R. v. R.P., 2020 NLSC 9

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. R.P. , 2020 NLSC 9 Date : January 22, 2020 Docket : 201704G0253 Her Majesty The Queen v. R.P. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Brian F. Furey Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: November 29, 2019 Date of Oral Judgment: January 15, 2020

Summary: The Offender was convicted of three counts of assault contrary to

section 266 of the Criminal Code . Two of the assaults were against his

ex-wife and the other was against his son. Held: The Offender was sentenced to a conditional sentence of imprisonment of 8 months followed by a Probation Order for a period of 18 months, a DNA Order, and a Firearms Prohibition Order for a period of 10 years. Appearances: Trina D. Simms Appearing on behalf of Her Majesty The Queen Adam G. Baker Appearing on behalf of R.P. Authorities Cited: CASES CONSIDERED: R. v. R.P. , 2019 NLSC 169 ; R. v. McCarthy , 2016 NLCA 49 ; R. v. Proulx , 2000 SCC 5 ; and R. v. R.S.W. , 2015 NLTD(G) 31 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Furey, J. : INTRODUCTION [ 1 ] On September 27, 2019, following a lengthy trial, I convicted R.P. of the following charges under the Criminal Code , R.S.C. 1985, c. C-46 : 1) Count No. 5: A charge of assault on or between October 6 and December 1, 2010 against the complainant, L.B., contrary to

section 266 ; 2) Count No. 7: A charge of assault on or about October 12, 2015 against the complainant, LB., contrary to

section 266 ; and 3) Count No. 18: A charge of assault on or between January 1 and December 31, 2014 against the complainant, M.P., contrary to

section 266 . My Reasons for Judgment are set out in R. v. R.P. , 2019 NLSC 169 filed on October 1, 2019. [ 2 ] The sentencing hearing was held on November 29, 2019. I reserved my decision on sentence until January 15, 2020. the issue [ 3 ] The sole issue for consideration is a fit and proper sentence for R.P. the offender [ 4 ] A Pre-Sentence Report was prepared by a regional probation officer with the Department of Justice and Public Safety in Corner Brook, Newfoundland and Labrador. It was filed with the Court on November 12, 2019. [ 5 ] The Offender was born in 1970 in Corner Brook.

He is the older of two children. He characterized his early personal and family of origin dynamics in positive terms. He was raised in a stable and positive home environment. His father was a truck driver and

his mother did not work outside the home. His parents continue to reside in Corner Brook. They are currently encountering significant health issues. [ 6 ] He finished his high school graduation year minus a few credits for his high school diploma. He worked as a labourer for a year. He then completed the required courses and obtained his high school diploma. He completed vocational training in carpentry and scaffolding. As well, he finished courses as an industrial technician and an electrician. [ 7 ] R.P. has maintained consistent employment throughout his adult life in this province and other areas of Canada.

He has been employed as a full-time electrician with a local company for the past four years. His supervisor described R.P.’s work ethic, performance, and his interactions with others in the work place in very positive and laudable terms. [ 8 ] R.P. has been involved in two long-term significant relationships. The first with S.T. began about 22 years ago. The couple had two children, F.P. who is 18 years old and T.P. who is 16 years old. The couple separated about 14 years ago while they lived in Alberta.

The two children remained with S.T. after that and R.P. had ongoing contact with the children. [ 9 ] R.P. began a relationship with L.B. in October 2005. They have one child, M.P., who is 12 years of age. The parties separated in January 2016. R.P. is subject to an Undertaking initially made on March 24, 2017 and amended on June 27, 2019 that stipulates he is not to contact or communicate, directly or indirectly, in any manner with L.B. except that he may contact L.B. through counsel or by text only to discuss access with their child, M.P. [ 10 ] M.P. lives with his mother.

R.P. has specified access to M.P. through an Order of the Family Division of this Court. [ 11 ] Several years after R.P. and S.T. separated, S.T. experienced some substance abuse issues which affected her ability to care for the two children. R.P. brought the children to Newfoundland and Labrador and eventually was granted full custody of them. F.P. returned to Alberta to live with a maternal aunt over two years ago. R.P. communicates with her by telephone on a regular basis.

T.P. continues to reside with R.P. [ 12 ] The author of the Pre-Sentence Report stated that R.P. had three convictions from March 7, 1995 to May 7, 2003 when he lived in western Canada. Fines, a six-month driving prohibition, and a six-month Conditional Sentence Order were imposed. No details were provided about the nature of the convictions. R.P. was also convicted of an assault against a teenage boy and sentenced on September 1, 2017 to a 30-day Conditional Sentence Order and a 12-month Probation Order.

The author noted that R.P. complied with the Provincial Court’s dispositions. [ 13 ] Crown counsel also introduced a copy of R.P.’s criminal record from the Provincial Court of Newfoundland and Labrador. It showed the conviction for assault from 2017. As well, there were two other convictions on January 4, 1995 – the first for causing a disturbance by being drunk in public and the second for mischief relating to property less than $1,000. [ 14 ] The author of the Pre-Sentence Report noted that R.P. has been supervised in the community on one previous occasion.

That period of supervision concluded successfully on September 29, 2018. The author stated that R.P. understands the process and protocols of community supervision and the legal obligations of those offenders who are subject to Conditional Sentence Orders and Probation Orders. The author assessed R.P. to be a suitable candidate for community supervision. sentencing submissions [ 15 ] Counsel for the Crown and for the Offender had differing views on an appropriate sentence for these offences. Both counsel provided case law in support of their positions, which cases are listed in

Schedule “A” to these Reasons for Judgment. The cases were very helpful. Position of the Crown [ 16 ] Crown counsel sought a custodial term of 3 to 4 months for each offence with the terms to be served consecutively resulting in a total custodial term of 9 to 12 months. The Crown also requested a DNA Order, a Firearms Prohibition Order for 10 years under

section 109, a Probation Order for 2 years with a condition of no contact with L.B., and a condition of contact with M.P. only if and when it is initiated by M.P. [ 17 ] Crown counsel noted that the two assaults involving L.B. were domestic assaults occurring within an intimate relationship and the assault against M.P. was against a young child. [ 18 ] She pointed out the importance of both specific and general deterrence as well as the denunciation of this type of offence. Crown counsel asserted that it is not appropriate to consider a conditional sentence in the community.

She suggested the Court has to take into account the message that is being sent to the community about these convictions if the sentence is served in the community. Position of the Offender [ 19 ] Counsel for the Offender submitted that the Court should strongly consider a conditional sentence for R.P. He proposed that a conditional sentence of 90 to 150 days with specified conditions followed by a period of probation was reasonable. Several conditions of the Probation Order should include no contact with L.B. except for discussions regarding M.P. and counselling for R.P. as required.

He suggested that neither a DNA Order nor a Firearms Prohibition Order was required in the circumstances. [ 20 ] Counsel suggested that some factors the Court should consider regarding the effect of a custodial sentence being imposed on R.P. include: 1) the loss of his employment;

2) the loss of his home; 3) the living arrangement for T.P. if he is unable to live with his father; and 4) the health condition of his parents. [ 21 ] He noted R.P. has been attending counselling since February 2017 with the focus on anger management, supportive counselling, and stress management. The Pre-Sentence Report was very positive. The author of the Report stated R.P. was respectful and cooperative during the process of completing the Report.

R.P.’s main goal in the future is to ameliorate his relationship with all of his children. [ 22 ] Counsel continued that a conditional sentence can be justified in these circumstances. R.P. and L.B. have been separated for a lengthy period. They have limited contact in accordance with court orders. An Order of the Family Division of this Court has allowed R.P. to have contact with his son, M.P. He suggested that R.P. is not a danger to the public. purpose and principles of sentencing [ 23 ] The purpose of sentencing must be considered when determining a fit sentence for R.P.’s offences.

Sections 718 , 718.1 , 718.01 , and 718.2 of the Criminal Code set out the fundamental purpose and principles of sentencing: Purpose 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance 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 and the harm done to victims or to the community that is caused by 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 or to the community. Objectives — offences against children 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,

(ii) 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, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 24 ] The maximum term of imprisonment for a charge under

section 266 is five years. analysis [ 25 ] R.P. was convicted of three assaults: two against L.B., his ex-wife, and one against their son, M.P. [ 26 ] In the assault against L.B. in 2010, the evidence shows that R.P. grabbed L.B. by the hair, he pushed her into the blinds by the window, banged her head, and punched her in the back. R.P. denied that this had happened.

I found L.B.’s evidence to be credible, that the Crown had proven the charge beyond a reasonable doubt, and I found R.P. guilty of the charge. [ 27 ] In the assault against L.B. in 2015, the evidence shows that R.P. grabbed L.B. by the hair, squeezed her face, pinned her against the wall, and eventually let her go. M.P. testified that his parents were screaming at each other and that his father punched his mother. I found M.P.’s evidence to be credible.

I was satisfied that the Crown had proven this charge beyond a reasonable doubt and I found R.P. guilty of the charge. [ 28 ] In the assault against M.P. in 2014, the evidence discloses that M.P. was helping to pack up wood with other members of his family. He took a break and went in the house. R.P. came in after him, pulled down his pants, and smacked his bum. R.P. then pulled M.P. by the ear out into the driveway. I found M.P.’s evidence to be credible, that the Crown had proven this charge beyond a reasonable doubt, and I found R.P. guilty of the charge. [ 29 ] A Victim Impact Statement was presented by L.B.

No Victim Impact Statement was presented by M.P. but L.B. referenced M.P. in her statement. [ 30 ] L.B.’s Statement confirmed the emotional impact which the assaults have had on her. During the violence, she hardly spoke to anyone. She kept her family and friends distant and she kept secrets out of embarrassment. Residing in a house where domestic abuse happened has affected her emotional well-being. She has questioned every decision she ever made as a person or as a mother. L.B. has had to comfort her son after seeing his father.

She is still overwhelmed by feelings of hopelessness and helplessness when she thinks of all that she and M.P. have been through. [ 31 ] L.B. has been attending counselling since the breakdown of her marriage. Her excessive worrying, fear, and anxiety has caused many physical effects, including chronic headaches, nausea, stress, and exhaustion. [ 32 ] She believes that she and M.P. have survived domestic abuse. [ 33 ] The primary considerations when sentencing for this type of offence (assault) are specific and general deterrence and denunciation.

Section 718.01 clearly states that objective when a court imposes a sentence for an offence that involved the abuse of a

person under the age of eighteen years. In addition,

section 718.2 (a)(ii) states that “evidence that the offender, in committing the offence, abused the offender’s intimate partner . . .” . . . “shall be deemed to be aggravating circumstances”.

Section 718.2(1)(ii.1) refers to “evidence that the offender, in committing the offence, abused a person under the age of eighteen years”. [ 34 ] A review of all the cases provided by counsel, including the cases contained within the primary cases, shows a range of sentences for these offences from an absolute discharge to conditional sentences to incarceration for six months. [ 35 ] To determine a fit and appropriate sentence in this matter, the Court must consider the circumstances of the offence, the circumstances of the Offender, the sentence precedents, and the purpose and principles of sentencing. [ 36 ] The introductory words of

section 718.2(

a) provide that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 37 ] The aggravating circumstances in this matter are: 1) a lack of any expression of remorse; 2) a breach of trust; 3) two incidents involving the same victim; and 4) the emotional impact on the victim, L.B. [ 38 ] The mitigating circumstances are: 1) a limited criminal record; 2) the Offender has been on an Undertaking for an extended period (March 24, 2017) without incident; 3) the Offender has participated in counselling with a clinical psychologist since February 2017; 4) the Offender is employed full-time as an electrician; 5) the Offender has sole custody of and responsibility for his teenage son, T.P.; 6) the Offender has specified access with his younger son, M.P., arising from an Order of the Family Division of this Court; 7) the Offender has the obligation to pay child support to L.B. for the support of M.P. in accordance with an Order of the Family Division of this Court; 8) the Offender cooperated with the completion of the Pre-Sentence Report; and 9) the Offender was assessed by the author of the Pre-Sentence Report to be a suitable candidate for community supervision. [ 39 ] There is no doubt that R.P. has been convicted of three serious offences.

As I noted earlier, deterrence and denunciation must be the primary focus of the sentence imposed. That arises because the Court is faced with two assaults occurring in an intimate partner relationship and one assault within a parent-child relationship. [ 40 ] Society’s views have changed over the years with respect to these types of assaults; however, cases involving these matters still come before the courts.

I acknowledge that the message has to be clear to offenders that such conduct will not be tolerated and that there will be consequences. [ 41 ] The bottom line is that one partner cannot assault the other partner nor can a parent assault a child. Having that attitude would make partner relationships and parent-child relationships safer for everyone. People have choices and they should make the right ones. [ 42 ] To reiterate, the Crown is seeking a sentence of 9 to 12 months’ imprisonment, a Probation Order for 2 years, a DNA Order, and a Firearms Prohibition Order for 10 years.

Counsel for R.P. is seeking a conditional sentence of 90 to 150 days with specified conditions and a Probation Order. [ 43 ] I have carefully considered the circumstances of the offences and the Offender, the aggravating and mitigating factors, the sentence precedents from the case law, the principles of sentencing, and the submissions of counsel. I have determined that the appropriate sentence for R.P. for each offence is as follows: 1) Count No. 5: Assault against L.B. contrary to

section 266 of the Criminal Code – 3 months; 2) Count No. 7: Assault against L.B. contrary to

section 266 of the Criminal Code – 3 months; and 3) Count No. 18: Assault against M.P. contrary to

section 266 of the Criminal Code – 2 months. Based on sentencing principles, I am satisfied that the sentences shall run consecutively for a total of eight months’ imprisonment. [ 44 ] Counsel for the Offender has raised the issue of a conditional sentence for R.P. I must now consider whether R.P. should be permitted to serve his sentence in the community. [ 45 ]

Section 742.1 of the Criminal Code deals with a conditional sentence of imprisonment. That

section states in part:

Imposing of conditional sentence 742.1(

a) If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; . . . [ 46 ] In paragraph 10 of R. v. McCarthy , 2016 NLCA 49 , the Court of Appeal summarized the purpose and effect of a conditional sentence citing Lamer, C.J.C. in the Supreme Court of Canada decision in R. v. Proulx , 2000 SCC 5 : 10 In addition to the principles of sentencing discussed in Lacasse , this appeal engages a consideration of the purpose and effect of a conditional sentence imposed under

section 742.1 of the Criminal Code . A helpful

summary is provided by Lamer C.J.C., for the Court, in R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61. The following principles are relevant for this appeal: [127] At this point, a short

summary of what has been said in these reasons might be useful: 1. Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. 2. A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects.

Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest should be the norm, not the exception. ... 7. Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 . This follows from Parliament's clear message to the judiciary to reduce the use of incarceration as a sanction. 8.

A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. ... 10. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration.

Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, the conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served.

... [ 47 ] The nature of conditional sentences was also discussed by Lamer, C.J.C. in paragraphs 21 – 22 of R. v. Proulx : 21 The conditional sentence was specifically enacted as a new sanction designed to achieve both of Parliament's objectives. The conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders. The offenders who meet the criteria of s. 742.1 will serve a sentence under strict surveillance in the community instead of going to prison.

These offenders' liberty will be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Code. In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6.

If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence. 22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.

Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a [page83] punitive sanction capable of achieving the objectives of denunciation and deterrence.

It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn. [ 48 ] If the Offender is to serve his time in the community for these offences, four criteria must be met: 1) the offence is not punishable by a minimum period of imprisonment; 2) the sentence is less than two years; 3) the service of the sentence in the community by the Offender would not endanger the safety of the community; and 4) the conditional sentence is consistent with the fundamental purpose and principles of sentencing. [ 49 ] I note that there is no minimum term of imprisonment for the offence of assault.

The sentence I have set out above in paragraph 43 as being appropriate is less than two years. [ 50 ] Is the Court satisfied that R.P. serving his sentence in the community would not endanger the safety of the community? [ 51 ] In R. v. Proulx , Lamer, C.J.C. indicated how a sentencing court should evaluate the risk an accused may pose to the community if he was permitted to serve a conditional sentence.

Chief Justice Lamer stated the following at paragraph 69: 69 In my opinion, to assess the danger to the community posed by the offender while serving his or her sentence in the community, two factors must be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. If the judge finds that there is a real risk of re-offence, incarceration should be imposed. Of course, there is always some risk that an offender may re-offend.

If the judge thinks this risk is minimal, the gravity of the damage that could follow were the offender [page102] to re-offend should also be taken into consideration.

In certain cases, the minimal risk of re-offending will be offset by the possibility of a great prejudice, thereby precluding a conditional sentence. [ 52 ] I note the following in assessing R.P.’s risk to re-offend and the gravity of the danger in the event of a re-offence: 1) R.P. has a limited criminal record including an assault for which he was convicted in 2017 and sentenced to a conditional sentence for 30 days; 2) R.P. was successfully supervised in the community from September 2017 to September 29, 2018; 3) R.P. has complied with the conditions of his Undertaking since March 24, 2017; 4) R.P. understands the process and protocols of community supervision and the legal obligations of those offenders who are subject to Conditional Sentence Orders and Probation Orders; and 5) R.P. is assessed to be a suitable candidate for community supervision. [ 53 ] Accordingly, I am satisfied that this Offender serving a sentence in the community would not endanger the safety of the community. [ 54 ] The Court must also consider whether the fundamental purpose and principles of sentencing are met by the imposition of a conditional sentence. [ 55 ] In R. v.

R.S.W. , 2015 NLTD(G) 31, Mennie, J. stated the following at paragraphs 34 – 35: 34 The Supreme Court of Canada also addressed this issue in the R. v. Proulx decision. It concluded that a conditional sentence could satisfy the objectives of deterrence and denunciation. With respect to the issue of denunciation, the court stated at paras. 102 and 105: 102 Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more

lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount ofdenunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extendedbeyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. 105 The stigma of a conditional sentence with house arrest should not be underestimated.

Living in the community under strictconditions where fellow residents are well aware of the offender's criminal misconduct can provide ample denunciation in many cases.In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender toserve his or her sentence in the community than in prison. 35 As to the issue of deterrence, the court stated at para. 107: 107 Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence.

Judges should bewary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: seeWismayer (ON CA), [1997] O.J. No. 1380, supra, at p. 36. The empirical evidence suggests that the deterrent effectof incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, supra, at pp. 136-37.

Moreover, a conditionalsentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity ofthese sentences. [56] Having considered all the circumstances in this case, I am satisfied that a conditional sentence is appropriate and is inaccordance with the objectives of sentencing. I would reiterate that a conditional sentence has a punitive as well as a rehabilitative aspect.I note that R. v.

McCarthy is a strong precedent supporting the imposition of a conditional sentence of imprisonment even for seriousoffences. conclusion [57] R.P. is sentenced to a total of eight months’ imprisonment. Pursuant to

section 742.1 of the Criminal Code, he is permitted toserve his sentence in the community. R.P. shall be subject to the following compulsory conditions as set out in

section 742.3(1): 1) Keep the peace and be of good behaviour. 2) Appear before the court when required to do so by the court. 3) Report to a supervisor: a. within two working days after the making of the Conditional Sentence Order; and b. thereafter, when required by the supervisor and in the manner directed by the supervisor. 4) Remain within the Province of Newfoundland and Labrador unless written permission to go outside that jurisdiction is obtained fromthe supervisor. 5) Notify promptly the supervisor in advance of any change of address, and promptly notify the supervisor of any change ofemployment or occupation. [58] R.P. shall also be subject to the following optional conditions: 1) Attend and participate actively in such awareness, education programs, or counseling sessions to which you may be referredby your supervisor. 2) Do not contact or communicate in any manner, whether directly or indirectly, with L.B. except in relation to access to yourson, M.P. and in accordance with any Order from the Family Division of this Court; 3) Abstain from:

a) the consumption of alcohol or other intoxicating substances; or

b) the consumption of drugs except in accordance with a medical prescription. 4) Abstain from owning, possessing, or carrying a weapon.

5) Remain within your residence at all times except for the following permissible absences:

a) To travel to and from and attend at work generally between 8 a.m. and 6 p.m., Monday to Friday, or such other times as required by your employer;

b) Medical appointments, banking, attendance for counselling, and procurement of groceries which should be scheduled for weekdays between 8 a.m. and 6 p.m. but if not offered during those hours then only for the time of attendance plus 30 minutes before and after and on prior notice to your supervisor;

c) Attendance at the gym or a recreational facility three times per week for one and a half hours each time;

d) Access with M.P. in accordance with any Order from the Family Division of this Court;

e) Other reasonably necessary absences as your supervisor may approve both in advance and in writing;

f) Otherwise, only for emergency attendance at a hospital. 6) You shall attend at the door of your residence whenever required to do so by your supervisor, his or her delegate, or a peace officer. 7) You shall be required to permit a peace officer or your supervisor to enter your residence without a warrant to confirm compliance with this Order. 8) You shall not entertain third parties in your home. 9) You shall carry a copy of this Conditional Sentence Order at all times when outside of your residence and produce it on request. [ 59 ] A period of probation for 18 months will follow the conclusion of the conditional sentence.

The Probation Order shall contain the following conditions: 1) Keep the peace and be of good behaviour. 2) Appear before the court when required to do so by the court. 3) Notify the probation officer in advance of any change of name or address, and promptly notify the probation officer of any change of employment or occupation. 4) Remain within the Province of Newfoundland and Labrador unless written permission to go outside that jurisdiction is obtained from the Court or the probation officer. 5) Attend, participate in, and co-operate with any employment, treatment, or counselling program required by the probation officer. 6) Abstain from: a.

The consumption of alcohol or other intoxicating substances; or b. The consumption of drugs except in accordance with a medical prescription. 7) Refrain from any contact or communication, direct or indirect, with L.B. except in relation to access to your son, M.P., and in accordance with any Order from the Family Division of this Court. [ 60 ] Assault is a secondary designated offence under

section 487.04(c)(vii) of the Criminal Code . Thus, I may make an order authorizing the taking of bodily substances from the Offender if satisfied that it is in the best interests of the administration of justice to

do so. Having considered the Offender’s criminal record, the nature of the offences, the circumstances surrounding their commission, and the impact on the Offender’s privacy and security, I am satisfied that it would be in the best interests of the administration of justice to issue a DNA Order pursuant to

section 487.051(3) of the Criminal Code . I hereby grant this Order. [ 61 ] Section 109(1) of the Criminal Code states in part: 109(1) Where a person is convicted, or discharged under

section 730, of . . . (a.1) an indictable offence in the commission of which violence was used, threatened or attempted against (

i) the person’s intimate partner, (ii) a child or parent of the person or of anyone referred to in subparagraph (i), or (iii) any person who resides with the person or with anyone referred to in subparagraph (

i) or (ii), . . . the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period specified in the order as determined in accordance with subsection (2) or (3), as the case may be. [ 62 ] The three offences for which the Offender was convicted come within section 109(1) (a.1).

A Prohibition Order must be issued. Therefore, I impose a Firearms Prohibition Order for a period of 10 years. [ 63 ] The length of a conditional sentence (which is a form of imprisonment) is a clear indication of the seriousness of the matter. The person who is sentenced to a conditional sentence is confined. The person loses a degree of his freedom and loses his right to go freely whenever and wherever he wishes on a particular day. The person is subject to the conditions set out in the Conditional Sentence Order and to the discretion of a supervisor.

That is clearly the situation in this matter. [ 64 ] A Probation Order also restricts a person’s activities. The person is required to follow the conditions of the Probation Order for the length of time it is in effect. [ 65 ] Mr. R.P., I sincerely hope this matter will be your last involvement in the criminal justice system. [ 66 ] I wish to thank counsel for their assistance and professionalism throughout this very difficult matter. _____________________________ Brian F. Furey Justice