HER MAJESTY THE QUEEN — v. —, 2017 ONCJ 809

ONTARIO COURT OF JUSTICE DATE: R. v. Bowers , 2017 ONCJ 809 DATE: November 16, 2017 COURT FILE No.: Central East Region: Oshawa Court 16-25208 BETWEEN: HER MAJESTY THE QUEEN — AND — JORDAN RICHARD BOWERS Before Justice Peter C. West Heard on August 10, 2017, and October 10 and 19, 2017 Reasons for Judgment released on November 16, 2017 M. Gillen, Ms. Bronowicki................................................. counsel for the Crown P. Affleck........................................... counsel for the defendant Jordan Bowers WEST J.: [ 1 ] On August 10, 2017, Mr.

Bowers pleaded guilty to a charge of assault causing bodily harm which occurred on July 9, 2016, respecting the victim James Woods. The Crown proceeded by way of

summary conviction. The sentence hearing was adjourned for a pre-sentence report (PSR) and for an Electronic Supervision Program Assessment to be prepared. [ 2 ] On October 10, 2017, defence counsel requested a brief adjournment to allow Mr. Bowers to make arrangements respecting his employment. On October 19, 2017, sentencing submissions were made. The position of the Crown is that a six months jail sentence is the appropriate sentence to be followed by two years of probation.

The defence is seeking a conditional sentence of four to six months pursuant to s. 742.1 of the Criminal Code . [ 3 ] The facts provided on the guilty plea were that Mr. Bowers and his girlfriend were drinking at Ballers Bar in Clarington commencing on July 8, 2016 and continuing into the early morning hours of July 9, 2016. Mr. Bowers and his girlfriend went outside for a cigarette. Mr. Bower’s girlfriend re-entered the bar before he did. She began talking to another woman, who was James Woods’ girlfriend, and while talking they realized they had a number of friends in common.

The two women jumped up onto the bar and began to dance – “coyote ugly” – just as Jordan Bowers re-entered the bar from outside. Mr. Bowers believed Mr. Woods was involved in convincing his girlfriend to be on the bar counter and he yelled, “That’s my fucking girlfriend, do you think you’re funny.” He punched Mr. Woods in the face twice causing Mr. Woods to fall to the floor. Mr. Bowers picked up a bar stool, which he threw at Mr. Woods. The bar stool struck Mr. Woods as he lay on the floor. Mr. Woods suffered bruising under his right eye and a laceration to the right side of his head.

He was taken to Lakeridge Health in Oshawa where he received nine stitches to close the laceration. Photographs of Mr. Woods’ injury were filed as Exhibit 2. There was video surveillance in Ballers Bar, which showed Mr. Bowers’ assault on Mr. Woods. [ 4 ] Mr. Bowers was arrested a short time after the assault at a different bar down the street from the Ballers Bar. [ 5 ] The Crown advised repeated attempts were made to obtain a Victim Impact Statement from James Woods, however, he did not provide one. Background of the Offender

[ 6 ] At the time of the offence Mr. Bowers was 23 years of age. Mr. Bowers had a somewhat difficult childhood as his parents separated when he was young. He lived primarily with his mother and brother and saw his father weekly and every other weekend for visitation. In Grade 5 he moved in with his father and his father’s common law partner, who had two children of her own. Mr. Bowers did not get along with his step mother or her children. His father’s relationship did not last and Mr. Bowers moved in Grade 9 with his father to British Columbia. He moved back to Ontario to live with his mother following Grade 11.

He rarely has contact with his father who still lives in British Columbia. He sees his mother on special occasions and sees his brother monthly. Mr. Bowers did not want the probation officers to contact any of his family members for the purpose of the PSR. [ 7 ] Mr. Bowers is currently living in a common law relationship with Ashley Gillard since April 2017. They reside with Ms. Gillard’s parents. Ms. Gillard works as a social worker with a number of group homes for children with treatment and special needs. Mr. Bowers credits Ms.

Gillard with helping him get his life back on track and describes both her and her parents as being very supportive. This was confirmed by the probation officer in speaking with Ms. Gillard. [ 8 ] Mr. Bowers has a prior criminal record involving an assault when he was a young person on January 4, 2011, a domestic assault on September 23, 2014 (not involving Ms. Gillard) and an impaired driving offence from January 31, 2015. Mr. Bowers has never received a sentence of custody. Mr.

Bowers took responsibility for his prior assaultive behaviour involving his former girlfriend whom he dated for two years, 2013 to 2014. He described this relationship as unhealthy, causing him to drink more often. [ 9 ] Mr. Bowers was diagnosed with ADD/ADHD in Grade 1 and began taking Ritalin. Mr. Bowers described himself as being distracted and fidgety off the medication but when he was taking it he reported he “turned into a zombie.” Although he attended high school through the first half of Grade 12, he has only achieved a Grade 9 level.

He is interested in completing his GED in the future. [ 10 ] At the age of seventeen, Mr. Bowers started work in a factory. He has over four years’ experience working in construction and two years’ experience working in demolition. He has been working as a team leader for the past year with March and Co., a letter was marked as Exhibit 4. His previous employer of three years, Mr. Milan Ivkovic, owner of Milano Construction, described him as a punctual, polite and reliable employee who gets along well with his fellow employees. [ 11 ] Mr.

Bowers incurred substantial debt as a result of his conviction for impaired driving and is currently $7000 in debt. He has paid all of his fines respecting that offence. [ 12 ] Mr. Bowers first started consuming alcohol with his friends in high school at the age of 14. It was not until his early 20s that his drinking habits changed for the worse. Between the ages of 21-23, his social life revolved around drinking. He would often go out drinking three nights a week. He acknowledged suffering black outs in the past and recognized that all of his criminal offending occurred when he was intoxicated. Mr.

Bowers attended and completed educational group counselling at Pinewood Centre in Oshawa during his last community supervision in 2015-2016, which was imposed after his conviction for impaired driving. [ 13 ] Mr. Bowers described his current relationship with Ms. Gillard during the past year as being very positive. He obtained his driver’s licence again and became more committed to his work. He installed the ignition interlock into his motor vehicle, which has acted as a deterrent for him respecting his drinking. [ 14 ] In his discussions with the probation officer during the preparation of the PSR, Mr.

Bowers recognized a correlation between his anger and drinking. He admitted to becoming more emotional when he is under the influence of alcohol, although he is unsure of what causes him to become angry when he is consuming alcohol to excess. [ 15 ] Ms. Gillard was with Mr. Bowers the night of the incident and she advised the probation officer Mr. Bowers had consumed an excessive amount of alcohol that evening. [ 16 ] The probation officer reported the collateral contacts she spoke to described Mr. Bowers as a responsible, intelligent, capable, dedicated and trustworthy individual. They described Mr.

Bowers as someone who will always lends a helping hand and handles himself in a thoughtful and mature manner. [ 17 ] Mr. Bowers told the probation officer he often bottles up his emotions, which can manifest when he has been drinking. He has attended anger management and the PAR program in the past. He recently attended on his own initiative and completed another one day anger management course on July 22, 2017. It was the probation officer’s position Mr. Bowers should attend individual counselling to assist him in identifying the underlying cause(

s) of his anger. Mr. Bowers agreed with the probation officer’s assessment that he needs to engage in more self-reflection and awareness through counselling to gain insight into the cause of his anger. The probation officer recommended individual counselling if the Court considered community supervision in lieu of or in addition to another disposition. Mr. Bowers had no difficulties during his previous community supervisions and had completed all conditions required. [ 18 ] Mr. Bowers entered a plea of guilty to the charge of assault causing bodily harm. Mr.

Bowers’ guilty plea is a reflection of his remorse and an acceptance of responsibility on his part for his conduct. Mr. Bowers also expressed remorse and regret for his actions to the probation officer and in Court, which I find to be sincere. These are mitigating circumstances to be considered in determining an appropriate sentence. Additionally, his guilty plea has reduced the court time and cost required to deal with this matter. [ 19 ] The PSR reflects an awareness on his part of the connection between his consumption of alcohol and his easily becoming angry, which leads to his becoming violent.

It is my view this awareness is the first step in Mr. Bowers addressing and dealing with his difficulties with alcohol and anger. Further, his acknowledgement of his need to seek counselling and his willingness to follow through is a positive step. [ 20 ] He has strong support from his girlfriend and her family, which has provided him with stability. A further mitigating factor is Mr. Bowers has always been gainfully employed since he first left high school at the age of 17. [ 21 ] The assault on the victim was unprovoked and resulted in a laceration that required nine stitches to close.

These are aggravating circumstances to be considered in determining the appropriate sentence. In addition, Mr. Bowers has a previous criminal record for two

simple assaults involving problems with alcohol and anger, when he was a youth and in a domestic relationship. Despite taking an angermanagement course and the PARs program for domestic violence, Mr. Bowers finds himself charged once again with an offenceinvolving violence. [22] Although deterrence and denunciation are the predominant paramount sentencing principles to be applied in this case,rehabilitation continues to be an important consideration in sentencing Mr. Bowers because of his relative youth. The Appropriate Sentence [23] As a result of the Crown electing to proceed by

summary conviction, if I determine a period of incarceration is appropriate, anysentence I impose will be below 18 months or less. Indeed, the Crown is only seeking a six (6) month sentence. Mr. Affleck is seeking aconditional sentence of imprisonment. Ms. Brownowicki conceded a conditional sentence is an available sentence in this matter.Consequently, I must consider the appropriateness of a conditional sentence pursuant to s. 742.1 of the Criminal Code. [24] There are five prerequisites for the imposition of a conditional sentence.

(1) The offender must be convicted of an offence that is not specifically excluded (e.g. sexual assault, when prosecuted byindictment).

(2) The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.

(3) The court must impose a sentence of imprisonment that is less than two years.

(4) The safety of the community would not be endangered by the offender serving the sentence in the community.

(5) The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to718.2. [25] The facts of this case meet the first four pre-conditions. The Crown did not proceed by indictment, there is no minimum sentenceapplicable, the Crown is seeking a six (6) month sentence and the safety of the community would not be endangered by Mr. Bowersserving the sentence in the community. It is my view the safety of the community would not be endangered by permitting Mr. Bowers toserve a custodial sentence in the community for the following reasons. Although Mr.

Bowers has a criminal record, he has never beensentenced to a custodial sentence and has not spent any time in pre-trial custody. He is relatively youthful and is currently 24 years ofage. He has been gainfully employed since the age of 17. Mr. Bowers’ previous record is related to his abuse of alcohol and he expressedan awareness of the correlation between his drinking and his engaging in assaultive behaviour. Mr. Bowers has been on an undertakingfor over a year and has not breached any of its terms, which supports Mr. Affleck’s submission that Mr. Bowers will comply with courtorders. Mr.

Bowers complied with all of the conditions of probation and the PSR deemed him as a suitable candidate for futurecommunity supervision. [26] In R. v. Proulx, 2000 SCC 5 , [2000] S.C.J. No. 6, at para. 127, #7, the Supreme Court directed that where the first fourpre-conditions of s. 742.1 are met, sentencing judges must give serious consideration to community based sentences.

The only pre-condition remaining therefore is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencingset out in ss. 718 to 718.2. [27] The purpose of sentencing is set out in s. 718 of the Criminal Code.

I am of the view it is important to indicate what this sectionsets out and the sections that follow because I believe this is where the applicable principles of sentencing are defined for criminal cases.Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance ofa just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balancedconsideration of the need to:

a) Denounce the unlawful conduct;

b) Deter the offender, and others, from committing such an offence;

c) Separate the offender from society, where necessary;

d) Assist in the rehabilitation of the offender;

e) Provide reparation for harm done to “victims”, or the community; and

f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community. [28] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravityof the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6 , [2010] S.C.J. No. 6, theSupreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and thegravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protective angle ofproportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnationof the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and notgreater than it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishesthe offender no more than is necessary [29] As Rosenberg J.A. held in R. v. Priest, (ON CA), [1996] O.J. No. 3369, at para. 26: The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particularoffender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harmoccasioned by the offence.

The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherenceto the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. [30]

Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigatingcircumstances, which I have set out above. This

section also requires that a sentence be similar to other sentences imposed on similaroffenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not bedeprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that arereasonable in the circumstances be considered. [31] In R. v.

Proulx, supra, at para. 22, the Supreme Court held a conditional sentence is a "punitive sanction capable of achieving theobjectives of deterrence and denunciation." In para. 127, #8, the Court held: A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longerand more onerous the conditional sentence should be.

There may be some circumstances, however, where the need for denunciation ordeterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender'sconduct or to deter similar conduct in the future. [32] Initially the SCC held in Proulx that a conditional sentence was in principle, although not always in practice, available for alloffences where the prerequisites were met as no specific offence or category of offence was presumptively excluded from the conditionalsentence option: R. v. Proulx, supra, at paras. 79-81 (see also R. v.

Jacko, 2010 ONCA 452 , [2010] O.J. No. 2583 (C.A.), atpara. 69). The current legislation sets out specific offences and categories of offences that are not eligible for the imposition of aconditional sentence. An assault bodily harm offence, proceeded by

summary conviction by the Crown, is available.

Therefore, aconditional sentence, depending on the severity of the conditions, may nonetheless be consistent with the fundamental purpose andprinciples of sentencing, even where deterrence and denunciation are the predominant sentencing principles (see Jacko, supra, at para71). [33] Lamer C.J., in Proulx, supra, at para. 100, explained that a conditional sentence can achieve both punitive and restorativesentencing objectives: To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a bettersanction than incarceration.

Where the need for punishment is particularly pressing, and there is little opportunity to achieve anyrestorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot bereadily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve theobjectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(

d) and(e), which militates in favour of alternatives to incarceration where appropriate in the circumstance [34] The principle of restraint set out in s. 718(2)(

d) and (

e) has taken on a new prominence as a result of the introduction ofconditional sentences pursuant to s. 742.1. In R. v. Gladue, (SCC), [1999] S.C.J. No. 19, at para. 40, Cory J. said: ... The availability of a conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives anentirely new meaning to the principle that imprisonment should be resorted to only when no other sentencing option is reasonable in thecircumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The generalprinciple expressed in s. 718.2(

e) must be construed and applied in this light. [35] The jurisprudence indicates a range of sentence for assault causing bodily harm ranging from conditional discharges to sentencesin the upper reformatory, and in rare cases, low penitentiary sentences where the injuries are serious and the Crown has proceeded byindictment. It is clear that any sentence must focus on the protection of the public by the imposition of a penalty that denounces this typeof conduct and provides for both general and specific deterrence.

At the same time, the sentence must be individualized, as well as reflectand encourage as much as possible any apparent rehabilitative prospects. The appropriate sentence is determined by the circumstancessurrounding the commission of the offence, including the nature of the assault and the seriousness of the injury caused and the individualcircumstances of the accused, including the accused’s background, mental health issues, addictions, or criminal record. [36] As I indicated above, Mr.

Bowers has been subject to conditions of release on an undertaking and he has had no furtherinvolvement with the police since his arrest in July of 2016. Further, he has not had any contact with the victim. In my view, thisdemonstrates and supports the fact he is very likely to comply with a court order, such as a conditional sentence. [37] It is important to note that a conditional sentence can be of longer duration than a jail sentence and impose restrictions for alonger period of time.

In fact, in Proulx the Supreme Court indicated where a conditional sentence is consistent with the fundamentalpurpose and principles of sentencing and the more serious the offence and the greater the need for denunciation, “the longer and moreonerous the conditional sentence should be” (at para. 106).

[38] I am of the view that on a careful balancing of all of the relevant factors neither a community based sentence with onerousconditions nor a custodial sentence as proposed by the Crown can be said to be unfit. In those circumstances, what tips the balancebetween the two alternatives is the important principle of restraint that underlies s. 742.1, (see R. v. Wismayer, (ONCA), [1997] O.J. No. 1380 (C.A.), at paragraphs 67-68 and R. v. Proulx, at para. 100).

Further, it is my view the principles of generaldeterrence and denunciation can be properly addressed by a 9 month conditional sentence with restrictive conditions involving housearrest and community service. Finally, it is my view the principle of rehabilitation, protection of the public and reparations to thecommunity together with the promotion of a sense of responsibility on Mr.

Bowers’ part, can also be best addressed through aconditional sentence as opposed to a jail sentence, followed by lengthy period of probation. [39] Consequently, it is my view a conditional sentence in the circumstances of this case can and does meet all of the fiveprerequisites set out in s. 742.1 of the Criminal Code.

I will discuss with counsel the restrictive conditions I anticipate imposingrespecting this conditional sentence. [40] The conditional sentence will be followed by two years of probation and I will discuss the conditions with counsel. [41] Finally there will be two ancillary orders: first a weapons prohibition pursuant to s. 110 for three years and Mr. Bowers willprovide a DNA sample pursuant to s. 487.051, as assault bodily harm (S. 267(b)) is a primary designated offence. Released: November 16, 2017 Signed: Justice Peter C. West