R. v. Sowden, 2011 ONCJ 244

COURT FILE No.: 09/6446 DATE: 2011·01·31 Citation: R. v. Sowden , 2011 ONCJ 244 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JACE SOWDEN Before Justice G.F. Hearn Heard on March 10, 2010, May 4, 2010, October 4, 2010 and December 14, 2010 Reasons for Judgment released on January 31, 2011 Mr. Neil Dietrich ........................................................................................................ for the Crown Mr.

Howard Staats ............................................................................... for the accused Jace Sowden Hearn, J.: BACKGROUND : [ 1 ] This matter has had a rather lengthy history before the court since March 2010 leading up to today’s sentencing and I think it is appropriate to summarize that history somewhat. On March 10, 2010 Mr. Sowden entered a plea of guilty to a count of assault causing bodily harm arising out of an incident that had taken place on October 16, 2009. [ 2 ] The facts were read in by the crown on that date and acknowledged to be accurate.

The matter was then adjourned at the request of counsel for the purposes of having prepared a Gladue report and other material to be presented on the sentencing date. [ 3 ] On May 4, 2010 when the matter came before the court for sentencing submissions were made particularly with respect to the circumstances surrounding the event by counsel for Mr. Sowden with which the crown did not agree. Basically, Mr.

Sowden took the position that on the date in question in an ill conceived attempt to assist a colleague who was involved in a fight with one or more individuals he administered one kick to the victim which resulted in the bodily harm alleged. As a result of the crown’s position that Mr. Sowden’s involvement was much more and the circumstances were different than submitted by the defence a date for a Gardiner hearing was scheduled for October 4, 2010. [ 4 ] On October 4, 2010 the hearing proceeded with the crown calling a number of witnesses and the defence also calling evidence including the evidence of Mr.

Sowden. On December 14, 2010 reasons were delivered with respect to that hearing which reasons ultimately were based on an acceptance of the evidence of Mr. Sowden. Submissions then were made as to sentence and the matter was put over to today’s date. CIRCUMSTANCES OF THE OFFENCE : [ 5 ] There is no need to repeat the facts as set out during the course of the ruling on December 14 as the court outlined at that time the evidence in considerable detail. It is important, however, to note that the court found at that time that Mr.

Sowden had, in fact, assaulted the victim by administering one kick to the victim which unfortunately resulted in the bodily harm alleged. The court, however, also found that Mr. Sowden acted as he did in an attempt to stop what he thought was an ongoing assault on his friend and had acted in a manner that was excessive in the circumstances by administering a kick. [ 6 ] The facts found on December 14, 2009 were as follows: 1. Mr. Sowden was part of a group that attended at a residence where a number of people were located including the victim and another individual.

An argument broke out inside the residence which did not involve Mr. Sowden at all and his group was asked to leave.

2. Mr. Sowden and the others were, in fact, leaving the residence when Mr. Sowden appreciated that one of his colleagues was not with him and he returned to the residence to effectively retrieve his friend. He did so and began again to leave the area. 3. As he and his friends were leaving, the two individuals that remained in the residence from another group came out of the residence, acted in an angry manner as a result of some alleged racial slur that had been made by a member of Mr. Sowden’s group (not Mr. Sowden) and as a result two fights initiated. Mr.

Sowden came in to attempt to break up one of those fights and apparently did so and at about the same time in an attempt to break up the other fight, administered a kick. Up to that point he had not been involved in any of the physical assaults nor had he been aggressive, assertive or engaged in any activity whatsoever save and except to break up the conflicts that were ongoing. 4. For reasons noted on December 14, I found that Mr.

Sowden’s actions were certainly ill conceived but they were momentary in nature and the only contact that he had with the victim was when he administered the kick which admittedly was excessive in the circumstances and which was administered solely for the purposes of attempting to break up the fight. I found specifically that he did not take

part in any argument or fight that initiated in the residence, that he was about to leave the area, that he went to retrieve a friend, that the victim and his colleague initiated the aggressive action with members of Mr. Sowden’s group and Mr. Sowden’s only involvement was an attempt to intervene and stop the assaults from continuing. 5. I found that Mr. Sowden acted in the manner that he did solely for the purpose that he indicated during the course of giving his evidence. I also found that the incident had taken place in a very short period of time in a chaotic atmosphere. 6. During the ruling I found Mr.

Sowden to have been candid, forthright and honest in the evidence that he had given. I indicated that Mr. Sowden presented as a witness who was remorseful and acknowledged that he had acted inappropriately by administering the kick in the manner that he did. I also found there to be a total absence of evidence to indicate Mr. Sowden had taken

part in any of the events, save and except for attempting to break them up and administering the blow that he did. VICTIM IMPACT STATEMENT : [ 7 ] There is filed with the court a victim impact statement from Mr. Naveen setting out the impact this particular offence has had on him. The victim indicates that there has been a substantial impact on his physical wellbeing as a result of the offence. He finds that he can no longer play rugby for the college that he was attending because of the injuries sustained and he missed some time from school as a result of his hospitalization.

He also missed further time from school because of the nature of his recovery and was required to drop a number of his classes. [ 8 ] The victim states that prior to this event he was in “top physical form” but because of the injuries sustained and the recovery period he found that he was not physically fit. He states that it has always been his desire to pursue a career as a police officer, but states that he has lost confidence in that ability due to the injuries sustained.

He also lost a course that he was unable to complete at school due to the injury. [ 9 ] With respect to the injury he notes that he required surgery and had a laceration in his abdomen which required 28 staples. He spent a week in the hospital and an extended period of time confined to bed after his release during the course of his recovery for a number of weeks. That period of recovery effectively caused him, as he put it, to “basically lose a year at college”. CIRCUMSTANCES OF THE OFFENDER : [ 10 ] Filed with the court is a Gladue report that has been prepared setting out the circumstances of Mr.

Sowden and his background. Mr. Sowden is a status Indian and is registered with the Six Nations in Brantford and currently resides with his parents in the Fort Erie area. In addition to the Gladue report which sets out a good amount of detail with respect to the circumstances of Mr. Sowden there has been filed a number of letters from various individuals in support of Mr. Sowden. [ 11 ] Mr. Sowden is 21 years of age (19 years of age at the time of the commission of the offence) and has no criminal record. This is his first appearance in a criminal court.

Now living in Fort Erie, he has become involved in the community and events initially through the Fort Erie Friendship Centre. He has aspirations to be a customs officer and has through hard work done well in high school. He has excelled in athletics particularly lacrosse and has played at high levels of competition. [ 12 ] In 2007, he and his father were involved in a severe car accident which had a life altering impact on Mr. Sowden.

He appreciates the quality of life and has set goals for himself which are admirable and achievable. [ 13 ] There have been tragic losses within his family, but the family unit is strong and supportive and without exception have been shocked by Mr.

Sowden’s involvement with the matter before the court. [ 14 ] He has completed a law and security program at Niagara College and is awaiting the outcome of this matter before embarking on a criminal justice program at a State university in New York which will hopefully lead to him achieving his wish to be a customs officer. [ 15 ] As noted, he has excelled in sports, particularly lacrosse, and is attempting to fund his application to New York through a lacrosse scholarship. [ 16 ] He appears to be a fine young adult who has taken

part in events within his own community and generally. He has worked as a camp counsellor and is well thought of by a number of people as evidenced by the various letters before court and the comments contained in the Gladue report. He has no issues with respect to drugs or alcohol and during submissions counsel for Mr.

Sowden, who is an experienced counsel, indicated that he would be proud to call him his son. [17] The various letters filed by defence on behalf of Mr. Sowden speak of his dependability, responsibility and his ability toget along with co-workers and colleagues. They also speak to his excellence in his athletic endeavours and his involvement within thecommunity. They speak of his leadership role within the community and his leadership capabilities.

They speak of the respect that hehas in the community of Fort Erie, within the school he attended and generally. [18] He is described invariably as kind, gentle, caring, quiet and considerate. The letters state without exception that theconduct of Mr. Sowden on this particular occasion was very much out of character for him. [19] The court accepts that and the court also accepts that Mr. Sowden is extremely remorseful. The court also accepts thatthis entire process has been “frightening” for Mr. Sowden and has had substantial impact on him.

As one of the authors of the letters thathave been filed states, “The conduct of Mr. Sowden on this occasion was out of character and represented inconsistent behaviour for thisyoung adult.” POSITION OF THE PARTIES: [20] The crown takes the position that this is a serious assault which has caused bodily harm resulting in substantial impact onthe victim who also has aspirations and those aspirations may have been adversely affected by the conduct of Mr. Sowden. The crownasks for a period of custody in the range of four to six months.

Defence submits given all the circumstances of the offender as well thecircumstances of the offence that the appropriate disposition is a conditional discharge. The defence submits that this would be a fitsentence given all those circumstances and one which would allow Mr. Sowden to pursue his career aspirations. PRINCIPLES TO BE APPLIED: [21] In Regina v. Hamilton, (ON CA), [2004] O.J. No. 3252, a decision of the Ontario Court of Appeal Mr.Justice Doherty noted at paragraph 87 as follows: “Sentencing is a very human process.

Most attempts to describe the proper judicial approach to sentencing are as close to the actualprocess as a paint by numbers landscape is to the real thing. The fixing of a fit sentence is the product of the combined effects of thecircumstances of the specific offence and unique attributes of the specific offender.” [22] Sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. Each case must be conducted as an individual exercise. (See Regina v. Wright, (ON CA), [2006] O.J. No. 4870,para. 16; Regina v.

D.(D.), (2002) (ON CA), 163 C.C.C. (3d) 471, para. 33, both decisions of the Ontario Court ofAppeal). [23] The principles of sentencing set out in the Code are set out in s. 718 to s. 718.2(1).

Section 718 reads as follows: “718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.” [24]

Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender. [25] The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect theseriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must considerboth aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of Mr. Sowden and the sentenceultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences. [26]

Section 718.2 sets out: “718.2 A court that imposes a sentence shall also take into consideration the following principles: ...

(

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders.” [27] Clearly, principles to be considered here as primary factors are the principles of general deterrence and denunciation. Still, the court must recognize that rehabilitation is also a factor to be considered.

In dealing with the issue of denunciation the objectiveof denunciation mandates that a sentence must communicate society’s condemnation of the offender’s conduct. [28] As noted by Chief Justice Lamer in Regina v. M.(C.A.), (1996) (SCC), 105 C.C.C. (3d) 327 at page369: “In short a sentence with a denunciatory element represents a symbolic collective statement that the offender’s conduct should bepunished for encroaching on our Society’s basic code of values as enshrined within our substantive criminal law. As Lord Chief JusticeLaughton stated in Regina v. Sargeant (1974) 60 Cr. App.

R. 74 at page 77: ‘Society through the courts must show its abhorrence of particular types of crimes and the only way in which the courts can show this isby the sentences they pass.’” [29] Further: “The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply avast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear incommitting an enumerated offence. Our criminal law is also a system of values.

A sentence which expresses denunciation is simply themeans by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour,judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadiansas expressed by the Criminal Code.” [30]

Section 718.2(

e) requires the court to pay particular attention to the circumstances of aboriginal offenders in consideringall available sanctions other than imprisonment that are reasonable in the circumstances. In Regina v. Gladue (1999) 113 C.C.C. (3d)385 the Supreme Court at page 465 noted when dealing with the issue of restraint and over- incarceration in Canada stated: “Thus it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence,denunciation and rehabilitation there is widespread consensus that imprisonment has not been successful in achieving some of thesegoals.” [31] Further, when considering s. 718.2(

d) and (

e) both of which incorporate the principle of restraint and require the court notto deprive the offender of liberty if less restrictive sanctions are appropriate, the court noted at page 400: “The broad role of the provision is clear. As a principle, s. 718.2(

e) applies to all offenders and states that imprisonment should be thepenal sanction of last resort. Imprisonment is to be used only where no other sanction or combination of sanctions is appropriate to theoffence and the offender.” [32] In Regina v. Kakekagamick (2006) (ON CA), 211 C.C.C. (3d) 289 the Ontario Court of Appealdiscussed the approach to be taken by the court when sentencing aboriginal offenders. The court set out that s. 718.2(

e) was enacted as aremedial provision in recognition of the fact that aboriginal people are seriously over-represented in Canada’s prison population and inrecognition of the reasons why this over-representation occurs. The Court of Appeal noted that the background considerationsunderlying the unique circumstances of aboriginal offenders which are meant to assist the judge in his or her analysis with respect tosentencing are: 1. the unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before thecourts; and 2. the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his orher particular aboriginal heritage or connection. [33] The court in sentencing then must take into account the circumstances of Mr. Sowden including the nature of the offence,the victim and the community and where the court narrows the sentence to one involving imprisonment, the court is required to considerthe unique systemic or background circumstances which may have played a

part in bringing Mr. Sowden before the court. The courtmust also consider the types of practical procedures and sanctions that would be appropriate in the circumstances for Mr. Sowdenbecause of his particular aboriginal heritage. [34] Still, it is important to keep in mind as noted in Regina v. Wells 1 S.C.R. 207 that s. 718.2(

e) does not require nor is therea general rule that aboriginal offenders must be sentenced in a way that gives the most weight to the principles of restorative justice. Inthe Wells case at page 387 the court stated: “Let me emphasize that s. 718.2(

e) requires a different methodology for assessing a fit sentence for an aboriginal offender; it does notmandate, necessarily, a different result .

Section 718.2(

e) does not alter the fundamental duty of the sentencing judge to impose asentence that is fit for the offence and the offender. Furthermore, in Gladue , as mentioned the Court stressed that the application of s.718.2(

e) does not mean that aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of

restorative justice and less weight to goals such as deterrence, denunciation, and separation. As a result, it will generally be the case, as apractical matter, that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders.” [35] In dealing with Mr. Sowden who is a first offender, I also note the principle of restraint in the context of a first timeyouthful adult offender. In Regina v. Batisse (2009) 2009 ONCA 114 , 93 O.R. (3d) 643, the Court of Appeal in dealing with s.718(2)(

e) noted at paragraphs 32 and 33 as follows: “... it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencingjudge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short aspossible and tailored to the individual circumstances of the accused: see R. v. Priest, (1996), (ON CA), 30 O.R. (3d)538 (C.A.), at p. 545. Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of thesentence.

In lowering a sentence given to a first offender, this court stated in R. v. Blanas, (2006), (ON CA), 207O.A.C. 226, at paragraph 5: ‘General deterrence cannot be the sole consideration. Appropriate consideration must be given to the rehabilitation of the offender.’” [36] Of relevance here as well is s. 730 of the Criminal Code which states as follows: “730.

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for whicha minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2).” [37] Section 730(1) sets out effectively two condition precedents to the court’s jurisdiction when considering the imposition ofa conditional or absolute discharge.

One is that the discharge must be “in the best interests of the accused” and secondly, the court mustconsider whether or not the granting of a discharge would be “contrary to the public interest”. [38] I have reviewed the cases setting out how those principles have been dealt with and in Regina v. Sanchez-Pino (ON CA), [1973] O.J. No. 1903 the Court of Appeal in dealing with the “best interests of the accused” stated as follows: “That deterrence of the offender himself is not a relevant consideration in the circumstances except to the extent required by conditionsin a probation order.

Nor is his rehabilitation through correctional or treatment centres except to the same extent. Normally, he will be aperson of good character, or at least of such character, that the entry of a conviction against him has significant repercussions.” [39] In the same case the Court of Appeal also commented on the phrase “contrary to the public interest” and noted: “One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be mindedto commit a like offence – a standard part of the criteria for sentencing. Obviously the

section is not confined to “simple cases ofpossession of marijuana”. It is not confined to any class of offences except to the extent I have noted. On the other hand it is commonsense that the more serious the offence, the less likely it will appear that an absolute discharge or even a conditional one is not contrary tothe public interest. In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstancespeculiar to the offender in question may lead to an order that would not be made in the case of another offender.” In Regina v.

Fallofield (1973) (BC CA), 13 C.C.C. (2d) 450 the British Columbia Court of Appeal made a number ofobservations with respect to the application of s. 730. Among others the court noted that there is nothing in the language of the sectionthat limits it to a technical or trivial violation.

Further, in the context of the second condition the public interest and the deterrence ofothers the court stated, “While it must be given due weight it does not necessarily in and of its own preclude the judicious use of thedischarge provisions.” [40] Counsel have provided various case law which I have reviewed and I have set out the citations for such cases in theschedule attached to these reasons. The principles set out in the case law indicate that conditional discharges are and can be appropriatein certain circumstances with respect to such a charge as that before the court.

Also the sentences imposed can result in periods ofcustody and on occasion rather substantial periods of custody. Still, and ultimately each case depends on the circumstances of theparticular offence before the court and the circumstances of the particular offender, keeping in mind of course the principles ofsentencing to be applied as set out in the Code and as elaborated upon in the various cases. AGGRAVATING FACTORS: [41] The aggravating factors are as follows: 1. The kick administered by the accused to the victim was of significant force and was administered while the victim was engagedwith others or another.

The victim had no opportunity to defend himself against the blow. 2. As a result, the victim of the kick suffered bodily harm in the form of a perforated bowel which required a surgical procedure andhospitalization. Mr. Sowden and indeed the victim are both fortunate that the injury was not more severe. On the part of Mr. Sowdenthat is a matter of good luck, not good planning. 3. The injury sustained by the victim has had substantial impact on him. His schooling was disrupted as well as his physical fitness

routine and the injury may have compromised his ability to pursue his career of choice. This is rather ironic given the fact that defence counsel argues that a conviction registered against Mr. Sowden in this matter could, in fact, jeopardize Mr. Sowden’s opportunity to pursue his choice of career. MITIGATING CIRCUMSTANCES : [ 42 ] The mitigating circumstances in this case are as follows: 1. Mr. Sowden has pled guilty to the offence before the court and has acknowledged his responsibility. His remorse is indicated not only in his plea to the charge but also his comments made to the court.

I accept that his remorse is genuine and sincere. 2. In the Gladue report he notes that he regrets the pain and suffering he has caused the victim and indicates that it was never his intention to hurt the victim as he was simply trying to “break up the fight”. He also indicated that if he would do anything differently now he would simply have walked away and left the fight to continue. 3. Mr. Sowden is only 21 years of age and at the time of the offence was 20. He is a first time youthful adult offender and has no prior record whatsoever. 4.

Although clearly accepting responsibility for his criminal action, I find that criminal action was very much out of character for Mr. Sowden and took place over an extremely short period of time. I also consider the context within which the kick was administered and the fact I have accepted that Mr. Sowden was trying to break up the fight rather than prolong it. I have found that he had absolutely nothing to do with any of the events leading up to the initial fight between the victim and his friend and others nor did he take

part in the event at all save and except for trying to break up the two fights involving members of his group one of which involved the victim. I find that his conduct was a momentary lapse in what otherwise for a young adult has been a history of making good judgments. Without exception the individuals interviewed for the purpose of the Gladue report and the authors of the various letters submitted, confirmed that Mr. Sowden is not an aggressive individual and his action on this occasion has come to a shock to those close to him. 5.

The report before the court is extremely positive as are the letters that have been filed. Mr. Sowden has the support of family and accepts that his poor choice of action on the day in question could have very substantial effects for him in the future. He appears to be a fine young adult who has been actively involved within his own community and in the community at large. He has excelled academically and athletically and is intent on pursuing his post-secondary education. 6. Mr. Sowden has aspirations to be a customs officer and study in the United States.

The letters filed speak to his good character, the effort that he has put into his schooling and his dedication to his family. He has been noted to be a young adult with “great integrity” and with every likelihood that he will be successful in his endeavours. SENTENCE TO BE IMPOSED : [ 43 ] This is an extremely difficult sentencing as acknowledged by both counsel. There are a number of aggravating features with respect to the charge before court including, but not limited to, the extent of the injury sustained by the victim.

Still, as I have noted, there are as well a number of mitigating circumstances to consider. [ 44 ] The facts surrounding the event are as I have found them. This was a very quick incident. It took place over some unknown brief period of time and Mr. Sowden’s involvement effectively has only been found to be at the end of the incident when the kick was administered during the course of him attempting to break up not only a fight between the victim and one or more of his friends, but also after he had just taken steps to break up another fight involving two other individuals.

His actions were not motivated by anger or any inappropriate conduct on his part. He had attempted to leave the residence, returned to get his friend and the fight ensued between the others. There is no evidence to support any finding that he was actively involved in the assault or any activities prior to the administering of the kick other than the attempt to break up the fights. [ 45 ] Mr. Sowden has a very solid future and clearly a discharge is in his best interests. The question really becomes whether or not it is contrary to the interests of the public.

I note the test is that it must not be contrary to the interests of the public and not that it simply be in the best interests of the public. In looking at that issue I find that it would not ultimately be contrary to the public interest to consider a discharge here in view of the antecedents of the accused, the circumstances of the offence, the fact that this is a very quick incident that took place and represented a momentary lapse of judgment on the part of Mr. Sowden. Further, there is absolutely no evidence of any gratuitous application of force over and above the kick. Mr.

Sowden certainly used excessive force by administering the kick, but his intentions were to break up the fight and I accept not to cause the harm that he did nor was the kick administered simply for the sake of “getting his licks in”. [ 46 ] Sometimes individuals, particularly young adults, who have no prior involvement with the court or the criminal justice system appear in court as a result of group activity and getting “caught up in the moment”. I do not find that to be the case here. Mr.

Sowden appears to have tried to handle this entire event reasonably for the most part and the only exception is that he ultimately became involved in attempting to break up the fight, getting to the point where he administered a kick which he himself has acknowledged was not appropriate, was excessive and as a result forms criminal conduct. [ 47 ] Still, when I look at all of the circumstances the court finds it would be unfortunate if this young adult had a conviction registered which effectively may preclude him from taking

part in his chosen career path. From the material before the court and the submissions made by counsel it is pretty clear that Mr. Sowden has done pretty much everything that one would expect from a young adult to try to be a contributing member to the community in which he lives and in his case his own native community as well. The court suspects that Mr.

Sowden’s past conduct is a good indicator that he will be an attribute to the community if allowed to pursue his career choice without the impediment of a criminal conviction. [ 48 ] I find that the granting of a discharge ultimately is not only not contrary to the interests of the public, it is very much in the interests of the public. To have Mr. Sowden’s future perhaps compromised as a result of a momentary lapse of good judgment in the

circumstances that I have found would be disproportionate to the gravity of the offence and degree of responsibility of Mr. Sowden. [ 49 ] As a result, although I have made a finding of guilt, I decline to register a conviction and I grant a conditional discharge to Mr. Sowden. He will be placed on probation for 12 months on the following terms:

a) Keep the peace and be of good behaviour.

b) Appear before the court when required to do so.

c) Notify the probation officer or the court in advance of any change of name or address, telephone number or employment or occupation.

d) Report to a probation officer within two days of today’s date and today if possible and thereafter be under the supervision of the probation officer and report at such times and places as the probation officer requires.

e) Abstain absolutely from the purchase, possession or consumption of any drugs, except in accordance with a medical prescription.

f) Abstain from owning , possessing or carrying weapon, including any offensive weapon, ammunition, explosive substance or a weapon as defined in the Criminal Code .

g) Attend school and provide particulars of his progress and participation at school to his probation officer as required and if he is not attending school to make reasonable efforts to find and maintain suitable employment.

h) No association, contact or communication either directly or indirectly with the victim in this matter who will be specifically named or anyone else specifically named by the probation officer, except with the written permission of the probation officer.

i) Perform 60 hours of community service work at a time and rate to be agreed upon with his supervisor or probation officer and will complete that term of community service work within the first 9 months of the probation order. [ 50 ] The offence before the court is a primary designated offence and there will be a DNA order and as well a mandatory s. 109 order under (2)(

a) for 10 years and under 2(

b) for life. [ 51 ] The victim fine surcharge will be waived on the charge before the court. [ 52 ] The sentence to be imposed then is a conditional discharge and probation for a one year period. Mr. Sowden I should tell you that if you fail to comply with the terms of this probation order, you could be back before the court facing additional criminal charges and you could also jeopardize the discharge that I have granted. If you comply with the probation order which I fully expect will be the case, a conviction will not be registered. Released: January 31, 2011 Signed: “Justice G.F. Hearn”

SCHEDULE OF CASE LAW R. v. B.M. [2005] O.J. No. 5777 Regina v. Bartlett [2008] O.J. No. 193 Regina v. Batisse (2009) 2009 ONCA 114 , 93 O.R. (3d) 643 R. v. Blanas, (2006), 207 O.A.C. Regina v. D.(D.), (2002) (ON CA), 163 C.C.C. (3d) 471 R. v. Delmastro [2007] O.J. No. 5357 Regina v. Fallofield (1973) (BC CA), 13 C.C.C. (2d) 450 Regina v. Gladue (1999) 113 C.C.C. (3d) 385 Regina v. Hamilton, (ON CA), [2004] O.J. No. 3252 R. v. Jacko and Manitowabi 2010 ONCA 452 R. v. Jimenez [1999] O.J. No. 184774 Regina v. Kakekagamick (2006) (ON CA), 211 C.C.C. (3d) 289 Regina v. M.(C.A.), (1996) (SCC), 105 C.C.C. (3d) 327 R. v. Mangat [2004] O.J. No. 5970

R. v. Marttila [2009] No. 3614 R. v. Murphy [2007] O.J. No. 327 R. v. Priest, (1996), (ON CA), 30 O.R. (3d) 538 (C.A.) R. v. Ray [2008] O.J. 4185 Regina v. Sanchez-Pino (ON CA), [1973] O.J. No. 1903 Regina v. Sargeant (1974) 60 Cr. App. R. 74 R. v. Sweeney [2001] O.J. No. 1899 Regina v. Wells 1 S.C.R. 207 Regina v. Wood (ON CA), [1975] O.J. No. 290 Regina v. Wright, (ON CA), [2006] O.J. No. 4870