R. v. Bermudez, 2013 ONCJ 113

COURT FILE No.: Metro North Court House DATE: 2013·01·18 Citation: R. v. Bermudez , 2013 ONCJ 113 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JOHNNY BERMUDEZ Before Justice Carol Brewer Heard on December 13, 2011 and November 28, 2012 Reasons for Sentence released on January 18, 2013 Christine Pirraglia ................................................................................................. for the Crown Barry E.

Plant .................................................................... for the defendant, Johnny Bermudez Brewer J.: Introduction [ 1 ] On December 13, 2011 Johnny Bermudez pleaded guilty to eight counts of giving contradictory evidence, relating to his testimony at various court proceedings in the case of Regina v. Erika Mendieta . Ms. Mendieta was charged with second degree murder in the death of her daughter, Emmily Lucas.

The defendant appeared as a witness on six occasions: • June 7, 2005 - bail hearing before Ewaschuk J.; • February 1 and 2, 2006 - preliminary inquiry before Cleary J.; • June 5, 2008 - application to vary bail before McMahon J.; • July 18, 2008 - third party suspect application before McMahon J.; • November 4 and 5, 2009 - first trial before Ducharme J.; and • November 15 and 16, 2010 - second trial before Garton J. [ 2 ] After hearing submissions on November 28, 2012, sentencing was adjourned until today.

Facts Relating to the Offence The Circumstances of Emmily Lucas’ Death [ 3 ] Erika Mendieta and Derek Parra had a common law relationship for about 9 years. The couple had five children together: Blanca, Theodoric (Theo), Brandon, Tatianna and Emmily. Their youngest child, Emmily, was born prematurely on January 7, 2001and stayed in the hospital for some time before being released. After leaving the hospital Emmily went to live with Selena Lucas, her paternal aunt, and Selena’s husband, Derek. Mr. and Mrs.

Lucas intended to raise Emmily as their child and believed that all parties had agreed to this arrangement. [ 4 ] Emmily visited Ms. Mendieta on occasion. However, after what was supposed to be short sleepover visit in July 2003,

Emmily was not returned to the care of her aunt and uncle. Mr. and Mrs. Lucas went to Family Court to regain custody of Emmily. At the time of the child’s death, Emmily was the subject of litigation regarding custody and access. Erika Mendieta had been given interim custody and the Lucases had visitation rights. [ 5 ] In November 2003 Emmily was living with her mother and her four siblings, as well as her half-brother, Maximuz (Max), and Maximuz’s father, Johnny Bermudez. Ms.

Mendieta and the defendant were in a common law relationship. [ 6 ] On November 13, 2003, shortly after 4:00 p.m., Erika Mendieta made a 911 call from her cellular telephone, seeking help for Emmily, as she would not wake up. After answering questions from the 911 operator, Ms. Mendieta ended the call and departed from the residence with Emmily. The other children were left in the care of Mr. Bermudez. [ 7 ] The 911 call was identified as a “child not breathing” incident and classified as a top priority matter. An advance life- support crew, as well as a second life-support crew, were dispatched.

As the first ambulance arrived, Ms. Mendieta, who was driving the family car, intercepted the paramedics. She got out of the vehicle, carrying Emmily. The child was “flaccid”, with her head and arms flopping. After Emmily was placed in the rear of the ambulance, the paramedics ascertained that the child’s symptoms were consistent with a serious brain injury.

As a consequence of those symptoms and the bruising on Emmily’s body, the paramedics immediately notified the police that this was a case of suspected child abuse. [ 8 ] Emmily was initially taken to Humber River Regional Hospital, Finch Avenue Site, in order to stabilize her condition. The paramedics were unable to get an airway in as the child was having seizures. Subsequently, Emmily was transferred to the Hospital for Sick Children, where she was treated for several days. Doctors then determined that Emmily was brain dead. She was removed from life support and died on November 23, 2003 at 3:00 p.m.

Erika Mendieta’s Version of Events [ 9 ] Erika Mendieta told the paramedics that Emmily had fallen down the stairs the day before the 911 call. During an interview with a social worker at the Humber River Hospital, Ms. Mendieta reiterated that Emmily had fallen downstairs the day before and that the child got up and seemed fine after the fall. [ 10 ] At the Hospital for Sick Children, Erika Mendieta gave an audiotaped statement to Detective Constable Lorrie Richardson, detailing what had happened with Emmily over the preceding days. Ms.

Mendieta again described Emmily falling down the stairs and getting up afterwards on November 12 th , adding that the child had not lost consciousness. Ms. Mendieta said that she put water on the child’s face and she seemed fine, apart from some redness under her eye. That night Emmily slept well. She got up the following morning and played between breakfast and lunch. Ms. Mendieta and Mr. Bermudez then took Emmily and Max out to run some errands. The family took the car to Canadian Tire for repairs. According to Ms.

Mendieta, Emmily had some pop and chips while waiting for the repairs to be finished. [ 11 ] Canadian Tire records confirm that the car was checked in for service at 2:04 p.m. on November 13, 2003 and released at 2:51 p.m. Mr. Patel, another customer at the Canadian Tire, saw the family and noticed that Emmily was playing, walking and eating. Mr. Patel is a nurse. He stated that Emily’s gait and motor skills were normal. [ 12 ] Ms. Mendieta also told Detective Constable Richardson that, after Canadian Tire, they went to two different grocery stores before returning home. Emmily fell asleep in the car. Ms.

Mendieta brought the child into the house and laid her on the living room couch to sleep. Emmily’s coat and pants were removed, as it was hot in the apartment. Mr. Bermudez went upstairs to have a shower and took Max with him. Ms. Mendieta left to pick up the other children from school. When Ms. Mendieta returned home, Emmily was fine. However, shortly after that they could hear Emmily’s teeth grinding, which led to the 911 call. [ 13 ] Derek Parra testified at both the first and second trials that Erika Mendieta called him from the hospital on November 13, 2003.

She told him that she hit or disciplined the children. Two additional calls between Ms. Mendieta and Mr. Parra, in which the call from the hospital was discussed, were adduced at both trials. The Crown also introduced evidence of a conversation between Ms. Mendieta and the defendant, from a room probe, in which they spoke about Erika’s conversations with Mr. Parra. [ 14 ] At the Hospital for Sick Children, Dr. Darryl Wolski of the Suspected Child Abuse and Neglect Unit examined Emmily. The doctor is an expert in the assessment and

interpretation of injuries in children. Dr. Wolski found that Emmily’s injuries were inconsistent with the explanation provided by Erika Mendieta and with any non-accidental causes. The doctor’s opinion was that Emmily’s injuries would had to have occurred in the period of time between leaving Canadian Tire, where the child was walking and talking, and the time of the 911 call, because the onset of symptoms from a brain injury of this severity would have robbed Emmily of the ability to walk and talk almost immediately. [ 15 ] Dr. Chaisson, a forensic pathologist, and Dr.

Ramsay, a neuro-pathologist, prepared reports for the Mendieta trial. Dr. Chaisson found that Emmily died from non-accidental causes. Dr. Ramsay said that Emmily’s spinal cord had been stretched and that she had massive brain trauma. The child had severe ocular damage consistent with massive brain trauma. According to Dr. Ramsay, the onset of symptoms from the brain trauma would be rapid and would have deprived Emmily of the ability to walk and talk. [ 16 ] Detective Sergeant Bockus, of the Homicide Squad, was given authorization to intercept the communications of Ms. Mendieta and Mr.

Bermudez, who were the only two adults that had access to Emmily during the time when she sustained her fatal injuries. Intercepted calls and communications confirmed that Ms. Mendieta was the person responsible for Emmily’s injuries. Erika Mendieta was arrested on March 5, 2005. Johnny Bermudez’s Varying Accounts of the Events [ 17 ] On November 13, 2003, Johnny Bermudez gave a brief statement to Constable Jeunet-Laval, which was recorded in the officer’s notebook. The defendant did not say that he had caused the child’s injuries. He attributed them to the fall down the stairs the

previous day. According to the defendant, he worked until 3:00 p.m. on November 13 th , Emmily was asleep on the couch and, when the older children got home from school, he told them to be quiet so as not to wake Emmily. Mr. Bermudez told the officer that he was changing his clothes while Erika was putting away groceries, and that he came downstairs when all of the children were calling Emmily’s name. The defendant attributed Emmily’s bruises to the other children playing with her and to Max biting her. [ 18 ] In the early morning hours of November 14, 2003, Mr.

Bermudez gave a videotaped statement to Detective Constables Perrins and Richardson. The defendant said that he was not home during the day on November 12 th and he recounted what Ms., Mendieta had told him about Emmily’s fall. Mr. Bermudez advised the police that he arrived home about 12:30 p.m. on November 13 th . He went with Erika, Max and Emmily to Canadian Tire to get the car repaired and then to a supermarket to get vegetables for dinner. The defendant stated that Emmily and Max both fell asleep in the car and that Erika put Emmily on the couch when they got home.

He took Max upstairs and tidied the playroom, but the child got in the way. He heard Ms. Mendieta arrive home with the older children. The defendant said he jumped into the shower and got out when he heard screaming. By the time he arrived downstairs, Ms. Mendieta had Emmily in her arms and was speaking to the 911 operator. [ 19 ] At the bail hearing on June 7, 2005 the defendant was presented as one of the sureties for Erika Mendieta. Crown counsel opposed Ms. Mendieta’s release and objected to Mr.

Bermudez as a surety, on the basis that he had a criminal record, was facing a criminal charge, was an alternative suspect in the case and had no assets. Mr. Bermudez testified and, during cross-examination, denied causing Emmily’s injuries. [ 20 ] Johnny Bermudez was called as a witness at the preliminary inquiry on February 1 and 2, 2006. He gave an account of the events on November 13, 2003. The defendant testified that he worked a half-day, arriving home at about noon. At that time Mr. Bermudez said that he could see an injury on Emmily’s eye from her fall the day before.

The family went to Canadian Tire and then ran some other errands. When the family arrived home, the defendant said that he went upstairs with Max for a quick shower. After changing his clothes and Max’s clothing, Mr. Bermudez said that he began playing video games. According to the defendant, he played video games with all of the boys, when they arrived home from school. Mr. Bermudez stated that he went downstairs when he heard screaming. The defendant maintained that he was not responsible for Emmily’s injuries. [ 21 ] On June 5, 2008, an application was brought to remove Mr. Bermudez as Ms.

Mendieta’s surety and to have her new husband, Joaquin Fuentes, as a replacement surety. Mr. Bermudez testified and said that his position regarding how Emmily had sustained her injuries had changed, although he declined to elaborate on the nature of the change. [ 22 ] The defendant testified at a third party suspect application on July 18, 2008. He stated that on November 12, 2003, Ms. Mendieta told him that Emmily had fallen down the stairs, but that the child seemed fine. According to Mr. Bermudez, he never went to work on November 13 th . He testified that he and Ms.

Mendieta went to the Ministry of Transportation with Emmily, Max, Brandon and Tatianna. They took Tatianna and Brandon to school, where they had lunch with all of the children. Mr. Bermudez, Erika, Max and Emmily then went to Canadian Tire and a grocery store, before driving around a bit, then going home. The defendant testified that, when Ms. Mendieta went to get the older children from school, he went upstairs with Max to play video games. After going to the washroom, he decided to check on Emmily. Mr.

Bermudez said that as he went downstairs with Max in his arms, he collided with Emmily as she was coming up the stairs. This impact caused them all to fall. The defendant testified that Emmily was unconscious. He placed Emmily on the couch and got a bottle for Max to calm him down. Mr. Bermudez declared that he had never told Ms. Mendieta, until that day, that he was responsible for Emmily’s injuries. He needed to come clean because “he couldn’t go on with himself anymore”, his “conscience was just eating [him] alive.” [ 23 ] At Ms.

Mendieta’s first trial, the defendant testified that he lied on July 18, 2008 and that he was attempting to mislead the court when he told the story of falling down the stairs with Max and Emmily. It was now his position that he did not work on November 13, 2003. Mr. Bermudez described Emmily as crying, rather than sleeping, when her mother went to pick up the other children. Max was also crying. According to the defendant, he lost his temper with the children. He threw Max onto the couch and Max bounced off. He slapped Emmily twice and pushed her twice. After the second push, Emmily did not get back up. Mr.

Bermudez said that he placed the unconscious Emmily on the couch and did not tell anyone what had happened. Shortly after Erika Mendieta was released from jail in June 2005, the defendant advised her that he was responsible for Emmily’s death, although he did not provide her with any details. Mr. Bermudez told Erika that he would tell the court what had happened when the time was right. [ 24 ] On November 15 and 16, 2010, the defendant testified at the second trial of Erika Mendieta. Mr.

Bermudez asserted that he caused Emmily’s injuries when he slapped her twice and pushed her twice when she and Max were crying after Erika left to pick the older children up from school. The defendant could not recall if he told Ms. Mendieta that he was responsible for Emmily’s death prior to the July 18, 2008 hearing. Mr. Bermudez commented that he had told so many lies that he was having trouble keeping them straight. He acknowledged that his testimony on July 8, 2008 was a lie that was designed to mislead the court. The defendant agreed that he had advised Ms.

Mendieta that he was responsible for Emmily’s injuries on the steps of St. Wilfred’s church prior to the first trial. Mr. Bermudez admitted that he had met Erika Mendieta for coffee approximately six times between the first and second trials, but claimed that they had not discussed the case. [ 25 ] Regarding the defendant’s alleged confession of culpability to Ms. Mendieta, Erika’s testimony was that it took place inside a church, but she had difficulty remembering which church it was.

In her reasons for judgment, Justice Garton found that the church confession was a fabrication concocted by Bermudez and Mendieta. Facts Relating to the Offender [ 26 ] Johnny Bermudez is 39 years old. He was born in Ecuador, as the youngest of four children. There was turmoil in the family as the defendant’s father was abusive towards his mother, Norma Guerra. In 1975, Ms. Guerra and the children immigrated to Canada. The defendant’s father joined them in 1979. The parents separated a few years later. [ 27 ] The defendant has a grade 10 education.

He has been employed since leaving school, working in the carpentry,

demolition and upholstery fields. For the past five years Mr. Bermudez has been employed as a dry waller. [ 28 ] At age 20, the defendant left his mother’s home and got married. The marriage ended in 1994, but produced two daughters. The defendant’s ex-wife has custody of the children, who are now 19 and 18 years old. The defendant has contact with his daughters, but has not spoken to them about his court proceedings. [ 29 ] Mr. Bermudez met Erika Mendieta in May 2001. By the summer of 2001, they were living together, along with Ms. Mendieta’s children. Max was born in April 2002.

Although the defendant described the relationship as “loving” and said that the family worked well together, he also commented that Erika could be verbally abusive and “sometimes” they had physical altercations. The couple maintained their relationship after Emmily’s death, until they separated in 2008. [ 30 ] The Catholic Children’s Aid Society first became involved with the defendant in June 2003 over an allegation that he left Max unattended in a car for 15 minutes. After an investigation, with which Mr. Bermudez was cooperative, the file was closed.

The Society became involved again in August 2003, when it was alleged that the defendant had assaulted one of Emmily’s caregivers in front of the children, when removing her from the Lucas’ home. Mr. Bermudez claimed that he was acting in self-defence. In the Society’s opinion the defendant appeared “overwhelmed in meeting the demands of six children.” Goals for the well being of the children were set by the Society for a six month period. After Emmily was injured, the other children were apprehended and admitted to foster care.

From November 2003 to March 2004 the defendant had supervised access visits with the children and seemed motivated to meet their needs. By September 2004, Mr. Bermudez was described as uncooperative and “resistant” to working with the Society, although supervised access to the children continued. In January 2005 Max became a Society ward and a relative of the defendant’s became a provisional foster care provider. In May 2005 Mr. Bermudez was granted unlimited access to Max, under the supervision of a relative.

However, in June 2005, after the Society learned that the defendant’s visits with his son were not being supervised, the child was placed in foster care but supervised visits continued. Mr. Bermudez also had supervised access to his stepchildren. A case conference in January 2006 noted the defendant’s abuse by Ms. Mendieta, his low self-esteem and his lack of interest in seeking counselling. In January 2008, Max was adopted and visitation ended. By August 2008, the stepchildren were in the permanent care of relatives. [ 31 ] In 2003 the defendant began using alcohol and marijuana.

His abuse of these substances escalated in the following years until it reached a level Mr. Bermudez described as “hard core”. According to the defendant, he turned to drugs and alcohol as a way of coping with Emmily’s death, the subsequent criminal proceedings and his own conduct during the investigation. He advised the author of the pre-sentence report that he resorted to substance abuse as a way of dealing with his feelings of shame, embarrassment and depression. Mr. Bermudez decreased his use of substances when he began therapy and ended his use of drugs and alcohol as of March 2012. [ 32 ] In August 2005 Mr.

Bermudez was found guilty of fraud, for which he received a suspended sentence and 1 year of probation. During the period of probation, the defendant did not make restitution payments as required, and failed to report on numerous occasions. He was found guilty of breach of probation in July 2009 and sentenced to a fine of $200. [ 33 ] Between January 16 and May 8, 2012 the defendant had four sessions with Dr. Jerry Cooper, a psychiatrist. Mr. Bermudez was diagnosed as having generalized anxiety disorder.

It is the doctor’s opinion that the defendant was an individual who “had no guidance”, used poor judgment, was remorseful and filled with guilt feelings. With respect to the offences, Mr. Bermudez advised the doctor that his motivation for the offences was to protect Erika Mendieta, as she had other children that needed her. At the time of Dr. Cooper’s report the defendant still cherished strong feelings for Ms. Mendieta and wanted to resume a relationship with her. However, by the time of sentencing submissions, Mr. Bermudez had abandoned the hope of reconciliation.

The doctor noted that the defendant is fearful of incarceration and the possibility of deportation. According to Dr. Cooper, Mr. Bermudez “does have potential which can be realized through psychotherapy and guidance, and incarceration may cause vocational instability”. The doctor expressed the view that the defendant will not be in trouble with the law again. [ 34 ] Mr. Bermudez’s family is supportive of him. He has lived with his mother periodically throughout his adult life.

Prior to his relationship with Erika Mendieta, the defendant was close to his mother and siblings, often visiting and attending family gatherings, as well as helping his sisters with their children and caring for his mother. During his involvement with Ms. Mendieta, Mr. Bermudez isolated himself from his own family. His familial ties began to be repaired after the relationship with Erika Mendieta ended. The defendant’s mother was his surety for these charges. Both his mother and brother have attended court during these proceedings. The Position of the Parties [ 35 ] On behalf of the Crown, Ms.

Pirraglia is seeking a jail sentence of five to six years. Mr. Plant urges me to impose a conditional sentence of two years less one day or, in the alternative, a period of incarceration of six to 12 months. Analysis General Principles [ 36 ] The offence of giving contradictory evidence in a judicial proceeding, like that of perjury, is an indictable offence punishable by a maximum of 14 years imprisonment.

As both crimes involve misleading justice, and there are comparatively few judgments involving sentencing for the giving of contradictory evidence, in this case both counsel and I have placed substantial reliance on cases dealing with sentencing for perjury. [ 37 ] Giving contradictory evidence is an offence that strikes at the heart of the judicial system. The impact of evidence that is intended to mislead has been noted in various judgments: We rely on sworn testimony of witnesses to determine the truth.

Unless our system of justice can expect witnesses to tell the truth, there is no reliable basis for a court of law to come to a determination of the issues before it. If witnesses are of the impression that their oath to tell the truth will attract little responsibility or consequences, then their reliability will be suspect and the system will fall into

disrepute: R. v. Martin , [1993] N.B.J. № 492 (Q.B.) at ¶9 The administration of justice is based on the truthful testimony of those persons who are called to give evidence under oath. The freedom, or on the other hand, the incarceration of accused persons in serious criminal offences depends totally upon the truthfulness of those witnesses: R. v.

Glauser , [1981] A.J. № 968 (C.A.) It is fundamental in any judicial proceeding that witnesses treat the process with respect and tell the truth, and that if they do not, the court deal with them appropriately to show not only other witnesses, who may potentially do the same, but society that it takes extremely seriously the process of ascertaining the truth. This can no where be more important, both for the system itself and for the respect society gives to the system as a means of resolving disputes in society, than in the case of a homicide.

The courts must treat this process with utmost seriousness, not only for the parties involved in each case, but because society must be confident that these questions can be fully dealt with in an appropriate manner by the court system. Structure in society depends on this: R. v. Desnomie , [2005] S.J. № 785 (C.A.) at ¶7 [ 38 ] The primary sentencing principles to be considered for offences of this kind are general deterrence and denunciation: R. v. Jackson , [2010] B.C.J. № 1341 (C.A.); R. v. White , [2010] O.J. № 5185 (S.C.J.).

Other like-minded people need to know that giving contradictory evidence with intent to mislead a court will not be countenanced. A sentence can only denounce conduct and deter others to the extent that it is punitive: R. v. Rawn , [2012] O.J. № 3096 (C.A.); R. v. B.W.P. , [2006] S.C.J. № 27.

This does not mean that other sentencing principles, such as rehabilitation, must be ignored; their role in sentencing for crimes of this nature is simply attenuated. [ 39 ] The following factors have been held to be of assistance in determining the length of sentence for perjury or the giving of contradictory evidence: • the relative seriousness of the offence with respect to which the misleading testimony was given; • the effect, if any, on the outcome of the trial by reasons of the contradictory evidence; • whether the testimony dealt with a vital part of the evidence; • whether the misleading evidence led to the implication of an innocent person in a crime or it was given in the hope that it would procure the acquittal of a guilty person; and • whether the contradictory evidence was planned and deliberate or the result of sudden temptation in the course of testifying: R. v.

Jordan; R. v. Sager , [1986] A.J. № 610 (C.A.) at ¶7; R. v. Reyat , [2011] B.C.J. № 8 (S.C.) at ¶40. Aggravating and Mitigating Circumstances [ 40 ] The case law makes it apparent that, in general, the offence of giving contradictory evidence is a serious one that requires significant sanctions. Further, there are a number of circumstances that make this case particularly troubling. The defendant gave his contradictory evidence in the course of proceedings involving the second degree murder of a two and a half year old child. As Gerwing J.A. commented in R. v.

Desnomie, supra at ¶7: “The investigation of who caused a homicide is one of the most significant that a court can undertake and one that must be carried out with openness and with the greatest attention to seeking the truth in order to preserve society’s respect for the judicial system.” [ 41 ] Further, the extent of the misleading evidence given by Mr. Bermudez, which led to eight separate charges, is unprecedented.

His testimony evolved from denying any knowledge of how Emmily’s injuries occurred to denying causing any of those injuries to an admission of, perhaps, accidentally causing the injuries to an account of culpability by slapping the child and pushing her to the ground. [ 42 ] The effect of the misleading evidence on the outcome of the trial cannot be determined with any certainty, apart from the fact that it caused a significant delay in reaching the ultimate outcome of the case. Mr. Bermudez’s testimony led to the withdrawal of his counsel.

It may also have had a bearing on the jury’s inability to reach a verdict in the first trial. Not only do such delays affect the public perception of the justice system, they prolong the pain of Emmily’s loved ones, such as her father, aunt and grandmother. [ 43 ] The defendant’s contradictory evidence went to a crucial issue in the case: the identity of the perpetrator. It was designed to derail the prosecution, exonerate a guilty person and subvert the truth-seeking function of judicial proceedings. This was repeated and deliberate conduct, as opposed to a single instance of poor judgment.

An example of premeditation was evident in the defendant’s admission, on June 5, 2008, that his position as to how Emmily had sustained her injuries had changed, together with his refusal to reveal the nature and extent of that change. Mr. Bermudez had counsel and was fully aware of the potential consequences of his actions. Accordingly, he bears a high degree of responsibility for his offences. [ 44 ] I accept that Mr. Bermudez’s motive in embarking on this considered pattern of conduct was to protect Erika Mendieta from her misdeeds. However, his misguided affection for Ms.

Mendieta caused him to disregard his obligation to Emmily and, as a member of the community, to the court to tell the truth. [ 45 ] There are mitigating factors in this case. The defendant pleaded guilty, accepted responsibility for his criminal conduct, and is remorseful. His criminal record is relatively minor and dated. He has a supportive family, which augers well for the future. Mr. Bermudez also has maintained gainful employment, [ 46 ] The defendant spent three days in custody prior to being released. He has been on bail since April 28, 2011 without incident. The terms of Mr.

Bermudez’s recognizance are strict. The conditions include house arrest, except when working or in the company of his surety; and weekly reporting. In R. v. Downes , [2006] O.J. № 555 the Ontario Court of Appeal stated that a sentencing

judge has the discretion to give an accused credit for time spent under stringent pre-trial bail conditions: see also R. v. Dragos , [2012] O.J. № 3790 (C.A.). I intend to include the 20 months of stringent bail conditions as a mitigating factor in determining the appropriate quantum of sentence. The Appropriate Quantum of Sentence [ 47 ] After a careful review of the authorities provided to me by counsel, I have concluded that the range of sentence for offences of giving contradictory evidence in the context of a homicide trial is between two and six years imprisonment. [ 48 ] Pursuant to

section 742.1 of the Criminal Code , one of the preconditions for the granting of a conditional sentence is the imposition of a sentence less than two years imprisonment. Accordingly, such a sentence is not available in this case. In any event, I believe that the aggravating circumstances of the defendant’s offences are such that the fundamental purposes of sentencing can only be served by a disposition that places a heavy emphasis on general deterrence and denunciation. I recognize that a conditional sentence can, in some circumstances, adequately address these objectives: R. v. Proulx , [2000] S.C.J. № 6.

However, in my view, this is a case where the demands of denunciation and general deterrence are so pressing that incarceration is the only suitable disposition: R. v. Proulx, supra at ¶106; R. v. Dorn , [2010] O.J. № 2084 (S.C.J.). [ 49 ] Taking into account the sentencing principles set out in the Criminal Code and the relevant circumstances of this case, I believe that a sentence of 3 years incarceration is warranted. Released: January 18, 2013 Signed: “Justice Carol Brewer”