R. v. C.D.M., 2022 BCPC 144

Citation: R. v. C.D.M. 2022 BCPC 144 Date: 20220620 File No: 43314-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.D.M. BAN ON PUBLICATION Pursuant to s. 486.4(2.2) of the Criminal Code ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J.J. Blazina (by videoconference) Counsel for the Accused: R.R. Drury, Agent for S.J. Roy (by videoconference) Place of Hearing: Colwood , B.C. Dates of Hearing: May 2, 31, 2022 Date of Sentence: June 20, 2022

Introduction [ 1 ] THE COURT: C.D.M. has entered two guilty pleas on a two-count information sworn October 5, 2020, which alleges that he did commit assault of a complainant identified as "H.S.", contrary to s. 266 of the Criminal Code on October 31, 2019, and again on November 23, 2019.

Although the circumstances are very concerning, the charges pled to are of assault simpliciter and not assault causing bodily harm or with a weapon contrary to s. 267, nor aggravated assault contrary to s. 268. [ 2 ] Crown has proceeded summarily on these two assault offences (the "Assault Offences"). [ 3 ] At the time of the time of these Assault Offences, H.S. (hereinafter the "Child Victim") was an infant and only two and a half years of age, and now is approximately five and a half years of age. [ 4 ] The Child Victim's mother is T.S. (the "Mother").

At the time of the offence, she was approximately 35 years of age and Mr. C.D.M. (the “Offender”) was approximately 53 years of age. [ 5 ] The Mother and the Offender had been in a domestic relationship and living together in the Offender's residence (the "Residence") for between 12 and 18 months prior to the commission of the Assault Offences. [ 6 ] Both of the Assault Offences occurred while the Child Victim was in the full or partial care of the Offender and occurred in the Residence.

Therefore the Offender was in a position of trust to the Child Victim. [ 7 ] The Offender entered guilty pleas to the Assault Offences on March 30, 2021. He has been on a non-reporting release order since October 6, 2020. It contains protective conditions for the Child Victim and the Mother. This sentencing has previously been scheduled for hearing on two prior occasions, but has been adjourned because of COVID issues and the lack of availability of Defence counsel because of an urgent family matter. [ 8 ] The Offender is the subject of the following reports that are before the court:

a) a forensic report completed on June 17, 2021, by Dr. Tyler Oswald, a forensic psychiatrist with the Forensic Psychiatric Services Commission (the "Forensic Report");

b) a report completed May 31, 2021, by Kalli Flannigan, a probation officer at the Duncan Communities Corrections Office (the "Pre-Sentence Report"); which are collectively referred to as the "Sentencing Reports". [ 9 ] Since the Crown has proceeded summarily, the maximum sentence of imprisonment for each of the offences is two years less a day, or a fine of not more than $5,000, or both.

A discharge is available under s. 730 of the Criminal Code , as is a suspended sentence under s. 731(1) (a); also available is imprisonment with probation pursuant to s. 731(1) (b), an intermittent sentence pursuant to s. 732 and a conditional sentence order pursuant to s. 742.1 [ 10 ] Crown seeks a four- to five-month global custodial sentence and two years of probation. [ 11 ] Defence seeks an intermittent sentence, pursuant to s. 732, of 90 days or less or, in the alternative, a suspended sentence pursuant to s. 731(1)(

a) of some 18 to 24 months or, in the further alternative, a three-month conditional sentence order pursuant to s. 742.1 with a period of probation to follow. [ 12 ] The task of this court is to determine a fit sentence. Facts Circumstances Surrounding the Assault Offences [ 13 ] Crown has outlined the circumstances surrounding the Assault Offences which are accepted by Defence. They may be summarized in the following fashion. The October 31, 2019 Assault Offence [ 14 ] The October 31, 2019 Assault Offence occurred on Halloween eve and following earlier Halloween celebrations participated in by the Child Victim.

Thereafter around 10:00 p.m., the Mother left the Offender to care for the Child Victim while she continued on to drink at a Halloween party. The Child Victim was in his crib at the Residence and sleeping when the Mother departed. The Offender remained behind and was drinking and watching TV by himself. [ 15 ] Eventually the Offender admitted in a subsequent statement made to the RCMP, provided in or around June 5, 2020, that the Child woke up before the Mother's return. He told the Child Victim to go back to sleep; he was angry at the absence of the Mother, and he "just snapped".

He then slapped the Child Victim on the face. The Offender says that he "blacked out" in the course of assaulting the Child Victim, and that he may have struck the Child Victim multiple times. He also admitted that he was under the influence of alcohol and cocaine at the time of that offence. [ 16 ] The Offender did not contact anybody, nor report his actions following the commission of the October 31, 2019 Assault Offence. Rather, upon the Mother's return to the Residence sometime after midnight, he feigned to be asleep on the couch to avoid speaking to the Mother.

The Mother apparently went into the Child Victim's bedroom and found that he was sleeping lying face down. Apparently the Mother did not see the bruising injuries in the darkened room, nor did she wake the Child Victim up.

[ 17 ] The next morning, the Offender left for work without making any disclosure to the Mother. Thereafter the Mother observed extensive bruising injuries to the face of the Child Victim and called the Offender for an explanation.

He denied any knowledge of the injuries. [ 18 ] Apparently the Child Victim was sufficiently verbal to indicate, in response to the Mother's questioning about the visible injuries, that the Offender was responsible for those injuries, and also that a toy of the Child Victim that had been ripped apart was done so by the Offender. (ON RECORD DISCUSSION ABOUT AUDIO FEEDBACK AND THE COURT’S REQUIREMENT FOR MUTED PHONES) [ 19 ] THE COURT: Thank you. That is great, thank you. Carrying on. [ 20 ] The Mother failed to immediately report the incident giving rise to the October 31, 2019 Assault Offence to any authorities.

She kept the Child Victim home from daycare and avoided any contact with the maternal grandparents or other family members, in order to allow the visible bruising to diminish. [ 21 ] The Mother did photograph the Child Victim's injuries on November 1, 2019. Those photographs were admitted into evidence and are described in further detail below. [ 22 ] The Mother shared those photographs with her sister, the maternal aunt. As I understand it, it was the maternal aunt who eventually disclosed those photographs to the RCMP at a later time.

The November 23, 2019 Assault Offence [ 23 ] The Mother was a witness to the November 23, 2019 Assault Offence which occurred in the evening between 8:00 and 8:30 p.m. She and the Offender continued to reside together in the Residence, although it appears that the relations between them were very strained. [ 24 ] The Mother observed the Offender standing at the side of the Child Victim's crib and appeared to be tucking in the Child Victim, who was lying on his back with his head on a pillow. The Offender was apparently not aware of the Mother's presence.

What the Mother initially apparently took as a "tender moment" was shattered when she observed the Offender lunge forward, grab the Child Victim's head aggressively on both sides, turn it, and then press it into the pillow. The Mother then startled the Offender and confronted him.

His response was to the effect, "you didn't see shit", whereupon the Offender immediately left the Child Victim and the Mother in the bedroom. [ 25 ] No apparent physical injuries were sustained by the Child Victim on that occasion. [ 26 ] As I understand it, the Mother moved out of the Residence with the Child Victim shortly thereafter. The Mother had become suspicious that the Offender was the cause of the injuries sustained by the Child Victim on October 31, 2019. [ 27 ] Eventually she made a report to the RCMP about both the Assault Offences.

However, the October 31, 2019 Assault Offence did not apparently come to light until it was reported by the maternal aunt sometime around December 17, 2019. That was when the RCMP were called to the Residence to provide assistance to the Mother in moving her personal items out of the Residence. The maternal aunt approached an RCMP officer and showed the police officer the photographs of the bruising on the Child Victim arising out of the October 31, 2019 Assault Offence, and reported that they had occurred while the Child Victim was in the care of the Offender and the Mother was not at home.

The RCMP Investigation [ 28 ] A police investigator called the Offender on or about January 20, 2020, and indicated to him that they were investigating the injuries to the Child Victim. The Offender denied that he knew anything about them and refused to come in to provide any information or to be interviewed about the two incidences. [ 29 ] The RCMP commissioned a medical report and assessment from Dr. Wilma G. Arruda, a physician with the Vancouver Island Suspected Child Abuse and Neglect Unit. Dr.

Arruda completed what is referenced as a “VI SCAN Assessment” of the Child Victim in connection with the unexplained facial bruising on the Child Victim that had been observed by the Mother and photographed on November 1, 2019 (the "VI SCAN Report"). It was completed on March 26, 2020, and introduced into evidence in this sentencing hearing by consent. Conclusions Reached in the VI SCAN Report [ 30 ] The VI SCAN Report was completed by Dr. Arruda after reviewing the photographs that have also been put into evidence and from police statements provided the Mother.

The Child Victim was never examined by a medical practitioner following the October 31, 2019 Assault Offence, and hence no medical records were available for review by Dr. Arruda. [ 31 ] Under the heading "Medical Impression", Dr. Arruda notes that the then two-year-and-10-month old boy had sustained "significant bruising on his face bilaterally". The VI SCAN Report goes on to note as follows [as read in]: VI SCAN reviewed the photographs submitted to us from [the Mother's] smart phone.

This assessment of images from the smart phone is limited and is further complicated by a lack of medical assessment at the time. There is appearance of significant bruising to both sides of [the Child Victim]'s face. Both the right and the left side bruising shows a pattern of linear quality with central pale areas between bruises. The bruising is extensive overlying multiple planes of [the Child Victim]'s face from the lateral aspects of the forehead and hairline to the lateral aspects of [the Child Victim]'s eyes and mid cheeks. On the left side in particular the bruising shows quite a distinct linear pattern.

There is also bruising noted over the left cheekbone, under the left eye, as well as on the left shoulder. There is no

knowledge of other bruises on [the Child Victim]'s body, except for the left shoulder bruise. Measurements of the bruises were not provided. Bruising results from bleeding beneath the skin. They are usually caused by impact between a part of the body and another object. . . Skin injuries are the most common manifestation of physical harm in substantiated child maltreatment cases in Canada. [ 32 ] Dr.

Arruda then concluded for a number of stated reasons that the Child Victim's bruising were "concerning for non-accidental injury" and specifically mentioned that "the extensive nature of the bruising located over [the Child Victim]'s cheeks indicates [the Child Victim] sustained significant trauma". Furthermore, she opined that "bruises overlying softer padded areas such as the cheeks are highly suspicious of non-accidental injury". Continuation of the RCMP Investigation and the Offender's Inculpatory Statements [ 33 ] The RCMP investigation continued.

In the meantime, the Offender and the Mother, while separated, continued to communicate through text and telephone discussions, some of which were recorded by the Mother. In those communications, the Offender admitted his involvement in the October 31, 2019 Assault Offence, put blame on his drinking, drugs, and anger and frustration at the Mother, and suggested that he "did not hurt the [Child Victim] all the time". [ 34 ] The Mother provided this information to the RCMP, who then in turn contacted the Offender.

The Offender was interviewed and provided voluntary statements to the police on June 5, 2020, in which he admitted the Assault Offences. Other Circumstances [ 35 ] Subsequent to the occurrence of the Assault Offences, the Ministry of Children and Family Development ("MCFD") became involved with the Mother. The exact involvement is not clear from the documentary evidence nor from the submissions before this court but, as I understand it, under existing child protection proceedings, the Director has temporary custody of the Child Victim.

Pursuant to MCFD arrangements, the Child Victim now resides in a stable home environment with his maternal grandparents and another older sibling. The Mother's contact with the Child Victim is subject to MCFD approval and, at present time, MCFD has not approved any such contact.

There has been no contact for at least the last four months and the Mother has failed to follow up on any approved contact. [ 36 ] The Mother is also prohibited under a statutory peace bond, made under s. 810 of the Criminal Code , from having contact or communication with the grandmother as a result of certain concerning incidences between them. [ 37 ] The maternal grandparents have attended these proceedings. They have also prepared a Victim Impact Statement on behalf of the Child Victim.

Victim Impact Statement [ 38 ] The Victim Impact Statement that was prepared and submitted by the maternal grandparents discloses that the Child Victim has had a lot of unregulated emotions over the time that he has been in the care of the maternal grandparents. They note that he would get angry a lot and hit them, but they also indicate that this behaviour is now getting better and the Child Victim has been in a Women Against Violence program for approximately 10 weeks.

Also, the Child Victim has received a lot of patience from the maternal grandparents and their daily reassurance and nurturing has assisted him. [ 39 ] The Victim Impact Statement goes on to indicate that the Child Victim still mentions about being punched in the face and stomach by the Offender and says, "That wasn't nice." The Child Victim has to sleep with a light on and the door open and does not want to be in the dark, he needs to be with and close to the maternal grandparents until he falls asleep. [ 40 ] The Victim Impact Statement was completed 29 April 2022.

I note that at such time, the Child Victim was only four and a half years of age. Information from the Pre-Sentence Report [ 41 ] The Pre-Sentence Report is a detailed and comprehensive report. It deals with a number of factors and provides a comprehensive information about the Offender’s background. [ 42 ] Under the heading of "Summary", it confirms that the Offender was 54 years of age at the date of preparation of the Pre- Sentence Report and was awaiting sentencing on the Assault Offences.

The Pre-Sentence Report goes on to indicate as follows, and I quote [as read in]: Subject acknowledges poor emotions management was the main factor in both offences before the Court, stating he held resentment toward the victim's mother who was [the Offender]'s girlfriend at the time. Subject was under the influence of alcohol and cocaine during the first offence, however was sober for the second offence. [ 43 ] The Pre-Sentence Report goes on to indicate that the Offender has struggled with alcohol and cocaine use, and confirms that such use has escalated in the last six or seven years.

That apparently flows from the untimely passing of the Offender's father which occurred some 10 years ago, and the Offender's brother who passed away some four years ago. The Offender reported to the probation officer that he was very close with them and that he did not deal adequately with his loss, and then resorted to substance misuse as a coping mechanism to suppress his emotions. [ 44 ] The Pre-Sentence Report goes on to indicate that the Offender has two children who are both adults, one age 23 and the other age 26.

He was primarily responsible for their care and upbringing without the assistance of their mother. [ 45 ] The Pre-Sentence Report goes on to indicate, in the course of the interview, that the Offender took responsibility for both Assault

Offences. However, the report indicates "there was some minimization with regards to the November 23, 2019 Assault Offence." The report does indicate that since the time of the Assault Offences, the Offender reports that he has made some positive changes, including reduced frequency of his substance use.

He has completed the Emotions Regulation and Relapse Prevention Programs offered through Duncan Mental Health and Addiction Services (DMHAS) in May 2021, and is currently attending counselling through Cowichan Family Life. [ 46 ] It is noteworthy that the author of the Pre-Sentence report also delved into the question of the Offender's attitude and understanding regarding the Assault Offences. At page 6 of the Pre-Sentence Report, the following is stated [as read in]: Count 1: Subject admits he was using alcohol and cocaine at the time of the offence and agrees with the facts that form the basis of the offence.

Subject accepts responsibility for his actions and feels remorseful. Subject stated there was no justification for his actions and admitted it was "totally inappropriate". Subject states at the time of the offence [the Child Victim] was often left with the Subject. Subject expressed he was frustrated by this, mad about how his relationship with [the Mother] was going, and resented [the Mother] at the time; says he took it out on [the Child Victim]. Count 2: Subject claims he was not under the influence of substance at the time of this offence.

Subject acknowledges actions that form the basis of the offence, admitted his behaviour was wrong. However, there was some minimization; Subject stated, ‘I probably shouldn't have grabbed him like that. I didn't hit him.’ ‘I feel like it wasn't as dramatic as what she [the Mother] says in her statement’ and ‘the two incidents are miles apart’. At the time of both offences, Subject expressed he and [the Mother] were having relationship issues. Subject was before the courts on an assault charge against [the Mother] and subject reports he was under financial stress at the time.

Subject did state he feels terrible about the harm he brought to [the Child Victim]; however, Subject was only able [to] identify the immediate physical harm caused and failed to show insight into any potential emotional harm or long-term effects to [the Child Victim]. Information from the Forensic Report [ 47 ] The Forensic Report is a detailed forensic assessment of the Offender. [ 48 ] Under the heading of "Impression", the report's author indicates that the Offender has had no formal mental health history and has not accessed mental health service until after the Assault Offences in 2019.

The Offender self-reports having been raised by his own father, who was a single parent, and he described his father and brother as his main support system. He also indicated that into adulthood, the Offender found himself “recapitulating his own family of origin now as a single father to his two sons”. [ 49 ] He describes himself as the final authority, both in his role as a supervisor and as a parent.

He further described it in the following words: "It's my way or the highway." [ 50 ] The Forensic Report also confirms the Offender's admission that he started to misuse both cocaine and alcohol in the context of his frustration with his girlfriend, and the necessity to return to parenting duties while in his fifties.

It is also indicated in the Forensic Assessment Report that the Offender has two documented episodes of domestic violence or violence related to relationships, one going back to October 1996, and the other in March of 2020. [ 51 ] The author of the Forensic Report provides a risk assessment for violence.

In that risk assessment, it is noted that the Offender presents with the following four most relevant historical and clinical factors, which include: continuing episodes of anger and conflict constituting instability of behaviour and affect; multiple instances of violence in his relationships and instances of assault in the context of intimate relationships; an instability in his relationship with the mother of his two sons; and substance misuse, about which the Offender confirmed that his use of alcohol and cocaine appears to have increased over the last 10 years.

At the time of the Assault Offences, his level of substance use was problematic. [ 52 ] Using the various tools referred to in the Forensic Report, the author’s conclusion is as follows: With the information available to me, [the Offender] appears at low to moderate risk for violence over the next six to 12 months. It has been several years since his last violent offence. [The Offender] presented as genuine in his desire to engage differently in relationships. He also is open to future and ongoing counselling or therapy. . . .

While it appears that he has made advances in his emotional regulation following his experience with programming and counselling, [the Offender] continues to experience intense anger. Likewise, while he has significantly reduced his use of alcohol and cocaine, he has not achieved sobriety from these substances. Most likely risk scenarios involve [the Offender] in the context abusing alcohol and cocaine or possibly while sober getting into a heated argument with his girlfriend. While the Offender disavowed any desire to engage in violence, it is possible that his temper may flare despite his best intentions.

Based on his history and taking into account his recent effort in counselling towards sobriety, the likelihood of such violence occurring is diminished relative to the past. It also appears, based on his history, that the degree of injuries involved have not been severe, nor have they required hospitalization. [The Offender]'s likelihood of again engaging in assault of a child is diminished with reduced drug and alcohol use and counselling, but is not eliminated. Other Information about the Offender [ 53 ] As referenced in the Forensic Report, the Offender does have a criminal record.

Two of the matters are quite dated and relate back to 1992, when he was convicted of a driving while over .08 driving offence for which he received a fine, and a driving prohibition for a period of one year. In 2000, he was convicted of mischief under $5,000 and received a suspended sentence and probation of six months. As I understand it, that matter related to a domestic violence offence with the mother of his two adult sons.

[54] The most recent criminal record offence appears in the JUSTIN conviction list.

It confirms that on December 3, 2019, shortlyafter the Assault Offences, the Offender pled guilty for a domestic violence offence against the Mother with a resulting sentence of aconditional discharge with a year's probation and with a firearms prohibition. [55] Thus at the time of the commission of the Assault Offences, the Offender was awaiting the sentencing on the domestic violenceoffence committed against the mother. [56] In addition -- Madam Clerk, I am going to stand down briefly, please. [57] THE CLERK: Order in court. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [58] THE COURT: In addition Defence has entered a series of letters of support for the Offender.

One letter was provided by one ofthe Offender's adult sons, and two of them were provided by the two sisters of the Offender.

These letters of support paint a picture of aman who is well admired, respected and loved by his family members, whose efforts throughout his life were to provide a comfortableand safe home for his children, and also to produce two sons who have grown to be productive members of society. [59] Both of the letters from the sisters indicate that the Offender has expressed great remorse for his "inexcusable behaviour" andconfirmed that the Offender has expressed regret for his actions in a fashion described as "immense".

Also, there is a reference in one ofthe letters that the Offender has “overwhelming guilt” about the Assault Offences. There is also confirmation of the struggles that theOffender has gone through as a result of the losses in his family which are still unresolved, as well as his increasing over-reliance onsubstances that predated the occurrence of the Assault Offences. [60] I understand from Defence’s submissions that the Offender has a very strong and lengthy work record. He has been gainfullyemployed in the forestry and lumber industry for several decades.

He continues to work for a small remand mill operation and has animportant role in the operation of his employer's business, including serving as a watchman of the facilities which are located in theCowichan Valley. [61] The documents filed by Defence also confirm that the Offender has engaged in day programming classes at Duncan MentalHealth and Substance Use between April 15, 2021 and May 6, 2021, dealing with issues of relapse prevention and emotional regulation. [62] There has also been participation by the Offender in other group programming to deal with emotional regulation and control. [63] Since the Assault Offences, there have also been health issues that the Offender has had to confront.

As I understand, these mayrelate to his heart. [64] In direct his submissions to the Court, the Offender confirmed about his continuing participation in a number of programs. Heindicates that the program provider for “Men Choose Respect”, which is a 20-hour program of individual and group sessions, has beencompleted by him.

In fact, he says he offered and has been accepted to re-attend the group programs to assist in providing support toother males who find themselves in similar positions to that of the Offender. [65] Also, there is a letter from Cowichan Family Life which corroborates that the Offender has attended individual counsellingsessions consisting of eight one-hour counselling sessions and has completed all of those sessions. [66] In his direct submissions to the Court, the Offender apologized for the hurt caused to the Child Victim and to the Child Victim'sfamily.

In his words, he has "never been more ashamed" of his behaviour. He stated there was "no excuse" for that behaviour, and hepledged to continue to work on his recovery and his ability to regulate his emotions and to control his substance abuse issues. [67] From my reading of both the documentation that has been presented by Defence, his continuation of his programming hasoccurred since the completion of the Sentencing Reports, and he continues to be committed to such programming.

Cases Authorities Relied Upon by the Crown [68] The following are the case authorities or other resources relied upon by Crown: 1) Halsbury's Laws of Canada, 2019, "Sentencing considerations when victims under 18"; 2) R. v. Friesen, 2020 SCC 9; 3) R. v. C.G.O., 2012 BCCA 129; 4) R. v. D.J., 2021 BCPC 232; 5) R. v. Serack, (AB CJ), [1994] A.J. No. 843 (Provincial Court); 6) R. v. Harris, 2011 ABCA 41; and 7) R. v. E.G.P., [1994] A.J. No. 7. Case Authorities Relied Upon by the Offender [69] The following are the case authorities relied upon by the Defence:

1) R. v. Montero Hechavarria (March 25, 2013, Vancouver Provincial Court 224247-1); 2) R. v. C.J.D. , 2012 YKTC 17 ; 3) R. v. J.B. , [2015] N.J. No. 312 ; 4) R. v. N.S. , 2008 ABPC 183 ; 5) R. v. R.P. , [2000] O.J. No. 5250 ; and 6) R. v. T.P. , [1992] O.J. No. 3856 . [ 70 ] Although I may not make specific reference to all of the Crown and Defence authorities cited to me and noted above, I have reviewed each of them carefully and considered them in reaching my conclusions.

Purposes, Objectives, and Principles of Sentencing [ 71 ] The purposes and principles of sentencing are found in ss. 718 to 718.2 of the Criminal Code . These sections codify them and plainly state the intention and rationale for imposing particular sentences. [ 72 ]

Section 718 of the Code outlines the fundamental purpose of sentencing as: 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. [ 73 ]

Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree of the offender's responsibility. [ 74 ]

Section 718.2, under the heading of "Other Sentencing Principles" states, in part, that 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 . . . (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, . . . 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. [ 75 ] Of particular importance in this case is the provision of s. 718.01 which deals with offences against children and provides as follows: 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. [ 76 ]

Section 718.2(

b) directs that a sentence is to be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. However, because of the proportionality principle and individualized sentences, the parity principle does not

preclude disparity where warranted by circumstances. There is no such thing as a uniform sentence for a particular crime (see R. v. L.M.,2008 SCC 31 , [2008] 2 S.C.R. 163). Considering the Least Restrictive Sanctions Before Depriving of Liberty [77]

Section 718.2(

d) says that an offender should not be deprived of liberty if less restrictive sanctions may be imposed in thecircumstances. This is an important consideration for conditional sentence. Sentencing Options [78] I wish to review and summarize the available sentencing options under consideration in this case and the nature of each. Conditional Sentences [79] The principles which underlie conditional sentences are set out in ss. 742-742.7 of the Code. R. v.

Proulx, 2000 SCC 5 ,[2000] 1 S.C.R. 61, describes the proper approach to the application of these principles (see paragraph 127). [80] Some of those principles that are particularly relevant to this case are as follows: 1) A conditional sentence is intended to address punitive and rehabilitative sentencing objectives and should generally includepunitive conditions that restrict the offender's liberty.

Thus it is to be distinguished from probationary measures which are primarily arehabilitative sentencing tool. 2) "Safety of the community" not being endangered is merely one of the statutory requirements for imposing a conditionalsentence and is not the primary consideration. The threat of the specific offender must be considered. A sentencing judge must considerthe risk of the offender reoffending and the gravity of the damage that could ensue.

That risk should be assessed in light of conditionsthat can be attached to the sentence to thereby reduce any risk to an acceptable level. 3) A conditional sentence is available for all offences in which the statutory prerequisites are satisfied and there is no presumptionthat conditional sentences are inappropriate for specific offences.

The gravity of the offence, however, is very relevant to determiningwhether a conditional sentence is appropriate in the circumstances. 4) Serious consideration should be given to the imposition of a conditional sentence in all cases where the statutory prerequisitesare satisfied, but there is no presumption in favour of a conditional sentence. 5) A conditional sentence can provide a significant amount of denunciation, particularly where onerous conditions are imposedand the terms of the sentence is longer than would have been imposed as a jail sentence. 6) A conditional sentence can provide significant deterrence if sufficient punitive conditions are imposed and judges should bewary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration.

However, there may becircumstances where deterrence will warrant incarceration. 7) When the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may be realistically achieved, aconditional sentence will be the appropriate sanction subject to considerations of denunciation and deterrence. 8) While aggravating circumstances relating to the offence or to the offender increase the need for denunciation and deterrence,conditional sentences may be imposed even if such factors are present. The Four Requirements of a Conditional Sentence [81]

Section 742.1 of the Criminal Code lists four requirements that must be met before a judge imposes a conditional sentence: 1) The offence must not be a serious personal injury offence as defined in s. 752, a terrorism offence, or a criminal organizationoffence prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or more or punishable by a minimumterm of imprisonment.

Also the court must be imposing a sentence of imprisonment of less than two years. 2) The judge must be satisfied that serving the sentence in the community would not endanger the safety of the community. 3) The judge must be satisfied that a conditional sentence would be consistent with the fundamental purposes and principles ofsentencing as set out in s. 718 to 718.2. [82] The first requirement speaks for itself.

In this case there is no mandatory minimum sentence which statutorily prevents the use ofa conditional sentence order. [83] Dealing with the second criteria, a conditional sentence’s duration will depend on the type of conditions imposed. Therefore, Ishould not determine the sentence duration separately from deciding whether it is to be served in jail or in the community.

Furthermore, aconditional sentence will depend on the type of conditions imposed: see Proulx, supra, at paragraphs 50 and 52. [84] Dealing with the third requirement and before imposing a conditional sentence, I must be satisfied that serving the sentence in thecommunity would not endanger the safety of the community: see s. 742.1(a). It is the risk posed by this particular accused that I mustconsider when answering this question, and not the broader risk of whether a conditional sentence would endanger the safety of thecommunity by providing insufficient deterrence or undermining the general respect for the law.

Therefore, I must take into account therisk of the Offender reoffending and the gravity of the damage in the event of reoffence. [85] It is the risk of any criminal behaviour by the Offender that I must consider and not just the risk of physical or psychological

harm to individuals. [86] With respect to the fourth requirement, I must determine whether a conditional sentence in these circumstances is consistent withthe fundamental purpose and principles of sentencing in ss. 718 to 718.2.

In Proulx, supra, at paragraph 127, the Supreme Court providessentencing judges with the following guidance: [87] The judge should consider the possibility of a conditional sentence by examining whether a conditional sentence is consistentwith the fundamental purpose of sentencing set out in ss. 718 to 718.2. [88] A conditional sentence can provide significant denunciation and deterrence. [89] The more serious the offence, the longer and more onerous the conditional sentence should be. [90] There may be circumstances where the need to denounce and deter is so pressing that incarceration will be the only suitable wayin which to express society's condemnation of the offender's conduct in order to deter similar conduct in the future. [91] Where a combination of both punitive and restorative objectives may be criminogenic, a conditional sentence will likely be moreappropriate than incarceration. [92] I am mindful that a conditional sentence is discretionary.

Meeting the statutory prerequisites of s. 742.1 does not entitle theOffender to a conditional sentence. However, when these have been met, given the principle of restraint in using imprisonment and thenecessity to consider all available sanctions, as set out in ss. 718.2(

d) and 718.2(e), a failure to consider a conditional sentence mayconstitute a reversible error: see Proulx at paragraphs 82 to 85, 90, 116, 121 to 122, and 123 to 126. Suspended Sentences [93] The British Columbia Court of Appeal in the decision of R. v. Voong, [2015] B.C.J.

No. 1335, 2015 BCCA 285, reviewed thenature of a suspended sentence and noted at paragraphs 19 and 20 as follows: Nature of the Suspended Sentence [19] Where no minimum sentence is required, the Criminal Code permits a court to suspend the passing of a sentence, rather thanimpose a sentence (s. 731(1)(a)), and to place a person on probation for a maximum of three years (s. 732.2(2)(b)). If an offender who ison probation is convicted of an offence, the suspension of the sentence may be revoked and the offender may be brought back before thecourt for sentencing.

At that point, the judge may impose any sentence that could have been imposed at the time the sentence wassuspended (s. 732.2(5)(d)). [20] If probation is ordered, the judge must impose certain mandatory conditions found in s. 732.1(2) and may also impose optionalconditions (s. 732.1(3)(a)-(g.2)).

Under s. 732.1(3)(h), the Court may also impose any other "reasonable condition … for protectingsociety and for facilitating the offender’s successful reintegration into the community". [94] In Clayton Ruby, Sentencing, 8th edition ("Ruby"), at page 434 to 436, the use of a suspended sentence and accompanyingprobation is canvassed in fuller detail. [95] Ruby states that a suspended sentence and probation are especially useful in cases that do not require a period of incarceration fordeterrence or denunciation.

The learned author further notes that imposition of a suspended sentence is not confined to offences that donot require deterrence. The suggestion is made that where a suspended sentence and probation are imposed, general deterrence by way ofa period of imprisonment remains a possibility if the offender chooses to avoid the controls selected by the court for his rehabilitation.Thus, an offender who "chooses to avoid the controls" by breaching may very well end up in prison (see Ruby, pages 434 and 435,paragraph 10.5). [96] Parenthetically, I note that Kelly J.A. in R. v. Hudson, (ON CA), [1968] 2 C.C.C. 43 (Ont.

C.A.), at paragraph11 opined that a suspended sentence can conceivably be more onerous than a sentence involving immediate imprisonment.

Such mightbe the case if an offender were to breach in the last month of the probationary period and thus be exposed to serving the full termappropriate for the offence of which he was convicted, notwithstanding he had virtually completed the terms of his probationsatisfactorily. [97] Ruby further notes a suspended sentence and imposition of probation is unlikely to be appropriate where an Offender has manyprevious criminal convictions, there is a sophisticated criminality, or there are very serious charges.

Notwithstanding the existence ofsuch factors, they do not militate absolutely against the use of the suspended sentence and the imposition of probation (see Ruby, page435 at paragraph 10.5). [98] Similarly, a suspended sentence may be appropriate even if probation has not been fully successful in the past, especially if aprevious probation was somewhat helpful.

In situations where the offender has been on several probation orders with "discouragingresults", a court should pause long and "have knowledge of grave and weighty matters in mitigation before trusting the offender with afurther period of probation," noting further that, while the community is well served by a factor of rehabilitation, it is also entitled toprotection against offenders who "demonstrate that they are a bad risk." In support of this proposition, Ruby cites R. v. Walker (1981), 3A.

Crim.R. 200, at page 203 (see Ruby: page 435 at paragraph 10.6). [99] Thus, Ruby notes that the most obvious use of a suspended sentence and a probation order is in the case of first offenders whohave committed crimes that are not too serious. In such situations, courts should explore other dispositions which are open to it andimpose a custodial sentence only where "the circumstances are such or the offence is of such gravity that no other sentence can beappropriate," (see Ruby, pages 435 to 436 at paragraph 10.7).

Intermittent Sentences [ 100 ]

Section 732 of the Code provides for intermittent sentences and requires the offender to comply with the mandatory conditions prescribed in the Code when not in confinement. The maximum length of an intermittent sentence is 90 days. An intermittent sentence permits an offender to serve the sentence on an intermittent basis and thereby the offender may be able to continue employment, live at home on the weekdays, and serve the sentence on the weekends.

In determining whether or not to permit the offender to serve the sentence on an intermittent basis, the court must consider the character of the offender, the circumstances of the offence and the availability of appropriate accommodation to ensure compliance with the sentence.

Aggravating Factors [ 101 ] There is little disagreement between Crown and Defence about most of the aggravating factors. [ 102 ] Both accept the applicability of the statutory aggravating factors which are set out in s. 718.2 (a)(ii.1), being abuse of a person under 18 years, and pursuant to s. 718.2 (iii), the Offender abused a position of trust or authority in relation to the Child Victim. [ 103 ] Both accept the applicability of the statutory aggravating factor set out in

section 718.2 (a)(iii.1) and there being evidence of a significant impact on the Child Victim as detailed in the Victim Impact Statement, thus making this statutory aggravating factor applicable. [ 104 ] In addition, both accept that there is the further aggravating factor namely the significant vulnerability and particularly the very young age of the Child Victim at the time of the Assault Offences, being only two and a half years of age. [ 105 ] Other aggravating factors include the unprovoked nature of the assault on the Child Victim stemming in part from the Offender's anger at the Mother.

Also aggravating is the significant degree of force and trauma inflicted upon the Child Victim, and in particular to his face and head, and most noteworthy the fact that the bruising was on both sides of the face as a result of multiple blows being administered. [ 106 ] Crown also notes and I agree with the following as being some additional aggravating factors. [ 107 ] The close timing of the Assault Offences demonstrates that this was not an isolated and "one off" event, but rather part of a pattern of abuse of the Child Victim. [ 108 ] The Offender's initial denial and failure to report the October 31, 2019 Assault Offence or to seek precautionary medical treatment for the Child Victim, and the Offender’s initial and longstanding denial of any involvement in the Child's injuries are all further aggravating factors. [ 109 ] The existence at the time of the Assault Offences of the Offender's existing and undealt charges against him for domestic violence against the Mother should have heightened the Offender's awareness of the necessity to control his behaviour.

Mitigating Factors [ 110 ] Both Crown and Defence counsel agree that the following are mitigating factors. [ 111 ] The Offender eventual took responsibility and entered a relatively early guilty plea on both of the Assault Offences. [ 112 ] Furthermore, the subsequent and significant efforts taken by the Offender in terms of counselling and participation in rehabilitative programs on his own volition are mitigating.

These have been focused on his substance abuse issues and on his behaviour modification. [ 113 ] Furthermore is the expression of remorse by the Offender, the level of which is somewhat in dispute and which Crown characterizes as being "some" with a measure of minimization and blaming on drugs and alcohol.

Defence says it is more fulsome and sincere, with evidence of a significant amount of subsequently gained insight into his offending behaviour. [ 114 ] Defence further relies upon other mitigating factors, which include and I accept. [ 115 ] The Offender's longstanding and continuing employment history, and the support of his present employer who permits him to reside on the employer's property. [ 116 ] Next is the significant and ongoing support from the Offender's family, and furthermore his compliance with the term of his lengthy release-order conditions.

Sentencing Considerations when the Victim is Under 18 [ 117 ] As noted above, Crown has presented, for the court's consideration, provisions from Halsbury's Law of Canada HYJ-146, "Sentencing Considerations when Victims under 18". It reads in part as follows, and I quote: It has been stated that: Serious crimes of violence against defenceless children warrant a strong and firm response from the courts. Children are amongst the most vulnerable in our society. And in our society, parents occupy a position of trust vis-a-vis their children.

The existence of that fiduciary relationship lies at the heart of both the parent-child relationship and the family unit. Therefore, where a parent or someone who stands in a trust relationship to a child abuses a child, that will be an aggravating factor in sentencing. [ 118 ] The provisions from Halsbury referred to by Crown also confirm the provisions aforementioned that direct the court to give

primary consideration to the objectives of denunciation and deterrence when sentencing offenders who have abused a victim under 18years of age, and Halsbury's states as follows: The rationale for the requirement to primarily consider denunciation and deterrence is stated as follows: … Abuse which constitutes criminal conduct is wrong no matter what the age of the victim, but criminal abuse of persons under 18 yearsof age is particularly serious because young persons are less able than mature adults to withstand assaults to their persons because oftheir physical, mental and emotional immaturity.

They are also more likely to be more vulnerable to emotional scarring, as they are still‘finding themselves’ in these formative years. For this reason offenders who criminally abuse young people are particularly deserving ofsociety’s denunciation. They must be made to realize, or to be reminded, that what they have done is wrong. This denunciation alsoaffords some reparation to young victims, who need reassurance that they are not to be blamed for what has happened to them so thatthey can move on with their lives.

Offenders and like-minded others who abuse young people must also be deterred from repeating orengaging in the criminal abuse of young persons by the knowledge that sentences involving such conduct are going to be treatedseriously by the justice system. [119] Crown has also made reference to R. v. Friesen and suggests this court must have regard to the directions provided to sentencingcourts. In the context of sexual violence against children, the Supreme Court of Canada in R. v.

Friesen emphasized at paragraph 51 thatthe prime interest that the legislative scheme of sexual offences against children are to protect the personal autonomy, bodily integrity,sexual integrity, dignity, and equality of children.

Recognizing the profound harm of such offences, Parliament has expressed its will byincreasing maximum sentences and by prioritizing denunciation and deterrence in sexual offences against children. [120] Thus in Friesen the Supreme Court of Canada concluded that the following guidelines applied: 1) upward departure from the prior precedents and sentencing ranges could be required to impose a proportionate sentence; 2) sexual offences against children should be punished more severely than sexual offences against adults ; and 3) sexual interference with a child should not be treated as less serious than sexual assault of a child. [121] This is not a case of sexual offending against a child.

The question then arises as to whether, in the post Friesen-era, the sameguideline approach must be applied to sentencing in non-sexual offending against children. [122] I do not understand that Friesen can be relied upon to support the proposition that all sentences must be increased for all offendersfor all offences against all children. As noted by the Honourable Judge Wolf of our court in R. v.

D.J. at paragraph 22, that is "too broadof a blanket" and "it fails to take into consideration the highly individual characteristics of offending behaviour and the specificcircumstances of particular offenders, especially Indigenous offenders with significant Gladue factors". [123] R. v. C.G.O. is a case involving aggravated assault and failing to provide the necessaries of life in relation to a three-year-old. It isa pre-Friesen decision.

At paragraph 75, our Court of Appeal noted that, by way of the s. 718.01, Parliament has made a clear statementassigning primary consideration to the objectives of denunciation and deterrence in sentencing for harm caused to victims under 18.Accordingly rehabilitation, while highly important, is given secondary status; it simply may not be the primary consideration. Therefore,that must be the approach that guides this court in this matter. [124] The Manitoba Court of Appeal in R. v. MacDonald, [2009] M.J. No. 96, provides the following useful guidance which bearsconsideration in this case: 14 In R. v.

Marks (1994), (NL CA), 91 C.C.C. (3d) 421 (Nfld. C.A.), and R. v. McNeeley, [1995] O.J. No. 4371(Gen.

Div.) (QL), it was held that there are three categories of child abuse: (1) cases involving the application of force with the expectation of causing injury or indifference to it; (2) cases involving the application of force where a parent was immature and unskilled and acting out of emotional upset, frustrationor temper and did not fully appreciate the serious injuries which might result; and (3) cases involving diminished responsibility through mental disorder where the abnormal mental condition of the accused [person]requires the treatment of the offender to be given priority over the principles of general and individual deterrence.

This analysis provides a useful guide, but its application cannot, of course, displace the sentencing principles by which judges are bound,including that which requires a sentence to take into account the gravity of the offence. Crown’s Position on Sentencing the Offender [125] Crown correctly relies on deterrence and denunciation as the basis for its sentencing position. [126] Crown submits that this case falls within the first category of abuse cases identified in R. v. MacDonald, and not the secondcategory of an immature and unskilled parent.

Crown says that this is a case of high moral culpability on the part of the Offender who isand has been an experienced parent. [127] Crown seeks a custodial sentence on the October 31, 2019 Assault Offence of four months and on the November 23, 2019Assault Offence (submitted to be less egregious) of 30 to 45 days to be served on a consecutive basis.

That, says Crown, provides thenecessary degree of deterrence, both specific and general, and denunciation. [128] Crown submits that there should be a probation order of 18 to 24 months. [129] Crown concedes that a conditional sentence order maybe appropriate, but says it must have strict terms and should be of a

duration of six to nine months. [ 130 ] Among the probation conditions, Crown seeks an Elton Hubbs order that would order the Offender not to enter or continue any dating or marriage or common law relationship with any person until the Offender discloses to his probation officer the identity of any such person, and the probation officer has then informed that person of the Offender's convictions on these Assault Offences and the details of the sentencing orders, the Offender's criminal history, and other information from the Pre-Sentence Report and these reasons for judgment.

Defence’s Position on Sentencing the Offender [ 131 ] Defence says that given the fact that the Offender recently received a previous conditional discharge, another conditional discharge is not appropriate as a fit sentence in this case. [ 132 ] Defence concedes that deterrence and denunciation must be give primary consideration, but then goes onto point out and rely upon the mitigating factors.

Specifically, Defence points to the significant rehabilitative steps that have been taken by the Defendant and the fact that the Offender has returned to programming in order to act in a mentorship role for other male domestic violence offenders.

As I understand this submission, this acts in addressing the high level of moral culpability of the Offender who has now gained significant insight and is highly remorseful for his offending against the Child Victim. [ 133 ] Defence says that denunciation and deterrence for the Offender can be addressed by an 18 to 24 month suspended sentence or, in the alternative, a conditional sentence order of some three months with restrictive conditions, followed by a period of probation. [ 134 ] Defence says that the Elton Hubbs order is not required since significant time has passed since the commission of the Assault Offences and the Offender has undergone significant rehabilitative programming.

However, it is conceded that, as part of the conditions of his sentence, it may be appropriate to have restrictions upon the Offender from having contact with children under the age of 10, except in the presence of their parent or guardian. Conclusions [ 135 ] I accept the circumstances of the Assault Offences set forth above as the relevant facts. [ 136 ] In doing so, my view is that the Assault Offences were cowardly acts by the Offender in which he used the Child Victim as a proxy for his anger and frustration at the Mother.

That, in my view, is very aggravating. [ 137 ] I further accept the aggravating and mitigating circumstances as counsel have agreed to, or as may be otherwise be noted above as accepted and I do accept the further emphasis placed by Defence on the additional mitigating circumstances. [ 138 ] I accept that the Offender has gained considerable insight and now has genuine remorse since the Assault Offences. I have heard what I accept is a genuine expression of remorse directly from the Offender.

I accept this level of remorse and the fact that the Offender's insight has progressed since the completion of the Sentencing Reports. The Offender has now apparently abandoned any reliance on excuses and minimization of his conduct that was noted in the Sentencing Reports. [ 139 ] I note that few of the cases cited to this court by Crown and Defence counsel have similar factual patterns to those before this court, notwithstanding the efforts of both counsel.

Some of the Defence cases are isolated incidences of violence, including slapping of a child in the heat of an argument and spanking cases of a child that went beyond the reasonable limits of corporal punishment. In such cases, absolute and conditional discharges have been granted (see R. v. Hechavarria ; R. v. C.J.D. ). Others involved more serious assaults against a child, but have resulted in a 12-month conditional discharge (see R. v. J.B .), a 12-month suspended sentence (see R. v. R.P. ) or an 18-month suspended sentence (see R. v.

N.S .). [ 140 ] On the other hand, some of the cases relied upon by Crown deal not with assault simpliciter , but rather more serious offences of assault causing bodily harm or assault with a weapon and with significantly more serious circumstances and of serious harm being perpetrated upon a child. The resulting sentences have ranged from nine months of incarceration with no probation (see R. v. Harris ), to the imposition of a sentence of incarceration of two years less a day and two years of probation (see R. v.

E.G.P .), and a conditional sentence order for a period of two years less a day with three years of probation (see R. v. C.G.O .) and four years of incarceration (see R. v.

D.J. ). [ 141 ] Without in any way diminishing the circumstances of the Assault Offences and the significant continuing impact on the Child Victim, and ever mindful that there are other factors in his life that are being addressed by MCFD and that the Offender is not necessarily responsible for all of those factors, I would put the global sentencing range in this type of case of multiple offences against the Child Victim at between three and nine months of custodial time.

In doing so, I am recognizing the massive vulnerability of the Child Victim and what I consider to be a high degree of moral blameworthiness on the part of the Offender that requires clear denunciation and deterrence. [ 142 ] However, in my view, a conditional sentence order is the appropriate sentence and reflects the positive rehabilitative steps taken by the Offender which assists this court in concluding that in this case, the requirements of a conditional sentence order, as described above, exist. Sentencing [ 143 ] Mr.

C.D.M., please stand. [ 144 ] On the two counts to which you have pled guilty, I sentence you to a global sentence by way of a conditional sentence order of seven months, allocated as five months on Count 1 and two months on Count 2, to be served on a consecutive basis.

[ 145 ] The terms of the conditional sentence orders on both counts will be as follows. Please listen very carefully. [ 146 ] Referencing from the standard pick list, 3001: You must keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court. [ 147 ] You must notify the court or your conditional sentence supervisor in advance of any change of name or address, and promptly notify the court or supervisor of any change in employment or occupation. [ 148 ] You must remain in British Columbia, unless you have prior written permission from the court or your conditional sentence supervisor to leave the province. [ 149 ] 3101: You must report in person to a conditional sentence supervisor at the Duncan Community Corrections office which is Unit 7, 180 Central Road, Village Green Mall, Duncan, British Columbia, and Madam Clerk, do you have the telephone number, or Mr.

Blazina, do you have the telephone number? [ 150 ] THE CLERK: I do, Your Honour. The telephone number is 250-746-2854. [ 151 ] THE COURT: And Madam Clerk, I just want to confirm, I did provide the correct address from memory, did I? [ 152 ] THE CLERK: 7-180 Central Road, Duncan, B.C. [ 153 ] THE COURT: I think it is Unit 7. [ 154 ] THE CLERK: Unit 7. [ 155 ] THE COURT: Unit 7, 180 Central Road, is that correct, Mr. Blazina? [ 156 ] CNSL J.

BLAZINA: Yes, that's my understanding, yes, I've always heard it that way. [ 157 ] THE COURT: Thank you. [ 158 ] THE CLERK: That is -- yes, that is the information that I have as well, Your Honour. [ 159 ] THE COURT: All right, so that will be by 3:00 p.m. tomorrow, that being June 21, 2022, and after that you must report as directed by your supervisor. [ 160 ] Then the next provision will be 3201: When first reporting to your conditional sentence supervisor, you must provide them with the address where you live and your phone number.

You must not change your address or phone number without prior written permission from your supervisor. [ 161 ] The next provision will be as follows: You must have no contact or communication, directly or indirectly, with -- and then the full name of the Child Victim will be inserted, (and I note it is fully set out in the release order of October 6, 2020) and then also the sibling of the Child Victim which is set forth in Condition 1 of the October 6, 2020, release order. [ 162 ] The next condition is you must not have any contact or communication -- and then the Mother's full name will go in -- and not attend her residence, except with her prior -- or not -- I am just going to make it not attend her residence or place of work or place of worship, or any place that she may be.

If you see her, you must immediately depart and not return to any of those locations. [ 163 ] The next condition is that you must not be in any place where -- and then the Child Victim's name will go in, in full, and -- and then also the sibling's name, (as set forth in the release order) happens to be. If you see them, you must leave the place immediately without any words or gestures. [ 164 ] The next condition will be the curfew condition. I am actually going to use the house arrest provision, 3209-2: You must obey house arrest by being inside your residence 24 hours a day, every day.

The second condition is you must present yourself immediately -- I am sorry, I am going to make an adjustment to the first condition. That is you must be inside your residence or within, I am going to say, 30 metres of the front door of that residence, 24 hours a day, every day.

The second provision is you must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest. [ 165 ] Next provision: You may be away from your residence during the house arrest with the written permission of your conditional sentence supervisor. Such permission is to be given only for employment or other compelling reasons, including any counselling.

You must carry the permission when you are outside your residence. [ 166 ] I am going to make the following additional exception, 3209-2-A: You may also be away from your residence during the house arrest hours:

a) while at, or going directly to, or returning directly from a healthcare facility because of a medical emergency. If asked, you must provide your conditional sentence supervisor with proof of your attendance at the facility; and I will further add in; and

b) in the immediate presence of an individual approved of in advance by your conditional sentence supervisor. [ 167 ] I am going to also impose Condition 3401: You must not possess or consume alcohol, drugs, or any other intoxicating substance, including cannabis, except with a medical prescription. [ 168 ] I will not impose the Elton Hubbs order being sought by Crown. However, I am going to impose a condition as follows: You

must not be in the presence of any child under the age of 10 years. The exceptions are as follows: You may be in the presence of such a child while in the presence of that child's parent or guardian. [ 169 ] I am going to pause for a moment. Mr. Blazina, are there any other conditions Crown was seeking or would be seeking in a conditional sentence order? [ 170 ] CNSL J.

BLAZINA: I was seeking some additional conditions, but they mostly related to the probation order, Your Honour, in terms of counselling and that sort of thing. [ 171 ] THE COURT: Yes, thank you, in fact, in the conditional sentence order, I think it is appropriate that there be a counselling provision, so I am going to put in 3501: You must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your conditional sentence supervisor. [ 172 ] Mr. Drury, I am contemplating it would be useful to have the provision whereby Mr.

C.D.M. consents to permitting his conditional sentence supervisor to obtain confirmation from his counsellors of his attendance? [ 173 ] CNSL R. DRURY: I am sorry, Your Honour, I -- to conform -- sorry, to confirm -- [ 174 ] THE COURT: Yes, it is Provision 3508, having consented in court, you must sign any document that is necessary for your conditional sentence supervisor, counsellor, or treatment providers to check your attendance and completion of any intake, assessment, counselling, or treatment program. [ 175 ] CNSL R.

DRURY: Oh yes, that condition, I don't see why he wouldn't consent, Your Honour, it makes good sense. [ 176 ] THE COURT: All right, Mr. C.D.M., do you understand that condition? Are you agreeable to that? [ 177 ] THE ACCUSED: Yes. [ 178 ] THE COURT: Thank you. [ 179 ] THE ACCUSED: Your Honour, I have one question. [ 180 ] THE COURT: Yes. [ 181 ] THE ACCUSED: As far as the no-contact order with the child's Mother, her trailer is like 20 feet away from mine on the property that I live on at the mill site, so we've had a -- like we've had a no-contact order where, with her express consent.

If she revokes that consent, I can't have contact, but -- [ 182 ] THE COURT: All right. I better hear submissions on that. I was not aware that that was the living arrangement. I had understood you were specifically on your employer's property. I did not understand that you were adjacent to the Mother. [ 183 ] THE ACCUSED: Yeah, I am on the employer's property and she was just supposed to have her trailer there for a few days and it's been there for a month and a half and I have no way of making her remove it. [ 184 ] CNSL J. BLAZINA: I'm not sure -- this is Mr.

Blazina -- I'm not sure exactly when that started or how long it's been going on. Could Mr.

C.D.M. just advise the court, in terms of what the distance is between where he's actually living and where her trailer is that apparently she's living at now? [ 185 ] THE ACCUSED: It's like -- it's like 20 feet away, right beside mine, and the mill yard is like, I don't know, a couple hundred square yards, so I'm just wondering, with the 30 yards, I won't be able to work. [ 186 ] THE COURT: Well, no, that is -- you need to -- you will have to get the approval of your supervisor. [ 187 ] THE ACCUSED: Okay. [ 188 ] THE COURT: In other words, you will be able to explain that to your supervisor.

Your supervisor will be able to make an adjustment for the -- I have provided that exception, in order for you to attend your employment. [ 189 ] THE ACCUSED: Okay. [ 190 ] THE COURT: Okay, but when you are not working, you have got to be within that radius that I have described. [ 191 ] THE ACCUSED: I understand. [ 192 ] THE COURT: Okay, so I think I am going to have to go back and amend the no-contact provision involving the Mother, who we have not previously identified in the reasons for judgment. So I am going to make that provision.

I will substitute the following, and I will draw specifically, Madam Clerk, from Condition 2 in the release order. So it will be that you must not have any contact or communication with, and then the Mother's full name, and not attend her residence, except with her prior consent. You must immediately stop all contact or communication with -- and then her name goes in -- and not attend her residence, and leave her presence upon her request, or upon the request of a peace officer.

If a request is made, you must have no further contact or communication -- and then her name goes in again -- and not attend her residence until she once again provides her consent to do so. [ 193 ] Does that satisfy the concerns, Mr. C.D.M.? [ 194 ] THE ACCUSED: Yes.

[ 195 ] THE CLERK: So noted, Your Honour. [ 196 ] THE COURT: Thank you. But that does not apply to the Child Victim or the sibling, you understand that? [ 197 ] THE ACCUSED: I understand that, yes. [ 198 ] THE COURT: All right. Mr. Blazina, I just want to confirm, there are no additional conditions the Crown was seeking? I am not putting in a no weapons, I am not putting anything of that nature. [ 199 ] CNSL J. BLAZINA: That's right. The only thing that I did notice, and I think Your Honour actually is required to at least consider it, and I apologize for not raising this earlier in submissions.

The statutory language in s. 110 of the Criminal Code , which has to do with a firearms prohibition, I know that there was a discretionary prohibition that was imposed in December of 2019 for two years that also involved a forfeiture order that would have expired the 3rd of December of last year. The language in the

section actually just says that the court shall consider whether it is desirable, in the interests of safety of the person or any other person. I have no specific submissions on that, except for the fact that it was previously imposed and it is something that Your Honour at least must consider. [ 200 ] THE COURT: All right. Mr.

C.D.M., are you a gun owner or do you have any guns, or do you have any other things that look like guns or replicas, that sort of thing? [ 201 ] THE ACCUSED: That incident was I -- after my dad passed away, he had a gun collection and I still had the guns, but I didn't have the proper licensing to be in possession, so they were seized and forfeited, and I don't have any guns at all now. [ 202 ] THE COURT: All right, and you don't have any possession or acquisition certificates or licences? [ 203 ] THE ACCUSED: No, I don't. [ 204 ] THE COURT: All right. I consider, Mr.

Blazina -- I think in all of those circumstances, I am not going to make that discretionary order. [ 205 ] CNSL J. BLAZINA: All right, thank you, Your Honour. [ 206 ] THE COURT: All right, so far, Mr. C.D.M., you are following the specific conditions I have imposed.

Do you understand all of them? [ 207 ] THE ACCUSED: Yes, I understand. [ 208 ] THE COURT: Okay, because -- keep listening, there is more, because I am going to be asking you whether or not you heard them, understood them, and then I am going to waive your signature on documents if you acknowledge that you have understood them and you will follow them, all right? [ 209 ] THE ACCUSED: All right. [ 210 ] THE COURT: All right, so I am now going to turn to the terms of probation.

Terms of Probation Order [ 211 ] So in addition to the conditional sentence orders I have imposed upon you, you will also have a period of probation of 24 months after you have completed your sentence, which will contain the following terms: [ 212 ] 2001: You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. [ 213 ] I am going to then include the following reporting conditions. [ 214 ] 2104: You must report in person to a probation officer, and then the particulars for the Duncan probation office will be inserted, within two business days after your release from custody or completion of your conditional sentence, unless you have obtained, before your release from custody or completion of your conditional sentence, written permission from the probation officer to report elsewhere or within a different timeframe.

After that, you must report as directed by your probation officer. [ 215 ] The next provision is going to be 2202: When first reporting to the probation officer, you must provide them with the address where you live and your phone number. You must not change your address or phone number without first notifying your officer in advance of any such change. [ 216 ] The next provision will be the same no-contact provisions as they relate to the Child Victim and to the Child Victim's sibling, as contained in the conditional sentence order.

There will be the same provision that you must not go to any place where – then with their names inserted, you must not have any contact or communication, directly or indirectly, with the Child Victim and then also the name of the Child Victim's sibling. [ 217 ] And then the next provision: You must not be in any place where the Child Victim or the Child Victim's sibling, (as named in the release order) happens to be. If you see them, you must leave the place immediately without any words or gestures. [ 218 ] I am going to pause for a moment. Mr.

Blazina, again in the present circumstances, is Crown seeking there be no contact or communication with the mother, or not?

[ 219 ] CNSL J. BLAZINA: The Crown would ask that the same condition with the same exception and language that Your Honour put in the curfew or the CSO continue through the probation order. [ 220 ] THE COURT: All right, I will make that then. You must have no contact or communication, and the Mother's name will be inserted, and not attend her residence except with her prior consent. You must immediately stop all contact and communication, (and then the Mother's name goes in) and not attend her residence, and leave her presence upon her request or upon the request of a peace officer.

If a request is made, you must have no further contact or communication, (and the Mother's name is inserted) and not attend her residence until she once again provides her consent to do so. [ 221 ] There will be no further house arrest or curfew condition. [ 222 ] I am going to put in the same counselling provision as contained within the conditional sentence order, with the same provision that I did for providing information to your probation officer concerning attendance and completion of all programming, identical as to what you previously consented to. Do you agree with that, Mr.

C.D.M.? [ 223 ] THE ACCUSED: Yes, I agree. [ 224 ] THE COURT: Thank you. I am not going to put in an Elton Hubbs order. [ 225 ] I am going to leave out the alcohol and drug issue provisions. If he has not resolved all of his issues by that point, I think I am setting him up for failure, so I am quite content not to put in restrictions on the use of drugs and/or alcohol. [ 226 ] So I believe that those conditions for reporting and counselling will be sufficient. [ 227 ] Is Crown seeking anything further? [ 228 ] CNSL J.

BLAZINA: The only -- the only issue that I have, Your Honour, arises still with respect to his contact with young persons and whether it should be monitored at all, or not. [ 229 ] THE COURT: Oh right. Well -- [ 230 ] CNSL J. BLAZINA: And particularly persons -- I think we had specified persons under the age of 10 years in the CSO, and I don't want to unduly restrict his contact with those persons, but it would probably be wise if his probation officer was aware of the contacts. [ 231 ] THE COURT: Do you have any proposed wording that you would be seeking?

The problem being that if he is having to get permission every time, he may not be able to get that permission in a particular situation, so I would consider a provision that he must not be alone with a person under the age of 10. [ 232 ] CNSL J. BLAZINA: No, I think that makes sense. [ 233 ] THE COURT: All right, and so if he is in the presence -- [ 234 ] CNSL J. BLAZINA: Except in -- I think as Your Honour specified, except in the company of the parent or guardian, or with prior permission from the bail supervisor or probation supervisor. [ 235 ] THE COURT: Are you content with that language, Mr.

Drury? [ 236 ] CNSL R. DRURY: Yes, it seems to make sense from my perspective, Your Honour. [ 237 ] THE COURT: Okay, Mr. C.D.M., you can abide by those conditions, can you? [ 238 ] THE ACCUSED: Yes, I can. [ 239 ] THE COURT: All right. All right, well, so those will be the probation terms -- Madam Clerk, do we have all the terms of the probation order. [ 240 ] THE CLERK: Yes, Your Honour. [ 241 ] THE COURT: Okay. Now, Mr. C.D.M., there has been a lot of conditions.

You have heard me read those conditions out and do you -- with respect to the conditional sentence order, you understand all those conditions, do you? [ 242 ] THE ACCUSED: Yes, I do understand. [ 243 ] THE COURT: Okay, and you are agreeing to follow those conditions? [ 244 ] THE ACCUSED: Yes, I agree to follow them, yes. [ 245 ] THE COURT: And you understand that if you were to fail to do so, there is a very strong likelihood that Crown will be seeking to collapse – that is seeking to have the court collapse the conditional sentence order That means that if Crown’s application was granted, it would mean you may have to spend the balance of the unexpired portion of the conditional sentence order in custody.

Do you understand that? [ 246 ] THE ACCUSED: Yes, I understand that.

[ 247 ] THE COURT: Okay. And so I am going to waive Mr. C.D.M.'s signature on the conditional sentence order, and any documentation relating to it. [ 248 ] I am going to now turn to the terms of the probation order.

You have heard me read out those terms and conditions, have you, sir? [ 249 ] THE ACCUSED: Yes. [ 250 ] THE COURT: You understand those terms and conditions? [ 251 ] THE ACCUSED: Yes, I do. [ 252 ] THE COURT: And do you understand and are you prepared to follow those terms and conditions? [ 253 ] THE ACCUSED: Yes, I am. [ 254 ] THE COURT: And do you understand that if you were to fail to do so, you could be charged with a criminal offence, arrested, and brought back before the court? [ 255 ] THE ACCUSED: Yes, I understand that. [

[…]