Court File and Parties
Court File No.: CR-22-11403605-A Date: 2025-09-03 Ontario Superior Court of Justice
Between: His Majesty The King (Crown) – and – Manon Rail (Accused)
Counsel:
- S. Albers, Counsel for the Crown
- A. Duvadie, Counsel for the Accused
Heard: August 6 and 12, 2025 at Ottawa
Sentencing Decision
Justice A. Doyle
Overview
[1] Manon Rail is before me for sentencing following her guilty plea to one count of being unlawfully in a dwelling-house contrary to s. 349 of the Criminal Code, R.S.C. 1985, c. C-46.
[2] The court conducted a s. 606 plea inquiry and found that Ms. Rail entered the plea voluntarily and that she understood the significance of the plea.
[3] The agreed facts are that Ms. Rail did, on October 12, 2022, knock on the door of the Keoghs, her elderly neighbours, and push her way into their apartment. She demanded the keys to the apartment that belonged to a previous tenant. When Margaret Keogh told her to leave, she refused and got physical with Mrs. Keogh before then pushing Thomas Keogh, who fell and sustained injuries to his arm which required an overnight stay at the hospital. Ms. Rail then pushed Mrs. Keogh, took her purse, and fled. Ms. Keogh chased her down to retrieve her purse. Ms. Rail then left.
Crown Position
[4] The Crown submits that a sentence of 12 months' imprisonment is necessary, but that it should be served in the community as a conditional sentence order (CSO). The first six months would be served under house arrest, and for the latter six months Ms. Rail would be bound by a curfew. The order should contain the standard reporting conditions and require monitoring by a supervisor.
[5] The CSO would be followed by 18 months' probation.
[6] The Crown is seeking restitution in the amount of $99 for Mrs. Keogh and $1,129 for Mr. Keogh.
[7] The Crown submits that the sentencing principles of denunciation and deterrence are the primary factors especially given the victims were an elderly couple who were victimized in their own home without any provocation.
[8] The Crown is seeking a s. 109 prohibition and a non-contact order.
Defence Position
[9] The defence is requesting a conditional discharge, emphasizing that this is Ms. Rail's first time before the courts, that she has pleaded guilty, and that a criminal record would affect her employment in the public school system. Ms. Rail currently works with children with learning disabilities.
[10] The defence submits that Ms. Rail's many letters of support demonstrate that this incident was out of character and that she has the support of her community, including her family, her friends, her employer, and her colleagues. She is well respected, well liked, and has a strong social network.
[11] The defence argues that she is unlikely to re-offend and that the rehabilitative aspect of sentencing should be strongly considered.
[12] The defence agrees to a s. 109 order, as requested by the Crown, but opposes a restitution order.
Sentencing
Legal Framework
[13] As set out in s. 718 of the Criminal Code, the court must consider:
- (a) denouncing unlawful conduct and its harm to victims and the community;
- (b) deterring offenders and others from committing offences;
- (c) separating offenders from society, where necessary;
- (d) assisting in the rehabilitation of offenders;
- (e) providing reparations to victims/community; and
- (f) promoting a sense of responsibility in the offender.
[14] Section 718.04 emphasizes that where the offence involves vulnerable victims, courts must prioritize denunciation and deterrence.
[15] Also, I recognize the principle of restraint in sentencing and that incarceration is a last resort: Criminal Code, s. 718.2(d).
[16] Sentencing is a highly individualized exercise that must consider the offence, the offender, and community needs.
[17] The court is mindful of the parity principle; that is, a sentence imposed for an offence should be similar to similar offences committed by similar offenders in similar circumstances: Criminal Code, s. 718.2(b).
[18] Other sentencing principles are set out in s. 718.2 of the Criminal Code.
Evidence
[19] On consent, the court received a copy of the pre-sentence report (PSR), photos of the injuries to Mr. Keogh showing a deep gash to his right forearm, photos of Mrs. Keogh showing extensive bruising to her right arm, 19 letters from Ms. Rail's support network, and Victim Impact Statements (VIS) from Mr. and Mrs. Keogh which were read out in court.
The Offender
[20] Ms. Rail is almost 60 years old and has no criminal record. She is single.
[21] The PSR indicates that Ms. Rail's father passed away when she was only 7 years old and that her mother struggled financially. Ms. Rail was her mother's primary caregiver until she passed away.
[22] She has three siblings. Her younger brother suffers from schizophrenia and Ms. Rail recalls the trauma she experienced during his manic episodes as he would often physically abuse her. Ms. Rail would hide any scissors or knives from fear for her own safety during these episodes. She currently assists him with shopping and necessities on a weekly basis and has volunteered with the Schizophrenia Society of Ontario.
[23] She worked for five years in an accounting department before returning to college to enroll in a Developmental Service Worker program. After graduation, she obtained employment as an educational assistant at an elementary school, where she has remained until now. She finds the job fulfilling and works well with the children. At work, safety is an issue and she reports being hit regularly by her students. Her colleagues related that she shows compassion to the students with behavioural issues and demonstrates emotional control despite being hit regularly.
[24] She has no substance abuse issues.
[25] She has type 2 diabetes and suffers from macular degeneration, which negatively affects her vision.
[26] She leads a pro-social life and has a good network of supportive friends.
[27] The letters from her support network describe her as helpful, respectful, and patient. Some letters describe her involvement in the community and relate that she is an asset at the school, as she is dependable, reliable, has a sense of humour, and stays after school to prepare further.
[28] Her good friend Ms. Denis, who has known her for 39 years, states that she is reliable and dependant.
[29] One individual described her as "caring, patient, and reliable" and stated that she "is always willing to help people in her environment." She took care of her mother and is now taking care of her brother. One colleague says that she shows professionalism, care, and consideration. She shows compassion towards students who are in distress and she remains calm even when dealing with challenging students.
[30] One individual related how she helped her out as a neighbour and assisted other neighbours when they needed help.
[31] One teacher described her as possessing a positive and calm attitude towards her students.
[32] Another teacher talked about her strengths as an educational assistant, as she is adept at establishing routines and consistencies amongst the children and makes effort to motivate them.
[33] One colleague described her as "one of the calmest and most patient educators that [she has] worked with".
[34] A grandparent of a student whom Ms. Rail has assisted expressed her gratitude for what Ms. Rail was able to accomplish with her grandchild who was on the autism spectrum.
[35] I note that some of the letters are dated 2023 and some are dated 2025. One was dated 2009. There are also notes of appreciation from what appear to be students.
[36] None of the letters reference this offence or acknowledge that they are aware of this offence. Rather, they focus on Ms. Rail as a person and employee.
[37] Ms. Rail has taken responsibility for her actions and is deeply remorseful.
[38] She acknowledged her mistake of entering the apartment and regrets the stress it has caused the Keoghs. She explains that she was managing a rental apartment for a friend and that this happened after the tenants moved out. She is apologetic and takes responsibility for her actions.
[39] This recent incident has caused her tremendous stress, which has led to suicidal ideations. By leaning on her friends, her mental health has improved.
[40] She is willing to attend a program for rehabilitative purposes.
[41] The probation officer indicates that she would not benefit from any services from probation or parole.
Analysis
[42] The aggravating factors are as follows:
- the victims were an elderly couple; and
- the offence has had serious and lasting impact on the victims.
[43] The mitigating factors are as follows:
- Ms. Rail has no criminal record;
- by pleading guilty and accepting the facts that resulted in the conviction, Ms. Rail took responsibility for the offence;
- by pleading guilty, the victims were not required to testify at the trial and avoided being re-traumatized; and
- she has expressed remorse, and the stress has affected her own mental health.
[44] There is no explanation for her violent attacks on two elderly individuals who were in their own homes, where they are entitled to a high level of privacy and quiet enjoyment. An intrusion and invasion of one's home is grave, and her motive and conduct that evening remains confusing.
[45] The VIS set out the traumatic effects this incident has had on the Keoghs.
[46] Mrs. Keogh explained that:
- this incident changed her life, as she is now 81 years old, and her relaxed lifestyle has been turned upside down by this incident;
- she explains that she has had many health issues since this incident including heart issues, anxiety, insomnia, and panic attacks;
- she has had to attend counselling to recover from this trauma;
- she is fearful that she may encounter Ms. Rail as they both live in the same building; and
- other tenants do not acknowledge their presence and hence she feels shame.
[47] Mr. Thomas Keogh stated that:
- he recalls being grabbed and thrown, and his injuries have caused him to endure two major surgeries;
- he has lost 30 pounds, and this has affected his previously active lifestyle;
- he was devastated that he could not help his wife of 60 years during this incident as he was no match for the strength of the offender;
- he has had to attend numerous appointments for his injuries (24 visits in 8 weeks);
- he has scars on his arm and still bears psychological scars from the incident; and
- he has had psychotic episodes and experiences nightmares.
[48] Unfortunately, Ms. Rail's calmness and compassion, as set out in her letters of support, were not manifested that night when she barged into the home of the Keoghs, who were sitting down to enjoy a dinner together.
[49] The court must consider denunciation. The Keoghs suffered injuries requiring ongoing medical attention. They not only experienced physical injuries, but their VIS indicate the psychological toll this offence has had on their sense of stability. Their world was turned upside down and this conduct has had a serious impact on their emotional, physical, and psychological well-being. This court denounces the violence inflicted on them.
[50] The court is very concerned with general deterrence and the message that might be sent to the community if one were to avoid a criminal record despite the gravity of the offence and the harm inflicted on elderly and vulnerable individuals in the privacy of their own homes. Certainly, the court is concerned with public confidence in the effective enforcement of the criminal law in situations such as this, where an intruder enters one's home, terrorizes them, and pushes them to the floor, causing lasting injuries and harm.
[51] Society condemns this type of offence on seniors especially when they live independently in their own housing. Seniors in the community should feel safe and the court recognizes the significance of general deterrence. I recognize the importance of general deterrence, but the court must ensure that the other sentencing principles are considered and Ms. Rail's personal circumstances.
Decision
[52] It is my view that a jail term for a first offender who has pled guilty, taken responsibility for her actions, and shown considerable remorse is not warranted in the circumstances of this case.
[53] I must take into account the principle of restraint. In essence, the principle of restraint in sentencing reflects a societal commitment to using imprisonment judiciously and exploring alternatives that can better rehabilitate offenders and reintegrate them into the community.
[54] The court must determine if either the Crown's alternative submission of a suspended sentence or the defence's suggestion of a conditional discharge is a fit sentence.
[55] First, I find that a conditional discharge is available here pursuant to s. 730(1) of the Criminal Code, as there is no minimum punishment, and the maximum penalty is less than 14 years.
[56] It is a discretionary order made after weighing and assessing the principles of sentencing and considering the public interest.
[57] Pursuant to s. 730(1), the court may grant a discharge if it is in the best interests of the offender and is not contrary to the public interest.
[58] The discharge was made available in 1972 to give the courts the power to relieve the fact and the stigma of a criminal conviction: R. v. Donovan, 2013 NSPC 83, at para. 27, citing Allan Manson, The Law of Sentencing (Toronto: Irwin Law Inc., 2001) at pp. 211-12.
[59] It is certainly a mode of motivating rehabilitation.
[60] In R. v. Sanchez-Pino, [1973] 2 O.R. 314, at p. 320, the Court of Appeal for Ontario articulated key principles regarding section 730(1) (then 662.1). There, the court stated that a discharge would be in the interests of the accused where the court is not focused on specific deterrence or correctional rehabilitation in sentencing. Further, a discharge would not be contrary to public interest where general deterrence is unnecessary or where the nature of the offence was less serious. The Court of Appeal has reiterated the principles of this judgement: R v Lu, 2013 ONCA 324, 307 O.A.C. 40.
[61] In R. v. House, 2012 NLCA 41, 324 Nfld. & P.E.I.R., at para. 20, citing R. v. Elsharawy (1997), 156 Nfld. & P.E.I.R. 297 (NL. C.A.), the Court of Appeal of Newfoundland and Labrador said of the discharge:
[3] The first condition presupposes that the accused is a person of good character, usually without previous conviction or discharge, that he does not require personal deterrence or rehabilitation and that a criminal conviction may have significant adverse repercussions. The second condition involves a consideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminal law [authorities omitted].
Interests of the Accused
[62] Ms. Rail satisfies the first condition in that she is a person of good character who does not have a criminal record and for whom specific deterrence is not of concern.
[63] She plans to retire in 5 years, and she submits that a criminal record will affect her employment as she is required to update her records for the employer yearly.
[64] Although there is no evidence before the court that a criminal record would affect her work at the school, it is a known fact that criminal records do affect employment opportunities and status, especially since Ms. Rail works in the educational system.
[65] In House, the court said this about criminal records at para. 24:
Finally, regarding adverse repercussions from a criminal conviction, Mr. House is a promising young man who, in his twenties, is still maturing and developing the basis for a productive life including employment and relationship opportunities and decisions. A criminal record, where such is unnecessary for purposes of protection of the public, may result in roadblocks in terms of this development. Such a result is to be avoided provided Mr. House is otherwise a proper candidate for a conditional discharge.
[66] The incident in this case was an isolated incident that happened very quickly.
[67] I have considered the tremendous support she has from the community and that she is pro-social. She has steady employment working with children with special needs and has shown that she is a contributing member of our society. She plays an important role in the educational system.
[68] Therefore, the court is not concerned with specific deterrence, and with respect to rehabilitation, Ms. Rail has agreed that she would be prepared to undergo counseling.
Public Interest
[69] Ms. Rail also satisfies the second condition, in that it is not against the public interest for her to be granted a conditional discharge.
[70] In determining whether a conditional discharge was contrary to the public interest, the court in House, citing R. v. Elsharawy (1997), 156 Nfld. & P.E.I.R. 297 (NFCA), said at para. 25, that a court should concern itself with the "principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public attitudes toward it and public confidence in the effective enforcement of the criminal law".
[72] The offender was granted a conditional discharge on a conviction of being unlawfully in a dwelling-house. The court deemed that it was in the best interests of the offender and not against the public interest. The offender was a young person who had a good reputation, no criminal record, regular employment, and family and community support. As in this case, the offender had a supportive network and the offence was uncharacteristic. All that supported him described him in glowing terms.
[73] Certainly, the principles of general deterrence should be considered, and this conduct must be denounced given the harm to vulnerable individuals. Attacks on vulnerable people, such as the elderly, are not uncommon in the community and society does not tolerate this type of conduct.
[74] I am certainly concerned with public confidence in the criminal law when determining the sentence imposed on Ms. Rail.
[75] However, the community is also interested in the offender's contribution to society and in ensuring that the offender does not reoffend.
[76] Conditional discharges may be ordered for the offence of unlawfully entering a dwelling-house where the totality of the harm caused is on the lower end, the offence was not premeditated, and the accused otherwise presents positively.
[77] Here, Ms. Rail has demonstrated her contribution to the educational system by helping those young children with special needs. She provides a valuable service to her community, and it is especially important that she is dealing with a vulnerable population.
[78] In R v Espinosa Ribadeneira, 2019 NSCA 7, the Nova Scotia Court of Appeal dismissed a Crown appeal of a conditional discharge for two charges of being unlawfully in a dwelling-house, two charges of assault, and one charge of assault with a weapon. The accused was a 19-year-old student who, in a drunken stupor, entered two separate apartments and attacked the occupants, wielding a knife in one instance. The accused was severely intoxicated, described as being in a "substance-induced delirious state". He pled guilty and received a conditional discharge.
[79] The court noted that he was a 19-year-old first offender on a student visa from Ecuador. He was otherwise a pro-social young man who contributed to society. He had shown genuine remorse and taken steps to turn his life around.
[80] The sentencing judge deemed that the accused's state of mind diminished his moral culpability. Two experts assessed him as being at a low risk of reoffending. The conduct was out of character and driven by his mild substance abuse problems which manifested in intense periods of binge drinking. The accused stopped drinking alcohol and had strong letters of support from those around him who confirmed his efforts.
[81] This conditional discharge was upheld despite the serious nature of the offence and victim's suffering. Two of the victims put forth powerful victim impact statements detailing their psychological trauma and their physical injuries, which included three orbital fractures and a fractured nose.
[82] In R v Stewart, 2017 ABPC 152, the offender received a conditional discharge for the offence of unlawfully being in a dwelling-house. The offender was being harassed by the victim after ending a relationship and went to her house to sort things out. He was told to leave and, after resisting, got into a fight with the victim where he punched her in the face after she bit his hand.
[83] He received a conditional discharge, with the court emphasizing his status as a first-time offender, his pro-social life prior to the incident, his stable employment, and the risk brought about by a criminal record. He had worked steadily for 20 years and a criminal record would have brought his employment into jeopardy.
[84] In R. c. Minot, 2023 QCCQ 2054, the offender was convicted of unlawfully being in a dwelling-house and assault causing bodily harm. He entered the home of his in-laws, aged 93 and 89 respectively, to confront them over an ongoing familial dispute. He forcefully grabbed the phone from the father-in-law's hands and forced him to sit before ordering his mother-in-law to sit as well.
[85] The father-in-law was bruised and bleeding from his arm where he was grabbed, and the court noted that he had suffered a hematoma. Both victims also noted that they felt stressed from the encounter and worried about him re-entering the home.
[86] The details of the offender in that case are as follows:
- 62-year-old man;
- no prior offences;
- good father of two children;
- remorseful;
- prior good character;
- steadily employed in health services (CIUSSS); and
- faced real risk of losing employment as result of criminal sentence.
[87] The court found that it was not contrary to the public interest as there were no concerns of reoffending. The incident was spontaneous and out of character for the accused. The totality of harm caused was minimal and the court noted that his actions of sitting the father-in-law down would not usually lead to such harm, but for the advanced age of the victim. The offender simply wanted to force a conversation on family matters.
[88] The accused had a positive pre-sentence report and was a productive member of society who would lose secure employment if given a jail sentence. The court considered his age and education level and found that it would be difficult to find similar employment. He also had positive letters of support.
[89] The court also determined that it was in the best interests of the offender to avoid permanent consequences surrounding financial stability and his employment.
[90] Here, Ms. Rail's erratic behavior attacking a vulnerable elderly couple in their own home over a bizarre request for a key certainly calls into question some of the glowing character references that describe her as a calm, patient, and compassionate individual.
[91] However, the cases suggest that if the offence represents out-of-character conduct by a first-time offender, then a discharge is available.
[92] I have considered the principle of parity, which states that similar offenders who commit similar offences in similar circumstances should receive similar sentences.
[93] In Minot, the court found there was minimal harm. Here, the Keoghs have permanent and lasting effects.
[95] I note that there was difference of ages and the level of violence. In Espinosa, the offender repeatedly punched some of the victims.
[96] Ms. Rail's offence was spontaneous, very brief, and out of character.
[97] The sentencing of Ms. Rail is a difficult decision which must take into account all the sentencing principles and the impact on the victims. The conduct of Ms. Rail in that brief out-of-character incident was deplorable.
[98] However, after considering all of the above, I find that it is not against the public interest that I impose a conditional discharge. Ms. Rail will continue to give back to the community and continue to assist children. For almost 60 years, she has been a productive member of society, and that must count for something. Her actions of October 22, 2022, will always stay with her.
[99] In conclusion, I find that a fit sentence for Ms. Rail is a conditional discharge with the terms set out below.
Restitution Order
[100] Section 738(1)(b) of the Criminal Code provides that the court may order that the offender pay restitution to another for bodily or psychological harm resulting from the commission of an offence, provided that the prescribed amount does not exceed the total of pecuniary damages incurred as a result of the harm and that the amount is readily ascertainable.
[101] Courts should refrain from ordering restitution where the amounts are not readily ascertainable or where complicated accounting is necessary to determine the prescribed values. Rather, the amount should be "ready for calculation.": R v Castro, 2010 ONCA 718, 102 O.R. (3d) 609, at para. 24, citing R v Devgan, 44 O.R. (3d) 161, at pp. 168-69.
[102] A restitution order is not an appropriate substitution for a civil trial, where complex calculation of damages is more appropriate. The amount must be limited to pecuniary damages and must not extend to general or punitive damages: R v Davidson, 2018 BCCA 392, at paras. 23-26.
[103] Regarding Mrs. Keogh, I am prepared to award the $45.00 ambulance cost paid to the hospital as it is an out-of-pocket expense that is discernable.
[104] Regarding Mr. Keogh, I am also prepared to award a restitution order for the ambulance service of $45.00. I am not prepared to award lost time, replacement of shirt, and mileage as no evidence was filed to support these claims.
[105] In summary, the court makes a restitution order in the amount of $90.00 payable within 30 days.
Conclusion
[106] Stand up, Ms. Rail. Given the above, I find that a fit sentence is a conditional discharge.
[107] Accordingly, as part of your conditional discharge, you will comply with the following terms and conditions for 18 months:
- Keep the peace and be of good behaviour;
- Report to a probation officer as required;
- Advise of any change of address;
- Follow any recommendations by the probation officer regarding counselling or support in the community; and
- Complete 100 hours of community service, preferably with some of it working with seniors.
[108] Provided that the conditions are met, then the discharge will mean that you will not have a criminal record. However, failure to comply can result in a conviction and further sentencing.
[109] You will also be subject to the following ancillary orders:
- There will be a weapons prohibition pursuant to s. 109 for 10 years.
- There will be a non-contact order and you will be prohibited from contacting Margaret and Thomas Keogh or coming within a 50-meter radius from them. Given that they live in the same building, Ms. Rail must be vigilant and avoid direct contact with them; and
- Given that you live in the same building, and you see each other in the same building, then Ms. Rail, you are to immediately leave the vicinity.
[110] The court orders a restitution order of $90.00 in total for both victims' ambulance costs payable within 30 days.
[111] I waive the victim fine surcharge.
Date: September 3, 2025
Justice A. Doyle