2022 NBPC 7, 2022 NBPC 7

CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT Sentencing Hearing Date: December 15 th , 2022 Decision Date: December 16 th , 2022 Docket No.: 159066, 159625 Neutral Citation: 2022NBPC07 HIS MAJESTY, THE KING - and - CHADWICK JOSEPH HARRIS Decision of the Honourable Judge Scott A. Brittain Provincial Court of New Brunswick Note: Non-substantive editorial/grammatical changes were made to this decision following it being delivered orally on December 16 th , 2022.

APPEARANCES: Jean-Guy Savoie, on behalf of His Majesty, The King Maude Malson and Julie Mallet, on behalf of the Accused DELIVERED ORALLY INTRODUCTION 1 . This is the sentencing decision of this Court for Chadwick Joseph Harris (“Mr. Harris”) respecting 11 counts spanning two Informations. 2 . By decision dated May 11 th , 2022, Mr. Harris was found guilty after a trial held on May 9 th , 2022, of the following six counts under the Criminal Code Canada , each with an event date of “on or about December 18 th , 2021”.

All references to legislative provisions in this decision are references to the Criminal Code of Canada (the “ Criminal Code ”). These six counts were set out in an Information sworn to on December 22 nd , 2021: a. Indictable assault against his former intimate partner, Charis Tozer (“Ms. Tozer”), contrary to

Section 266(a), which carries a maximum sentence of five years; b. Indictable theft of a motor vehicle belonging to Ms. Tozer, contrary to

Section 333.1(1)(a), which carries a maximum sentence of 10 years; c.

Summary mischief involving the same motor vehicle belonging to Ms. Tozer, contrary to Section 430(1)(c); d. Two breaches of a Probation Order made by Judge Gunn on October 26 th , 2021, contrary to 733.1(1)(a): (1) to keep the peace and

be of good behaviour toward Ms. Tozer, and (2) to refrain from attending at Ms. Tozer’s place of residence. e. One breach of a Probation Order made by Judge Gunn on November 19 th , 2020 - to keep the peace and be of good behaviour. 3 . On September 16 th , 2022, Mr. Harris pleaded guilty to counts 2, 3, 5, 6 and 7, as set out in an Information sworn to on June 16 th , 2022. Counts 1 and 4 were withdrawn at the sentencing hearing on motion of the Crown.

Counts 2, 3, 5 and 6 each have event dates of “between December 25 th , 2021 and January 14 th , 2022”, whereas count 7 has an event date of December 21 st , 2021. These counts are as follows: a. Indictable harassment toward Ms. Tozer, causing her to reasonably fear for her personal safety, contrary to Section 264(2)(b), which carries a maximum sentence of 10 years; b. Indictable threats of violence with intent to provoke a state of fear in a justice system participant, being Ms. Tozer, in order to impede her from performing her duties, contrary to

Section 423.1(1)(b), which carries a maximum penalty of 14 years; c. Indictable breach of an Order made under subsection 515(12), 516(2) or 522(2.1) without lawful excuse, being to refrain from having any communication with Ms. Tozer, contrary to Section 145(5)(b); d. Indictable threats against Ms. Tozer to dissuade her from giving evidence in a judicial proceeding, contrary to Section 139(2)(a), which carries a maximum penalty of 10 years; e.

Indictable intention to obstruct, pervert or defeat the course of justice by lying about having tested positive for COVID-19 to obtain an adjournment of a trial continuation, contrary to Section 139(2)(a), which carries a maximum penalty of 10 years. 4 . There is agreement between counsel that Mr. Harris is entitled to a “remand credit” of 161 days, being 107 days of straight time subject to the 1.5 multiplier. Mr. Harris has been remanded on these charges for a considerable period of time; however, during part of this period of remand he has been expunging a sentence on other matters.

Accordingly, he is entitled to no remand credit for that period. The Court accepts that Mr. Harris’ remand credit is 161 days, as submitted by counsel. 5 . On the first Information, Ms. Tozer declined the invitation to provide a Victim Impact Statement. Regarding the second Information, Victim Impact Statements were said by Victim Services to have been sought prematurely from Ms. Tozer and Mr. Colin Hubbard (“Mr. Hubbard”). Accordingly, they were not obtained. Prior to the commencement of the sentencing hearing, the Court addressed this issue with counsel.

The Victim Services Coordinator, Emily Lordon, was present at the sentencing hearing and confirmed on the record that neither Ms. Tozer nor Mr. Hubbard wished to provide Victim Impact Statements to the Court respecting the events detailed in the second Information. Having heard this submission and, further, having canvassed with counsel whether there were any impediments or objections to proceeding given these circumstances, all counsel agreed that we were in a position to proceed based on the representations of Ms. Lordon and the sentencing hearing proceeded accordingly. 6 .

It should also be noted that when counsel for Mr. Harris was canvassed about ordering a Pre-Sentence Report, the Court was advised that a recently prepared Pre-Sentence Report, dated February 12 th , 2021, could be used for that purpose rather than necessitating the creation of a new or updated one. This earlier position was re-confirmed with counsel for Mr. Harris at the outset of the sentencing hearing. THE FACTS 7 . It is not the intention of the Court to revisit the facts with any degree of granularity.

The Court relies and incorporates by reference into this decision the reasons for decision of this Court of May 11 th , 2022 respecting the first Information and the full recitation of the facts, as presented by the Crown and accepted by Mr. Harris on September 18 th , 2022, as it pertains to the second Information, for the purposes of this decision. 8 . That being said, a high-level overview of the facts is in order to provide context for the reasoning of this Court in imposing what it concludes to be a fit and appropriate sentence in the circumstances of Mr.

Harris, having regard to the facts and the law and also taking into consideration the submissions of counsel at the sentencing hearing. The First Information 9 . Mr. Harris and Ms. Tozer were in a relationship for 25 years. Together, they have an 11-year-old daughter named Dani. They separated in or about 2018. Mr. Harris was released from prison on December 16 th , 2021 and plans were made by Mr. Harris with Ms. Tozer through Mr. Harris’ mother for him to see their daughter for an overnight visit on December 17 th , 2021 at the residence of Mr. Harris’ mother. 10 .

At approximately noon hour on December 18 th , 2021, Mr. Harris showed up unannounced at Ms. Tozer’s residence in a taxicab as she was leaving to assist a friend who had sustained a leg injury. This followed on the heels of Ms. Tozer having received a barrage of text messages from Mr. Harris that were filled with filthy language and invective. Mr. Harris’ sustained litany of text messages commenced early on the afternoon of December 17 th , 2021, and intensified over that evening and into the following day. In these text messages, Mr. Harris called Ms.

Tozer a “dirty tramp”, an “ignorant cunt” and a “disgusting whore” among other things. He became increasingly agitated when Ms. Tozer declined engaging him and wanted to know why she had blocked him from messaging her via certain social media platforms. This ongoing initiative on the part of Mr. Harris was clearly about intimidation and control. 11 . At the time of his release on December 16 th , 2021, Mr. Harris was subject to a Probation Order which required him to keep the peace and be of good behaviour toward Ms.

Tozer and to refrain from visiting her residence and a second Probation Order which obligated him to keep the peace and be of good behaviour more generally. Ms. Tozer told Mr. Harris to leave when he turned up at her residence. He

explained to her that he either wanted to wait for her inside her residence until she got back from helping her friend or wanted to accompany her while she went to assist her friend. Instead of leaving when asked, Mr. Harris instead jumped into Ms. Tozer’s vehicle and proceeded to ask her several questions about her activities of the night before and, more particularly, whom she had kept company with. Ms. Tozer explained to Mr. Harris that such details were “none of his business”. Mr. Harris had a can of pop with him when he arrived in the taxicab and proceeded to empty its contents over the dash of Ms.

Tozer’s vehicle while he was seated in the passenger seat. 12 . Sensing the altercation would escalate further beyond an already tense situation, Ms. Tozer exited her vehicle while it remained running and started putting some distance between herself and Mr. Harris, first by walking briskly and then by running while Mr. Harris was in pursuit of her. Ms. Tozer told Mr. Harris she was going to call the police and he grabbed at her arm several times, making contact at least once. After assaulting Ms. Tozer, Mr.

Harris returned to her vehicle, which was still running in her driveway, and took off in it with the wheels squealing. Suffice it to say, Ms. Tozer did not consent to the physical contact made by Mr. Harris nor did she give him permission to take her vehicle. Ms. Tozer went to a neighbour’s residence and asked if she could remain with them until the police arrived, fearing Mr. Harris would return to her residence if she went there to await the arrival of the police. When the police arrived, Constable Eric Pomerleau of the Miramichi Police Force found a “very shaken and upset” Ms. Tozer. 13 . Mr.

Harris testified at trial that the can of pop “accidentally fell over” when he placed it on the dash of Ms. Tozer’s vehicle while he was inside it, that he had only made physical contact with Ms. Tozer to save her from the path of an oncoming vehicle and that he had driven away in her vehicle only because he and Ms. Tozer had earlier mutually arranged for him to pick it up so he could detail it as “an early Christmas gift” from him to her. In every respect in which Mr. Harris’ version of events parted company with the testimony of Ms. Tozer at trial, this Court found it to lack any credibility.

As was stated in the May 11 th , 2022 decision on these charges, to accept Mr. Harris’ version of events “would require mental gymnastics worthy of Olympic level competition”. The Second Information 14 . The timing of the events underlying the second Information exists in close proximity to that of the first. Mr. Harris made a series of calls to Ms. Tozer between December 25 th , 2021 and January 14 th , 2022, contrary to the terms of a non-communication order. Mr. Harris was calling each time on the pretense of talking to their daughter, Dani, only to ask Dani if he could speak to Ms. Tozer on each occasion.

A total of 25 telephone calls were made by Mr. Harris to Ms. Tozer during this time period and Ms. Tozer recorded several of them. The tenor of these calls was consistent: nasty, aggressive, threatening and intimidating. 15 . Mr. Harris implored Ms. Tozer to decline to testify against him or, alternatively, to “change her story”. Mr. Harris explained to Ms. Tozer that he had money and offered same to her as an inducement for her to “change her story”. He directed her to “go tell the police it was all a misunderstanding and get me the fuck out of here”.

He advised her that “if you send me away, it will not be good”, adding during another call that he would “cut your fuckin…” if Ms. Tozer testified against him and that “the next 40 years will be Hell” for her. 16 . During yet another call, he further terrorized Ms. Tozer by stating “you don’t have a clue what I am capable of”. Mr. Harris’ threats also extended to Ms. Tozer’s boyfriend, Mr. Hubbard, when he explained to Ms. Tozer that “I will enjoy kicking his face in when he is down”. Taken together, these calls were disturbing to the extreme with the clear and ineluctable objective of intimidating Ms.

Tozer for the purpose of dissuading her from testifying against him or, alternatively, to convince her to lie under oath if she ultimately did testify. As was earlier noted, Mr. Harris also lied to the Court about having COVID-19 in order to secure the adjournment of a trial continuation. THE ISSUE 17 . The single issue this Court must decide is what is a fit and appropriate sentence for Mr. Harris. THE SUBMISSIONS OF THE PARTIES Position of the Crown 18 .

It is the overall position of the Crown that this Court should impose a total global sentence of 42 months on the charges before this Court, running consecutive to any other sentence, less the “remand credit” of 161 days. 19 . The Crown submits that this recommendation takes into consideration the “totality principle”, as canvassed by the Court of Appeal of New Brunswick in R. v. Peterson , 2017 NBCA 29 , Brown v. R. , 2022 NBCA 33 and, most recently, Corcoran v. R. , 2022 NBCA 54 . I will return to the “totality principle” in due course. 20 .

Respecting the charges set out in the first Information, the Crown is of the view that a 24-month consecutive sentence ought to be imposed on the indictable assault charge under

Section 266(

a) with a 24-month concurrent sentence being imposed on the indictable vehicle theft charge under

Section 333.1(1)(a). As for the

summary mischief charge under Section 430(1)(c), the Crown submits that a 30-day concurrent sentence is in order. As for the three breaches of Probation Orders, the Crown takes the position that a 90-day concurrent sentence should be imposed for each offence. 21 . Turning to the second Information, the Crown submits that an 18-month consecutive sentence ought to be imposed on the indictable charge of threatening violence with intent to provoke a state of fear in a justice system participant, contrary to

Section 423.1(1)(b), with each of the indictable charges under Section 139(2)(

a) attracting an 18-month concurrent sentence. As for the charge of indictable harassment under Section 264(2)(b), the Crown recommends a 12-month concurrent sentence. On the indictable charge of failing to comply with a non-communication order, contrary to Section 145(5)(b), the Crown submits that a 90-day concurrent sentence is warranted. 22 . Additionally, the Crown seeks a discretionary firearms prohibition order under

Section 110 for a duration of five years as well as a non-communication order as it pertains to both Ms. Tozer and Mr. Hubbard pursuant to

Section 743.21 for the duration of the custodial sentence to be imposed by this Court on Mr. Harris. No discretionary DNA order is sought by the Crown in view of the fact that one is

already in place. 23 . The Crown’s submissions are anchored substantially in the fact that the charges currently before this Court all engage intimate partner violence - something that both the Court of Appeal of New Brunswick and the Supreme Court of Canada have been unequivocal in condemning for obvious reasons and in the strongest of terms. Pointing to Mr. Harris’ Prior Defendant History Report, which was marked on consent as Exhibit C-1 at the sentencing hearing, it is clear that Mr.

Harris’ criminality has exploded since 2018, beginning at an age - 44 years old - when individuals are not usually embarking on such a trajectory for the first time. 24 . In particular, the Crown highlighted two recent indictable assault convictions on Mr. Harris’ record, both of which were perpetrated against Ms. Tozer, as well as an even more recent conviction for indictable assault causing bodily harm against a different intimate partner.

The two indictable assault convictions each resulted in a Suspended Sentence accompanied by a 24-month Probation Order, breaches of which, incidentally, are before this Court in the context of this sentencing hearing. The assault causing bodily harm conviction resulted in, effectively, a 14-month consecutive sentence (eight months consecutive after a “remand credit” of 181 days was applied). Also, on Mr. Harris’ Prior Defendant History Report there are past indictable convictions under

Section 264, as well as past convictions for breaches of Probation Orders and a non-communication order. The Crown submits that past sentences on these charges are instructive to the Court and must necessarily inform sentencing. The Court agrees. 25 . The Crown submits that the recent decision of the Court of Appeal of New Brunswick in Corcoran v. R. , 2022 NBCA 54 is instructive to this Court as it pertains to the charges set out in the second Information.

At paragraph 27 of that decision, Justice LeBlanc observed as follows: [27] To protect the court’s process, obstruction of justice convictions will warrant severe sanctions wherein denunciation and deterrence will be paramount considerations. While Trecartin and Miller are distinguishable, they nonetheless reflect the serious nature this Court ascribes to convictions for obstruction of justice, especially in the context of intimate partner violence.

They are not “starting points” but are illustrative that where violence or threats of violence are deployed in the commission of the offence, the penalty will significantly increase. 26 . Ultimately, the Court of Appeal of New Brunswick in Corcoran v. R. upheld the 18-month consecutive sentence imposed by the trial judge for the offence of obstructing justice, contrary to Section 139(2)(a), which was imposed atop a then-recent 48-month consecutive sentence for other charges involving the offender’s former intimate partner.

Though the Court of Appeal of New Brunswick acknowledged that the trial judge erred in failing to consider the “totality principle” when arriving at her decision to impose the 18- month consecutive sentence for obstructing justice, the sentence was upheld as being on the “higher end of the range” because it was not “unduly long”, “disproportionate” or “crushing” (see paragraph 17). The Crown submitted that the Prior Defendant History Report of the offender in Corcoran v. R. was more involved than that of Mr. Harris but also pointed out that the maximum sentence for an offence under

Section 423.1(1)(

b) substantially exceeds that which applies to an offence under Section 139(2)(a): 14 years versus 10 years. Position of the Defence 27 . Prior to outlining their sentencing recommendations, counsel for Mr. Harris emphasized key details regarding his background that are outlined in the Pre-Sentence Report, which the Court has carefully reviewed. Mr. Harris is 48 years-old and navigated the first 44 years of his life without any Criminal Code convictions. To the contrary, he was a productive and contributing member of society.

He graduated from high school in 1992 and, at age 35, returned to school and ultimately obtained his “Red Seal” designation as a pipefitter. Mr. Harris was consistently employed until his problems with the law began in or about 2018. He grew up in a largely stable and supportive home, reporting that he now has a somewhat strained relationship with his parents owing to his criminality but that his only sibling, a sister named Serena who has attended every appearance in these proceedings, is a steadfast source of support. 28 .

There was some fighting between his parents growing up and his father had an alcohol problem, but none of this manifested itself in abuse within the home that was directed at Mr. Harris. Mr. Harris does report, however, that he was the victim of sexual abuse at the hands of a babysitter. Mr. Harris, as was noted earlier, was in a long-term relationship with Ms. Tozer, spanning 25 years from the time they began dating as teenagers until the time they separated in or about 2018. As already mentioned, they have an 11-year-old daughter together named Dani. 29 . Mr.

Harris reports enjoying good physical health but he suffers from depression. He began experimenting with marijuana at age 15, which escalated to daily consumption. He also became addicted to opioids after an ATV accident several years ago, which “turned into a 15-year struggle” to use his words. Since July of 2020, Mr. Harris has been participating in the suboxone program to address his opioid addiction. 30 . Mr.

Harris’ counsel readily acknowledges that his criminality has advanced to a point where a federal sentence is in order on the charges before this Court, recommending a consecutive global sentence of 30 months and suggesting that the first Information ought to result in an 18-month consecutive sentence while the second Information should attract a 12-month consecutive sentence. There is acknowledgement of the intimate partner violence components of this matter as an aggravating factor under

Section 718.2(a)(ii), though there is disagreement from counsel for Mr. Harris with the Crown’s recommendation that we ought to advance to a 24-month consecutive sentence on the indictable assault charge given that it was not a particularly violent assault (grabbing Ms. Tozer’s arm). It was also pointed out that the 14-month consecutive sentence that Mr. Harris received in 2020 was for indictable assault causing bodily harm against another intimate partner, which carries a longer maximum sentence than indictable assault and is regarded as a more serious charge.

In stating this, the Court does not diminish the seriousness of the indictable assault charge currently before it nor does it diminish or otherwise separate it from its aggravating context, being intimate partner violence. APPLICABLE LAW 31 . The Supreme Court of Canada has recognized that the fitness of a sentence imposed can establish or diminish the credibility of the criminal justice system in the eyes of the public. 32 . The task is governed by the provisions of the Criminal Code but it involves the exercise of a broad discretion by the courts in

balancing all the relevant factors in order to meet the objectives being pursued in sentencing. The purpose and principles of sentence, as set out in the Criminal Code , allow for “sentence individualization" and guide the sentence this Court must impose. 33 .

Section 718 describes the fundamental purpose of sentencing. It reads: 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. 34 .

Section 718 provides further that the imposition of a just sentence requires sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender. 35 . Before considering the circumstances of the offence and the offender, I will briefly address the objectives and principles of sentencing and highlight those that are predominant in this case. 36 . The objectives described in

section 718 may have predominance in a set of circumstances dictated by the offence, the offender or both. This Court is required to attribute to the objectives of denunciation and deterrence their proper predominant influence in the crafting of a just sentence. 37 . Deterrence is subdivided into specific and general elements. Specific deterrence is designed to convince the offender before the Court not to re-offend. The circumstances of the offender and the prospects for rehabilitation must be considered.

A court must look at the individual, his record and attitude, his motivation and his reformation and rehabilitation. 38 . General deterrence is aimed at persuading others who may be inclined to commit the same offence from so doing. If this is the aim, the sentencing court must consider the gravity of the offence, the incidence of the crime in the community, the harm caused by it either to the individual or to the community and the public attitude toward it. 39 . The separation of an offender from society is sometimes necessary. The application of the objective must be read in concert with

section 718.2(e), which essentially requires that imprisonment be the sentence of last resort. There are circumstances of both offender and offence, however, that require Mr. Harris to be imprisoned. 40 . The maintenance of a just, peaceful and safe society, as is mandated by

section 718, can often best be achieved by the rehabilitation of offenders. As the Supreme Court of Canada has held, “Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world” ( see R. v. Lacasse , 2015 SCC 64 at para. 4 ). 41 . The Criminal Code also holds that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is a codification of the proportionality principle and is found at

section 718.1. 42 . Other principles are important in crafting an appropriate sentence here. First,

section 718.2(

b) states that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." This is a codification of the parity principle. 43 .

Section 718.2(

a) indicates that a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender."

Section 718.2 also dictates that: (

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

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

f) 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. 44 . In canvassing the submissions of the Crown earlier in this decision, this Court already touched on the “totality principle”, which strongly militates against the imposition of “unduly long”, “disproportionate” or “crushing” consecutive sentences, as is codified in

Section 718.2(d). In effect, the “totality principle” safeguards against a “pile on”, which can present in a wide variety of circumstances including those where the offender faces multiple charges committed in rapid succession and/or the offender is serving a consecutive sentence already. The applicable principles and corresponding approach to totality were recently re-emphasized by the Court of Appeal of New Brunswick in Brown v. R . , where Justice French noted as follows at paragraph 23: [23] A framework for the principled application of the totality principle was addressed by this Court in R. v.

Peterson , 2017 NBCA 29 , [2017] N.B.J. No. 152 (QL) , per Quigg J.A., which adopted the guidelines set out in R. v. Hutchings , 2012 NLCA 2 , [2012] N.J. No.

12 (QL) , per Green C.J.N.L., as he then was. These guidelines ( Hutchings , at para. 84 ) may be summarized as follows: 1. identify a sentence for each offence, applying proper sentencing principles; 2. consider whether any of the individual sentences should be made consecutive or concurrent, on the ground that they constitute a single criminal adventure; 3. if this results in two or more sentences being served consecutively, take one “last look” at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender, having regard to the following factors:

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved;

b) the number and gravity of the offences involved;

c) the offender’s criminal record;

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing, and

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility; 4. if the combined sentence is not unduly long or harsh and is proportionate to the gravity of the offences and the offender’s degree of responsibility, the sentence must stand; 5. where the combined sentence is unduly long or harsh, determine the extent to which the combined sentence should be reduced to achieve a proper totality by, first, attempting to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been; and 6. in imposing individual sentences adjusted for totality, the judge should be careful to identify:

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality;

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are to be made concurrent or to be otherwise reduced. 45 . These are the principles that inform the sentencing of Mr. Harris by this Court. ANALYSIS 46 . I begin my analysis by noting the most obvious and transparent components of this case. All of the charges against Mr. Harris have a consistent theme: they are directed toward his former intimate partner, Ms. Tozer. All of the charges before this Court are serious and none of them can be isolated from the context that Mr.

Harris has a long and extensive record of assaulting and terrorizing Ms. Tozer. Indeed, most roads lead to Ms. Tozer when Mr. Harris’ Prior Defendant History Report is examined. 47 . This figures prominently in the sentencing decision of this Court because it is both serious and a doubly aggravating factor and because Mr. Harris seems to have learned absolutely nothing from his past recent convictions for several similar offences directed at Ms. Tozer and another intimate partner. In other words, a strong message of specific deterrence needs to be sent to Mr. Harris.

Moreover, a similarly stern message needs to be sent to the broader community that this sort of sustained, relentless, serious and devastating campaign of violence, threats of violence, intimidation and control against a former intimate partner is condemned in the strongest of terms. It is also not lost on this Court that Mr. Harris seems to have zero contrition for his past actions. Indeed, when invited to offer remarks to the Court at the conclusion of yesterday’s sentencing hearing, Mr. Harris chose to focus almost exclusively on chastising the Crown. 48 . Moreover, Mr.

Harris’ assault, mischief and vehicle theft offences, all directed at Ms. Tozer, occurred within 48 hours of his release from prison after serving a lengthy sentence for assault causing bodily harm against another intimate partner while he was bound by not one, but two, Probation Orders governing his general behaviour in the community as well as his specific conduct toward Ms. Tozer. 49 . The Court agrees with counsel for Mr.

Harris that a jump from a 14-month consecutive sentence for indictable assault causing bodily harm against another intimate partner to a 24-month consecutive sentence in this case for an indictable assault of less gravity against Ms. Tozer is aggressive, even in the circumstances of his past two indictable assault convictions involving Ms. Tozer, each of which resulted in a Suspended Sentence and a 24-month Probation Order.

A jump is indeed warranted in keeping with established sentencing principles and given the overall multiple aggravating circumstances but, in the opinion of this Court, not a jump of the magnitude recommended by the Crown. 50 . Turning to the second Information, the charges detailed therein are very disturbing to this Court. As was recently noted by Justice LeBlanc in Corcoran v. R. , obstruction of justice charges warrant stern treatment in any context but especially so in the intimate partner context.

Attempts to pervert or defeat the course of justice through acts of intimidation, violence, threats of violence, inducements, etc. are serious to the extreme. Our criminal justice system cannot be expected to function properly if the sort of sustained initiative deployed by Mr. Harris against Ms. Tozer goes without serious consequences. His threats toward Ms. Tozer were varied, repeated, escalating in nature and relentless, occurring over several weeks and amounting to 25 calls. More serious still, Mr. Harris did all of this in the face of a

non-communication order of this Court using the pretense of wanting to communicate with his daughter, Dani, as the conduit to get to Ms. Tozer. His efforts to pervert the course of justice extended beyond Ms. Tozer when he lied to this Court about having COVID-19 to secure an adjournment of a trial continuation. 51 . Initiatives of the nature described in the intimate partner context are bound up in an even more deeply-seated foundation of intimidation, fear, manipulation and control. Mr. Harris clearly invoked the full panoply of these tactics in service of his determined effort to have Ms.

Tozer either decline to testify against him or “change her story” to use his words. Though Ms. Tozer decided not to provide a Victim Impact Statement, her profound fatigue and the obvious toll Mr. Harris’ sustained criminality has had on her was nothing short of palpable when she testified at trial on May 9 th , 2022, and understandably so. There is only so much that a person can bear and the collective burden that Mr. Harris has foisted upon Ms. Tozer has no doubt placed an unimaginable weight on her shoulders.

The integrity of our criminal justice system is seriously undermined if an accused can pervert the course of justice through the sort of actions that Mr. Harris engaged in here. The fact that Ms. Tozer testified in the face of all of Mr. Harris’ tactics and ultimately brought his threats of violence and acts of intimidation to the attention of the police speaks volumes of her resolve. All of this being said, the Court acknowledges that Mr. Harris did enter guilty pleas on the second Information at an early stage and such guilty pleas function as a mitigating factor in the context of this sentencing. 52 .

In considering the recommendation of the Crown as it pertains to the charges in the second Information, the Court finds that it is appropriate and is of the opinion that what is proposed by counsel for Mr. Harris would, if imposed, fall short of sending the necessary message of deterrence to him and to the broader community. 53 .

I should note that in fashioning the sentence that this Court imposes in this case, the direction of the Court of Appeal of New Brunswick on the “totality principle” has been considered and followed, with this Court having taken a second look at the globality of the sentence through the lens of this important framework to guard against imposing a “crushing” sentence on Mr. Harris. I should also note that I have considered the sentencing ranges applicable to each offence, including the applicable maximum sentences. Suffice it to say that if Mr.

Harris was being sentenced on each of these charges on a standalone basis and, without taking into account the “totality principle”, he would be facing a much longer global consecutive sentence. CONCLUSION 54 . In conclusion, the global consecutive sentence imposed by this Court on you, Mr. Harris is 36 months , less your “remand credit” of 161 days. I will break the sentence of this Court down further by reference to each of the 11 charges against you: a. This Court imposes an 18-month consecutive sentence for the indictable assault against Ms. Tozer, contrary to

Section 266(a), with your “remand credit” of 161 days being applied to this sentence. I sentence you to 12-months concurrent time on the indictable vehicle theft charge under

Section 333.1(1)(

a) and to 30 days concurrent time on the

summary mischief charge under Section 430(1)(c). Each of the three breach of probation offences in the first Information, contrary to

Section 733.1(1)(a), results in the imposition of a 90-day concurrent sentence. b. Turning to the second Information, this Court imposes an 18-month consecutive sentence on the indictable charge under

Section 423.1(1)(

b) and an 18-month concurrent sentence on each of the two indictable charges under Section 139(2)(a). On the indictable charge under Section 264(2)(b), this Court imposes a 12-month concurrent sentence. Finally, on the indictable breach charge under Section 145(5)(b), this Court imposes a 90-day concurrent sentence. c. This Court also exercises its discretion to impose a five-year weapons prohibition on Mr. Harris under

Section 110 and, pursuant to

Section 743.21, this Court orders Mr. Harris to have no communication, either directly or indirectly, with Ms. Tozer or Mr. Hubbard for the duration of his custodial sentence. d. In view of the fact that Mr. Harris has been incarcerated/remanded for a considerable period of time and, before that, had been unemployed, all applicable Victim Fine Surcharges are waived. 55 . That concludes the decision of this Court on sentencing subject to any questions from counsel. The Court wishes you well, Mr. Harris. Brittain, PCJ