R. v. Pottle, 2022 NLSC 33

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Pottle , 2022 NLSC 33 Date : March 4, 2022 Docket : 201801G8684 Her Majesty The Queen v. George Pottle Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 10, 2022

Summary: The 47-year-old first time offender was sentenced to 90 days’ incarceration to be served intermittently, and two years’ probation, for a single count of assault causing bodily harm on his common law partner. Appearances: Jeffrey A. Summers Appearing on behalf of the Crown Robert W. Buckingham Appearing on behalf of the Offender

Authorities Cited: CASES CONSIDERED: R. v. Pottle, 2021 NLSC 144; R. v. Lundrigan, 2012 NLCA 43; R. v. O. (B.J.), 2010 NLCA 19; R. v. Long(1993), (NL CA), 113 Nfld. & P.E.I.R. 178, 353 A.P.R. 178 (Nfld. C.A.); R. v. Glover, 2010 NLCA 55; R. v. Custer,2006 SKPC 42; R. v. G.W.P., 2006 NLTD 136; R. v. Best, 2014 NLTD(G) 108; R. v. Hobbs (1999), (NL SC), 178Nfld. & P.E.I.R. 153, 544 A.P.R. 153 (Nfld. S.C. (T.D.)); R. v. Penney (1987), (NL SC), 69 Nfld. & P.E.I.R. 278,[1987] N.J. No. 466 (Nfld. S.C. (T.D.)); R. v. Denney, 2007 NLTD 54; R. v. Lundrigan, 2012 CarswellNfld 110, [2012] N.J. No. 104(Prov. Ct.); R. v.

Butcher, NSCA 50; R. v. Hearns, 2020 ONSC 2365 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 OTHER: Chris Rudnicki, Confronting the Experience of Imprisonment in Sentencing: Lessons from the COVID-19 Jurisprudence(2021) 99 The Canadian Bar Review No. 3 REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] On 4 November 2021, I found Mr. Pottle guilty of a single count of assault causing bodily harm, contrary to s. 267(

b) of theCriminal Code, R.S.C. 1985, c. C-46. At the same time, Mr. Pottle was found not guilty of assault with a weapon and uttering threats tocause death or bodily harm (see R. v. Pottle, 2021 NLSC 144). It now falls to the Court to impose a just and appropriate sentence for thiscrime, having due regard to the principles of sentencing. [2] Assault causing bodily harm, contrary to s. 267(

b) of the Criminal Code, when prosecuted by indictment, as in this case,carries a maximum sentence of 10 years in jail. PRINCIPLES OF SENTENCING [3] Recognizing that sentencing is a highly individualized process, a fit sentence is one that takes into account the circumstancesof the offence and the offender (see R. v. Lundrigan, 2012 NLCA 43). [4]

Section 718 of the Criminal Code outlines the following purpose and objectives in sentencing: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [5]

Section 718.1 states: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[ 6 ] Subsection 718.2(

a) provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances and then proceeds to enumerate a number of deemed aggravating factors. Of these, abuse of the offender’s intimate partner is applicable to the sentencing of Mr. Pottle (s. 718.2(a)(ii)) [ 7 ] Subsection 718.2(

b) speaks of parity, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 8 ] The remaining relevant subsections of s.718.2 provide that: 718.2 … (

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

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. CIRCUMSTANCES OF THE OFFENCE [ 9 ] The circumstances of the offence are set forth in detail in Pottle . I refer to paragraphs 61-63 and 66 of that decision: 61 While Mr.

Pottle denied being “drunk” and testified that he had consumed only 8 - 9 beer after supper that day, I am satisfied that he was indeed intoxicated, at least to the point where his judgment was impaired and his temper got the better of him. There were three trips to the Ultramar for beer, he had been drinking beer most of the day, and all the while Ms. Maher continued to get under his skin. What began as verbal abuse ended with a physical altercation in the garage after supper. 62 Based on the whole of the evidence, I am satisfied beyond a reasonable doubt that an intoxicated Mr.

Pottle lost his temper and proceeded to put his hands around Ms. Maher’s neck, pushed her against the wall and deliberately butted her with his head, causing her nose to bleed. The sight of blood had a sobering effect, albeit brief, while Mr. Pottle took off his shirt and retrieved a towel in an effort to stop the bleeding. However, Mr. Pottle continued to be fixated on getting Ms. Maher’s cell phone and pursued her into the bathroom of the house. 63 I am also satisfied beyond a reasonable doubt that the assault continued in the bathroom, when he again pushed her and put his hands around her neck.

He tore her jacket while wrestling the phone from her and I do not accept that Ms. Maher responded by pointing an air pistol at his forehead. In any event, there is no suggestion that an air pistol had any role to play in the events in the garage, or for that matter in the bathroom up to that point. Unfortunately, the scene in the home was overheard by Mr. Pottle’s young son. … 66 As for the incident in the bedroom earlier in the day, the alleged consensual encounter seems contrary to the mood between the two. Photographs of bruising on Ms.

Maher’s legs were tendered in evidence and I am satisfied beyond a reasonable doubt that these were the result of being pushed against the bed by Mr. Pottle. [ 10 ] The victim, Jamie Maher, was Mr. Pottle’s common law partner at the time. Her injuries were described in Pottle , at paragraphs 74-76 : 74 The blow to Ms. Maher’s nose was severe enough to cause it to bleed. Immediate efforts to stop the bleeding with a towel and Mr. Pottle’s shirt were unsuccessful, as Ms. Maher’s nose was still bleeding when she entered the bathroom.

She obtained ice for her injury and sometime thereafter the bleeding stopped. 75 The injury was such that Ms. Maher reported to St. Clare’s Hospital, where she was assessed and an x-ray taken of her nose. She testified that it continued to pain some eight days later when she visited her physician. Photos taken at RNC Headquarters after she left the hospital show a bruising to the bridge of Ms. Maher’s nose, and bruising to her neck and lip, where she had been grabbed. Other photos show various bruises to Ms.

Maher’s arms and legs and I accept that, with the possible exception of her right forearm, these were the result of the struggles with Mr. Pottle on 8 April 2018. 76 I am satisfied that Ms. Maher’s injury to her nose, the bruising of her arms and legs, nosebleed, and bruising on her neck and lip, when considered together, interfered with her comfort in a way that was more than trifling and transient. Mr. Pottle is thus guilty as charged of assault causing bodily harm.

Victim Impact Statement [ 11 ] In accordance with s. 722 of the Criminal Code , Jamie Maher provided a Victim Impact Statement in which she elaborated upon the emotional, psychological and physical impact the assault has had on her. This compelling statement provides some insight into the depth and duration of the harm resulting from the assault by Mr. Pottle. I reproduce here a few extracts from that statement: This has affected my relationships in my family and with my friends, as people worry about me and it’s stressful to talk about this. I am tired of dealing with this for so long.

My friends and family are tired of dealing with the stress of this process. I am exhausted from the long court process and the stress and emotions I have to face every time I have to speak about it. I have severe anxiety and re-live these events daily, I have tried to cope with this stress with counselling but having to speak about it brings the stress back. I will always have that fear and doubt and live in survival mode. I feel like I will never be the same. antecedents of Mr. Pottle [ 12 ] Adult Probation Officer, Ashley Eddy, prepared a comprehensive Pre-Sentence Report regarding Mr.

Pottle, which included interviews with Mr. Pottle, his former spouse and both present and past co-workers. [ 13 ] Mr. Pottle is currently 47 years of age with no prior criminal record. He was born in St. John’s, where he has lived until now. He has a sister who lives in Ontario and an adopted brother who lives here. He lives in his own home. He is a single father who shares joint custody with his 14-year-old son. Mr.

Pottle describes a close relationship with his son, who he refers to as “my world”. [ 14 ] He also enjoys a close relationship with his siblings and his parents, whom he describes as a “constant and supportive presence” in his life. [ 15 ] Mr. Pottle has worked steadily since a teenager, starting formal employment as a cook at a local restaurant. In 1993 he began employment in the propane industry where he worked for 14 consecutive years. While working, he completed firefighting courses and was first hired by the fire department in the fall of 1998. He continued both jobs from 1998 – 2007.

After leaving the propane industry in 2007 he continued fulltime with the fire department and worked with concrete construction part time. He has consistently worked two jobs until about four years ago. [ 16 ] Within the fire department he has risen to the rank of Fire Lieutenant, a middle ranking role, three ranks away from management. Mr. Pottle’s supervisors, past and present, report that he is a great employee, conscientious, professional, and has a good relationship with his co-workers. His current supervisor expressed the opinion that “Mr.

Pottle is not a criminal, he is just a man that made a mistake”, and were he to lose his employment over the current charge it would be “devastating” for Mr. Pottle, his son and family. He confirmed that following his conviction Mr. Pottle received a six-month suspension without pay. He hopes to see Mr. Pottle return to work. [ 17 ] As a result of the suspension Mr. Pottle currently has no source of income. He was initially denied Unemployment Insurance and while he waits to re-apply is exploring the option of Income Support.

He has set up a job bank account and is actively looking for employment. [ 18 ] He expressed that his main goal at this time is to obtain employment to provide for his son and that he is willing to work anywhere at this point. He is concerned over losing his house due to his current financial situation. [ 19 ] Mr. Pottle’s former spouse of 15 years described Mr. Pottle as “harmless, an amazing father and a great man.” The two separated in October 2011.

She reports that during the past five years their relationship has been great and that they “communicate often, are on positive terms and co-parent well together.” [ 20 ] After the incident, Mr. Pottle attended Atlantic Counselling sessions once per week for four months, which he found helpful. He reports suffering from Post Traumatic Stress Disorder (PTSD) as a consequence of his work, but that the best place to deal with this is at the fire hall amongst his co-workers.

Since the matter before the Court he has been struggling with his mental health and is receptive to attend counselling if required. [ 21 ] Probation Officer Eddy reports that Mr. Pottle may benefit from a referral to the John Howard Society for programming, such as Anger Management and Safety and Repair, which addresses domestic violence. [ 22 ] Probation Officer Eddy concludes her report by opining that based on the risk and need assessment tool, the Level of Service/Case Management Inventory (LSCMI), Mr.

Pottle is a “first time offender and is a ‘low’ risk to reoffend.” She notes that he has “strong family ties and an extensive positive work history.” [ 23 ] When asked how he felt about the matter before the Court Mr. Pottle stated had he was “appalled” and that it is “her word against his.” Rather than express remorse, he maintained his innocence, describing the victim as “mentally unstable.” [ 24 ] That said, Mr. Pottle also addressed the court at his sentencing hearing. It appears that he has resiled from the position taken

when interviewed for the Pre-Sentence Report, for he apologized to the victim for his actions and accepted responsibility stating that hewas “extremely sorry” for what happened. I take some comfort in what now appears to be a recognition by Mr. Pottle of theconsequences of his behaviour on 18 April 2018. He apologized, as well, for the impact on his son’s life. position of the crown [25] The Crown recommends a sentence of 6 - 8 months incarceration, followed by 2 years of supervised probation. The ProbationOrder is to include no contact with the victim and that Mr.

Pottle attend counselling as required. [26] In addition, the Crown observes that there is a mandatory DNA Order and a 10-year firearms’ prohibition. position of the defence [27] The defence submits that a suspended sentence is just and appropriate, together with a period of probation. [28] In the alternative, if the court deems incarceration necessary, the defence asks that it be 90 days or less, to be servedintermittently (section 732 of the Criminal Code). [29] The defence takes no quarrel with the mandatory DNA Order and firearms’ prohibition.

PARITY [30] It is the parity principle of sentencing that like cases should be decided alike. While no two cases are identical, the sentencingjudge has a duty to impose a sentence that is in line with precedent (see R. v. O. (B.J.), 2010 NLCA 19). For this reason, I was referredby both the Crown and defence to a number of prior decisions involving assault causing bodily harm. While I have considered alldecisions to which I was referred, I found the following to be of the greatest assistance in this matter. [31] In R. v. Long (1993), (NL CA), 113 Nfld. & P.E.I.R. 178, 353 A.P.R. 178 (Nfld.

C.A.), our Court of Appealreduced a sentence of six months’ imprisonment to 90 days to be served intermittently. Long entered a plea of guilty to assault causingbodily harm, contrary to s. 267(1)(

b) of the Criminal Code. He had been downtown drinking beer when his ex-girlfriend went homewith the victim. He showed up at the victim’s door at 3:15 a.m. and, after confirming his identity, struck him in the face knocking himover the basement stairs. The victim suffered a broken nose, and as a result of the fall, needed 20 stitches to his right foot, requiringplastic surgery.

The court observed that there were four aggravating factors: premeditation by Long; that the assault occurred in thevictim’s home at night; the injuries were relatively serious; and there was nothing in the victim’s behaviour amounting to provocation (atparagraph 6). [32] As for mitigating considerations, Long had no criminal record and presented with good antecedents. He was employed as anarchitectural draftsman. [33] The major consideration was general deterrence, as it was unlikely Long would repeat his behavior.

While not justification forhis conduct, it appeared to the court that Long was at the time disturbed over the loss of his girlfriend. [34] In reducing Long’s sentence, Goodridge, C.J.N. observed that the range of sentences for assault causing bodily harm “runsfrom a suspended sentence to 18 months” (at paragraph 9). In circumstances where a sentence of 90 days or less can be justified,intermittent sentences are designed to enable working people to continue employment while serving their sentences (at paragraph 13). [35] In R. v.

Glover, 2010 NLCA 55, a majority of our Court of Appeal reduced a sentence of nine months’ imprisonment to a totalof three months’ imprisonment, for one count of assault causing bodily harm, prosecuted by way of indictment. The victim was a taxidriver who was dragged from his cab by Glover and an accomplice, choked by the neck, struck by fists and stomped about the face andhead.

The victim suffered head and scalp lacerations and swelling, as well as bruising and abrasions on his forearms (at paragraph 36). [36] As for mitigating factors, Glover was relatively young, with no prior convictions, well-educated with steady employment. Hispre-sentence report was positive, placing him at a low risk to reoffend. [37] The majority observed that of the cases presented by both parties, there was one instance where the sentence imposed wasbeyond four months; that of R. v. Custer, 2006 SKPC 42.

In Custer the victim was attacked with a metal baseball bat to the head andarms, resulting in fractures to his arms (at paragraph 37). The sentence imposed was nine months’ incarceration. [38] In contrast to Cluster, the majority referred to the following (at paragraph 38): R. v. Denney, 2007 NLTD 54 (N.L. T.D.). Denney, with two others attacked the victim causing bodily harm. He had no criminal recordand was a medium risk to re-offend. The court upheld a sentence of four months incarceration. R. v. Clarke, 2001 NFCA 35 (Nfld. C.A.). Clarke punched the victim in the face causing a shattered cheek.

Reconstructive surgery wasrequired, including steel plates. Clarke had two prior criminal offences and was considered a high risk to re-offend. A sentence of threemonths incarceration was upheld by this Court. R. v. Arsenault (1981), (PE SCAD), 30 Nfld. & P.E.I.R. 489 (P.E.I. C.A.). Arsenault, 19 years old, was refusedservice in a liquor store. He struck a 70 year old man in the face with a cast he was wearing, causing a loss of teeth and a consequentialbroken hip from falling. He had no prior convictions. The P.E.I. Court of Appeal upheld a $500.00 fine.

[39] In reducing Glover’s sentence to three months’ imprisonment, the majority referred to the decision in Long as the most relevantand analogous to the case on appeal (at paragraph 40).

In doing so, the majority reaffirmed the range noted in Long; “the range ofsentence (as in this case,) runs from suspended sentence to 18 months” (at paragraph 42). [40] While acknowledging that deterrence and denunciation were the primary sentencing objectives, the majority observed that tothe “extent the trial judge was influenced by the need to protect tax drivers in the performance of a public service”, such a lengthy periodof incarceration was not necessary (at paragraph 59). [41] In R. v. G.W.P., 2006 NLTD 136, Faour J. sentenced the offender to five months’ imprisonment for assault causing bodilyharm.

In addition to this offence, following a trial, G.W.P. was found guilty by a jury of five counts of assault: one count of assault witha weapon, one count of sexual assault, and one count of uttering a threat. All offences were directed against the offender’s wife,reflecting a pattern of domestic violence extending over a period of 10 years. [42] The assault causing bodily harm involved a “serious injury” (at paragraph 14) to the victim’s ankle, after G.W.P. threw a bowlin her direction. The bowl shattered, severing several tendons in the victim’s foot. The cut bled profusely and required surgery.

Thevictim was in the hospital for two days and unable to use her foot for several months. While the foot fully healed, it still ached onoccasion (at paragraph 14). [43] G.W.P. was 34 years old at the time of sentencing, with a Grade 11 education. He was employed most of his adult life. He hadan unrelated conviction in 1991, prompting Faour J. to treat him as a first-time offender. [44] G.W.P. said he was “sorry” for what he did, but did not elaborate or express any other sentiment from which Faour J. couldconclude that he realized the harm he had caused to his family (at paragraph 22). [45] In R. v.

Best, 2014 NLTD(G) 108, Goodridge J. imposed a sentence of nine months’ imprisonment for assault causing bodilyharm. Following a trial, Best was convicted of this offence, as well as assault contrary to s. 266 of the Criminal Code and breach ofprobation. The victim in each instance was his common law partner, an aggravating factor in sentencing. [46] The assaults causing bodily harm occurred on two occasions, in February 2010 and February 2011.

During the first (whatGoodridge, J. described as the “most outrageous assault), Best walked into the complainant’s bedroom, told her to “go the f — home” and punched her in the face with a closed fist (at paragraph 10). The impact drove the victim’s teeth through her upper lip, resulting in apermanent scar. There were no sutures or medical follow-up, as Best would not let the complainant go to the hospital. The secondincident occurred when Best lost his temper and kicked his victim multiple times in her shins. The force was enough to produce bruisingand discoloration of the victim’s lower leg.

The victim had trouble weight bearing, although her leg was not broken (as she initiallythought). [47] In addition to the foregoing, there were common assaults which occurred in September 2010 and August 2011. [48] Best was 29 years old and employed full-time as a general labourer. He was the father of one child and currently in a positivedating relationship. Notably, he had a history of resorting to violence in the context of domestic relationships, with three priorconvictions for assaulting his previous girlfriend and one for threatening her.

His record also included breach of probation and failing tocomply with a condition of undertaking, or recognizance. Best’s history of violent behaviour was such as to heighten Goodridge J.’sconcerns “regarding Mr. Best’s prospects for rehabilitation” (at paragraph 26). [49] As mitigating factors, Goodridge J. accepted Best’s admission of a problem with anger management, his apology to thecomplainant, and promise to the Court to maintain future relationships without violence (at paragraph 34). [50] In R. v. Hobbs (1999), (NL SC), 178 Nfld. & P.E.I.R. 153, 544 A.P.R. 153 (Nfld.

S.C. (T.D.)), HickmanC.J.T.D. upheld a sentence of a fine and probation for assault causing bodily harm, as prosecuted summarily. The victim was attacked ata bed and breakfast where he was staying. He fell to the ground and was kicked by Hobbs in the face and other areas of his body. As aresult of this unprovoked assault, the victim required seven or eight stitches over his left eye and sustained several bruises to his arm andback. [51] Hobbs pled guilty, had no prior record, and was gainfully employed.

It was the prospect of Hobbs losing his job thatparticularly moved the sentencing judge not to impose a period of incarceration, stating “I have no trouble saying that I would impose aterm of incarceration in relation to this but for the fact that you have a job” (at paragraph 6). [52] In Hobbs Hickman, C.J. cited R. v. Penney (1987), (NL SC), 69 Nfld. & P.E.I.R. 278, [1987] N.J. No. 466(Nfld. S.C. (T.D.)) for the proposition that assault causing bodily harm can result in a suspended sentence with probation.

Penney was a24-year-old first time offender who, while under the influence of alcohol, engaged in a scuffle with the victim, during which he struckthe victim’s nose, breaking it. Penney pleaded guilty and there was a joint submission by the Crown and defence for a suspendedsentence. [53] Penney received a positive Pre-Sentence Report which described him a quiet, easy going and hard working. Woolridge, J.found that the offender’s behaviour was a marked departure from the norm for him.

The uniqueness of his behaviour was bolstered bythe fact that at the time of sentencing, Penney still did not know the victim and had limited recall of the event (at paragraph 3). [54] In R. v. Denney, 2007 NLTD 54 O’Regan, J. upheld sentences of four months’ imprisonment for assault causing bodily harm. The offence involved a “vendetta” against the victim.

The offenders and a third individual (who died before completion of the trial) in a“gang-like” assault, kicked and punched the victim while parked in his car, causing injuries to his face and hand (at paragraph 14). [55] Both offenders were employed fulltime, living at home with their parents, with little in their background other than substanceabuse and a conditional discharge for a criminal offence. Both were considered a “medium risk” to reoffend (at paragraph 2).

[ 56 ] Finally, in R. v. Lundrigan , 2012 CarswellNfld 110 , [2012] N.J. No. 104 (Prov. Ct.) , Porter, J. sentenced Lundrigan to nine months’ imprisonment, to be served in the community (house arrest) for assault causing bodily harm. [ 57 ] Lundrigan struck his female victim once in the face, fracturing her cheek bone. She had to undergo surgery and facial reconstruction. She suffered nerve damage and was left with toothache and facial pain every day.

She was a qualified electrician by trade, but unable to work, as she could no longer tolerate pain to her face. [ 58 ] The offender had one prior conviction for failing to provide a breath sample, was employed, apologized to the victim and in his Pre-Sentence Report was considered a low risk to reoffend. analysis and Disposition [ 59 ] I have before me a 47-year-old first time offender with no known history of violence; a single father with strong family supports, who has worked his adolescent and adult life as a productive contributing member of society.

Indeed, for the past 25 years he has served this community in the demanding and often dangerous occupation as a firefighter. He is considered a low risk to reoffend. [ 60 ] I have no doubt that Mr. Pottle wishes he could turn back the clock on18 April 2018, for on that date his temper, fueled by alcohol, got the better of him resulting in the matter before this court. Mr. Pottle has and continues to pay a heavy price for his actions. He has been suspended without pay for six months from the fire department and is without income.

He will now have a criminal record, with its own consequences. [ 61 ] At the same time, it must be recognized Mr. Pottle’s innocent victim continues to suffer from the repercussions of his behaviour, as Ms. Maher explained in her Victim Impact Statement. [ 62 ] Parliament’s inclusion of intimate partner violence as an aggravating factor on sentencing amounts to a codification of what the common law already took into account. Violence perpetrated in the context of an intimate relationship calls for denunciation and deterrence (see R. v. Butcher , NSCA 50, at para. 136).

These are the primary sentencing considerations in this case. [ 63 ] Of the cases to which I was referred, those of Long (90 days intermittent); Glover (3 months); and G.W.P. (5 months) are the most relevant and analogous to the within matter. In both Long and Glover the offenders had no criminal record, were gainfully employed, a low risk to re-offend and generally presented with good antecedents. While neither case involved domestic violence, the physical injuries were more serious than those of Ms. Maher.

In addition, in Long the attack was premeditated and in Glover the victim was a taxi driver engaged in the performance of a public service. [ 64 ] In G.W.P. the offence was part of a pattern of domestic violence extending over a period of 10 years. The injury to the victim was serious, requiring surgery to repair severed tendons in her foot. [ 65 ] Comparing these cases with Mr. Pottle’s actions leads me to conclude that a period of incarceration is required. A suspended sentence, as suggested by the defence, would place undue weight on Mr.

Pottle’s antecedents, positive though they may be, and would not reflect the degree to which general deterrence and denunciation of his behaviour is required. [ 66 ] Penney is the only case to which I was referred which resulted in a suspended sentence. It is, however, distinguishable on two primary grounds; it was the result of a joint submission and therefore must be approached with caution; it did not involve domestic party violence. [ 67 ] Mr.

Pottle’s period of incarceration should be less than that imposed in G.W.P. , where the injuries were more serious and formed part of an extended pattern of domestic abuse. While Long and Glover were not domestic, there were aggravating factors in those cases not present here. Both resulted in three months’ incarceration, Long in the form of 90 days to be served intermittently and Glover in the form of three months consecutive. [ 68 ] The defence sought an intermittent sentence in the event I were to reject the request for a suspended sentence. An intermittent sentence will enable Mr.

Pottle to return to work as a firefighter, perhaps with some shift accommodations. In addition, while Mr. Pottle is on suspension, an intermittent sentence will enable him to seek and hopefully obtain employment. At the same time, Mr. Pottle will spend time in jail. Sentence [ 69 ] On balance, I am satisfied that a just and appropriate sentence in this case, one in keeping with precedent and the principles of sentencing, is 90 days’ incarceration to be served intermittently. The intermittent sentence will be served on weekends from 6:00 p.m. on Friday to 7:00 a.m. on Monday. As today is Friday, Mr.

Pottle is to report to Her Majesty’s Penitentiary by no later than 6:00 p.m. today. [ 70 ] Finally, I am not prepared, in the circumstances of this case, to reduce this sentence on account of the COVID-19 pandemic, as argued by the defence. While I accept that the conditions under which an offender will actually experience life in jail may be a relevant consideration ( R. v.

Hearns , 2020 ONSC 2365 ), I was not provided with any evidence on the current conditions of incarceration at Her Majesty’s Penitentiary ( Chris Rudnicki, "Confronting the Experience of Imprisonment in Sentencing: Lessons from the COVID-19 Jurisprudence" (2021) 99 The Canadian Bar Review No. 3). Probation Order [ 71 ] In addition, Mr. Pottle will be placed on probation for a period of two years.

He is to comply with the conditions presented in the Probation Order, when not in confinement during the period that his sentence is being served, and thereafter for the balance of the 2 years remaining upon his release. [ 72 ] The Probation Order shall be as in Form 46 of the Criminal Code . Pursuant to

section 732.1 of the Criminal Code the

following conditions shall apply: (

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 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. (

d) report to a probation officer when required by the probation officer and in the manner directed by the probation officer; (

e) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer; (

f) participate in and cooperate with any treatment or counselling program required by the probation officer; and (

g) not have any contact or communications with Jamie Maher directly or indirectly, and shall not attend at any premises where Jamie Maher resides, works, or attends school. DNA Order [ 73 ] Assault causing bodily harm is one of the primary designated offences set out in the Criminal Code . In accordance with s. 487.05(1)(

a) of the Criminal Code I authorize the taking from Mr. Pottle for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose by means of the investigative procedures described in s. 487.06(1). Firearms’ Prohibition [ 74 ] A firearms’ prohibition is mandatory in this case. Pursuant to s. 109(1) of the Criminal Code I order that Mr.

Pottle shall be prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance during the period that ends 10 years following the completion of his intermittent sentence and prohibited from possessing any prohibited firearm, prohibited weapon, prohibited device and prohibited ammunition for life. _____________________________ Donald H. Burrage Justice