R. v. Boyde, 2021 NLSC 28

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Boyde , 2021 NLSC 28 Date : March 4, 2021 Docket : 201903G0117 Her Majesty The Queen v. Darlene Grace Boyde Before: Justice Donald H. Burrage Place of Hearing: Grand Falls-Windsor, NL Dates of Hearing: July 22, 2020, August 20, 2020 September 1, September 25, 2020 November 25, 2020 December 11 and 18, 2020

Summary: The offender was convicted by a jury of break and enter into a dwelling house and assaulting two of its occupants, the offender’s former partner and his companion. The Court imposed a custodial sentence of 23 months to be served in the community, following a declaration that s. 742.1 (

c) of the Criminal Code , which purported to bar a conditional sentence for offences, prosecuted by way of indictment, with a maximum sentence of 14 years or life imprisonment, was overbroad, in violation of fundamental justice, and thus contrary to s. 7 of the Charter . On the evidence the violation could not be justified under s. 1 of the Charter . Appearances:

Karen J. O’Reilly Appearing on behalf of the Crown Geraldine Castle-Trudel Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R v. Sharma, 2020 ONCA 478; R. v. Ferguson, 2008 SCC 6; R. v. W.(D.), (SCC), [1991] 1S.C.R. 742; R. v. Proulx, 2000 SCC 5; Bedford v. Canada (Attorney General), 2013 SCC 72; R. v. Safarzadeh-Markhali, 2016 SCC 14;R. v. Neary, 2017 SKCA 29; R. v. Friesen, 2020 SCC 9; R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1, 189 O.A.C.90; R. v. Lea, 2005 PESCAD 15; R. v. Suter, 2018 SCC 34; R. v. Newhook, 2008 NLCA 28; R. v.

Wright, (ON CA),2006 CarswellOnt 7721, 218 O.A.C. 215; R. v. Omilgoituk, 2011 NLCA 77; R. v. Gear, 2005 NLTD 159; R. v. Haynes (January 15,2008), 0106A02416 (NL Prov. Ct.)); R. v. Laliberte, 2000 SKCA 27 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; Safe Streets and Communities Act, S.C. 2012, c. 1 REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] On 13 March 2020, following a trial before judge and jury, Darlene Boyde was convicted of break and enter into the dwellinghouse at 7 Whitmore Street, Grand Falls-Windsor, NL, contrary to s. 348(1)(

b) of the Criminal Code[1], and assault on both JoanneAbbott and David Bennett, contrary to s. 266 of the Criminal Code.[2] [2] Subsequent to these convictions, on a trial before judge alone, I found Ms. Boyde guilty of breach of probation, contrary to s.733.1(1). [3] All offences occurred over three and one half years ago, on 24 June 2017, at the home of Joanne Abbott. [4] Three days after the initial sentencing hearing, the Ontario Court of Appeal released its decision in R v.

Sharma, 2020 ONCA478, in which the majority struck down certain restrictions on the availability of conditional sentences, as contrary to the Charter.[3] One of the restrictions declared unconstitutional in that case is directly applicable to the sentencing of Ms. Boyde. Namely theprohibition in s. 742.1(

c) for offences prosecuted by indictment, where the maximum penalty is 14 years or life. [5] As the defence had sought a conditional sentence for Ms. Boyde, the parties elected to return and make submissions on theimpact of Sharma, if any, on the case before me. The defence filed a Notice of Constitutional Question in which it argued that theineligibility criteria in s. 742.1(

c) is in violation of the principle of fundamental justice, and thus contrary to s. 7 of the Charter. [6] The sentencing hearing was then reconvened on 25 November 2020 and submissions received on the constitutionalquestion.[4] [7] On 11 December 2020 the sentencing hearing again reconvened, this time to permit the Crown to cross-examine Ms. Boyde’sfamily physician on a letter he had written in support of Ms. Boyde.

On 18 December 2020 a final submission was received from theCrown regarding sentence. [8] It now falls to the Court to impose a just and appropriate sentence, having due regard to the principles of sentencing, andtaking into account the circumstances of the offences and of the offender. In doing so, the Court is obliged to consider the constitutionalquestion raised by the defence, and the impact, if any, it has on Ms. Boyde’s sentence. Circumstances of the Offences The Facts [9] The jury gives only its ultimate verdict, without reasons.

In this circumstance, the sentencing judge is required to make onlythose factual determinations necessary for deciding an appropriate sentence in the case at hand (R. v. Ferguson, 2008 SCC 6, at para.16). There are two principles which govern this endeavor. First, the sentencing judge must accept as proven all facts, express or implied,that are essential to a jury’s verdict of guilty, and not accept as fact any evidence consistent only with a verdict rejected by the jury.

Second, when the factual implications are ambiguous, the sentencing judge should come to his, or her, independent determination of therelevant facts and not attempt to discern the thought process of the jury (Ferguson, at paras. 17 – 18).

[10] While not obliged to do so, Ms. Boyde testified in her own defence. It was her evidence that she had been invited to theresidence in question by Mr. Bennett the previous evening and arrived at approximately 7:00 a.m. to find the door unlocked. Sheknocked and was let in by a young man, who turned out to be Ms. Abbott’s son. Anticipating a romantic encounter, she entered, callingout Mr. Bennett’s name. Upon discovering Mr. Bennett in bed with another woman (Joanne Abbott), an argument and physicalaltercation between her and Mr. Bennett ensued. She denied striking Ms.

Abbott. [11] Evidently this explanation was not accepted by the jury, nor was it such as to raise a reasonable doubt, taken alone or in concertwith the other evidence, as to Ms. Boyde’s guilt (R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742). [12] Rather, in order to enter convictions the jury must have been satisfied that Ms. Boyde entered Ms. Abbott’s home withoutpermission, or invitation, and that she intentionally inflicted force on both Mr. Bennett and Ms.

Abbott, without the consent of either. [13] To the foregoing essential elements, I would add for sentencing purposes that there was no evidence of a forced entry into Ms.Abbott’s residence. Ms. Boyde first knocked, and then proceeded to call out Mr. Bennett’s name (as corroborated by Ms. Abbott’s son). Further, the physical injuries to Mr. Bennett and Ms. Abbott were minor and did not require medical intervention. Mr. Bennett had somescratches to his chest and a bite-like mark to his hand. Ms. Abbott had some slight redness to her face. The assaults occurred in Ms.Abbott’s bedroom. Ms.

Abbott’s teenage son was home at the time and while he did not witness the assaults, he was able to hear thealtercation from his bedroom. The incident was brief, less than ten minutes, after which Ms. Boyde left on her own accord. [14] Finally, both Mr. Bennett and Ms. Boyde testified that the two had previously been in a relationship, and that this relationshiphad been characterized by physical altercations, one toward the other. The status of that relationship on the date in question is uncertain. Victim Impact Statement [15] Ms. Abbott filed a written Victim Impact Statement in accordance with s. 722.[5] Ms.

Abbott writes that she was terrified whenthe incident happened, in part because her son was in the house at the time. She has had difficulty coping since the event and is onseveral medications for anxiety, depression and blood pressure. She stays at home and does not go out for fear of running into Ms.Boyde, or one of her friends. She has changed jobs and missed work due to anxiety. Circumstances of the Offender [16] Ms. Boyde was 33 years old at the time of the offences. On 24 July 2019 she gave birth to a daughter, Serenity, who ispresently in her care.

She is engaged to be married to Serenity’s father, Kyle Mercer. The Pre-Sentence Report [17] Katherine E. Sweet, Regional Probation Officer, prepared a comprehensive Pre-Sentence Report (“PSR”) in relation to Ms.Boyde, dated 3 June 2020. In preparation of the PSR, Ms. Sweet interviewed Ms. Boyde; her fiancé, Kyle Mercer; her mother, JeanBoyde, as well as several professionals familiar with Ms. Boyde’s situation: Lilly Hodge, counsellor with Mental Health and AddictionServices; Kimberly Hannon, Public Health Nurse; Dr. Todd Young, Physician, and Robyn Daye, Social Worker. [18] When Ms.

Boyde was approximately 18 years of age she moved to New Brunswick, where she resided with her brother. Aftera few months she moved to Ontario where she entered into a relationship that lasted a couple of years. The couple had two children, nowages 16 and 14. Allegedly, there was domestic violence in this relationship. [19] In 2010 Ms. Boyde’s brother, Robert Boyde, died tragically. The two were close and Ms. Boyde related that she had a difficulttime coping with the loss and dealt with the pain in a “negative way.” [20] In 2014 Ms.

Boyde and her sister were involved in a very serious car accident, with the result that her sister came close tolosing her life. Ms. Boyde related that the event was very traumatic for her. [21] Between 2011 and 2015 Ms. Boyde lived between her parents’ house and various rented apartments in Springdale and GrandFalls-Windsor, NL. It was during this time that she met the complainant, David Bennett. Ms. Boyde and Mr. Bennett were in arelationship for approximately four years, during which they had a daughter, now seven years old and living with Ms.

Boyde’s aunt. [22] The relationship was toxic and characterized by physical violence. In July 2014 Mr. Bennett was convicted of assault againstMs. Boyde.[6] For her part, Ms. Boyde admitted to Ms. Sweet that she had also engaged in physical violence towards Mr. Bennett. [23] In 2018 Ms. Boyde met her fiancé, Kyle Mercer. According to Ms. Boyde, Mr. Mercer has changed her life for the better. Thisopinion is shared by her mother, Jean Boyde. [24] Ms. Boyde candidly acknowledged to Ms.

Sweet that substance abuse was a contributing factor which led to conflict in herrelationships and fueled her criminal behavior. [25] Indeed, Ms. Boyde is being treated for an opioid addiction by Dr. Todd Young at the Springdale Medical Clinic. Dr. Youngreports that Ms. Boyde has been taking methadone since late 2018, or early 2019, and that she has been doing “amazingly well” and hashad no issues. He noted that Ms. Boyde has come a long way since the time when she was caught forging prescriptions at his clinic[7]and that he is “very proud” of her progress. [26] Ms. Lilly Hodge, counsellor, related that Ms.

Boyde is in receipt of counselling, having self-referred to Mental Health andAddiction Services, in Grand Falls-Windsor, NL. Ms. Hodge opined that the birth of Ms. Boyde’s daughter, Serenity, has been her primemotivation. She observed that Ms. Boyde has been making positive changes, facing her fears and dealing with past life events, and thatshe has been “making a difference”.

[ 27 ] According to Ms. Robyn Daye, social worker, the Department of Children, Seniors and Social Development, became involved with Ms. Boyde in September 2019, following the birth of Serenity. Based on previous involvement with Ms. Boyde, the department’s concerns at the time were domestic violence, drug use by Ms. Boyde, and poor mental health issues. However, Ms. Daye advises that she is now assessing Ms. Boyde’s file and that of her fiancé for possible closure. According to Ms. Daye, it is the view of the department that the family are doing “very well”. Ms. Daye reports that Ms.

Boyde has been involved in random drug screening and there have been no issues or concerns in this area. Both Ms. Boyde and Mr. Mercer have the support of their families. [ 28 ] Ms. Kimberly Hannon, Public Health Nurse, has been actively involved with Ms. Boyde and her young daughter. Serenity was born on 24 July 2019, at 25 weeks gestation, weighing one pound, eight and one half ounces. She was born with a heart defect and a large hemangioma (birthmark). Serenity is followed by cardiology, dermatology, pediatrics and the perinatal development team.

However, what were regular visits were interrupted by the COVID-19 pandemic. Ms. Hannon advises that Serenity’s growth and development has been “on par” for her premature adjusted age and that Ms. Boyde is both breast and bottle feeding. Initially, home supports were in place, but they have since been removed as they are no longer necessary. [ 29 ] Ms. Hannon advises that Serenity is very well cared for, and that both parents behave responsibly and ensure that she gets to her medical appointments.

They are the primary caregivers and she attributes the fact that Serenity is doing so well to their care. [ 30 ] Probation Officer Sweet concludes her report with the opinion that Ms. Boyde is suitable for community supervision. She writes: The accused has the support of her mother and also reports that Mr. Mercer’s family are also very supportive. She has been making positive changes in her life and has welcomed the help of various professionals to help her make that change. The accused also appears to be in a stable relationship that is free of violence.

The accused is very concerned about the possibility of being separated from her daughter; should she be sentenced to serve a period of incarceration. She also expressed concern for her mother; who is presently the main caregiver for four of her grandchildren. The accused informed the writer that she sometimes helps her mother when needed. Mrs. Boyde did confirm that the accused does visit in St. Patricks and help her sometimes however she appears not to be dependent on the accused. As previously written Mrs. Boyde has offered to care for the daughter of the accused if necessary.

The accused was very cooperative with the writer during the preparation of this report. The writer has been familiar the accused and her fiancé for a number of years and has personally seen a positive change in both of their lives. Ms. Boyde’s Criminal Record [ 31 ] Ms. Boyde has a criminal record from Ontario for assault in 2004 and 2011, for which she received probation. In addition, Ms. Boyde has a criminal record from this jurisdiction, which includes two prior

summary convictions for assault in December 2013 and January 2014 on Mr. Bennett, for which she received a suspended sentence and 15 days in jail (time served) respectively. In addition, there are two convictions for uttering threats to damage or destroy property, also involving Mr. Bennett, and a conviction for resisting or obstructing a peace officer, all arising during the summer of 2014. [ 32 ] Arising from 2015 there are a total of 12 convictions for crimes of dishonesty, fraud, and forgery. All relate to Ms. Boyde’s practice of falsifying medical prescriptions.

There are two convictions for theft under $5,000 in 2015 and the associated breaches of undertakings and breaches of probation arising from the above. The 18 August 2020 Letter [ 33 ] At the renewal of the sentencing hearing, on 11 December 2020, the Court was provided with a letter from Ms. Boyde’s methadone physician, Dr. Todd Young, dated 18 August 2020. The letter was admitted into evidence and Dr. Young was cross- examined by the Crown. The letter reads: Please accept this letter on behalf of the above patient.

Darlene has been known to me for 10 plus years and I have seen first hand how substance use disorder as [sic] negatively impacted all aspects of her life. Specifically, her family life, occupational opportunities, reputation especially in a small town. I can honestly say, most in her community never dreamed she would ever transition from a life of crime, violence, etc. to a life of happiness. As a physician, Darlene even forged a tapered prescription pad and while most physicians would refuse to treat Darlene again, it was evident her crime was a result of her substance use disorder.

I believe everyone should be given a chance to turn their life around. Since February 2018, I have been her Methadone physician. I saw her today. She is doing so well. Her CYFS file has been closed, she is a mother of a new daughter, she is working on regaining custody of her other children and CYFS is assisting, she is in a positive healthy non-violent relationship, and has had clean urines for over 2 years, which is evidence of her determination to remain clean. Darlene is a caring mother and incarceration at this point would be devastating to her mental health and addiction issues.

[ 34 ] As the letter was written in August 2020, Dr. Young was able to provide an update since the PSR on Ms. Boyde’s efforts toward rehabilitation. During cross-examination he advised that Ms. Boyde’s most recent urine test for drugs of abuse was taken on 10 November 2020 and once again came back negative. [ 35 ] In response to questioning by the Crown, Dr. Young testified that he has been in regular communication with Ms. Boyde’s social worker and no concerns regarding Ms. Boyde have come to his attention since writing the letter. He confirmed that Ms.

Boyde continues to do “remarkably well” in managing her drug addiction and that the August letter, as written, “truly represents how well she has done.” [ 36 ] Dr. Young candidly acknowledged that he has no direct knowledge of any counselling or other services available at the federal prison in Truro, Nova Scotia (Nova Institute). With respect to the women’s prison at Clarenville, NL, his knowledge is based on what other patients have told him, namely that Ms.

Boyde’s methadone treatment can be continued in that facility, but that counseling is intermittent at best. [ 37 ] The letter might rightly be characterized as advocating in support of Ms. Boyde, but it is more than that. It is an informed opinion based on Dr. Young’s knowledge of Ms. Boyde for over ten years and as his methadone patient since February 2018. As such, Dr. Young is uniquely positioned to comment on Ms. Boyde’s progress in her drug rehabilitation. Ms. Boyde’s Address to the Court [ 38 ] Ms.

Boyde was given the final word at her sentencing hearing She apologized and expressed remorse, at least with respect to Ms. Abbott, whom she did not know before, and did not know was home at the time. Ms. Boyde offered that the birth of Serenity has changed her life and that she has dutifully complied with her release conditions. With her toxic relationship with Mr. Bennett in the past, she stated “I just want to keep moving forward”. I accept that Ms. Boyde is sincere in her desire to do so, as evidenced by the positive PSR, and endorsement from Dr. Young.

Position of the Crown [ 39 ] Emphasizing the need for general deterrence and denunciation, it is the Crown’s position that Ms. Boyde be sentenced to a period of incarceration between 24 and 30 months for the break and enter with sentences for the other offences running concurrently. The Crown observes that, in addition, there is a mandatory DNA order and firearms’ prohibition. [ 40 ] In the event this Court were to conclude that a conditional sentence is available, the Crown argues that given the seriousness of Ms. Boyde’s crime, such a sentence is not appropriate in this case.

Position of the Defence [ 41 ] The defence submits that Ms. Boyde is a changed person and points to the positive PSR and Dr. Young’s evidence. The Court is urged to take a restorative justice approach to sentencing and consider the collateral consequences of a custodial sentence on both Ms. Boyde as a mother, and in particular, her young daughter, Serenity. [ 42 ] The defence argues that Ms. Boyde should receive a sentence to be served in the community. The defence submits that such a sentence would be in keeping with the principles of sentencing in ss. 718 to 718.2.

THE CONSTITUTIONAL QUESTION: IS A CONDITIONAL SENTENCE AVAILABLE? [ 43 ] The appropriate sentence is not to be determined in the abstract, without having in mind where that sentence will be imposed. In other words, the “duration of the sentence should not be determined separately from the determination of its venue” ( R. v. Proulx , 2000 SCC 5 , at para. 52 ). [ 44 ] With this in mind, I turn first of all to a consideration of the constitutional question; whether s. 742.1 (

c) operates as a bar to the imposition of a conditional sentence in this case. [ 45 ] There are several pre-requisites to the availability of a conditional sentence of imprisonment.

Section 742.1 currently reads, as follows: 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; (

c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; [emphasis added] (

d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum

term of imprisonment is 10 years or more; (

e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that … [specified offences] (

e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that (

i) resulted in bodily harm, (ii) involved the import, export, trafficking or production of drugs, or (iii) involved the use of a weapon; and (

f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions: (

i) section 144 (prison breach), (ii)

section 264 (criminal harassment), (iii)

section 271 (sexual assault), (iv)

section 279 (kidnapping), (

v) section 279.02 (trafficking in persons — material benefit), (vi)

section 281 (abduction of person under fourteen), (vii)

section 333.1 (motor vehicle theft), (viii) paragraph 334(a) (theft over $5000), (ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house), (

x) section 349 (being unlawfully in a dwelling-house), and (xi)

section 435 (arson for fraudulent purpose). [ 46 ] Section 348(1) is an indictable offence which carries a maximum sentence of life imprisonment. As such, subject to its constitutionality, s. 742.1 (

c) serves as an absolute prohibition on the imposition of a conditional sentence for this offence. This is the case regardless of whether or not the other pre-requisites for a conditional sentence have been met. [ 47 ] However, in Sharma , a majority [8] of the Ontario Court of Appeal held that both ss. 742.1 (

c) and 742.1 (e)(ii) unjustifiably infringe ss. 7 and 15 of the Charter and are therefore of no force, or effect ( Sharma , at para.186). Of course, Sharma is not binding on this court. Nevertheless, the defence argues that it is persuasive authority which ought to be followed.

[ 48 ] Ms. Sharma was a 25 year old Canadian woman of first nation ancestry, who pled guilty to importing two kilograms of cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act [9] . [ 49 ] Ms. Boyde was not convicted of a drug related offence. As such s. 742.1 (e) (ii) is not in play in the present case. Nor is Ms. Boyde of first nation ancestry, such that neither is s. 15 of the Charter in play. Rather, the defence argument is limited to a violation of s. 7 of the Charter on the grounds that s. 742.1(

c) is contrary to the principles of fundamental justice. [ 50 ]

Section 7 of the Charter guarantees that: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 51 ] As Ms. Boyde is facing the prospect of imprisonment, it is accepted by the parties that, like Ms. Sharma, her liberty interests are engaged. [ 52 ] The defence argues that s. 742.1(

c) violates the principles of fundamental justice on the grounds that it is both arbitrary and overbroad. The criteria for arbitrariness and overbreadth were discussed in Bedford v. Canada (Attorney General), 2013 SCC 72 (at paras. 111-112 ): 111. Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law's purpose.

There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person (Stewart, at p. 136). A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests. Thus, in Chaoulli , the law was arbitrary because the prohibition of private health insurance was held to be unrelated to the objective of protecting the public health system. 112.

Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part . At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some , but not all, of its impacts. For instance, the law at issue in Demers required unfit accused to attend repeated review board hearings. The law was only disconnected from its purpose insofar as it applied to permanently unfit accused; for temporarily unfit accused, the effects were related to the purpose.

The Legislative Purpose [ 53 ] An examination of whether the law is arbitrary and/or overbroad begins with a consideration of the legislative purpose of the impugned provision ( s. 742.1 (c)). This objective may be found in statements of purpose in the legislation, the text, context and scheme of the legislation and extrinsic evidence such as the legislative history and evolution of the provision ( R. v.

Safarzadeh-Markhali , 2016 SCC 14 ; Sharma , at para. 142 ). [ 54 ] In addressing Parliament’s purpose I therefore begin, as the court did in Sharma , with a short review of the legislative history of conditional sentences, ending with Parliament’s latest incarnation of the conditional sentencing option. [ 55 ] Prior to September 1996 sentencing judges did not have the option of imposing a custodial sentence to be served in the community.

Parliament then introduced s. 742.1 , allowing such a sentence for “non-dangerous offenders.” When first enacted, such a sentence was available where there was no mandatory minimum sentence, the sentence imposed was less than two years, and the offender would not pose a danger to the community ( Sharma , at para. 51 ). [ 56 ] By introducing the conditional sentence option Parliament attempted to address the problem of over incarceration, sending a “clear message” to Canadian judges that too many people are being sent to prison ( Proulx , 2000 SCC 5 at para. 1 ).

At the same time Parliament mandated that expanded use be made of “restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society” ( Proulx , at para. 20 ).

In the right circumstances, the goals of denunciation and deterrence could be met through the imposition of a custodial sentence to be served in the community. [ 57 ] In 1997, s. 742.1 was amended through the addition of language in s. 742.1 (b), clarifying that a conditional sentence had to be consistent with the purposes and principles of sentencing in ss. 718-718.2. [ 58 ] In 2007, s. 742.1 was further amended, this time to make a conditional sentence unavailable for a serious personal injury offence, as defined in s. 752, or specified terrorism, or criminal organization offences. [ 59 ] Finally, in 2012 s. 742.1 was again amended, this time as part of a number of Criminal Code amendments under the Safe Streets and Communities Act [10] .

The reference to a serious personal injury offence was removed and replaced with a prohibition on the use of conditional sentences for an array of offences, including those prosecuted by way of indictment with maximum sentences of 10 years, 14 years and life. [ 60 ] In Sharma the majority observed that a number of courts have already opined on Parliament’s objective in passing the Safe Streets and Communities Act . In R. v. Neary , 2017 SKCA 29 the Saskatchewan Court of Appeal identified four broad purposes:

a) providing consistency and clarity to the sentencing regime;

b) promoting of public safety and security;

c) establishing paramountcy of the secondary principles of denunciation and deterrence in sentencing for the identified offences;

d) treating of non-violent serious offences as serious offences for sentencing purposes. [ 61 ] In Sharma , the Court revisited these objectives with specific reference to the amendments to s. 742.1 . In doing so, the Court first referred to the

preamble to the amendments (at para. 145): 145. …

Part 2 amends the Criminal Code to . . . (

e) eliminate the reference, in

section 742.1, to serious personal injury offences and to restrict the availability of conditional sentences for all offences for which the maximum term of imprisonment is 14 years or life and for specified offences, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years. [ 62 ] In discerning Parliament’s objective in revising s. 742.1 , the majority in Sharma then referred to speeches of the House of Commons and the remarks of the Minister of Justice and Attorney General for Canada during the Senate amendments to the Bill (at paras. 146 - 147): 146.

The Minister of Justice and his Parliamentary Secretary at the time explained to Parliament the purpose of the changes to s. 742.1 of the Criminal Code in a number of speeches before the House of Commons. On September 21, 2011, at second reading, Mr. Robert Goguen, the Parliamentary Secretary, stated that in drafting the Safe Streets and Communities Act , "This government is addressing the concerns of Canadians who no longer want to see conditional sentences used for serious crimes, whether they are violent crimes or property crimes": House of Commons Debates , 41-1, vol. 146, No. 17 (21 September 2011), at 1755.

On October 6, 2011, the Minister stated: [A]s you can see by the bill before you, the bill is very specific that with the most serious offences within the Criminal Code , you will not be eligible to go home afterward. There are and will continue to be serious consequences. Again, I think this helps people's confidence in the criminal justice system. We all have a stake in seeing that people have confidence in our justice system, and also in our political system. [Emphasis added.] (House of Commons, Standing Committee on Justice and Human Rights, Evidence , 41-1, No. 4 (6 October 2011), at 0910) 147.

Subsequently, on March 6, 2012, during consideration of Senate amendments to the bill, the Minister expressed the purpose of the legislation in the House of Commons in the following terms: As Minister of Justice and Attorney General of Canada, it is my responsibility to maintain the integrity of the justice system. We need legislation that is responsive to what is happening on our streets and meets the expectations of Canadians in the 21st century.

The proliferation of drugs and violent crime is, unfortunately, a reality in this day and age and it is our job as parliamentarians to deal with criminals, to protect society and do whatever we can to deter crime. . . . The bill deals also with conditional sentences, usually referred to as house arrest. Our legislation would ensure that serious crimes such as sexual assault, kidnapping and human trafficking would not result in house arrest. Conditional sentences would continue to be unavailable for any offence with a mandatory minimum penalty.

In addition, a conditional sentence would never be available for offences with a maximum of 14 years or life imprisonment; or for offences with a maximum penalty of 10 years that result in bodily

harm or involve the import, export, trafficking or production of drugs or involve the use of a weapon; nor for a range of other offencesincluding kidnapping, theft over $5,000 or motor vehicle theft. Our act would ensure that serious offences, including serious propertyoffences like arson, would also not result in house arrest.

This would ensure that jail sentences for such offences are served in jail.[Emphasis added.] (House of Commons Debates, 41-1, vol. 146, No. 90 (6 March 2012), at 1025, 1035) [63] Based on the foregoing review the Court in Sharma concluded that Parliament’s objective was “to maintain the integrity of thejustice system by ensuring that offenders who commit serious offences receive prison sentences” (at para. 48). I agree with thisassessment.

One of the means chosen to achieve this purpose was the removal of the conditional sentence option for offences prosecutedby way of indictment where the maximum penalty is 14 years, or life. Is

Section 742.1(

c) Arbitrary? [64] Ms. Boyde, like Ms. Sharma before her, argues that s. 742.1(

c) is arbitrary, because it creates a gap in the sentencing range,thereby obliging judges to impose a sentence that is either too high, or too low. Like the majority in Sharma, I too would not give effectto this argument. [65] Insofar as Parliament wished to ensure that offenders who commit serious offences receive prison sentences, the removal of theconditional sentence option is in accord with this purpose, as a prison sentence will now be imposed in circumstances where aconditional sentence might otherwise have been available.

To the extent that Parliament viewed the conditional sentence as lying in themiddle of the sentencing range, its objective was to remove that middle with the intention that judges impose a more stringent sentence. It cannot be said that s. 742.(1)(

c) bears no connection to Parliament’s objective. Is

Section 742.1(

c) Overbroad? [66] It is a principle of fundamental justice that a law which deprives a person of life, liberty or security of the person must not do soin a way that is overbroad. The question is whether s. 742.1(

c) includes some conduct that bears no relation to its purpose (Bedford, atpara. 112). [67] On the question of whether the amendments were overbroad, in Sharma Feltham, J.A. (for the majority) observed that s.742.1(

c) identifies seriousness by focusing on the maximum sentence for an offence (14 years or life imprisonment). In other words,Parliament’s proxy for seriousness is the maximum available penalty. [68] I accept that “maximum sentences help determine the gravity of the offence and thus the appropriate sentence” (R. v. Friesen,2020 SCC 9, at para. 96). However, the problem with s. 742.1(

c) is that the seriousness of a crime cannot be determined solely by themaximum penalty, viewed in isolation (Sharma, at para. 167). Sentencing is not an abstract inquiry, divorced from the circumstances ofthe offence and the offender. Rather, sentencing is an individualized process, reflective of the principle of proportionality, that thesentence be proportional to the responsibility of the offender and gravity of the offence. This, in turn, requires a consideration of thespecific circumstances of offender and offence.

Thus, the gravity of the offence is reflected by the potential penalty imposed byParliament and the specific features of the crime (Sharma, at para. 165, quoting with approval from R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1, 189 O.A.C. 90)).

In Proulx the Court specifically rejected the suggestion that the proportionalityprinciple presumptively excludes certain offences from the conditional sentencing regime, observing that this principle requires fullconsideration of both the gravity of the offence and moral blameworthiness of the offender (Proulx, at para. 83). [69] I agree with Feldman, J.A. that by linking seriousness exclusively to the maximum penalty, Parliament cast the net toobroadly. It thereby artificially altered the sentencing landscape for those deserving of a sentence at the lower end of the range (at para.159): 159.

Since the inception of conditional sentences, this mode of punishment has been subject to two internal limits: the offence mustnot have attracted a mandatory minimum sentence, and the sentencing judge must have determined that a fit sentence for the offenderwould be less than two years in prison. On the surface, the Safe Streets and Communities Act amendments purport to restrict theavailability of conditional sentences for certain classes of offences.

However, the practical impact of the legislation is to alter thesentencing landscape most directly for those offenders convicted of an offence with a high maximum penalty who nevertheless deservedpenalties at the low end of the sentencing range, by denying those offenders the availability of a conditional sentence.

For more seriousoffenders who would ordinarily have received a prison sentence exceeding two years, the Safe Streets and Communities Act has no effecton the sentencing landscape, as those offenders could not have received conditional sentences to begin with. [70] The impugned provision captures a broad spectrum of offences, where there is no minimum sentence but a high maximum. The breath of the sentencing range means that s. 742.1(

c) operates without distinction to capture all offences, from the mundane to themost serious. [71] The circumstance is not unlike that addressed by the Supreme Court of Canada in Safarzadeh-Markhali. Pursuant to s. 719(3.1) of the Criminal Code, enhanced credit (to a maximum of 15 days) for pre-sentence custody was not available if the person wasdenied bail primarily because of a prior conviction.

This provision was given effect through an endorsement by the bail judge (pursuantto s. 515(9.1)) of a prior criminal record. [72] The Court concluded that s. 515(9.1) is broadly worded, catching any person denied bail for primarily a criminal record,without specifying or identifying the nature and number of offences that would warrant such an endorsement. The effect was to captureoffenders that did not pose a risk to public safety, or security.

The example is given of a person with one or two convictions for failing toappear in court, who might receive a s. 519(9.1) endorsement, even though he or she did not pose any real risk to public safety orsecurity. The Chief Justice stated (at para. 53): 53. … In short, a s. 515(9.1) endorsement is an inexact proxy for the danger that an offender poses to public safety and security. TheCrown says the law casts the net broadly because targeting all offenders with a criminal record is a more practical option than attemptingto identify only offenders who pose a risk to public safety and security.

But practicality is no answer to a charge of overbreadth under s.

7: Bedford , at para. 113 . [emphasis added] [ 73 ] The Court concluded that this provision is overbroad, in violation of s. 7 of the Charter , as it impacted people who had nothing to do with the legislative purpose, being to enhance public safety and security. [ 74 ] In a similar vein it might be said that the maximum penalty of 14 years or life imprisonment is an inexact proxy for the seriousness of the offence. [ 75 ] It is not an answer to say that a suspended sentence remains an option to incarceration.

Such a sentence would not be in keeping with Parliament’s stated purpose, namely the incarceration of the offenders who commit serious crimes (as defined by the maximum penalty). In addition, suspended sentences coupled with probation differ from conditional sentences and are rarely, if ever, available for an offence such as break and enter. As the Court in Sharma explained (at para. 110 ): 110 In Proulx , the Supreme Court explained that a conditional sentence, unlike a suspended sentence, is a jail sentence but served in the community.

It serves the functions of deterrence and denunciation: Proulx , at paras. 41, 67 . Indeed, conditional sentences may be available even in cases where deterrence and denunciation are the paramount sentencing objectives: R. v. Wells , 2000 SCC 10 , [2000] 1 S.C.R. 207 (S.C.C.), at para. 35 .

A suspended sentence, on the other hand, is intended to promote rehabilitation and is normally imposed where deterrence and denunciation are not needed for the particular offender in the particular circumstances, or where there are exceptional circumstances: Proulx , at paras. 32-36 ; see Criminal Code, ss. 731(1) , 732.1 , and 732.2 . [ 76 ] The only offenders thus caught by s. 742.1(

c) are those whose circumstances would normally suggest a sentence on the lower end of the range, specifically less than two years. [ 77 ] I therefore conclude, as the Court did in Sharma , that s. 742.1 (

c) is overbroad, in violation of the principles of fundamental justice, and therefore infringes Ms. Boyde’s right to liberty, contrary to

section 7 of the Charter .

Section 1 of the Charter [ 78 ] The significance of the fundamental rights protected by s. 7 of the Charter supports the view that a law which violates those rights is “unlikely” to be justified under s. 1 of the Charter , although the possibility cannot be discounted entirely ( Bedford , at para. 129 ). [ 79 ] The application of the Oakes test to a breach of s. 7 was summarized by the Court in Bedford , as follows (at para. 126 ): 126. … Under s. 1, the government bears the burden of showing that a law that breaches an individual's rights can be justified having regard to the government's goal.

Because the question is whether the broader public interest justifies the infringement of individual rights, the law's goal must be pressing and substantial. The "rational connection" branch of the s. 1 analysis asks whether the law was a rational means for the legislature to pursue its objective. "Minimal impairment" asks whether the legislature could have designed a law that infringes rights to a lesser extent; it considers the legislature's reasonable alternatives.

At the final stage of the s. 1 analysis, the court is required to weigh the negative impact of the law on people's rights against the beneficial impact of the law in terms of achieving its goal for the greater public good. The impacts are judged both qualitatively and quantitatively. Unlike individual claimants, the Crown is well placed to call the social science and expert evidence required to justify the law's impact in terms of society as a whole. [ 80 ] Here the Crown called no evidence to bolster its assertion that the violation of Ms. Boyde’s rights under s. 7 can be justified under s. 1 o the Charter .

Rather, the topic is addressed in five brief paragraphs in the Crown’s factum. Under the circumstances I do not propose to embark on a full analysis. [ 81 ] Suffice it to say that even if the objective of denouncing and deterring serious offences can be said to be pressing and substantial, the means chosen is overbroad, and thus not rationally connected to the objective, at least in part. [ 82 ] Nor can the removal of the conditional sentence option, without regard for the circumstances of the offence or the offender be minimally impairing.

To establish minimal impairment the Crown must show the absence of less drastic means of achieving the objective in a real and substantial manner. The Crown has not done so. [ 83 ] Finally, without adducing any evidence, the Crown makes the bald assertion that any impact on individual rights from the impugned provision is “proportional to the [public] good” that flows from its inclusion. Such an assertion without evidence cannot be sustained. [ 84 ] I thus conclude, as the Court did in Sharma , by declaring that s. 742.1 (

c) is contrary to

section 7 of the Charter and of no force or effect. As such, this provision does not operate as a bar to the imposition of a conditional sentence in this case. But is such a sentence appropriate? Principles of Sentencing The Criminal Code Provisions [ 85 ]

Section 718 provides that the fundamental purpose of sentencing is “to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society”. This purpose is achieved by imposing sanctions that have one or more of the following objectives:

• denouncing unlawful conduct • deterrence of the offender and other persons from committing offences • separation of offenders from society, where necessary • assisting in the rehabilitation of offenders • providing for reparations of harm done to victims, or the community • promoting a sense of responsibility in offenders and acknowledgment of harm done to victims and the community. [ 86 ]

Section 718.1 provides that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. [ 87 ]

Section 718.2 further provides that a sentence should be increased, or reduced, to account for any relevant aggravating, or mitigating circumstances. In

section 718.2(

a) a number of deemed aggravating circumstances are enumerated, none of which are applicable to the sentencing of Ms. Boyde. [ 88 ] However, pursuant to s. 348.1 (home invasion), it is a deemed aggravating circumstance where the break and enter was of a dwelling house, the dwelling house was occupied at the time, and the offender knew, or was reckless, as to whether the dwelling house was occupied and used violence, or threats of violence, to persons or property. While “home invasion” is not otherwise defined in the Criminal Code , the circumstances in s. 348.1 apply to the sentencing of Ms. Boyde.

The treatment of such circumstances as aggravating constitutes a clear direction from Parliament that the “sentence must remind the individual offender, as well as other members of the public who might act in a like-minded manner under similar circumstances, that society does not tolerate the violation of the sanctity of a person’s dwelling” ( R. v. Lea , 2005 PESCAD 15 , at para. 33 ). [ 89 ] The remaining subsections of s. 718.2 speak to parity (that like cases be decided alike) and the goal of avoiding incarceration, where appropriate and reasonable: 718.2 … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

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

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

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 90 ] While general deterrence and denunciation are the primary sentencing objectives in this case, the prospects for rehabilitation of the offender and other sentencing principles also must be considered. Collateral Consequences [ 91 ] I was referred by the defence to the Supreme Court of Canada decision in R . v.

Suter , 2018 SCC 34 , for guidance on how “collateral consequences” might be addressed by the Court in sentencing. The facts in Suter are as unique as they are tragic. Mr. Suter mistakenly hit the gas pedal while parking his vehicle outside a restaurant patio, causing it to lunge onto the patio, killing a two year old boy who was eating with his parents. Based on bad legal advice, Mr. Suter refused to take a breathalyzer (although there was no evidence of impairment). Subsequently, he was abducted from his home by vigilantes, who cut off his thumb with garden shears.

His wife was also attacked in a separate incident. He had no prior criminal record. [ 92 ] Moldaver, J. for the majority (Gascon, J. dissenting, in part) stated (at para. 4): 4. Sentencing is a highly individualized process . A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" ( s. 718.1 of the Criminal Code ).

Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range. This is one such case. [emphasis added] [ 93 ] The individualized nature of the sentencing process may require the sentencing judge to look at collateral consequences. Consideration of such consequences enables the judge to craft a proportional sentence having regard to all relevant circumstances related to the offence and the offender ( Suter , at para. 48 ): 48.

Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2 (

a) of the Criminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the "personal circumstances of the offender" ( Pham , at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid. ; s. 718.2 (

b) of the Criminal Code . The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances . Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the

others, rendering a given sentence unfit. [emphasis added] [94] At the same time, the fundamental principle of proportionality must be met, and collateral consequences cannot be used toreduce a sentence to the point where it becomes disproportionate to the gravity of the offence and moral blameworthiness of the offender(Suter, at para. 56). [95] In view of the sentencing principles of individualism and parity, the vigilante attack on Mr. Suter was a relevant collateralconsequence to consider in sentencing.

Application of the Sentencing Principles [96] A proper application of the parity principle first requires due consideration of the aggravating and mitigating circumstances inthis case (s. 718.2(a), s. 348(1)(a)). Aggravating Circumstances [97] As noted, Ms. Boyde’s break and entry into Ms. Abbott’s home and the assaults committed therein are aggravating factors insentencing (R. v. Newhook, 2008 NLCA 28, Criminal Code, s. 348.1).

As the Court of Appeal in Lea observed, “All members of societycherish the idea they are safe in their own homes” (at para. 31), and (at paragraph 32): 32 When someone violates the sanctity of another's dwelling house by committing an offence contrary to s. 348(1)(

a) of the CriminalCode, the task facing a sentencing judge is to balance society's interest in maintaining a dwelling house as a safe place, with the need tofix a sentence which addresses all the objectives and principles of sentencing. This balancing must be conducted while keeping in mindthe basic purpose of sentencing which is to engender public confidence in the administration of justice and to protect members of society.A sentence that is disproportionate to the seriousness of the crime, either because it is too severe or too lenient, does not engenderconfidence in the administration of justice.

Given the seriousness of this offence and the real danger to members of society when thesanctity of their dwelling house is violated, the public can best be protected when the balance tips in favour of a sentence which has as itsprimary objective, deterrence. [98] While the sentencing balance tips in favour of general deterrence, it is recognized that there can be considerable variance in theattributes of what qualifies as a “home invasion”. The range of cases to which s. 348.1 may apply are diverse and, as a consequence,home invasion cases require a particularly nuanced approach to sentencing.

A careful examination of the nature and severity of thecriminal acts and the circumstances of the offender is required (R. v. Wright, (ON CA), 2006 CarswellOnt 7721, 218O.A.C. 215)). [99] While any home invasion must be regarded as serious, on the facts of this case I observe that there was no evidence of damageto Ms. Abbott’s home, no weapon was involved, the altercation brief and physical assaults of a minor nature. At the same time, Ms.Abbott was understandably traumatized by the event. While not a justification for breaking into a stranger’s home, the whole affairbecomes clearer in light of Ms. Boyde and Mr.

Bennett’s previous relationship and the circumstance in which she found Mr. Bennett onthe morning in question. To be clear, however, I am not treating the fact that Ms. Boyde and Mr. Bennett knew each other as amitigating fact on sentence. Rather, an appreciation of their relationship is contextual as it helps explain, but not justify, Ms. Boyde’sconduct. [100] The fact that Ms. Boyde has a criminal record, which includes prior convictions for assault, is also an aggravating factor. Thatsaid, while not minimizing Ms.

Boyde’s record, I would observe that the assault convictions are somewhat dated, arising over six yearsago and judging by the sentence received were minor in nature. The convictions for fraud and forgery are likewise dated and arose at apoint in time when Ms. Boyde was struggling with an opioid addiction. [101] Overall, the criminal record speaks of a young woman with a drug addiction, living in a tumultuous domestic relationship. [102] Finally, the fact that Ms. Boyde was on probation at the time of the offences is an aggravating factor on sentencing. Mitigating Circumstances [103] Ms.

Boyde’s positive PSR and the testimony of Dr. Young must be regarded as mitigating considerations. Since that fatefulencounter some almost four years ago Ms. Boyde has taken positive measures to turn her life around and get “on track”. Thoseprofessionals interviewed by Probation Officer Sweet are unanimous in this regard. Ms. Boyde is in a positive relationship, she iscoming to terms with her addiction, and providing positive parenting to her young daughter. Collateral Consequences [104] The defence submits that the prospect of physical separation of Ms.

Boyde from her daughter is a collateral consequence to betaken into consideration in this case. [105] In response, the Crown observes that this will not be the first, or last occasion, when a parent is separated from their child by aterm of imprisonment. [106] By all accounts Ms. Boyde is a good mother and Mr. Mercer, a good father, such that the Department of Children, Seniors andSocial Development is considering closing its file on the family (if it has not done so already). Serenity was born premature and while

progressing well is dependent on Ms. Boyde and Mr. Mercer for medical appointments. Ms. Boyde is breastfeeding. Clearly the separation of mother and child at this formative time is not in the interests of either. [ 107 ] While not a mitigating factor, nor an exceptional circumstance, I am satisfied that the impact of Ms. Boyde’s incarceration on Serenity’s healthy development, and on Ms. Boyde as a mother, are collateral consequences that must be taken into consideration in this case. While Ms. Boyde’s moral blameworthiness is not diminished, she is not “like others” similarly convicted ( Suter , at para. 48 ). Parity: Like Cases to be Decided Alike [ 108 ]

Section 718.2(

b) enshrines the sentencing principle of parity, that the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. While, of course, no two cases are identical, in the application of this principle I have found the following decisions to be instructive. R. v. Omilgoituk , 2011 NLCA 77 [ 109 ] In Omilgoituk the offender pled guilty and was convicted of break and entry and assault, contrary to ss. 348(1) (

a) and 266 , respectively. The facts are instructive. They are summarized in the Court of Appeal decision, as follows (at para. 2): 2 In the early morning hours of November 17, 2010, an altercation occurred between Mr. Omilgoituk and Winston Williams. Mr. Williams had gone to Mr. Omilgoituk's residence thinking that Mr. Omilgoituk may have needed his assistance. Upon his arrival, Mr. Williams was assaulted by Mr. Omilgoituk because Mr. Omilgoituk believed that something was going on between his girlfriend and Mr. Williams. Mr. Williams was able to break free, leave Mr.

Omilgoituk's home and return to his own home a short distance away. Mr. Omilgoituk followed. Upon his arrival at Mr. Williams' house, Mr. Omilgoituk shouted that he would slit Mr. Williams' throat and began kicking the door, eventually breaking the door frame and gaining entry. Inside, he punched Mr. Williams in the face a few times before Mr. Williams was able to push Mr. Omilgoituk onto the steps outside. … [ 110 ] The Court upheld a sentence of 12 months’ imprisonment [11] followed by a year’s probation.

In doing so, the majority observed that the sentence was at the very low end of the range, but justified on the facts (at para. 29).

Wells, J.A. while concurring in the result, left the door open for a lesser sentence, emphasizing that “in the circumstances found by the trial judge, had a lesser sentence been imposed appellate intervention would not necessarily be warranted” (at para. 33). [ 111 ] Mitigating factors in Omilgoituk were an early guilty plea, positive Pre-Sentence Report, lack of criminal record, personal health issues and addictions, and the offender’s efforts to deal with them, and his aboriginal status. Some of these same mitigating considerations are at play in the case of Ms.

Boyde, others are absent, and others are present in the case of Ms. Boyde, but not in the case of Mr. Omilgoituk. [ 112 ] Unlike Mr. Omilgoituk, Ms. Boyde has a criminal record which includes convictions for common assault, and crimes of dishonesty. In addition, Ms. Boyde does not have aboriginal status. Ms. Boyde did not enter a guilty plea. However, while not a mitigating factor, her failure to do so cannot constitute an aggravating factor. [ 113 ] As was the case in Omilgoituk , Ms.

Boyde has a very positive PSR and has had no further involvement with the law since the offence and has not breached any of the conditions of her release. However, in the case of Mr. Omilgoituk, just over a year passed following the offence and the Court of Appeal decision. Here we are over 3-1/2 years post offence. [ 114 ] Omilgoituk also involved a home invasion, an aggravating factor in sentencing. However, Mr. Omilgoituk kicked in the victim’s door, while in the instant case there was no damage to Ms. Abbott’s home. R. v.

Gear , 2005 NLTD 159 [ 115 ] In Omilgoituk the Court referenced, with approval, the decision of Barry, J. in Gear . [ 116 ] The facts in that case were summarized by Barry, J., as follows (at paras. 3-5): 3 All the offences arose from an incident on March 8, 2003 in which Gear, Sr. started a fight with Frederick Arnold outside his girlfriend's residence and then with Gear, Jr. and another man broke into the residence to continue the fight. Eventually the son punched Arnold unconscious and both father and son then proceeded to kick and punch the unconscious victim as he lay on the kitchen floor.

The father, while attempting to continue the fight with Arnold, assaulted the girlfriend by slapping her in the face and knocking a telephone from her hands. He also uttered a threat to cause death or bodily harm by saying as he left the residence "this isn't over until he is six feet under". The son damaged Arnold's vehicle after leaving the residence. 4 Arnold suffered severe bruising and some abrasions but luckily no permanent injury.

His girlfriend's two young children were upstairs in her house during the intrusion and frightened by the fighting. 5 Gear, Sr. had ended up at the residence after several altercations with Arnold during a dance at the Bell Island Parish Hall. The son went to find his father and bring him home but got caught up in the altercation and said he decided to provide support to his father by ensuring that nobody stepped in to break up the fight.

Both father and son were hostile towards Arnold because they blamed him for causing the breakup of the father's marriage. [ 117 ] Aggravating circumstances were the invasion of a dwelling house in the course of an assault and the extent of the violence inflicted on one of the victims. Barry, J. observed that this victim lay unconscious while he was kicked and punched and it was “pure

chance” that he did not suffer injuries more serious than “severe bruising and abrasions” (at para. 18). [ 118 ] Mitigating circumstances were the lack of premeditation in entering the residence (but not in starting the fight), the lack of Gear, Sr.’s criminal record and the limited record of his son (he had been convicted of property damage and was on probation at the time of the offence), and subsequent good conduct during the time since the offence. [ 119 ] Barry, J. imposed conditional sentences of 21 months and 18 months on the father and son respectively. [12] R. v.

Haynes (January 15, 2008), 0106A02416 (NL Prov. Ct.)) [ 120 ] In Omilgoituk our Court of Appeal also referenced the unreported decision of Orr, J. in Haynes (at para. 26). The victim had previously assaulted Haynes’ mother. A verbal dispute ensued which eventually led to an altercation which overflowed into the victim’s dwelling, which Haynes then unlawfully entered.

After referencing Haynes’ exemplary background and the unique circumstances of the case, Orr, J. imposed an 18 month conditional sentence. [ 121 ] The Court of Appeal in Omilgoituk observed that the length of the sentences in Gear (21 months and 18 months conditional) and Haynes (18 months conditional) “speaks to the seriousness of home invasions involving assault even where there are significant mitigating factors” (at para. 26). R. v.

Lea , 2005 PESCAD 15 [ 122 ] In Lea [13] , the PEI Court of Appeal substituted a conditional sentence of 18 months for the suspended sentence and probation imposed by the sentencing judge. The offender entered a guilty plea to breaking and entering a dwelling house with intent to commit an indictable offence. Lea kicked in the door of the residence and proceeded to search for the boyfriend of his common-law partner. Fortunately, the boyfriend could not be found, although Lea succeeded in damaging his vehicle when leaving.

He was 29 years old at the time with no criminal record. [ 123 ] The Court observed that while a “home invasion” is not a defined term in the Criminal Code , Lea’s actions met the requirements of s. 348.1 . The fact he broke into the house knowing that it was occupied, with the intent of inflicting harm upon one of the occupants, and threatened violence to persons and property, were all aggravating factors in the imposition of sentence (at para. 30). A Just and Appropriate Sentence [ 124 ] No minimum sentence is prescribed for the break and enter.

As such, in theory [14] the Court may suspend the passing of sentence and order the offender released on probation, having regard to “the age and character of the offender, the nature of the offence and the circumstances surrounding its commission” ( s. 731(1) (a)). The range of available sentences for the s. 348(1) (

b) breach in this case is therefore from a suspended sentence all the way to life imprisonment. [ 125 ] The maximum penalty for assault, when prosecuted by way of indictment (as in this case) is five years. There is no mandatory minimum penalty and both a discharge (s. 730(1)) or suspended sentence are sentencing options. [ 126 ] Ms. Boyde presents to the court as the mother of a 19 month old infant, born premature, with underlying health issues as a consequence. At the same time, during the 3-1/2 years since offending, Ms.

Boyde has maintained a clean record, she has abided by the terms of her release, by all accounts has rehabilitated and is on her way to becoming a productive member of society. Under these circumstances I am satisfied that specific deterrence is no longer the objective. I am left, then, with general deterrence and denunciation. On the facts of this case I am satisfied that these objectives can be met with a custodial term of less than two years.

I observe that in applying the parity principle, such a sentence is in keeping with the case law from this jurisdiction ( Omilgoituk , Gear , Haynes ) and the Court of Appeal decision in Lea . [ 127 ] This preliminary determination having been made, I turn to a consideration of the appropriate term and whether a conditional sentence should be imposed, and if so, on what conditions ( Proulx , at para. 59 ). [ 128 ] Taking into consideration the principles of sentencing discussed, above, I am satisfied that a just and appropriate sentence in this instance is 20 months’ imprisonment for the breach of s. 348(1) (b), and one month imprisonment each for the two assaults and one month imprisonment for the breach of probation.

I would not regard the assaults as part of the same criminal venture, such that this sentence should be served consecutive to the break and enter ( Newhook , para. 16 ). The breach of probation should also remain consecutive. The total sentence thus imposed is 23 months’ imprisonment. Giving this overall sentence one last look, I am satisfied that it is not disproportionate, but is in keeping with the principles of sentencing discussed, above. [ 129 ] For the reasons that follow I am satisfied that this sentence should be served by Ms. Boyde in the community. [ 130 ] As Ms.

Boyde’s sentence (23 months) is less than two years, a sentence to be served in the community is available to her if the Court is satisfied that service in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing. [ 131 ] However, if the safety of the community cannot be preserved, a conditional sentence should never be imposed. The focus of this inquiry, then, is on the risk posed by the individual offender, Ms. Boyde, while serving her sentence in the community ( Proulx , at para. 68 ). Considerations include the risk of Ms.

Boyde reoffending and the gravity of the damage that could arise in the event of a reoccurrence ( Proulx , at para. 69 ). [ 132 ] I am satisfied that Ms. Boyde does not pose a threat to the safety of the community if allowed to serve her sentence there. Over the 3-1/2 years since the offence she has refrained from further trouble with the law, focusing her attention instead on her young daughter and family. She has taken positive steps to curb her opiate addiction and continues to do so. Partially as a consequence of the COVID- 19 pandemic, Ms.

Boyde’s sentencing hearing was prolonged, giving the Court the somewhat unique opportunity to monitor her progress

subsequent to the very positive PSR. On this point, Dr. Young’s observations, as recent as two months ago, are particularly instructive. Ms. Boydes’ recovery and integration into society does not appear to be a “flash in the pan”, but enduring. [ 133 ] Offenders such as Ms. Boyde, who have taken positive measures to turn their lives around, are all too uncommon in the judicial system. When they do present, the Court can and should take notice. [ 134 ] What, then, of the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 ?

As noted, in a case such as this involving the break and entry of one’s home, general deterrence and denunciation are the primary sentencing considerations. Can these twin objectives be met through the imposition of a conditional sentence? In the circumstances of this case I believe that they can. [ 135 ] A s. 742.1 conditional sentence incorporates some elements of a non-custodial sentence and some elements of a custodial sentence. It is, however, a punitive sanction capable of satisfying the principles of denunciation and deterrence, although less punitive than a sentence served in a penal institution.

It is this punitive aspect that distinguishes a conditional sentence from probation. There is no parole associated with a conditional sentence. As such, the offender must comply with all conditions of the sentence through the entire duration of the sentence. If the conditions are violated, the offender faces serving the remaining term in a penal institution. The Court in R. v. Laliberte , 2000 SKCA 27 , stated (at para. 100 ): 20 .

Section 742.1 is a self contained sentencing regime that, for the first time, introduces a provision in the Code permitting an offender in certain circumstances to serve his sentence of imprisonment in the community rather than in prison. This provision is contained within the broad remedial purpose and context of

Part XXIII and was designed by Parliament to achieve the objectives of reducing the use of prisons and expanding the use of restorative justice. A conditional sentence of imprisonment incorporates some elements of a non-custodial sentence and some of a custodial sentence. It will generally be more effective in achieving restorative goals of sentencing than a carceral sentence because it is served in the community. It is however a punitive sanction and therefore capable of satisfying the objectives of denunciation and deterrence.

It is this punitive aspect that distinguishes the conditional sentence from probation. [ 136 ] In Proulx , the Supreme Court of Canada addressed the principles governing conditional sentences. The Court observed that (at paragraph 100): 100 . Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration.

Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction.

However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. [ 137 ] The Court went on to observe that while incarceration may provide more deterrence than a conditional sentence, judges should be wary of placing too much emphasis on deterrence when choosing between the two forms of sentence. The Court noted that a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed.

Moreover, the empirical evidence suggests that the deterrent effect of incarceration is uncertain. [ 138 ] I note, as well, that both ss. 718.2(

d) and (

e) mandate Courts to consider alternatives to incarceration, where appropriate and reasonable in the circumstances, having regard to the other principles of sentencing in ss. 718 to 718.2 . [ 139 ] Further, in respecting the parity principle, I cannot help but observe that when a conditional sentence was available, the imposition of such a sentence for break and entry into a dwelling house is not without judicial precedent, in circumstances not unlike the present case (see Gear , Haynes and Lea ). [ 140 ] Taking the foregoing into consideration, I am satisfied on the facts of this case that the twin goals of deterrence and denunciation can be achieved by allowing Ms.

Boyde to serve her sentence, albeit on strict conditions, in the community. Her incarceration in prison is not necessary for that purpose. Rather, in my view, the incarceration for Ms. Boyde in an institution would be unduly oppressive given her present circumstances and counterproductive to the positive steps she has taken towards rehabilitation. A conditional sentence for Ms. Boyde, who has since her arrest demonstrated a serious commitment to turning her life around, would be fully consistent with the objectives of sentencing set forth in sections 718 to 718.2 , above. [ 141 ] The restrictions imposed on Ms.

Boyde’s liberty through the conditional sentence will enable her to maintain contact with Serenity and continue on her path to becoming a productive member of society. At the same time, the consequences of a breach of her conditional sentence terms (potential incarceration in an institution) will serve as an added incentive in this regard. Similarly, a period of probation will enable the state to continue to monitor Ms. Boyde’s progress in the community. The combined effect of the two will serve to restrict Ms.

Boyde’s liberty for as long, if not longer, than a period of incarceration in an institution. disposition [ 142 ] Accordingly, I impose a period of imprisonment of 23 months to be served in the community (conditional sentence) followed by one year of probation. There will also be a firearms’ prohibition and DNA order. The sentence thus imposed is, as follows: Conditional Sentence: 23 months 1. There will be house arrest for 23 months based on the compulsory conditions set forth in

section 742.3(1) of the Criminal Code . Namely, Ms. Boyde shall: (

a) keep the peace and be of good behaviour; (

b) appear before the court when required to do so by the court;

(

c) report to a supervisor (

i) within two working days, after the making of the conditional sentence order, and (ii) thereafter, when required by the supervisor and in the manner directed by the supervisor; (

d) remain in Newfoundland and Labrador unless written permission to go outside the jurisdiction is obtained from her supervisor. (

e) notify the supervisor in advance of any changes of address and promptly notify the supervisor of or any change of employment or occupation. (1.1) abstain from communicating directly or indirectly, with Joanne Abbott and David Bennett 2. The following optional conditions , in accordance with

section 742.3(2) of the Criminal Code shall apply to Ms. Boyde’s conditional sentence: (

a) Ms. Boyde shall abstain from the purchase, possession or consumption of drugs, except in accordance with a medical prescription. (

b) Ms. Boyde shall attend, participate in and cooperate with any treatment or counseling program suggested by her supervisor and required by her supervisor. (

c) Ms. Boyde shall, when away from her residence, have in her possession at all times a copy of this Conditional Sentence Order and conditions. (

e) Ms. Boyde is to remain within her residence, except: (

i) to attend for work or school, with the approval of her supervisor; (ii) to attend for medical or dental treatments for herself or her daughter, approved by her supervisor as to time and place; (iii) to attend at a religious ceremony as approved by her supervisor; (iv) to be allowed two hours per day for exercise or banking/errands as agreed upon by her supervisor. (

f) Three hours will be allowed for Ms. Boyde to vote in any federal, provincial or municipal election. (

g) Ms. Boyde may also attend, with permission of her supervisor, to any unforeseen circumstances for a time, with limits to be set by her supervisor for that particular occasion or circumstance. (

h) Ms. Boyde can change residence during her conditional sentence, but only with the consent and the approval in advance of such a change by her supervisor. 3. In accordance with

section 742.3(3) of the Criminal Code , a copy of this order shall be given to Ms. Boyde and her counsel shall provide her with an explanation of the substance of sections 742.4 and 742.6, together with an explanation for applying under

section 742.4 for changes in the optional conditions. Her counsel shall also explain that by

section 742.6, the court shall have the option of having Ms. Boyde serve any unexpired portion of the sentence in custody if she breaches any provisions in this Conditional Sentence Order. Probation 4. Ms. Boyde will be placed on probation for one year at the conclusion of the conditional sentence, which Probation Order shall be in Form 46 of the Criminal Code . The following shall be the conditions of the supervised Probation Order for Ms. Boyde: (

a) keep the peace and be of good behaviour; (

b) appear before the Court when required to do so by the Court; (

c) notify the Probation Officer in advance of any change of name or address and promptly notify the Probation Officer of any change of employment or occupation; (

d) remain within the Province of Newfoundland & Labrador unless written permission is obtained from the Court or the Probation Officer; (

e) attend, participate in and co-operate with any treatment or counseling program required by the Probation Officer; (

f) abstain from the purchase, possession or consumption of drugs except in accordance with a medical prescription; and (

g) report to and be under the supervision of the Probation Officer. 5. A copy of the Probation Order shall be given to Ms. Boyde. Her counsel will provide her with an explanation of the relevant provisions of the Criminal Code and an explanation for the procedure of applying for a change in any of the conditions. Her counsel will also explain that failure to comply with this Probation Order is a separate offence for which she may be brought before the Court to be dealt with according to law. Firearms’ Prohibition

6. It is further ordered that, pursuant to section 109(3), a firearms’ prohibition order will issue against Ms. Boyde, whereby Ms. Boyde will be prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, explosive substance for life. DNA Order 7. Pursuant to subsection 487.04, break and enter of a dwelling house is a “primary designated offence”, Accordingly, in accordance with s. 487.051, I order the taking of such samples of bodily substances from Ms. Boyde as is reasonably required for the purpose of forensic DNA analysis. _____________________________ Donald H. Burrage Justice