Canada made clear that in the absence of an error of law or principle that has an impact on sentence, an appellate court cannot vary a sentence unless it is demonstrably unfit. Deference is owed to sentences imposed after trial. An appellate court may only intervene if the sentencing court has made an error in principle, failed to consider a relevant factor, overemphasised otherwise appropriate factors, or imposed a sentence that is demonstrably unfit: Lacasse, para 11; R. v. Shropshire; R. v. Lu, 2013 ONCA 324, para 37; R. v. Ramage, 2010 ONCA 488, paras 67-73.

[12] In R. v. Fallofield, the court described the use of an absolute or conditional discharge as being one that is in the best interests of the accused and also not contrary to the public interest.

[13] The sentencing judge was also bound by s. 718.1 of the Criminal Code to consider the principles of denunciation, deterrence, rehabilitation, and the encouragement of responsibility when imposing sentence.

[14] Moreover, s. 718.2(a)(ii) of the Code specifically directs that it is an aggravating factor where there is “evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family”.

[15] Neither of these sections were referred to by the sentencing judge in his brief reasons for imposing an absolute discharge. In R. v. Huh, 2015 ONCA 356, para 12, the court made clear that in “cases of violence resulting in injury, the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused”. Contrary to the respondent’s argument, I find that the judge placed little or no weight on these factors.

[16] This was a serious assault committed by the respondent on her intimate partner and father of her child which resulted in an act of genital mutilation. It is unclear how the respondent’s action could be considered as being appropriate for any type of discharge. This was clearly not in the public interest and cannot stand. For this reason alone, the Crown’s appeal is allowed.

[17] Moreover, I agree with the Crown that the sentencing judge made two other errors when imposing sentence.

[18] First, the sentencing judge referred to the fact that “there might be some issues” with the respondent’s employment because “there might be some issues if they have to deal with vulnerable person checks, and it being a condition discharge versus an absolute discharge”. There was no evidence that the respondent’s employment would require a vulnerable person’s check or that there would be any other employment consequences.

[19] The respondent argues that by relying on this possibility the judge was acknowledging “the reality of our world”. I disagree.

[20] In order to rely on employment consequences, the sentencing judge required evidence to support his conclusion that there would be consequences to the respondent’s employment. The only evidence relating to the respondent’s job was a letter provided to the court which confirmed that the respondent was employed as a case manager at Reconnect Community Health Services. The letter disclosed the respondent’s salary and that she was on maternity leave. There was no reference to any employment implications.

[21] In the absence of any evidence about employment consequences, the judge should not have used this suggestion to influence the imposition of sentence.

[22] Secondly, the judge referred to immigration consequences, but it is unclear what he meant. Defence counsel argued that a conditional sentence order would “make the respondent inadmissible to Canada under s. 36(1) of the IRPA with no right of appeal”. However, the conditional sentence requested by the Crown is not “a term of imprisonment” captured by s. 36(1) and would therefore have no effect on the respondent’s immigration status: Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50.

[23] Even if it was, whilst a sentencing court may take into account immigration consequences, it cannot impose a sentence that is disproportionate to the gravity of the offence: R. v. Pham, 2013 SCC 15, para 14. Here, for the reasons set out above, a discharge was a disproportionate sentence.

[24] The court in Pham added at paras. 15-16:

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.

These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.

[25] As noted, the sentence was demonstrably unfit.

[26] The respondent asks that if this court concludes that the sentencing judge erred and imposes a conditional sentence or sentence of imprisonment in place of the discharge, this court should stay the execution of any sentence under the principle set out in R. v. Smickle, 2014 ONCA 49, para 20. There, the court allowed a Crown appeal and found that the sentencing judge’s imposition of a five month conditional sentence was unfit in a case of possession of a loaded firearm. The court in Smickle, at para. 20, directed that a custodial sentence of 2 years less one day would be the appropriate sentence, but declined to incarcerate the offender holding that:

Given that the principles of denunciation and deterrence can be adequately served without re-incarceration, we agree with counsel for the respondent that re-incarceration would not serve the other principles of sentencing and would undermine the fundamental purpose of sentencing set out in s. 718. The community is best protected if the respondent continues along the rehabilitative path that he has followed in the five years that he has been before the court.

[27] This situation is entirely distinguishable. The respondent is not being incarcerated and instead is being sentenced to house arrest conditions. Rehabilitation is emphasised within the conditions. Here, the imposition of the conditional sentence sought by the Crown would adhere to rather than undermine the principles set out in s. 718 of the Code.

[28] The Crown’s position at sentencing stands at the very lowest end of the sentencing range for this offence. However, it is in the interests of justice that the absolute discharge be set aside and the Crown’s original sentencing submission be imposed.

Disposition

[29] For these reasons, I substitute the following sentence to be served by the respondent:

[30] A 9 month conditional sentence order with the following conditions:

• The respondent must report to the conditional sentence supervisor within the first 72 hours of release of this judgment.
• For the first 5 months of the conditional sentence order, the respondent must remain within her residence at all times except:
  • while travelling to, from and while at her place of employment;
  • while travelling to, from and while at any medical appointment for her or her child that is scheduled in advance;
  • while travelling to, from and while at her child's place of education or daycare for the purposes of school or child care;
  • in the case of a medical emergency involving her or her immediate family members;
  • one day a week for a window of three hours to obtain the necessities of life.
• The respondent must notify her conditional sentence supervisor in advance of her work schedule, her child’s daycare and school schedule, and any medical appointment that has been scheduled in advance for her and/or her child.
• For the remaining 4 months of the conditional sentence order, the respondent must remain within her residence each night between the hours of 9 p.m. and 6 a.m. except in the case of a medical emergency involving herself or immediate family members.
• The respondent must not possess any weapons as defined by the Criminal Code.
• The respondent must have no contact or communication directly or indirectly with the victim, except pursuant to a valid Family Court order and except through legal counsel for the purposes of court proceedings, or except through a mutually agreed upon third party for access to the child.
• The respondent is not to be within 200 metres of anywhere she knows the victim to live, work, go to school, worship, or anywhere she knows him to be, with the same exception as the preceding condition.
• The respondent must take any counselling or treatment as directed by her conditional sentence supervisor and sign releases necessary to allow them to monitor her progress.

[31] I would also impose a one year period of probation with the following conditions:

• The respondent must report to a probation officer within 48 hours of the commencement of this order.
• The respondent must not possess any weapons as defined by the Criminal Code.
• The respondent must have no contact or communication directly or indirectly with the victim, except pursuant to a valid Family Court order and except through legal counsel for the purposes of court proceedings, or except through a mutually agreed upon third party for access to the child.
• The respondent is not to be within 200 metres of anywhere she knows the victim to live, work, go to school, worship, or anywhere she knows him to be, with the same exception as the preceding condition.
• The respondent must take any counselling or treatment as directed by her probation officer and sign releases necessary to allow them to monitor her progress.

S.A.Q. Akhtar

Released: 8 April 2025