R. v. Faulkner, 2019 ONCJ 395

CITATION: R. v. Faulkner , 2019 ONCJ 395 DATE: January 31, 2019 Information No. 1211-998-18-3829-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JOSEPH LEO FAULKNER R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE D.A. HARRIS on January 31, 2019 at MILTON, Ontario APPEARANCES : J. Dibski Counsel for the Crown D. Collette Counsel for J. Faulkner THURSDAY, JANUARY 31, 2019 R E A S O N S F O R S E N T E N C E HARRIS J. (Orally): Joseph Leo Faulkner pled guilty to a charge of breaching an order, made pursuant to

Section 161 of the Criminal Code . He also pled guilty to a charge of breach of probation. Crown counsel elected to proceed by indictment with respect to each of these charges. Mr. Faulkner is before me today to be sentenced. Crown counsel suggested that I should impose a sentence of imprisonment for 15 months, less pre-sentence custody. Counsel for Mr. Faulkner argued that the appropriate sentence was one of imprisonment for six months, less credit for pre-sentence custody. I am satisfied that the appropriate sentence would be one of imprisonment for 10 months, less credit for pre-sentence custody.

In reaching that conclusion, I have taken into account the fundamental purpose and principles of sentencing. I am not going to go through them again today. I have been through them many times before, and adopt them in their entirety. I note that the maximum sentence for each offence is imprisonment for four years when the Crown proceeds by indictment.

With respect to

Section 161 , as recently as June 29, 2018, the Ontario Court of Appeal addressed the issue of orders made pursuant to

Section 161 . In the case of R. v. Schulz , [2018] O.J. No. 3526 , I note in particular the comment at paragraph 41, that: [as read] The overarching protective function of

Section 161 of the Criminal Code is to shield children from sexual violence. The Court of Appeal, at that point, is quoting from the Supreme Court of Canada decision in K.R.J. They go on to note earlier comments by the Court of Appeal itself in R. v. Brar from 2016. One of the reasons why I look at the Schulz decision is because it makes it clear that it is important that a court, imposing a

Section 161 order, be aware of its purpose. A court making such an order is to be aware of what should be in the order, and what need not be in the order. The Court of Appeal, like the Supreme Court of Canada in K.R.J. , emphasized that orders should not be overly broad, and that there are limits on what can go into them. I mention all of this because I want to point there's at least, within the last three years, there's been at least two decisions of the Ontario Court of Appeal, and a decision of the Supreme Court of Canada, making it quite clear that one can appeal from a

Section 161 order if it is inappropriate. So, if there is something wrong with the order that was made by Justice Jennis, it could have been addressed on appeal. As I mentioned earlier, there is also an avenue available for modification of the order. I mention the fact that there are these routes, or these methods, for change available to Mr. Faulkner, to make it clear that what is not available for him is to simply decide that the order does not make sense, and does not need to be followed.

Then I look at the comments that are in the pre-sentence report at page five: [as read] With respect to the offence before the court, the offender minimized his actions and justified his reasons for accessing posting on social media. Although he understood the reasons behind the conditions that have been imposed on him, both on the 161 order and the probation order, he did not express remorse regarding his behaviour.

The offender suggested areas about himself needing improvement, being that he needed patience with people, while he stated his strengths were that he was reliable, had a good sense of humour, and was a good problem solver. The mother of his child and his sister both spoke to the pre-sentence reporter and suggested that they questioned Mr. Faulkner's decision- making skills in light of the offences that are before me. They are not the only two people that question his decision-making skills in light of these offences. I am part of that list as well.

I note the further comment on the same page, that: [as read] Since 2012 when the offender was first placed on probation, he has spent almost two and a half years in jail. Now, I mention this because, to me, the timing of these offences is a major factor in the sentence that I am imposing. Mr. Faulkner had already spent time in jail as a result of other offences, including, I believe, the ones that led to the

Section 161 order in the first place. More importantly, to me, on September 6, 2018 he was sentenced by Justice Leach in Hamilton with respect to a sexual assault and some breaches. At that time, he received, as I understand it, basically a time-served sentence, plus probation. That time served was a significant amount of time. The probation that started on that day is the probation that qualifies as the breach before me, occurring two weeks after the order was made.

So, what I am looking at is someone who, despite going jail regularly during the times that he is on probation, does not catch on to the importance of complying with court orders. Then, more specifically, when placed on probation for, amongst other things, breaching court orders, after having served a substantial period of time in jail, two weeks later, there is a breach of a court order.

One of the concepts of sentencing that comes before the court is that, for a first offender, you give the person the benefit of every doubt, and they receive the least intrusive sentence. As they keep repeating the same mistake, the sentence is made more onerous in an attempt to bring home the message, to teach the lesson that the first sentence failed to teach. So, that is what I am looking at in this particular case. It does not help me to look at cases in which it is a first offence.

Similarly, it does not help me to look at cases where the breach of the court order was also going hand-in-hand with the commission of a substantive offence. The one is not as serious as what is in front of me. The other is more serious. In any event, I am satisfied that the appropriate sentence in this case would have been one of ten months, so there will be concurrent sentences as follows. I am noting time served, 99 days pre-sentence custody, credited as 148 days, which is approximately 5 months. And that will be plus 5 months' imprisonment. And on the second count, add the word "concurrent".

There are enough orders in existence here, running for a long enough period of time, that I see no need or benefit to making a further probation order. I am declining to do so. The fine surcharge is gone; we need not deal with that. Were there other counts before the court? MR. DIBSKI: Yes, to be withdrawn, please. THE COURT: They will be endorsed withdrawn at the request of the Crown. MR. COLLETTE: Thank you, Your Honour. Thank you, Your Honour, and thank you to my friend.