R. v. Peterson, 2012 NBCA 67

COURT OF APPEAL OF NEW BRUNSWICK 88-11-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - BRADLEY NICHOLAS PETERSON RESPONDENT BRADLEY NICHOLAS PETERSON INTIMÉ R. v. Peterson, 2012 NBCA 67 R. c.

Peterson, 2012 NBCA 67 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Provincial Court: May 19, 2011 Appel d’une décision de la Cour provinciale : Le 19 mai 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: March 20, 2012 Appel entendu : Le 20 mars 2012 Judgment rendered: July 26, 2012 Jugement rendu : Le 26 juillet 2012 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : L’honorable juge Green

Concurred in by: The Honourable Justice Bell Souscrit aux motifs : L’honorable juge Bell Dissenting in part: The Honourable Justice Richard Counsel at hearing: For the appellant: Michael A. Hall For the respondent: Ben Reentovich Motifs dissidents en

partie : L’honorable juge Richard Avocats à l’audience : Pour l’appelante : Michael A. Hall Pour l’intimé : Ben Reentovich THE COURT Leave to appeal sentence is granted, and the appeal is allowed. The decision of the sentencing judge to grant a conditional discharge is set aside, and a sentence of incarceration for a period of three months is imposed. A stay of execution of the sentence is ordered. Richard J.A., dissenting in part, would have varied the sentence to one of incarceration for 6 months. LA COUR L’autorisation d’interjeter appel de la peine est accordée et l’appel est accueilli.

La décision du juge qui a déterminé la peine d’accorder l’absolution sous conditions est annulée et une peine carcérale de trois mois est infligée, avec sursis d’emprisonnement. Le juge Richard, dissident en partie, aurait modifié la peine et infligé un emprisonnement de six mois. The following are the reasons delivered by RICHARD J.A. (dissenting in part) [ 1 ] I have had the benefit of reading my colleague’s reasons for judgment, and I am in full agreement that the appeal should be allowed and the decision of the sentencing judge set aside. I only

part company with those reasons when it comes to imposing a fit sentence for the crime committed. I would have varied the sentence to one of incarceration for 6 months, which is at the top end of the range the prosecution was seeking. _____________________________ J.C. MARC RICHARD, J.A.

The judgment of the Court was delivered by GREEN J.A. I. Introduction [1] The respondent, Mr. Peterson, was charged with sexual assault, contrary to section 271(1) (

a) of the Criminal Code . Mr. Peterson elected to be tried by a Provincial Court judge and pled not guilty. He subsequently changed his plea to guilty. Following the sentencing hearing, Mr. Peterson received a conditional discharge. The Crown now seeks leave to appeal that sentence. II. Background [ 2 ] Mr. Peterson and the victim were co-workers at a fast food restaurant. At all material times, Mr. Peterson was 22 years of age. The victim initially informed Mr. Peterson that she was 18 years of age. In fact, she was only 14, and later admitted to Mr.

Peterson that she was not 18. [ 3 ] Two incidents took place which gave rise to the charge of sexual assault. The first occurred on January 12, 2010, while Mr. Peterson and the victim were at work. A supervisor asked Mr. Peterson to explain to the victim how to clean the washroom. The incident took place inside the washroom, and involved the victim performing oral sex on Mr. Peterson. At this time, Mr. Peterson was of the belief the victim was 18. [ 4 ] Approximately two weeks before the second incident, Mr.

Peterson found out that the victim was younger than he first believed. [ 5 ] The second incident took place at the home of the victim. She contacted the accused, and told him “she had a gift for him”. The gift referred to was a shirt she had purchased. While Mr. Peterson was in her home, the two “engaged in a sexual act and there was penile penetration of her vagina for a brief period which [Mr. Peterson] himself broke off” (transcript at p. 38, lines 16-21). [ 6 ] Mr.

Peterson subsequently related what had transpired between he and the victim to a third party, who then informed another individual, and this information was eventually brought to the attention of the police by the latter individual. [ 7 ] The transcript of the sentencing hearing contains the following statement by the Crown, describing Mr. Peterson’s conversation with the police: [THE CROWN]: Mr.

Peterson also advised the Officer that he thought [the victim] was 15 years old at the time, and that he had found that – this out approximately two weeks before the sex [act] took place. [transcript at p.15, lines 5-8] [ 8 ] When Mr. Peterson addressed the court at the sentencing hearing, he stated as follows: MR. PETERSON: […] I thought she was 18; she told me she was 18 the whole first of the time, and then she said she was a little bit

younger, right, so okay, almost 16, right. Probably 16. So then I was like, you know what; we can’t do this no more. We can’t do anything, right. [transcript at p. 32, lines 16-21] [ 9 ] He went on to say: I never knew she was under the age. She said she was a lower age. Not 18. After she lied to me. […] [transcript at p. 33, lines 18-20] III. Issues [ 10 ] The appellant frames the issues as follows: (

a) The sentencing judge erred in principle by failing to properly apply the principles of sentencing. In particular, the sentencing judge erred by: (

i) considering the complaint’s consent as a mitigating factor; (ii) failing to give effect to the objectives of denunciation and general deterrence; and (iii) overemphasizing the consequences to the Respondent of a criminal conviction. (

b) The sentencing judge erred by imposing a sentence that was clearly unreasonable. IV. Law and Analysis A. Standard of Review [ 11 ] The appellant recognizes the challenge of a Crown appeal on sentence, and acknowledges considerable deference is owed to the sentencing judge. In R. v.

Steeves , 2010 NBCA 57 , 360 N.B.R. (2d) 88 , Chief Justice Drapeau provided a thorough analysis of the law as it pertains to the standard of review in sentence appeals: I begin by focusing, once again, on the standard of appellate review in sentencing matters and reiterating the elements of that standard that point to deference for the outcome in first instance.

I do so principally for the following reasons: (1) to reemphasize that corrective action on appeal in such matters is, as a practical matter, quite rare, a state of affairs that flows naturally from the very limited opening for principled appellate intervention; and (2) to provide guidance in relation to the nature of the complaints that might open the door to

such intervention. The jurisdiction of appellate courts on sentence reviews is delineated in s. 687(1) of the Criminal Code, which states: 687.

(1) Where an appeal istaken against sentence, thecourt of appeal shall, unlessthe sentence is one fixed bylaw, consider the fitness ofthe sentence appealedagainst, and may on suchevidence, if any, as it thinksfit to require or to receive, (

a) vary the sentence withinthe limits prescribed by lawfor the offence of which theaccused was convicted; or (

b) dismiss the appeal. 687.

(1) S’il est interjetéappel d’une sentence, la courd’appel considère, à moinsque la sentence n’en soit uneque détermine la loi, lajustesse de la sentence dontappel est interjeté et peut,d’après la preuve, le caséchéant, qu’elle croit utiled’exiger ou de recevoir :

a) soit modifier la sentencedans les limites prescrites parla loi pour l’infraction dontl’accusé a été déclarécoupable;

b) soit rejeter l’appel. Thus, Parliament’s instruction to appellate courts is, at least from a textual standpoint, relatively straightforward: it is thefitness of the impugned sentence that stands to be considered. Numerous pronouncements emanating from the Supreme Court of Canadamake plain that the concept of “fitness” is not limited to an assessment of quantum. Indeed, courts of appeal may be required to consider whether the sentence imposed is lawful.

The most obviousillustration of unfitness as a matter of law involves the sentencing judge’s failure to comply with prescribed minimum or maximumpunishments (see R. v. Wust, [2000] 1 S.C.R. 455, [2000] S.C.J. No. 19 (QL), 2000 SCC 18; R. v. Fice, [2005] 1 S.C.R. 742, [2005]S.C.J. No. 30 (QL), 2005 SCC 32; and R. v. LeBlanc (D.) (2005), 279 N.B.R. (2d) 121, [2005] N.B.J. No. 21 (QL), 2005 NBCA 6). Forother examples of sentence appeals that turned on points of law, see R. v. Middleton, [2009] 1 S.C.R. 674, [2009] S.C.J. No. 21 (QL),2009 SCC 21, R. v. Sinclair (1972), (ON CA), 6 C.C.C. (2d) 523, [1972] O.J.

No. 345 (QL) (C.A.), R. v. Robillard,(1985), (QC CA), 22 C.C.C. (3d) 505, [1985] J.Q. No. 353 (QL) (C.A.), R. v. Amaralik (1984), (NWT CA), 16 C.C.C.(3d) 22, [1984] N.W.T.J. No. 42 (QL) (C.A.) and R. v. Drost (1996), (NB CA), 172 N.B.R.(2d) 67 (C.A.), [1996] N.B.J. No. 23 (QL). Of course, no deference is owed to the sentencing court’s quantum selection when it ischallenged on a point of law. Appellate courts may also be called upon to determine whether the contested sentence reflects a proper application of theprinciples of sentencing. Most of those principles are now codified in

Part XXIII of the Criminal Code. It is axiomatic that, while greatdeference is owed to the sentencing judge’s weighting of the relevant factors, correctness is the standard by which his or herunderstanding of the governing principles is reviewed on appeal. Finally, courts of appeal may engage in a consideration of the quantum itself. Here, once again, great deference is owed tothe sentencing judge’s judgment-call.

The sentence under consideration will be at risk of variation if, and only if, it is a substantial andmarked departure from the sentence customarily imposed for similarly situated offenders committing similar crimes. In sum, a court of appeal is not at liberty to substitute its view of fitness for that of the sentencing judge unless thesentence imposed is the product of either an error of law or an error in principle, or unless it is clearly unreasonable (see R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52 (QL), at paras. 46-48; R. v. Solowan, [2008] 3 S.C.R. 309, [2008]S.C.J.

No. 55 (QL), 2008 SCC 62, at para. 16; R. v. L.M., [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31 (QL), 2008 SCC 31, at paras. 14-15;and R. v. C.A.C. (2009), 349 N.R.B. (2d) 265, [2009] N.B.J. No. 342 (QL), 2009 NBCA 68 (Bell, J.A. for the Court, at para. 4)). If thesentence at issue is the result of reversible error, the court of appeal bears the burden of prescribing the punishment that it considers fit inthe circumstances. In R. v. R.K.J. (1998), (NB CA), 207 N.B.R. (2d) 24 (C.A.), [1998] N.B.J. No. 483 (QL), the Court framed the

applicable standard of review in this way: It is the undoubted duty of this Court to review the fitness of any sentence imposed. That it must do so bearing in mind the privilegedposition occupied by the trial judge is settled law. All agree that the sentencing process is hardly an exact science. It is a subjectiveprocess which features a large measure of discretion. The intrinsically discretionary nature of the sentence decision explains, at least inpart, the Supreme Court's insistence on a deferential approach to all sentence reviews. See R. v. Shropshire (M.T.), (SCC), [1995] 4 S.C.R. 227 […], R. v.

M.(C.A.), (SCC), [1996] 1 S.C.R. 500 […], and R. v. MacDonnell, (SCC), [1997] 1 S.C.R. 305. […] Nevertheless, deference has its limits, and this Court is duty bound to vary a sentence in appropriate circumstances. Indeed, if thesentencing court commits an error of law or an error in principle, or if the sentence imposed is clearly unreasonable, there is no longerroom for deference and this Court is required to impose the sentence which it considers fit. See R. v. F.S.A. (1996), (NB CA), 182 N.B.R. (2d) 20 (C.A.) […], and R. v.

Melanson (E.R.) (1998), (NB CA), 199 N.B.R. (2d) 338 (C.A.).[…] In this context, an error in law most commonly occurs as a result of a misapprehension of the evidence or a misapplication of judicialprecedents. As for an error in principle, it typically involves one or more of the following: the application of wrong sentencing principles,a failure to consider relevant factors or the taking into account of irrelevant considerations.

As well, there will be cases where the failureto give proper weight to each relevant circumstance will amount to an error in principle. (Our court will necessarily be slow to find anerror of this nature for, if it was otherwise, professions of deference would soon ring hollow.) Finally, a sentence will be clearlyunreasonable where it is either inordinately long or inordinately short. It will reach this level only if it is a substantial and markeddeparture from the sentence customarily imposed for similarly situated offenders committing similar crimes. A few years later, in R. v.

LeBlanc (G.A.) (2003), 264 N.B.R. (2d) 341, [2003] N.B.J. No. 398 (QL), 2003 NBCA 75, the Courtendeavoured to provide guidance to litigants and counsel, and to structure its own approach to sentence appeals by articulating thefollowing analytical framework: […] intervention on appeal against sentence is inappropriate unless at least one of the following questions is answered affirmatively: (1)Is the sentence the result of an error of law?

(2) Did the sentencing judge err in principle in the exercise of his or her discretion?

(3) Isthe sentence clearly unreasonable having regard to the fundamental purpose and objectives of sentencing (s. 718), as well as theprinciples enunciated in sections 718.1 and 718.2 of the Criminal Code? […] [paras. 19-27] [12] In

summary, the Crown can only succeed in the present case if it establishes at least one of thefollowing: 1. The sentence was the result of an error of law; 2. The sentencing judge erred in principle in the exercise of his discretion, or; 3. The sentence was clearly unreasonable. B. The Sentence Requested [13] At the sentencing hearing, the Crown requested four to six months incarceration. Counsel forMr. Peterson requested either a community based sentence or, if incarceration was ordered, a sentence of three months or less to beserved intermittently.

The explanation provided for the intermittent sentence was to allow Mr. Peterson to continue working. The Crownwas opposed to an intermittent sentence, and also argued, rightly, that a community based (that is to say conditional) sentence was not apermissible option for this offence. The Crown repeated its belief that the appropriate range was four to six months.

C. The Sentence Imposed [14] The sentencing judge reviewed the principles of sentencing as found in s. 718 of the Code. Hecorrectly referred to s. 718.01, which is directly applicable to the facts of this case: 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 primaryconsideration to the objectives of denunciation and deterrence of such conduct. [15] That said, the sentencing judge did not quote the applicable

section as written. What he saidwas: When a Court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it should be a primaryconsideration to the objectives of denunciation and deterrence of such conduct. [transcript at p. 40, lines 8-12] [16] To my mind, the distinction between the two is significant. The Code states the court shall giveprimary consideration to denunciation and deterrence. The sentencing judge used the word should, and given the sentence he went on toimpose, I am of the opinion he did not follow the dictates of Parliament.

On that basis, I find reversible error, and would set aside thesentence. [17] The sentencing judge dealt with specific deterrence, that is, imposing a sentence which woulddeter Mr. Peterson from committing this same offence again, succinctly but not unreasonably. He was convinced Mr. Peterson acceptedhis mistake, had learned from it, was not a danger to reoffend, and did not require any further deterrence.

The problem lies not withspecific deterrence, but with general deterrence and denunciation. [18] After outlining the mitigating factors present in the case, which I explore later in these reasons,the sentencing judge transitioned to a discussion of s. 730(1) of the Code, which provides for conditional and absolute discharges. Hethen went on to analyze whether a conditional discharge should be imposed by following the approach taken in R. v. Fallofield, (BC CA), [1973] B.C.J. No. 559 (C.A.) (QL).

The sentencing judge first considered if a conditional discharge would be inthe best interests of the accused, and concluded that it was. He next considered whether such a sentence would be in the public interest,and reached the same conclusion: […] Considering all the factors and also considering the manner in which I craft the conditional discharge, I believe it is in the publicinterest that the accused receive a conditional discharge. [transcript at pp. 45-46, lines 21-25] [19] I note the sentencing judge provided no rationale whatsoever for having reached thisconclusion.

He simply stated imposing a conditional discharge on Mr. Peterson was “in the public interest”. I disagree. Given the factsof this case, a conditional discharge was not a reasonable or fit sentence. There is little in the way of denunciation and general deterrenceto be found in such a sentence. That said, I do not foreclose the possibility that such a disposition is available in cases of sexual assaultinvolving a victim who is under 16 years of age, but I will state categorically that such instances will be rare, and entirely fact specific.

Iwill not engage in the exercise of crafting one or more hypothetical scenarios when a conditional discharge may be a reasonable and fitsentence; I merely acknowledge it is within the realm of possibility, and more importantly, its use in offences of this type has not been

prohibited by Parliament. [ 20 ] In the end, the sentencing judge granted a conditional discharge and placed Mr. Peterson on supervised probation for a period of six months. [ 21 ] I will add one final comment on the imposition of a conditional discharge in this case: in terms of severity, it falls well below what even defence counsel proposed. The sentencing judge recognized he was doing so: […] I fully realize in granting a conditional discharge I am going outside the parameters presented to me by the [defence counsel] and the crown.

However, I feel it is appropriate in the circumstances and incumbent upon any sentencing judge to look beyond what the respected positions of the parties are, particularly in the case of a youthful offender. [transcript at 46, lines 1-8] [ 22 ] With respect, if a sentencing judge is considering imposing a sentence significantly more lenient than what has been proposed, it is appropriate to provide counsel with an opportunity to make submissions on point. In this instance, counsel should have been afforded an opportunity to speak to the appropriateness of a conditional discharge. D.

A Crime at Law [ 23 ] I must address what I consider to be a clear error on the part of the sentencing judge in his references to Mr. Peterson being guilty of a crime in law, but not in fact. For example, the transcript discloses that on sentencing, the judge said, “With all due respect this was a crime at law but possibly not in fact due to the fact it was consensual sex on the part of both parties as I have previously commented”. To my mind, there is no such legal construction. It is the law, when applied to the facts of a given case, which determines guilt. One cannot be guilty in law, but not guilty in fact.

The use of such terminology only serves to confuse the general public, and suggests that perhaps certain acts are not really worthy of guilt, but are rendered so by the application of an overly rigid or unreasonable law. If one is guilty in law, one is by definition guilty in fact. As well, such phraseology may serve to undermine the seriousness of the offence. E. Consent & Consensual [ 24 ] This leads me to another equally troubling aspect of the decision: the use of the terms “consent” and “consensual” to describe the actions of the victim in this case.

A person under the age of 16 cannot consent to a sexual act. She or he may be a willing participant in the sexual activity. She or he may not have been forced to take part. Whatever the scenario, the law is clear that consent cannot be given. The quote in the preceding paragraph is one example of the sentencing judge mischaracterizing the actions of the victim.

Earlier in the transcript, these words were employed by the sentencing judge: “I stress that both incidents were consensual in fact… However, the consent may have been in fact, but was not at law…It was a consensual sexual event” (transcript at p. 39, lines 1-10). He later goes on to state: “The Crown acknowledges that it was consensual sex in fact” (transcript at p. 41, lines 15- 16). I take issue with all such characterizations. There was no consent, and the acts were not consensual. I need elaborate no further on these points. F.

Mitigating Factors [ 25 ] The sentencing judge considered six mitigating factors in arriving at what he felt was a fit sentence: 1. Mr. Peterson pled guilty prior to trial and as a result spared the victim of the necessity of testifying in court;

2. Mr. Peterson was a youthful offender at 22 years of age; 3. Mr. Peterson came before the court as a first-time offender with no prior criminal record whatsoever; 4. there was a “reasonably favorable” pre-sentence report; 5. Mr. Peterson showed genuine remorse for his actions; and 6. Mr. Peterson was gainfully employed with child support obligations he intended to fulfill. [ 26 ] I take no issue with the mitigating factors as outlined by the sentencing judge, and agree that these points were in Mr. Peterson’s favour and it was appropriate for the judge to consider them.

It was obvious that the sentencing judge also placed considerable weight on the fact that the sexual acts were not forced upon the victim, and that she was a willing participant. The sentencing judge did not include this point in the list of mitigating factors, and rightly so. The fact that the acts were not violent or forced upon the victim can only be viewed in one context, which is that violence/force was not present as an aggravating factor. Although not enumerated as a mitigating factor, it is clear the sentencing judge considered Mr. Peterson’s stated desire to pursue a career in law enforcement.

I would attach little, if any weight to this point, especially given that there was no information before the court to suggest Mr. Peterson was actively pursuing such a goal. G. The Order Pursuant to the Sex Offender Information Registration Act [ 27 ] Near the conclusion of the sentencing hearing, and after the sentencing judge had imposed the conditional discharge, a discussion took place between the judge and counsel with respect to the Sex Offender Information Registration Act , S.C. 2004, c. 10 and whether or not an order should issue pursuant to that statute.

It was agreed that the offence in this matter is a primary designated offence. The discussion then shifted to whether or not a conditional discharge was in fact a “sentence” which would attract a sex offender registry order. [ 28 ] Crown counsel suggested an absolute discharge would not allow for such an order, but a conditional discharge would, arguing “a conditional discharge…with a period of probation…is a sentence because if he doesn’t comply with the terms of probation, he can come back before the court” (transcript at p. 51, lines 14-20). Defence counsel agreed, and the judge made the order.

Although not raised as an issue on appeal, and rendered moot given my ultimate determination of the appeal, I feel it important to comment. [ 29 ] The Ontario Court of Appeal, per Blair J.A., considered this issue in R. v. Dyck , 2008 ONCA 309 , [2008] O.J. No. 1567 (QL) : Moreover, there is at least some minimal screening built into the operation of Christopher’s Law [the sex offender registry]. The registration requirements do not apply (with two exceptions) to young persons within the meaning of the Young Offenders Act , R.S.C. 1985, c. Y-1 [repealed] or the Youth Criminal Justice Act, S.C. 2002, c. 1.

Further, they apply only to persons “convicted” of a designated sex offence. Accordingly, they do not catch those who receive absolute or conditional discharges . Discharges are available for a number of the designated offences, including sexual assault, sexual exploitation, and sexual interference.

Although such a disposition may be unusual where there has been a finding of guilt for a sexual offence – simply because of the seriousness of the crime and the implications of a finding of guilt – it is likely to be imposed in exactly the kind of situations where an exemption from registration might otherwise be thought to be appropriate. Indeed, in at least one case a conditional discharge was granted expressly for the purpose of avoiding the application of Christopher’s Law : see R. v.

Troutlake (2002), 56 W.C.B. (2d) 100 (Ont.C.J.) . [para. 135] [Emphasis added.] [ 30 ] If a sentencing judge cannot issue an order pursuant to the Sex Offender Information Registration Act in a case such as this where a conditional discharge has been granted, it serves to further erode what little denunciation and general deterrence there may otherwise have been.

H. Imposing a Fit Sentence [ 31 ] Having determined the sentence imposed did not respect the principles of sentencing by failing to give adequate weight to denunciation and general deterrence, and as a result was neither reasonable nor fit, it is my opinion the conditional discharge must be set aside. I must therefore impose a sentence which I believe to be fit. Given the facts of this case, and considering the spectrum of sexual assault scenarios, this case is far less serious than many. There was no violence, Mr.

Peterson broke off the more serious of the two sexual encounters almost immediately after it began, he believed prior to the first encounter that the victim was 18 because she had told him as much, he entered a guilty plea and spared the victim the ordeal of testifying at a trial, he has shown remorse, he had no criminal record of any kind, he was a youthful offender, and he was at the time of his sentencing hearing gainfully employed and facing child support obligations (although these were not being enforced at the time).

On the other side of the scale, the victim was 14 years of age, and this alone is tremendously significant. Mr. Peterson, by his own admission, knew prior to the second encounter (which involved sexual intercourse, albeit only briefly), the victim was not 18, and may have been 15 years old. It must be made abundantly clear that actions such as Mr. Peterson’s are not acceptable, are criminal in nature, and will attract serious consequences. I would impose a sentence of incarceration of three months. V. Disposition [ 32 ] I would grant leave to appeal the sentence, and allow the appeal.

I would set aside the decision of the sentencing judge to grant a conditional discharge, and impose a sentence of incarceration for a period of three months. The ancillary orders with respect to the provision of a sample of bodily substances, pursuant to

section 487.05 of the Code , and a prohibition from the possession of firearms and other weapons, pursuant to section 109(2) of the Code stand. In addition, pursuant to

section 490.012 of the Code , Mr. Peterson is ordered to comply with the provisions of the Sex Offender Information Registration Act for a period of 20 years. [ 33 ] Almost one year has passed since Mr. Peterson received his conditional discharge. He was placed on supervised probation for a period of six months, which has long since elapsed. He was ordered to pay $1,000 to the Provincial Court “for the purposes of a charitable donation for the benefit of any charity chosen by [Mr. Peterson] whose primary purpose is to benefit children or young persons” (transcript at p. 47, lines 11-14).

This he did by making a contribution to the regional children’s hospital, the IWK. I make no comment on the practice of issuing such orders. There has been no suggestion Mr. Peterson failed to meet any of the conditions imposed by the sentencing judge. [ 34 ] Given the above, I see no benefit to be had by requiring Mr. Peterson to be incarcerated. The objectives of general deterrence and denunciation are sufficiently met by the imposition of the three-month sentence, which I deem to be appropriate given the very specific facts of this case.

After this much time, the sentence of incarceration need not be actually served. I would therefore stay Mr. Peterson’s sentence. But for the stay, I would have acceded to the request the sentence be served intermittently, in order to permit Mr. Peterson to remain gainfully employed and able to meet his child support obligations. ____________________________ BRADLEY V. GREEN, J.A. I CONCUR: ______________________________ B. RICHARD BELL, J.A.