R v Canales, 2018 ABQB 978

Court of Queen’s Bench of Alberta Citation: R v Canales, 2018 ABQB 978 Date: 20181212 Docket: 161231741Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Gonzalo Canales Accused _______________________________________________________ Reasons for Sentence of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] I convicted Gonzalo Canales of forcible entry contrary to Criminal Code s. 72(1) on July 12, 2018. At the request of Defence Counsel, sentencing was adjourned for preparation of a Presentence Report.

Sentencing submissions were heard on November 2, 2018. [ 2 ] Mr. Canales was originally charged with three offences. I found him not guilty of all three, but guilty of forcible entry which is a lesser and included offence in one of the offences with which he was originally charged. [ 3 ] My reasons for finding Mr. Canales not guilty of the offences charged but guilty of forcible entry are at 2018 ABQB 530 . Those reasons present a detailed account of the events which lead to the charges and conviction. [ 4 ] In brief

summary the relevant circumstances are: - Mr. Canales and Ms. Stronks had been in an unconventional domestic relationship for about 7 years prior to the offence date. They both testified that their relationship was somehow both loving and toxic. Most of the time they did not live together, but they were in each other’s residences very frequently especially after their daughter was born in 2011. Mr. Canales had lived in Ms. Stronks’ residence for several months in 2016. Their relationship had become very strained in the weeks preceding the offence date and Mr.

Canales had moved to his own residence. - For about two weeks before the offence date, as a result of the breakdown of his relationship with Ms. Stronks, Mr. Canales had no parenting time with their daughter.

- Mr. Canales had begun a new relationship. This upset Ms. Stronks. She plotted with a male friend to make it appear in social media posts that she and the male friend had been in a romantic relationship for some time, including during the time that she and Mr. Canales were together. Her purpose was to cause Mr. Canales to suffer upset similar to that which his actions had caused her. On the offence date, Mr. Canales saw Ms. Stronks’ social media posting and it had the effect she intended. Indeed, it drew a significantly stronger reaction than she intended. - On the same day, Ms.

Stronks changed her cell phone number so Mr. Canales was unable to contact her by telephone. - Mr. Canales attended at Ms. Stronks’ residence. He knocked on the glass patio door. Ms. Stronks and her male friend were in the residence but did not answer the door. Mr. Canales saw his daughter inside the residence but she did not come to him. Mr. Canales knocked on another door but again there was no response. The male friend testified that he and Ms. Stronks knew it was Mr. Canales knocking but did not want to engage with him. Mr. Canales left. - Mr. Canales went to his residence. He was upset. He drank wine.

He and his girlfriend returned to Ms. Stronks’ residence. He again knocked on the door. Again there was no response. He went to the window of the basement bedroom which he knew was Ms. Stronks’ room and in which Ms. Stronks and the child were in bed. He knocked on the window. He broke the window. He reached into the room and pulled down the blinds which blocked his view into the room. - At that point, the offence of which he was convicted was complete. Thereafter, there was an altercation between Mr. Canales and Ms. Stronks’ male friend, who had been in bed in another room. The male friend overpowered Mr.

Canales and ejected him from the house. - Ms. Stronks’ and the male friend told the police that they were in a romantic relationship. Several days later, the male friend advised the police that he had been untruthful in that statement. [ 5 ] Mr. Canales is 45 years old. He has no criminal record. He was born in El Salvador and immigrated to Canada in 1984 at age 11 as a “war refugee”. In his childhood in El Salvador, the violence of the civil war was part of his daily life. Further, his parents’ relationship with each other involved much arguing and verbal abuse though they did not mistreat their children.

He took post-secondary education in arts and designs and earned a degree in that discipline. He has had employment in that area but at present is working full- time as a personal trainer at a private athletics club. He reports that he has no alcohol or drug abuse issues and that he is in good health both physically and mentally. He advised the psychologist who prepared the pre-sentence report that: . . . for several years after moving to Canada, he struggled with intrusive memories of the civil war in El Salvador.

He also noted that he experienced problems sleeping, occasional vivid nightmares, feelings of hypervigilance and threat-sensitivity. Mr.

Canales stated that these difficulties subsided over time and he no longer feels significantly negatively impacted by this exposure to the violence in El Salvador. [ 6 ] The results of the psychological tests performed by the PSR psychologist “were consistent with symptoms of anxiety and depression.” The psychologist reported, “The results of a structured evaluation of his risk of general recidivism and his risk of intimate partner violence found him to be at low risk.” [ 7 ] The Crown submitted that a fit sentence would be three to four months incarceration.

The Defence submitted that a fit disposition would be a suspended sentence with probation. The maximum sentence for forcible entry is two years – CC s. 73(b). [ 8 ] In my view, it is relevant to an assessment of the moral blameworthiness of Mr. Canales’ conduct to note that: - The offence did not involve physical assault or abuse. - Mr. Canales violated the sanctity of Ms. Stronks’ home and her sense of security in her home. I note that Ms. Stronks did not file a Victim Impact Statement. - Mr. Canales and Ms. Stronks had until very recently been in a domestic relationship.

In my view, the statutory aggravating circumstance set out in CC s. 718.2(a)(ii) is not invoked because the offence did not involve physical abuse. It is none-the-less an aggravating circumstance that Mr. Canales violated the security of a person with whom he recently had a romantic relationship and with whom he shared parenting responsibilities for a child. - Ms. Stronks had denied Mr.

Canales access to his five year old daughter for several weeks and had earlier that day made it impossible for him to communicate with her by telephone in relation to their daughter. - The circumstances of the offence include that Ms. Stronks, knowing Mr. Canales personality and the “loving but toxic” nature of their relationship, deliberately took action for the purpose of causing him emotional upset in retaliation for his having caused her emotional upset.

- Regardless of the fact that Ms. Stronks had taken action to cause him emotional upset and had succeeded in doing so, Mr. Canales’ reaction, in that it involved breaking a window and reaching into the room behind the window, was out of all reasonable proportion to the situation to which he was reacting. [ 9 ] I note as well that the last point is one that Mr. Canales himself acknowledged when he addressed the Court at the conclusion of the sentencing submissions. He expressed remorse for his conduct. He stated that he believes it was entirely out of character.

I believe his remorse was sincere and that he fully recognizes that his conduct that night was unacceptable in this society. [ 10 ] In my view, the moral blameworthiness which attaches to Mr. Canales in these circumstances is not such as to require his incarceration. His conduct was juvenile. He was in very significant measure deliberately provoked by Ms. Stronks. I am satisfied that Mr. Canales genuinely regrets his actions and that the risk of further offence is extremely small.

There is no need for further specific deterrence. [ 11 ] Further, in my view, meeting the sentencing goals of general deterrence and denunciation, whether or not they are the primary goals the court should be focussing on in this case (the Crown submitted they are), as well as meeting the other goals of sentencing, does not require that Mr. Canales’ sentence be custodial. I am satisfied that a just and fit disposition in the circumstances is a suspended sentence and a term of probation. [ 12 ] Accordingly, I suspend the passing of sentence and direct that Mr.

Canales be released on the conditions prescribed in the following probation order. Counsel have provided proposed terms of probation which I have largely adopted in the order described below. Terms of Probation Order : 1. The term of the probation order shall be for one year beginning today. 2. The conditions of the probation order shall be that Gonzalo Canales shall: a. Keep the peace and be of good behaviour; b. Appear before the Court when required to do so; c. Advise the Court of any change in name, address or employment; d.

Report to a probation supervisor within two working days and thereafter as directed and in the manner directed by the probation supervisor; e. Reside at a residence approved of in advance by the probation supervisor and not change that address without the prior written approval of the probation supervisor; f. Have no contact direct or indirect with Lanna Stronks except through a third party whom Lanna Stronks has authorized in writing (which writing is to be provided to the probation supervisor) to facilitate access by Mr.

Canales to his daughter whose parenting he shares with Lanna Stronks (name of child to be stated in the formal probation order) or pursuant to a Court Order providing for such access; g. Have no contact direct or indirect with Colton Smith; h. Not attend within a three block radius of the residence of Lanna Stronks (address to be stated in the formal probation order); i. Acquire or maintain full time employment or be registered full time in a program of education; j.

Attend for such assessment, treatment and/or counselling, as may be arranged by Probation and as recommended in the pre- sentence report including: i. Group therapy aimed at helping him develop healthy relationship skills; ii. Individual psychotherapy with a professional experienced in treating post-traumatic stress as a consequence of exposure to extreme violence and war; iii. Possible psychiatric consultation should he find the individual psychotherapy overwhelming; iv. Domestic violence issues. Heard on the 2 nd day of November, 2018. Dated at the City of Edmonton, Alberta this 12 th day of December, 2018.

B.R. Burrows J.C.Q.B.A. Appearances: Orysha Zahaylo for the Crown Geoff Green for the Accused