R. v. Gillis, 2024 PESC 4

SUPREME COURT OF PRINCE EDWARD ISLAND Citation: R. v. Gillis , 2024 PESC 4 Date: 20240117 Docket: S1-GC-1671 Registry: Charlottetown His Majesty the King Against Ryan Larry Gillis Before: The Honourable Chief Justice Tracey L. Clements Appearances: M. Bridget Morriscey, lawyer for the Crown Isaac A. Quinn, lawyer for the Offender Place and date of hearing - Charlottetown, Prince Edward Island November 28, 2023 Place and date of oral decision - Charlottetown, Prince Edward Island January 16, 2024 Place and date of written decision - Charlottetown, Prince Edward Island January 17, 2024

CRIMINAL LAW – Sentencing – Aggravated Assault – Appropriateness of Conditional Sentence The offender struck the victim in the head with a beer glass in a drinking establishment. The attack was essentially unprovoked. Theoffender pleaded guilty. The offender has struggled with anger and alcohol issues, and has a related criminal record. He has morerecently taken steps to address his alcohol issues. The court declined to order a conditional sentence. Rather, the offender was sentenced to a period of incarceration of 4½ months,followed by probation for 12 months.

STATUTES REFERRED TO: Criminal Code of Canada, RSC 1985, c C-46. CASES CONSIDERED: R. v. Lacasse, 2015 SCC 64; R. v. M. (C.A.), (SCC), [1996] 1 SCR 500; R. v. Nasogaluak,2010 SCC 6; R. v. Sharma, 2022 SCC 39; R. v. Proulx, 2000 SCC 5; R. v. Nathan Alexander Martin, unreported, 2011 PESC; R. v.Thornhill, 2014 CarswellNfld 187 (P.C.); R. v. Aziz, 2017 ONSC 5384; R. v. Keresztes, 2015 ABCA 48; R. v. Darren Duncan,unreported, 2003 PEPC; R. v. Leckner, 2000 CarswellOnt 8387 (SCJ); R. v. Leger, 2014 CarswellNfld 313 (P.C.); R. v. Schneider, 2017ABPC 245; R. v. Christopher Hebert, unreported, 2021 PEPC; R. v.

Hanna Dora Crossman, unreported, 2021 PEPC; R. v.Perepelecta, 2004 ABPC 88; R. v. Rahme, 2010 ABQB 579; R. v. Veenhof, 2011 ONCA 195; R. v. Jackson, 2002 BCPC 152; R. v.Blackmore, 1999 CarswellPEI 107 (C.A.). Clements, C.J.: I. Introduction [1] This court is once again called upon to determine the appropriateness – or inappropriateness – of a conditional sentence order. [2] The offender has pleaded guilty to aggravated assault arising from an incident in a bar where the offender struck the victim onthe head with a beer glass.

While the broader question is the question of a fit and appropriate sentence, the key issue before the court iswhether the offender should be sentenced to an institutional sentence to be served at the Provincial Correctional Centre or, whether thecourt should allow the offender to serve the sentence in the community and be under house arrest. [3] Both the Crown and defence agree that a conditional sentence order is statutorily available for the subject offence. However, theCrown argues a conditional sentence order would not be a fit and appropriate sentence.

The Crown seeks a custodial sentence of 12months followed by probation in the range of 12 – 18 months. The defence suggests an 18-month conditional sentence or alternatively, acustodial sentence of 3 – 6 months, along with probation of 12 months. [4] The Crown and defence agree on the issuance of ancillary orders – namely, a weapons prohibition, a DNA order and a victimsurcharge. [5] While additional details will follow, in

summary, the offender has a related criminal record; is in his late 30’s; has two youngchildren who reside in Newfoundland with the offender’s previous partner; works in the lobster fishery and owns his own fleet; and, hasstruggled with anger and addiction issues (primarily alcohol). The court has been advised he has maintained sobriety since late April2023. [6] As will be expanded upon, there are a number of sentencing objectives, but the cardinal principle is that of proportionality: asentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. II.

Facts [7] The facts are set out in the Agreed Statement of Facts filed June 28, 2023. The offence occurred at a drinking establishment –The Tailgate Bar – in Montague, Prince Edward Island just before midnight on January 28, 2023. The incident was captured on theestablishment’s video surveillance. The victim, Kelly Jamieson and the offender were both seated at the bar. Jamieson indicated that theoffender was “harassing” the bartender and Jamieson told the offender to “leave the bartender alone”. Jamieson did not expect anyretaliation as a result of his comment to the offender, and turned away from the offender.

However, moments later the offender stood up,

walked towards Jamieson and struck Jamieson in the head from behind with a beer glass. [8] Kings District RCMP were dispatched to the scene by way of a panic alarm. Upon arrival RCMP learned that the offender hadleft the location. Jamieson initially declined medical treatment upon being seen by EMS, but the following day Jamieson attended KingsCounty Memorial Hospital. As a result of the incident, Jamieson suffered a 1” x .05” laceration to his posterior scalp. The laceration wascleaned of dried blood and glass shards and was closed with nine staples.

The medical records also indicate that Jamieson likely suffereda mild concussion. The medical records were before the court along with photographs illustrating Jamieson’s laceration. [9] The accused was arrested on January 29, 2023 for aggravated assault. He appeared for a show cause hearing on January 30 andwas released on consent by way of a release order. Some terms of the release order have been varied, including to allow his attendance inNewfoundland (which I understand is to deal with the family law matter and to see his children).

Given the offender’s request for aconditional sentence order and the criteria to be met, the conditions of the release order and the offender’s compliance with theseconditions featured in the submissions of counsel. I will return to this issue later. [10] In terms of the procedural history, the first appearance in this court was March 14, 2023. On May 9, 2023, the court was advisedof the offender’s intention to offer a guilty plea, and that an agreed statement of facts would be filed. The Agreed Statement of Facts wasfiled on June 28, 2023.

On July 6, 2023, the offender offered a plea of guilty, which was accepted, and a Pre-Sentence Report wasordered. The Pre-Sentence Report was filed on October 30, 2023. [11] Both counsel filed written submissions in November and oral sentencing submissions were made on November 28, 2023. III.

Subject Offence [12] The indictment alleges that on January 28, 2023, at or near Montague, Prince Edward Island, the offender wounded Kelly CraigJamieson by committing aggravated assault contrary to s. 268(1) and s. 268(2) of the Code. [13] The subject offence – aggravated assault – is set out in s. 268(1) of the Criminal Code of Canada, RSC 1985, c C-46 (the“Code”): 268

(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [14] Pursuant to s. 268(2), the maximum period of imprisonment is 14 years. IV. Sentencing Principles [15] There are a multitude of sentencing objectives set out in the Code, and informed by case law. As noted, the cardinal principle isthat of proportionality: the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s.718.1 of the Code).

As has been observed by numerous judges, sentencing is one of the most delicate stages of the criminal justiceprocess. In addition, sentencing is a very individualized exercise. [16] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respectfor the law and the maintenance of a just, peaceful, and safe society.

The objectives of sentencing include denunciation; general andspecific deterrence; separation of offenders (where necessary); rehabilitation; making reparations; and, promotion of a sense ofresponsibility in the offender (s. 718, Code). [17]

Section 718.2 of the Code also mandates the court take into consideration additional sentencing principles. Subsection 718.2(a)specifically directs that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstancesrelating to the offence or the offender. Subsection 718.2(b)-(

e) articulates additional sentencing principles: parity; totality; restraint; and,the principle that imprisonment should, within reason, be seen as a last resort especially for Aboriginal offenders. The Code specificallyprescribes a non-exhaustive list of aggravating circumstances (s. 718.2(a)(i)-(vi)). The Crown argues there are several aggravating factorsand I will return to these.

I will also return to the mitigating factors. [18] Proportionality is determined both on an individual basis (namely, in relation to the actual offender and the offence committed bythe offender), and also by comparison with sentences imposed for similar offences committed in similar circumstances. As emphasizedby the Supreme Court of Canada, individualization and parity of sentence must be reconciled for a sentence to be proportionate. Inaddition, the principle of parity is secondary to the fundamental principle of proportionality. In R. v.

Lacasse, 2015 SCC 64 (“Lacasse”),the Court reiterates, as it had articulated in R. v. M. (C.A.), (SCC), [1996] 1 SCR 500, (“M. (C.A.)”) that sentencing isan inherently individualized process and that there is no such thing as a “uniform sentencing” for a particular crime (Lacasse, para. 54;and, M. (C.A.), para. 92). [19] As observed by the Supreme Court of Canada in R. v.

Nasogaluak, 2010 SCC 6 (“Nasogaluak”), the language in ss. 718 to 718.2of the Code, is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to thenature of the offence and the circumstances of the offender (Nasogaluak, para. 43). There are, as noted, a multitude of sentencingobjectives, and no one sentencing objective trumps the other sentencing objectives. Rather, it falls to the sentencing judge to determinewhich objective or objectives merit the greatest weight, given the particulars of the case (para. 43).

Of course, and as noted by the Courtin Nasogaluak, while sentencing judges have wide discretion, the discretion is fettered in part by case law and also constrained bystatute. [20] As emphasized by the Court in Nasogaluak, while sentencing judges should “pay heed” to sentencing ranges, they are“guidelines rather than hard and fast rules.” (Nasogaluak, para. 44) V. Conditional Sentence Regime [21] The conditional sentence regime is set out in s. 742.1 of the Code. A conditional sentence allows an offender to serve the

sentence in the community. [ 22 ] As described by the Supreme Court of Canada in the relatively recent decision in R. v. Sharma , 2022 SCC 39 (“ Sharma ”) conditional sentences permit offenders who meet statutory criteria to serve their sentences under strict surveillance in their communities, rather than in jail ( Sharma , para. 7 ). [ 23 ] A conditional sentence is not available for statutorily excluded offences, nor is it available for an offence punishable by a minimum term of imprisonment. For all other offences, provided the sentence is less than two years, a conditional sentence is available.

However, the court must be satisfied that: 1) the service of the sentence in the community would not endanger the safety of the community; and, 2) would be consistent with the fundamental purpose and principles of sentencing.

Section 742.1 (

a) of the Code provides: 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; … [ 24 ] Parliament first introduced conditional sentences, along with several other sentencing reforms in 1996; however, there have been some changes to the conditional sentence regime. The leading decision on the conditional sentence regime continues to be the decision of Supreme Court of Canada in R. v. Proulx , 2000 SCC 5 (“ Proulx ”). [ 25 ] I pause to provide a few highlights from the decision of the Court in Proulx . Certainly, a conditional sentence is recognized as a form of imprisonment.

As made clear by the Court in Proulx , the two main objectives of a conditional sentence order were: 1) to reduce the use of incarceration as a punishment; and, 2) to give more prominence to the restorative objectives of sentencing. In Proulx , the Court specifically addresses the extent to which a conditional sentence is a “punitive sanction” and more pointedly, the extent to which a conditional sentence may – or may not – address the sentencing objectives of denunciation and deterrence.

On the one hand, the Court in Proulx does make clear that a conditional sentence can certainly be a punitive sanction, and a conditional sentence may in fact provide significant deterrence and denunciation.

However, there will be some circumstances where the need for denunciation or deterrence is so pressing, that incarceration in a correctional facility will be the only way to express society’s condemnation of the offender’s conduct or to deter similar conduct in the future ( Proulx , paras. 107 and 127 ). [ 26 ] Both the Crown and defence agree a sentence of less than two years is appropriate and as such this pre-condition has been satisfied. Counsel agree the subject offence is not an offence punishable by a minimum term of imprisonment and as such this pre- condition has been satisfied.

Counsel also agree that the subject offence does not fall under any of the statutorily excluded offences. What remains therefore is consideration of s. 742.1 (a): 1) whether the court is satisfied that the service of the sentence in the community would not endanger the safety of the community; and, 2) whether a conditional sentence would be consistent with fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of the Code . [ 27 ] The Crown argues that the preconditions in s. 742.1 (

a) are not fulfilled – namely, service of the sentence in the community would endanger the safety of the community; and, a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing – and in particular the principles of denunciation, deterrence and proportionality. The defence argues otherwise. I will return to these questions. VI. Analysis [ 28 ] The circumstances of the offence are set out earlier in this decision. In this

section I will provide some highlights of the circumstances of the offender, followed by highlights of the submissions of the Crown and the defence, including caselaw highlighted. I will then address the aggravating and mitigating factors, followed by the decision. 1. The Offender [ 29 ] Mr. Gillis’ circumstances are detailed in the Pre-Sentence Report and also supplemented by legal counsel. (

a) Personal Circumstances [ 30 ] The offender is 38 years of age and grew up in Eastern Prince Edward Island. His father had absences from the family due to employment. He describes his childhood as traumatic which he attributes to his mother’s long history of mental illness. He has a strained relationship with his mother and is estranged from his sister.

The offender and his father have had difficulties in their relationship, especially when the offender was younger; however, they are now close and his father is very supportive. [ 31 ] While working in Alberta in 2014, the offender met his future wife and they married in 2018. They resided in several communities in Prince Edward Island. The offender reports that in 2019, shortly after the birth of their first child, his former spouse returned to Newfoundland and he reports that she “never really returned” to Prince Edward Island other than returning to work in the lobster fishery in the spring.

He made numerous trips back and forth to Newfoundland to be with his family, but the couple separated in the spring of 2022. The separation was very difficult for him and his counsel advises it put an “incredible strain” on him. [ 32 ] The offender and his former spouse have two daughters, ages 2 and 4 years of age. The children reside with their mother in Newfoundland. The offender provides financial support to the children via child support payments. Defence counsel advises the

children’s mother is unemployed and does not earn an income and they are certainly reliant on the offender. He indicates his children are his priority. [ 33 ] The offender is currently in a relationship with Lorna Murray. He indicates that she has been very supportive with respect to his sobriety as well as the ongoing family law litigation in Newfoundland. They have known one another for approximately 10 years. She resides in Newfoundland and also spends months at a time in Prince Edward Island. (

b) Education and Employment [ 34 ] The offender completed grade 11 but quit school in grade 12 after the first semester. He did obtain his General Education Development Diploma (GED) in 2005. He was enrolled in the Sports Leisure Management Program at Holland College and attended for one year, but did not return to complete the program. [ 35 ] The offender is currently self-employed in the lobster fishing industry and purchased his own fleet in 2017, which he continues to own and operate. His previous employment mostly consists of marine type jobs.

For example, he was previously employed with his father as a fisherman’s helper and worked as a deckhand with Northumberland Ferries for four years. He also worked in Alberta from 2010 to 2015 prior to returning to Prince Edward Island. He fishes in the spring and then draws employment insurance benefits for the remainder of the year. He reports extensive expenses related to his lobster fleet including loan payments as well as expenses for bait, fuel, and salaries. (

c) Criminal Record [ 36 ] Further details of the offender’s criminal record are addressed later. However, in broad strokes, he has dated convictions for uttering threats and assault in 2004; alcohol related driving offence in 2012; driving while disqualified in 2013; and, uttering threats and assault with a weapon in 2015. I pause to note the Crown also relies on the offender’s recent conviction for refusal of a demand in April 2023, though the Crown relies on this conviction for a limited and specific purpose, which I will return to. (

d) Health, Addictions and Anger Issues [ 37 ] The offender has had substance abuse issues and issues with anger for many years. [ 38 ] There are numerous references to alcohol issues in the Pre-Sentence Report, including as reported by his father, former spouse, and friends. The offender’s former spouse also indicated that the offender’s anger worsened when he was drinking. [ 39 ] The offender began consuming alcohol as a young teenage; however, he indicates he had three years of sobriety while living in Alberta. He resumed drinking beer socially in 2017 and in 2019 he was consuming alcohol daily.

He reports he reduced his intake in the summer of 2019 and this continued until the spring of 2022 when he and his wife separated. I pause to note he had three telephone sessions with Addictions Services in January 2022. He continued to drink heavily from the spring of 2022 – including after this offence occurred in January 2023 – until the spring of 2023. I understand things essentially came to a head on April 27, 2023 during an interaction with his father. They had an argument about his alcohol addiction and the offender indicates “my father told me to get sober”.

He has made significant strides in dealing with his alcohol issues since that time. All indications are that the offender has been sober ever since, namely since April 27, 2023. He is to be commended for this. [ 40 ] The Pre-Sentence Report does indicate the offender is making efforts to avoid attending certain establishments including bars and he is also making efforts to avoid associating with previous peers.

He identifies his main supports to be his father and his current partner, as well as several peers. [ 41 ] However, although he initiated a referral to Addictions Services in August 2023 for addictions counselling, the records indicate he failed to attend the scheduled appointment in August 2023. [ 42 ] The offender also has a history of drug use – namely, cocaine.

However, he ceased using cocaine in July of 2019. [ 43 ] The offender’s family physician indicates he is being treated for several medical problems including anxiety, anger issues, chronic back pain, and depression since 2019 “caused by marital and legal problems” as well as “alcohol use disorder”. He takes a variety of medication. The offender reports a very difficult period of time after his marriage ended including that his mood was very low. He exhibited symptoms of depression and was unmotivated.

However, his mental health is better now than it was in the past. [ 44 ] The offender acknowledges that anger has always been an issue for him. He describes himself as someone who “bottles” his emotions and then “explodes”. He is currently meeting with a private counsellor and he self-referred in October 2022 due to significant psychological stressors related to the ending of his marriage and his children being in Newfoundland. The Pre-Sentence Report indicates he has attended for over 12 sessions and is scheduled to continue attending counselling.

I will return to this counselling, and the timing of the counselling, in the context of some arguments advanced by the Crown. [ 45 ] In

summary, as articulated in the Pre-Sentence Report, the offender has struggled with anger issues, anxiety and depression and relational issues. He describes a traumatic childhood. He has struggled with underlying addiction issues and in particular related to alcohol. He acknowledges the impact alcohol has had on many aspects of his life. He has maintained his sobriety for several months and in particular since late April 2023. He has engaged in mental health counselling since the fall of 2022.

He does currently have supports though some of his family relationships have been strained due to his addictions and anger issues. The author of the Pre-Sentence Report observes that over the last several months he has started to make “better choices”. 2. Positions of the Parties [ 46 ] I will now provide highlights of the positions of the Crown and defence, starting with the Crown.

(

a) Crown [ 47 ] The Crown advances a number of arguments. While not exhaustive of the Crown’s submissions, I highlight the following: 1) The sentencing principles of denunciation and deterrence should be given prominence. 2) Rehabilitation is not the primary objective in this case and rehabilitation “should take a backseat” to the sentencing objectives of deterrence, denunciation and proportionality.

Further, there are concerns about the rehabilitative prospects of this offender. 3) There are numerous aggravating factors. 4) The Crown questions both the offender’s insight into his offence (given some of the arguably conflicting statements set out in the Pre- Sentence Report), as well as his commitment to addressing his anger and substance abuse issues 5) The offender is inherently oppositional to authority which is illustrated in his criminal record, his recent refusal conviction in April 2023, as well as the Pre-Sentence Report: he has an inability or unwillingness to follow court orders and direction of those in authority. 6) There has been an escalation in the offender’s offending behaviour and the Crown notes that the current offence of aggravated assault is “one step up” from the most serious offence that he previously had on his record (assault with a weapon). 7) The Crown highlights that while there is no victim impact statement, the impact on the victim is clear based on the medical records and the photographs. 8) The Crown acknowledges the offender’s personal circumstances and “sympathetic situation”, particularly given the fact he is financially supporting his children.

Nevertheless, the Crown argues a variety of sentences have been imposed on the offender, including custody and probation, and various efforts have been made to deter him from criminal conduct; yet, these attempts have been unsuccessful. It is time for a “different approach” – namely, a custodial sentence with an emphasis on deterrence, denunciation and proportionality. 9) The Crown acknowledges the offender’s guilty plea is a mitigating factor (though the Crown suggests it is of less value given the weight of the evidence including the video surveillance which captured the offence). [ 48 ] In

summary, based on the sentencing principles of denunciation, deterrence and proportionality, as well as the sentencing objectives of providing reparations and promoting a sense of responsibility in the offender, the Crown argues: a period of custody is required; proportionality “demands“ a heavy sentence; and, a conditional sentence order is simply inappropriate. As noted, the Crown suggests a period of imprisonment of 12 months. (

b) Defence [ 49 ] Again, while by no means exhaustive, I highlight a number of the submissions made by defence counsel: 1) Counsel readily acknowledges the offender has a significant issue with alcohol. Counsel acknowledges that while the offender did not take immediate steps after the subject offence to address his alcohol issues, he has taken a number of significant steps since late April 2023. The offender ceased drinking completely in April 2023 and since that time has maintained sobriety.

The Pre-Sentence Report describes significant changes made by the offender since that time, and counsel emphasizes the offender is very committed to maintaining sobriety. 2) Counsel emphasizes the positive features in the Pre-Sentence Report including that the offender is a good person, a good father and good worker, when he is sober. He provides financially for his children. 3) The offender has made a number of positive changes and has accepted responsibility.

In addition, he has expressed remorse and has offered a guilty plea. 4) Counsel made a number of submissions in relation to the offender’s primary livelihood of lobster fishing.

Counsel argues strenuously that if the offender is not able to proceed with lobster fishing in the spring, this will have a “devasting impact” not only on the offender, but also on his children. 5) Counsel emphasizes as well that rehabilitation remains a goal, and counsel emphasizes the offender’s age. [ 50 ] Counsel emphasizes the direction of Parliament and the legislative regime which allows for a conditional sentence for the subject offence.

Counsel relies heavily on the decision of the Supreme Court of Canada in Proulx . [ 51 ] Counsel acknowledges the offence of aggravated assault calls out for emphasis on denunciation and deterrence, as primary sentencing objectives.

However, counsel argues as illustrated in the caselaw including from the Supreme Court of Canada, that the principles of denunciation and deterrence can certainly be addressed through a conditional sentence order. [ 52 ] Counsel also suggests, given the direction in the jurisprudence, that it is often appropriate to extend the term of a conditional sentence order (as compared to a traditional custodial sentence). Counsel is therefore suggesting a conditional sentence for a period of 18 months.

Counsel suggests as well the terms of the conditional sentence order should mirror the release order and in particular counsel suggests terms including: being subject to electronic monitoring; curfew; house arrest for the first 12 months (though allowing absences for employment, attendances at medical and related appointments and court ordered parenting time with his children in Newfoundland); community service; programming and counselling as directed; no contact with the victim; and, refraining absolutely from the consumption of alcohol.

[ 53 ] In

summary, the defence argues a fit and appropriate sentence would be an 18-month conditional sentence. In the alternative, counsel suggests a custodial sentence in the range of 3-6 months. 3. Caselaw/Parity [ 54 ] Yes, sentencing is a very individualized process, and sentencing ranges are guidelines only. Nevertheless, parity is one of several sentencing principles – namely, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ( Code , s. 718.2 (b)).

Given this, both the Crown and defence brought the court’s attention to a number of cases. [ 55 ] Both the Crown and the defence highlight jurisprudence in support of their respective suggestions on sentence. Both distinguish some of the cases relied upon by the other. The Crown suggests there really is not much authority in this province for a conditional sentence order for the subject offence on a parity basis.

Defence counsel argues the Crown’s cases have far more aggravating features than present here and counsel suggests the Crown’s cases should not be given much weight in terms of parity. [ 56 ] Based on the caselaw highlighted by the Crown and defence, the sentences range from a conditional sentence order to 20 months’ imprisonment. [ 57 ] Both the Crown and defence highlight the decision of this court in R. v. Nathan Alexander Martin , unreported, 2011 PESC (“ Martin ”) and the decision of the Newfoundland and Labrador Provincial Court in R. v. Thornhill , 2004 CarswellNfld 187 (“ Thornhill ”) .

I will first provide a

summary of these decisions. 1) Martin The offender was sentenced to 90 days intermittent and 12 months probation for assault causing bodily harm. The accused and victim were at a backyard party and the accused took issue with a benign comment made by the victim. The accused swung or threw a beer bottle, striking the victim in the face which caused lacerations. The impact on the victim was significant and the victim required surgery and almost lost vision.

The accused was in his late 30s; had a dysfunctional childhood; pleaded guilty; was remorseful; and, had no prior criminal record. 2) Thornhill While I appreciate the Crown relies on Thornhill as but one example of the unprovoked nature of an assault constituting an aggravating factor, it is worthwhile to review this case as the defence relies on Thornhill in the context of parity. Thornhill involved a 55-year-old first time offender who committed assault with a weapon. The Crown proceed summarily and the offender pleaded guilty. The offence occurred at a legion.

An unidentified man had passed out in his chair and members of the complainant’s party took photographs of the unconscious man, some posing with him. The offender took offence to this behaviour, approached the group and asked them if they thought what they were doing was funny. The complainant responded that it was not just funny but that it was “hilarious”. The offender responded by picking up a beer bottle and striking the complainant in the face. The complainant fell to the floor at which time the offender also kicked the complainant. The complainant suffered a number of lacerations and required 14 stitches.

Of note is that the Crown sought a 90-day sentence. Defence counsel suggested a conditional discharge and probation. There were a number of mitigating factors including the offender’s early guilty plea and lack of a prior criminal record. In addition, the offender was married for decades, worked full time and there was no suggestion of any addiction issues. The offender took full responsibility for his actions, expressed significant remorse and apologized to the victim. The offender expressed shame, guilt and embarrassment for his actions.

Both the offender and his family struggled to understand his behaviour because it was so out of character. There were also aggravating factors including the assault was unprovoked and the injuries suffered by the complainant.

Based on a review of a multitude of cases highlighted in Thornhill , the court concludes that the sentence of 90 days suggested by the Crown was the lowest sentence of the cases for similar offences in the caselaw highlighted and the court ultimately imposed a 90-day sentence to be served intermittently. [ 58 ] I will now provide some highlights of the additional cases relied upon by the Crown and the defence starting with the Crown. (

a) Crown 1) R. v. Aziz , 2017 ONSC 5384 The court sentenced the accused to six months in custody and two years’ probation for aggravated assault, arising from an incident outside a bar. The accused had not pleaded guilty and was convicted after a trial. The accused struck the victim over the head with a beer bottle. The “triggering” event was the victim pouring beer on the accused. The victim left the bar and the accused followed the victim carrying two beer bottles. Alcohol played a role in the commission of the offence.

The accused, in his early 50s, had a number of challenges including hardships growing up, a prior motor vehicle accident and a resulting head injury, and very limited education. He also had a prior criminal record, including three assault convictions, albeit dated. 2) R. v. Keresztes , 2015 ABCA 48 The court imposed a nine-month sentence for aggravated assault. The accused had not pleaded guilty and the conviction ensued after a trial. The matter arose from an incident that occurred outside a bar.

The victim had in fact initiated the physical interaction, and had struck the accused in the head from behind, as the victim had mistaken the accused for someone else. In response, the accused struck the victim back in self-defence. However, this strike was not alleged “to be criminal” nor to have caused the injuries supporting the conviction. Nevertheless, after the victim fell to the ground other individuals who were with the accused began assaulting the victim. Two nearby police officers observed the incident, called out and most of the individuals then fled.

However, the accused remained and delivered a “full force kick football style” to the victim’s head. The victim suffered serious injuries from the attack including a broken jaw requiring surgery. The accused had no prior record. The accused’s appeal was dismissed.

3) R. v. Darren Duncan , unreported, 2003 PEPC The court imposed a 12-month sentence followed by 18 months probation for assault causing bodily harm. The accused struck the victim in the face with a beer bottle leaving a gash requiring 40 stitches. The accused pleaded guilty. However, the accused had a recent and related record, including two assaults, one of which involved a beer bottle. 4) R. v. Leckner , 2000 CarswellOnt 8387 (SCJ) The court imposed a 15-month sentence (in addition to the accused’s pre-trial custody of just over four months), along with two years probation for aggravated assault.

The matter arose from an incident which occurred in a bar. The attack was unprovoked and the victim was not known to the accused. The accused struck the victim on three occasions with a pool cue. The accused and the victim then engaged in a physical interaction and the accused bit off a portion of the victim’s ear – causing permanent disfigurement. The accused had a lengthy criminal record including numerous assaults; was subject to two probation orders at the time of the incident; had a significant alcohol issue and was intoxicated at the time of the offence; and, had pleaded guilty. 5) R. v.

Leger , 2014 CarswellNfld 313 (P.C.) In Leger , the court imposed a sentence of 18 months followed by two years probation. The offender punched the victim in what was described as a “sucker punch” fashion on the street outside a drinking establishment. The victim was described as not being aggressive and rather was “backing away”, and indicating that he did not “want to fight”. The victim suffered significant injuries including a basal skull fracture and ongoing hearing loss which required surgery and there was the potential of further surgeries.

The offender initially fled the scene and when located initially denied being involved. There are several significant aggravating factors in Leger , including the attack by the offender was unprovoked and the victim suffered a life-threatening injury to his head. There were a number of mitigating factors including the offender’s guilty plea. 6) R. v. Schneider , 2017 ABPC 245 The court sentenced the offender to a period of incarceration for 20 months followed by 18 months’ probation for aggravated assault.

The accused got into an argument outside a bar, the victim intervened, and the accused stabbed the victim with a knife. There were a number of aggravating factors, including the inherently dangerous nature of the weapon used (a knife); the seriousness of the victim’s injuries; and the fact the attack was from behind, perpetrated against someone who was trying to peacefully intervene to have the accused leave the bar. 7) R. v. Christopher Hebert , unreported, 2021 PEPC and R. v. Hanna Dora Crossman , unreported, 2021 PEPC These matters are relatively recent and arose out of an “assault for hire”.

Hebert was one of the individuals involved in the physical assault and Crossman was involved in facilitating the assault. Hebert’s offences were robbery and assault causing bodily harm. Crossman’s offence was being a party to assault causing bodily harm. The court sentenced Crossman (who had facilitated the assault and essentially lured the victim) to 12 months custody and Hebert (who carried out the assault) to 11 months custody . Both were also sentenced to 18 months probation. The victim suffered significant injuries including two spinal fractures, cracked ribs, a concussion, and PTSD.

There were a number of aggravating features including the harm to the victim; the vulnerable position of the victim; and, the fact it was a group attack. Both offenders were quite youthful and pleaded guilty. All matters proceeded summarily. (

b) Caselaw – Defence [ 59 ] In addition to the decisions in Martin and Thornhill , counsel also highlights in particular three cases from other jurisdictions where a conditional sentence was ordered involving similar facts to the case at bar – namely, a largely unprovoked assault using a drinking receptacle resulting in an injury to the victim: R. v. Perepelecta , 2004 ABPC 88 (“ Perepelecta ”); R. v. Rahme , 2010 ABQB 579 (“ Rahme ”); and, R. v. Veenhof , 2011 ONCA 195 (“ Veenhof ”). I will provide a brief

summary of each of these cases: 1) Perepelecta In Perepelecta , the offender was found guilty – after trial – of aggravated assault. The matter arose from an incident which occurred in a bar and the offender struck the victim with a beer bottle. The court sentenced the offender to a conditional sentence for a period of 12 months (four months house arrest) . The offender’s position was that she had acted in self-defence and the court considered the offender’s lack of remorse to be an aggravating factor. Nevertheless, there were a multitude of mitigating and positive factors.

The offender was youthful; had no prior criminal record; was gainfully employed; had family support; and, had no substance abuse issues or psychological issues. The incident was characterized as out of character for her. In addition, the court concluded that while the actions of the offender were disproportionate, there was some provocation on the part of the victim. 2) Rahme In Rahme , the offender was convicted – after trial – of assault with a weapon. The matter arose from a melee which occurred in a bar. The court imposed a 15-month conditional sentence (six months house arrest ).

During the melee the offender struck two people with a beer bottle. The offender was a youthful offender (in his 20s); had one prior conviction (possession of property obtained by crime), but no related record; was gainfully employed; was a contributing member of the community; and, took over the care of the family home and his siblings after the death of his mother.

3) Veenhof The decision in Veenhof , is a very brief oral decision of the Ontario Court of Appeal. The offender pleaded guilty to aggravated assault and, following a trial, was convicted of assault with a weapon. The offender was the instigator in an incident involving uninvited house guests at a party. The offender broke a beer bottle over one victim’s head causing a wound, which necessitated six stitches. In addition, the offender retrieved a sword and struck the other victim in the back causing a wound which necessitated 26 stitches.

The offender was youthful; had no prior criminal record; expressed remorse; had “bright prospects”; and, the offender’s actions were apparently out of character. The sentencing judge imposed a six-month conditional sentence. The Court of Appeal concluded both the duration and the terms of the conditional sentence were wholly inadequate to address the sentencing objectives of denunciation and deterrence for the very serious offences before the court. The court allowed the appeal and substituted a conditional sentence of two years less seven days, given credit for time served.

The remaining sentence was a conditional sentence of 14 months less seven days and the court also imposed house arrest for seven months of the conditional sentence. [ 60 ] As noted, while defence counsel urges the court to impose a conditional sentence, in the alternative, counsel suggests a sentence in the range of 3-6 months.

In support of this range, counsel relies on the unreported decision from this court in Martin, where the court imposed a 90-day intermittent sentence for assault causing bodily harm, and the decision in Thornhill , where the Provincial Court in Newfoundland likewise imposed a 90-day intermittent sentence, for assault with a weapon. Counsel also relies on the decision in R. v. Jackson , 2002 BCPC 152 (“ Jackson ”). In Jackson , the court provided relatively brief oral reasons in sentencing the offender to six months incarceration after having been found guilty of assault with a weapon – namely, a beer bottle.

The matter arose from an “unprovoked serious assault” which occurred in a bar. The offender had a lengthy criminal record and the physical and emotional effects of the assault on the victim were profound. [ 61 ] I move now to aggravating and mitigating factors in this matter. 4. Mitigating and Aggravating Factors [ 62 ] Certainly there are mitigating factors, and of particular significance is the offender’s guilty plea. I accept the offender has accepted responsibility and is remorseful.

In addition, he is gainfully employed; provides financial support to his children; has the support of his father, current partner and peers; and, is committed to his sobriety.

I will return to some of these factors. [ 63 ] The Crown argues there are a multitude of aggravating factors: 1) the location of the assault, namely within a drinking establishment; 2) the unprovoked nature of the assault; 3) the vulnerable position of the victim; 4) the use of a weapon – namely a beer glass and the Crown also argues this illustrates premeditation; 5) the offender’s post-offence conduct; and, 6) the offender’s prior criminal record. [ 64 ] I will address each of these. (

a) Location of Assault [ 65 ] The Crown argues the location of the assault – at a drinking establishment – is aggravating and the Crown relies on the decision in Schneider . In Schneider the court observes that the assault occurred outside a bar where “alcohol and emotions can often mix” and further that a “clear message” must be sent with respect to inappropriate behaviour in such settings ( Schneider , para. 43 ). [ 66 ] I agree with the court in Schneider , and with the Crown, that in drinking establishments alcohol and emotions “often mix” and that violent behaviour in such settings is not to be tolerated.

While I do consider the location of offence to be a factor for consideration in determining a just sentence, I decline to conclude the location of the assault is specifically an aggravating factor. (

b) Unprovoked Nature of Assault/Vulnerable Position of the Victim [ 67 ] The Crown argues the unprovoked nature of the assault and the vulnerable position of the victim are aggravating factors. The Crown argues that after a relatively benign interjection by the victim prompted by the offender’s “harassment” of the bartender, the offender had a disproportionate and violent response.

The Crown also refers to the actions of the offender as “random”. [ 68 ] In support of the Crown’s submissions that the unprovoked nature of the assault is an aggravating factor, the Crown relies on the decisions in Schneider (para. 38 ); Leger (para. 61); and, Thornhill (para. 13). [ 69 ] Certainly defence counsel does not adopt the language utilized by the Crown and argues in particular that it is not appropriate to suggest the offence was “random”. However, counsel acknowledges the actions of the offender were largely unprovoked; completely inappropriate; “over the top”, and, violent.

Counsel acknowledges that the vulnerable position of the victim would be slightly aggravating. However, he emphasizes that there was a brief interaction and that the subject victim would not be as vulnerable as some other victims as illustrated in other cases. [ 70 ] In

summary, there was a relatively benign interjection by the victim. The offender’s response was completely inappropriate; disproportionate; and, clearly violent. I agree the assault was essentially unprovoked, and that the victim was in a vulnerable position (as the offender approached the sitting victim from behind). These are aggravating factors. (

c) Use of Weapon/Premeditation [ 71 ] The Crown argues the offender’s use of a weapon – a beer glass – is aggravating. The Crown also argues the offender’s use of the beer glass as a weapon demonstrates a degree, even if slight, of premeditation on the part of the offender. Counsel highlights the factual mechanics or circumstances of the offence as captured on the video: the offender was sitting two seats down from the victim, took his drinking glass in hand, walked to the victim and struck the victim in the head from behind. [ 72 ] Defence counsel agrees the use of the glass is slightly aggravating. With respect to the suggestion of premeditation, counsel

certainly acknowledges the situation “went south quickly”; however, counsel argues that any premeditation was very limited. [ 73 ] I agree the use of weapon (the beer glass) is aggravating. To the extent there was premeditation, I agree with the defence the premeditation was very limited. (

d) Post-Offence Conduct [ 74 ] The Crown argues the accused’s post-offence conduct, namely leaving the bar after the offence, is aggravating. The Crown argues this conduct illustrates a complete lack of concern for the wellbeing of the victim and in addition, illustrates that the offender sought to avoid responsibility for the consequences of his actions. [ 75 ] In response to this argument, defence counsel urges the court to exercise caution and to focus on the agreed facts.

Counsel argues there really are no facts to suggest the accused was trying to avoid arrest, and counsel argues not much weight should be given to this as an aggravating factor. [ 76 ] I am considering the totality of the circumstances and the facts set out in the Agreed Statement of Facts. However, I decline to specifically characterize the offender’s post-offence conduct as aggravating. (

e) Prior Criminal Record [ 77 ] I agree this offender’s record is aggravating. I will return to the offender’s criminal record when specifically considering the appropriateness of a conditional sentence order. 5. Decision [ 78 ] Aggravated assault attracts a maximum punishment of 14 years imprisonment and this is an expression of the gravity of the offence ( R. v. Blackmore , 1999 CarswellPEI 107 (C.A.), para. 21 ).

Aggravated assault is a serious offence. [ 79 ] I am considering the circumstances of the offence and the circumstances of the offender. [ 80 ] I consider the following to be aggravating: the unprovoked nature of the assault; the vulnerable position of the victim; use of a weapon (beer glass) in the assault and the ensuing injuries suffered by the victim; and, the offender’s prior criminal record. [ 81 ] The offender entered a guilty plea and this certainly is a mitigating factor. [ 82 ] I take the point of the Crown that rehabilitation is not to be prioritized to the detriment of the other applicable sentencing objectives and that rehabilitation must be balanced against the other purposes, objectives and principles of sentencing ( Blackmore , para, 20).

Given the subject offence and the circumstances of the offence, the sentencing objectives of denunciation and deterrence are to be given particular significance in this matter. But the rehabilitative prospects of this offender are not to be forgotten. [ 83 ] Certainly based on the record before me the offender has had a number of challenges including difficulties in his childhood, challenges with relationships and issues with anger and alcohol. However, it appears that he has had success in the fishing industry and he provides financial support to his children.

He started to take some steps to address his mental and psychological issues prior to this incident (having had one session with a counsellor) and he has subsequently attended for a number of additional sessions, and plans to continue. Unfortunately, he did continue to consume alcohol after the subject offence for a few months. However, all indications are that he has maintained sobriety since late April 2023. Defence counsel indicates the offender is very committed to sobriety and is quite confident in his ability to maintain his sobriety.

For his sake, the sake of his children, family and friends, and the safety of the community, I hope this is the case. He is relatively young and has years ahead of him as a parent and hopefully as a contributing member of society. The offender has hopefully started on a path of insight and rehabilitation. [ 84 ] I pause to address two specific arguments advanced by the Crown regarding the offender’s commitment to addressing his anger and substance abuse issues and his insight into his offending conduct. [ 85 ] With respect to the “commitment” issue, the Crown advances a number of arguments.

First, the Crown highlights the offender’s self-referral to counselling in October of 2022 and yet a few months later (January 2023) the offender commits this offence. I understand that while the offender self-referred to counselling in the fall of 2022, he only had one session prior to the subject offence, and the bulk of the counselling sessions occurred post-offence. Second, the Crown highlights that notwithstanding the long history of alcohol issues and notwithstanding the commission of this offence in late January 2023, the offender continued to consume alcohol for another three months.

Third, while the offender initiated a referral to addiction services in August 2023, he failed to attend the scheduled appointment in August 2023. [ 86 ] I agree the offender’s failure to attend the Addiction Services appointment in August 2023 as well as his continued consumption of alcohol post-offence are areas of concern. However, I also appreciate there is usually no “quick fix” for addiction issues (and likewise for mental health and anger issues) and that for many the journey is neither short nor linear.

I also note the bulk of the counselling – by far – occurred post-offence. [ 87 ] With respect to the “insight” issue, the Crown specifically highlights the purpose and principles of sentencing set out in ss. 718 (

e) and (

f) of the Code – namely, to provide reparations for harm done to victims and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims. The Crown highlights some arguably conflicting statements in the Pre-Sentence Report regarding the offender’s ownership and insight. The Crown acknowledges portions of the Pre-Sentence Report illustrate the offender has taken responsibility, but the Crown is certainly concerned with the statement attributed to the offender that he “didn’t mean to hit” the victim.

The Crown argues this certainly demonstrates, at a minimum, a lack of insight on the part of the offender. I understand the Crown’s argument to be that the court should carefully consider how genuine the offender actually is in terms of taking responsibility and being remorseful. However, given all of the circumstances, including his guilty plea; the totality of the statements attributed to him

in the Pre-Sentence Report; and, the offender’s remarks to the court (including that he takes full responsibility for his actions), I accept the offender has taken responsibility and that he is remorseful. To be clear, the offender is solely responsible for this offence and his moral blameworthiness is high. [ 88 ] I move not to the appropriate sentence, starting first with consideration of a conditional sentence. (

i) Is a conditional sentence order appropriate? [ 89 ] A conditional sentence order is statutorily available for this offence. A number of the preconditions have been satisfied: the offence is not a statutorily excluded offence; the offence is not punishable by a minimum term of imprisonment; and, a sentence of less than two years is appropriate. What remains is consideration of s. 742.1 (

a) of the Code : whether I am satisfied: 1) the service of the sentence in the community would not endanger the safety of the community; and, 2) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. I move to those two questions now. Question No. 1: Am I satisfied the service of the sentence in the community would not endanger the safety of the community? [ 90 ] In considering the community safety issue, the focus of the analysis is on the risk posed by the individual offender while serving the sentence in the community.

Two factors are to be taken into account: 1) the risk of the offender re-offending; and, 2) the gravity of the damage that could ensue in the event the offender re-offends ( Proulx , para. 69 ). Of course, there is always some risk that an offender may re-offend ( Proulx , para. 69 ). [ 91 ] The Crown argues the community safety criteria has not been satisfied.

The Crown, not surprisingly, highlights the offender’s criminal record; argues the offender is inherently oppositional to authority and is not receptive to abiding by or taking direction from those in authority; highlights the offender’s anger issues and alcohol issues; and, emphasizes the circumstances of this offence, including that it was an unprovoked attack fueled by alcohol and with the use of a weapon. [ 92 ] Defence counsel argues the court should not have difficulty concluding that having the offender serve his sentence would not endanger the safety of the community.

Counsel highlights the dated nature of the accused’s criminal record. Counsel also emphasizes that there is no history of the accused re-offending or not complying with his release conditions which have been in place for close to one year. Counsel also emphasizes the terms in the offender’s release order including a number of onerous terms such as curfew and electronic monitoring. [ 93 ] I do understand the Crown’s concerns about the potential danger to the community if the offender were permitted to serve the sentence in the community.

The offender has clearly struggled in a number of areas, including in some of his relationships. He has struggled with anger and he has struggled with substances, including alcohol. Alcohol has amplified the anger issues. He acknowledges in the Pre-Sentence Report that anger has always been an issue for him. He has made some efforts in the past to address the alcohol issue, some of which have been successful, at least for periods of time. I note for example his three years of sobriety while living in Alberta.

I accept the offender now has insight into his alcohol issues, and the negative impact alcohol has had on many aspects of his life. I also accept he is committed to his sobriety. However, as observed earlier, I also accept that there is usually no “quick fix” to addiction issues and that the journey of sobriety, for many, is neither linear nor short. [ 94 ] I will be candid in stating that if this offender were still active in his addiction, I would have had concerns about allowing him to serve the sentence in the community, particularly given the problematic combination of his anger and alcohol issues.

However, given the totality of the record before me, and recognizing that there is always “some risk” an offender will re-offend, I conclude that the community safety criteria has been satisfied. [ 95 ] I reach this conclusion for a number of reasons. First, for the most part, the offender’s criminal record is fairly dated and the most recent offences (prior to the commission of the subject offence) were in 2015.

I also note the Pre-Sentence Report indicates the offender was supervised on probation for two years (for other offences) from 2004 to 2006 and that based on a review of the file it appears that the offender satisfied the conditions of his probation. However, given the dated nature of the probation, I put little weight on it. [ 96 ] I also pause to specifically address the Crown’s submissions regarding the offender’s recent refusal offence on April 13, 2023.

The Crown correctly points out this offence, having occurred after the subject offence, is not to be considered as part of the offender’s criminal record in the context of aggravating circumstances. However, the Crown argues the offender’s refusal is essentially yet another – and recent – indication of the offender’s inability or unwillingness to follow direction of those in positions of authority.

The Crown argues this should cause the court significant concern in considering the offender’s ability or willingness to follow court orders and more pointedly, to follow the terms and conditions of a conditional sentence order. While I take the point, context does matter.

I understand on the record before me that at the time of the refusal offence, the offender was still active in his addiction and that his abstinence from alcohol did not commence until a couple of weeks later after the interaction with his father. [ 97 ] Second, the offender acknowledges his issues with anger and self-referred to a private counsellor in October 2022. This illustrates at least some insight as well as a commitment to address his issues.

I appreciate, as highlighted by the Crown, the counselling started three months before the offence, yet the offender nevertheless committed the offence in January 2023. Again however, context matters. I understand that at the time of the offence the offender had only attended for one session, whereas the record indicates that at the time of the Pre-Sentence Report the offender had attended over 12 sessions and was scheduled, and committed, to continuing with counselling.

I reiterate that likewise in relation to anger issues, there tends not to be a quick fix. [ 98 ] Third, the record before me indicates the offender has been able to maintain his sobriety since late April 2023 and that he is committed to his sobriety. He has supports in place including from his current partner, his father, as well as other peers. I do acknowledge some concerns about: 1) the offender’s failure to attend the scheduled Addiction Services appointment in August 2023; and, 2) I understand that the offender is not currently attending AA meetings.

However, I appreciate there is no “one-size fits all” approach for maintaining sobriety. What he is doing, and the supports that he has in place, seem to be working for him. I would however urge the offender to consider putting in place more robust and structured supports to maintain his sobriety.

[ 99 ] Fourth, the offender was arrested and released on consent by way of a release order. There were a number of conditions including: 1) remain in the province of Prince Edward Island; 2) refrain from having any contact with the victim; 3) abide by a curfew; 4) be subject to the electronic monitoring program; 5) refrain absolutely from attending any drinking establishments including the establishment where the offence occurred; and, 6) while outside the offender’s residence, refrain absolutely from the consumption of alcohol or any mind-altering substances, except for medication as prescribed by a physician.

I do note the condition related to alcohol was subsequently varied such that there is essentially a blanket prohibition for the consumption of alcohol: the offender is to refrain from the consumption of alcohol or mind-altering substances (except as prescribed by a physician), and not merely while outside his residence. The offender has been subject to numerous release terms, some of which could be characterized as onerous for close to a year and there is no indication of non-compliance.

This is a significant factor in reaching the conclusion that the community safety criteria has been satisfied. [ 100 ] Having concluded the community safety criteria has been satisfied, I move now to the second question.

Question No. 2: Would a conditional sentence order be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of the Code ? [ 101 ] The Crown argues that allowing the offender to serve the sentence in the community would not be consistent with the fundamental purpose and principles of sentencing and the Crown emphasizes in particular the principles of denunciation, deterrence and proportionality. [ 102 ] Defence counsel argues otherwise. Counsel acknowledges that given the subject offence, the sentencing principles of denunciation and deterrence are of primary significance.

However, counsel relies on Proulx , and emphasizes that a conditional sentence can certainly achieve the sentencing objectives of denunciation and deterrence ( Proulx , paras. 102 and 107 ).

Counsel also argues the objective of rehabilitation would be better achieved with a conditional sentence, highlighting that a conditional sentence would permit the accused to continue to maintain his home visits with his children; allow him to maintain his livelihood and by extension the livelihood of his children; and, would put him in the best possible position not to re-offend. [ 103 ] It is worthwhile to return to the comprehensive guidance provided in Proulx , namely, as to how a sentencing judge should approach the analysis.

The sentencing judge should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case ( Proulx , para. 113 ). Where the punitive objectives of sentencing, such as denunciation and deterrence, are “particularly pressing”, such as where there are aggravating circumstances, incarceration will generally be the preferable sanction ( Proulx , para. 114 ). [ 104 ] I conclude that in the matter before me there are both punitive and restorative sentencing objectives in play.

I certainly agree that a conditional sentence – in appropriate circumstances – can address the objectives of denunciation and deterrence. However, given the totality of the circumstances before me, denunciation and deterrence are particularly pressing, and I note in particular the aggravating circumstances: the unprovoked nature of the assault; the vulnerable position of the victim; the offender’s use of a weapon, namely, a beer glass; and, the offender’s criminal record.

A conditional sentence would not be consistent with the purpose and principles of sentencing set out in s. 718 to 718.2 of the Code , and in particular the principles of denunciation, deterrence and proportionality. Incarceration is the preferable sanction. [ 105 ] It is worthwhile to highlight the offender’s record and the record is certainly not insignificant. [ 106 ] In 2004, the offender was convicted of several offences: two counts of uttering threats to cause death and two counts of assault. For each of the uttering threats offences, he was sentenced to ten days imprisonment and two years probation.

For one count of assault he was sentenced to 30 days imprisonment and for one of the assault offences he was sentenced to 15 days imprisonment. With respect to the assault convictions he was also sentenced to two years probation. In 2012 he was convicted of an alcohol related driving offence and sentenced to 13 days imprisonment, a fine and a driving prohibition. In 2013, in Alberta, he was convicted of driving while disqualified and sentenced to 15 days imprisonment, six months probation and a driving prohibition.

In 2015, also in Alberta, he was convicted of assault with a weapon; two counts of uttering threats; and, one count of mischief. He was sentenced to 18 months probation and a number of fines. [ 107 ] While I appreciate the dated nature of a number of the prior offences, I am particularly concerned about the prior convictions for uttering threats, assault and the assault with a weapon conviction in 2015. [ 108 ] I therefore decline to allow the offender to serve the sentence in the community. (ii) Period of Incarceration [ 109 ] I move now to the question of the duration of the sentence.

A review of the caselaw highlighted by counsel illustrates that sentences imposed for the subject offence and similar offences vary significantly. This is not surprising given cases are largely fact dependant and there is often a significant variation in the circumstances. Of course, sentencing is an individualized process. [ 110 ] I understand the Crown’s submissions to be that the lowest sentence based on the caselaw would be three months and the Crown recommends a 12-month custodial sentence.

I do not view that a 12-month custodial sentence would be a proportionate sentence and rather I conclude a fit and appropriate sentence is within the range suggested by the defence, albeit as an alternative argument, namely, 3- 6-month range. [ 111 ] In

summary, I appreciate the offender had a difficult childhood and has struggled with anger and substance abuse issues. I appreciate as well his age and that he is a father to young children for whom he provides financial support. He is gainfully employed in the fishing industry. He appears to now be in a stable relationship. He has taken a number of steps to address his anger issues and substance abuse issues. He has family support including from his current partner, his father and other peers. He has been able to maintain his sobriety for several months.

He has taken responsibility for his actions, is remorseful and of particular significance is his guilty plea. However, there are, as noted, a number of aggravating factors, and I also note the injury suffered by the victim. Denunciation and

deterrence are significant. Given all the circumstances and the principles and objectives of sentencing, I sentence Mr. Gillis to 4½ months incarceration. I note as well, in the context of the parity principle, that in both Martin and Thornhill , the court imposed a 90-day sentence; however, both offenders in those cases had no prior criminal records. (iii) Probation [ 112 ] Probation is also appropriate and Mr. Gillis is sentenced to probation for a period of 12 months with specific terms.

I am somewhat conflicted about whether to include as a term of probation that the offender refrain from the consumption of alcohol. Of course, he should refrain from consuming alcohol; however, given what appears to be a fairly significant alcohol addiction issue spanning a number of years, one could reasonably question whether including such a term is merely inviting a breach of probation.

However, I note the following: 1) one of the reasons I have concluded the community safety criteria has been satisfied is the fact that the offender is addressing his alcohol issues and the fact he has maintained his sobriety since late April 2023; and, 2) defence counsel has advised the offender is committed to his sobriety, is confident in his ability to maintain his sobriety, and furthermore suggests that an abstinence clause is appropriate to include in the probation order.

An abstinence clause will therefore be included. [ 113 ] The terms of the offender’s probation are as follows: 1) Keep the peace and be of good behaviour. 2) Appear before the court when required to do so by the court. 3) Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation. 4) Within 72 hours of release from custody, report to and be under the supervision of a probation officer and thereafter as required by the probation officer in the manner directed by the probation officer. 5) Abstain from communicating directly or indirectly with the victim Kelly Jamieson. 6) Participate in any and all assessments, counselling, treatment or programming that may be prescribed by the probation officer for any underlying conditions or issues which may have contributed to this offence, including but not limited to substance abuse issues (including alcohol); anger issues and mental health issues.

Without limiting the generality of the foregoing, this includes, but is not limited to, supports and services through Addiction Services and/or attendance at AA meetings, as directed by and at the discretion of the probation officer. 7) Abstain absolutely from the consumption of drugs, alcohol or other intoxicating or mind-altering substances except in accordance with a medical prescription. 8) Perform 100 hours of community service.

I view community service to be valuable in addressing the rehabilitative objectives of sentencing including providing reparations for harm done and promoting a sense of responsibility and acknowledgement on the part of the offender. 9) The probation officer shall make reasonable efforts to contact the victim Kelly Jamieson for the purpose of determining whether the victim is receptive to being provided with an apology from the offender and if so, such apology shall be provided by the offender in a form and manner directed by the probation officer. [ 114 ] I specifically decline a term prohibiting the offender from leaving Prince Edward Island.

I note his children are in Newfoundland and the family law litigation is also in Newfoundland. (iv) Ancillary Orders [ 115 ] The Crown and defence are in agreement the court issue a weapons prohibition for a period of 10 years in accordance with s. 109.1(

a) of the Code , and I so order in the form of order provided by the Crown. [ 116 ] The Crown and defence are also in agreement the court issue an order authorizing the taking of bodily substances for forensic DNA analysis pursuant to s. 487.051(1) of the Code and I so order, in the form of order provided by the Crown. [ 117 ] The offender is also ordered to pay a victim surcharge in the amount of $200 pursuant to s. 737 of the Code , and he shall have one year to pay. VII .

Summary [ 118 ] Mr. Gillis is sentenced to a period of imprisonment of 4½ months followed by probation for a period of 12 months, for the offence of aggravated assault. The court declines to permit Mr. Gillis to serve the sentence in the community. [ 119 ] I conclude with the following observation: rehabilitation remains an achievable objective for this offender, but he will need to maintain his commitment to addressing his anger issues and substance abuse issues. This in all likelihood will require a lifelong commitment. ____________________________ C.J. January 17, 2024