R. v. Deacon, 2018 ONCJ 23

ONTARIO COURT OF JUSTICE CITATION: R. v. Deacon , 2018 ONCJ 23 DATE: 2018 17 01 COURT FILE No.: York Region – Newmarket 4911-998-17-08297 4911-998-16-05141 BETWEEN: HER MAJESTY THE QUEEN — AND — DEREK DEACON Before Justice Henschel Heard on June 15, 2017, September 12 and 13, 2017, November 29, 2017, and December 21, 2017. Reasons for Judgment released on January 17, 2018 Vanessa Szirmak................................................................................ counsel for the Crown John Struthers................................................ counsel for the defendant Derek Deacon HENSCHEL J.: A.

Introduction [ 1 ] During his trial, on September 13, 2017, the accused, Derek Deacon, pled guilty to assault with a weapon which occurred on March 5 and 6, 2016, assault causing bodily harm which occurred on April 3 and 4, 2016, and an assault which occurred on July 5, 2016. All of the offences were committed against his former girlfriend, D.V., in her home in Newmarket. Each offence occurred in the presence of one or more of her children.

The offences were fueled by alcohol, jealousy, and the mistaken belief that D.V. was unfaithful. [ 2 ] The accused was on a s. 810.2 recognizance and pled guilty to breaching that recognizance by failing to keep the peace and be of good behavior on July 7, 2016. After entering the initial guilty pleas, on November 29, 2017, the accused pled guilty to a further charge of breaching the s. 810.2 recognizance for failing to report as required between January and May 2017. [ 3 ] On November 29, 2017, I heard submissions on sentence and adjourned the matter for sentencing.

On December 21, 2017 I imposed sentence and delivered oral reasons for judgment with more comprehensive written reasons to follow. These are my reasons for sentence.

B. The Nature of the Offences [ 4 ] The victim, D.V., met the accused through a friend in 2012 while he was a serving a federal sentence. The two were in a relationship between 2012 and June 2016. Mr. Deacon lived with D.V. following his release from custody between June 2015 and June 2016. They have a three-year-old daughter and D.V. has four other children between the ages of eight and fifteen who also lived with them. It is acknowledged that the relationship was a violent one, and that other acts of violence were perpetrated by Mr. Deacon against D.V. during the relationship.

Assault With a Weapon: March 5-6, 2016 [ 5 ] On March 5, 2016 Mr. Deacon went to a party with a friend. D.V. expected that when they returned his friend would stay overnight and, as a result, left blankets on the couch. When they returned, D.V. was sleeping with their then two-year-old daughter. She heard Mr. Deacon say, “I am going upstairs to teach her a lesson” and, moments later, he came into the bedroom and got on top of her. He was drunk. He took out a switchblade and put it within an inch or two of her face.

He was angry and yelled at her, asking why the pillows and blankets were on the couch, and if they were there because someone had come over to have sex with her while he was out. He was waving the knife in the area of her head and neck. She was fearful for her safety and for their daughter’s safety. [ 6 ] She told him that she was not cheating on him and that she put the blankets there for his friend. After several minutes he got off her. She went downstairs to get away from him and he followed her. She told his friend that he had threatened her with a knife and that she wanted them to leave. She and Mr.

Deacon began to argue and she went outside for a cigarette. Mr. Deacon followed her and accused her of being a cheater, a liar, and a whore. [ 7 ] When D.V. tried to enter the house he pushed her with both hands and locked the door. It was cold outside and she was wearing only a small pajama dress, a jacket, and boots. She began to walk to a nearby fire station. He pursued her on foot and yelled at her, telling her to come back. He said that someone would think he did something. She wanted to get away from him and continued to walk.

He had difficulty keeping up with her because of a leg injury and after about five minutes stopped following her. She continued to walk and after a period of time saw him looking for her with the car. She hid and he went away. Eventually, she decided to return home because she was cold. When she got back the door to the house was open. Assault Causing Bodily Harm – April 4-5, 2016 [ 8 ] On April 4 or 5, 2016, D.V. and Mr. Deacon were at their home in Newmarket. An argument developed because Mr. Deacon took D.V.’s phone and demanded that she give him her user name and password for a banking application.

She did not want to give him the password because she was worried that he would take money from her bank account and she used another device to wipe the data from her cellphone. This infuriated Mr. Deacon and he accused her of deleting the content because she was hiding something and of communicating with other men and having an affair. She grabbed the phone from him and ran upstairs to get away from him. She threw her phone in the children’s bedroom and then went into her room and stood on the bed. [ 9 ] Mr. Deacon followed her into the bedroom.

He was furious, and yelled at her saying that she was a liar and was cheating on him. He grabbed her and pulled her onto the floor. He threw a blanket over her, sat on her, and repeatedly punched her in the back of the head. When she tried to break free he punched her repeatedly with significant force in the face. During the struggle they ended up back on the bed and he began to choke her. She started to black out. She thought she might die and pleaded with him not to kill her because of their daughter. He told her he did not care if he went back to jail for life for killing her.

He suddenly stopped the assault and told her that they should ice the swelling on her face. He got some peas and put them on her face which was bruised and swelling. [ 10 ] Throughout the argument the children were present in the home, but were asleep. D.V. was fearful and slept with her children. She remained fearful the next morning and left the house and went to a friend’s home. As a result of the attack she suffered a black eye and significant swelling and bruising to her face. Assault – July 5, 2016 [ 11 ] On July 5, 2016, Mr.

Deacon, who was no longer living with D.V., came to her home to retrieve some of his belongings and their dog. He was drunk and he and D.V. became involved in an argument because he wanted to take the SUV leased by D.V. She did not

want him to take her vehicle. [ 12 ] During the argument, D.V. was holding their two-year-old daughter. She followed Mr. Deacon to the front door to try to stop him from taking the SUV and he punched her in the face with sufficient force to cause her to fall backwards into the wall. The punch caused her eyes to water. He was yelling at her and told her he was going to kill her and burn the house down. [ 13 ] D.V. called out to her thirteen-year-old daughter and asked her to take the baby. Her daughter took the baby, and the argument continued.

The accused pulled out a switchblade from his back pocket and swung it at her. He taunted D.V. and her daughter saying “ok, come and get the baby, Mommy wants to fight now”. After the accused calmed down and started to go up the stairs she took the knife from his pocket and threw it in a corner. Mr. Deacon then left the home with the dog. Breach of

section 810.2 Recognizances [ 14 ] On May 11, 2016, Mr. Deacon entered into a Criminal Code

section 810.2 recognizance for a period of 15 months. The recognizance included conditions that he keep the peace and be of good behavior, report monthly to Detective Constable Peters or Detective Constable Sun Hing, and that he report any change of address prior to the change. On July 5, 2016 the terms of the s. 810.2 recognizance were reviewed with Mr. Deacon along with the consequences for failing to comply with the recognizance and he acknowledged that he understood. [ 15 ] On July 7, 2016 Mr. Deacon breached the s. 810.2 recognizance by failing to keep the peace and be of good behavior. On July 7, 2016, Mr.

Deacon was no longer living at D.V.’s residence. That evening he came to her home. He had been drinking and wanted to know where her SUV was parked. She believed that he was going to take her car. He became angry and threatening when she would not disclose the location of the SUV. As a result of his threatening conduct, she called 911 and as she did so he told her that if she said his name he was going to get someone to come to the house and kill her or burn her house down. At the time, her children were present in the home. He also intentionally damaged her vehicle. [ 16 ] Mr.

Deacon reported as required by the terms of the s. 810.2 recognizance between July 2016 and December 2016 and reported that he was living with his mother, Gayle Deacon. In January 2017, police were called to a domestic incident that was alleged to involve Mr. Deacon. After receiving the report, the police contacted Mr. Deacon to turn himself in but he failed to do so. A warrant was issued for his arrest. On February 7, and March 7, 2017 he failed to report as required to Detective Constable Peters and Detective Constable Hing. Detective Constable Peters spoke with Gayle Deacon and learned that Mr.

Deacon had not been residing with her since prior to the January 2017 assault allegations. Mr. Deacon did not report his change of address as required. The outstanding warrant for Mr. Deacon’s arrest was executed on May 14, 2017 when officers located him while conducting a traffic stop. C. Personal Circumstances of Mr. Deacon [ 17 ] Mr. Deacon is now forty-three years old. He has a very serious and lengthy criminal record with twenty-eight prior convictions between 1987 and 2009.

Included in his criminal record are the following related convictions: • Four convictions for possession of a weapon and/or possession of a prohibited weapon. • Four convictions for robbery. • Two convictions for assault with a weapon, and one conviction for aggravated assault. • Two convictions for assault and assault peace officer. • Multiple convictions for breaches of court orders including two convictions for failing to comply with probation, and two convictions for breach of a recognizance. • He has been recommitted to custody for parole violations in the past. [ 18 ] Mr.

Deacon’s criminal record, spanning thirty years, is continuous and shows an escalation of violence and seriousness of offences. The most recent convictions dated June 16, 2009 were for robbery with a firearm and kidnapping, and resulted in a sentence the equivalent of eleven years and nine months, before credit was given for pre-sentence custody. The warrant expiry for this sentence

was June 16, 2015, only eight months prior to the commission of the first of the index offences for which he is now being sentenced. [ 19 ] Although Mr. Deacon’s criminal record includes at least ten convictions for crimes of violence, Mr. Deacon has not previously been convicted for an offence of violence committed within a domestic relationship. [ 20 ] I was provided with a copy of the pre-sentence report prepared in 2009. This report established that: • As a child the accused’s father was abusive to his mother and the abuse lead to his parents separating and divorcing.

After his father and mother separated he had little contact with his father. • The accused’s mother loves and cares for him and continues to support him despite his ongoing involvement in criminal activity. • In addition to his three year old daughter, Mr. Deacon has two sons, ages 24, and 12. He has had little contact with these children and provided little support for his older son. • The accused struggled in school, and left school in grade nine when he was fourteen years old. He never returned to school full time.

While serving a two year sentence for robbery he earned his grade twelve equivalency. • After leaving high school the accused worked as a DJ, with the Salvation Army as a driver, in sales, and selling tickets as a “scalper”. • The accused minimized and rationalized his past criminal behavior. • While serving provincial sentences he received misconduct findings for assaults or threats to inmates. D. Psychological Assessment [ 21 ] I was provided with a Correctional Service of Canada psychological assessment prepared on June 27, 2013 by Dr. Joshua Goldstein.

The report includes the following conclusions regarding Mr. Deacon: • He does not meet the criteria for psychopathy, however presents with high-moderate levels of both the personality traits and historical correlates associated with a psychopathic personality. • He was assessed utilizing a number of risk assessment tools in 2011 which suggested that Mr. Deacon’s risk was in the moderate to high-moderate range for general recidivism and in the high end of the moderate range to the high-moderate range for violent recidivism after release.

Similarly, the 2013 assessor concluded that, at the time of that assessment, Mr. Deacon remained in the moderate to high- moderate range for general recidivism and in the high end of the moderate range to the high-moderate range for violent recidivism. • Impulsivity contributed to his offending pattern. • He has a poor history of community supervision. [ 22 ] The report was filed on the date of sentencing submissions, and, although Mr.

Struthers did not object to the report being filed, he asked that I place limited weight on the report because it was not prepared for court purposes. [ 23 ] I have placed limited weight on the risk assessment conclusions in the report. However, even if I were to entirely disregard the psychological assessment the only reasonable conclusion, based upon a review of Mr. Deacon’s criminal record, is that he poses a significant risk for future violent recidivism and has a poor history of community supervision. E. Victim Impact [ 24 ] The offences had a significant impact on D.V.

They also had a significant impact on her children who lived through and witnessed the acts of violence, and were traumatized as a result. One of her children stopped living with D.V. because of the turmoil and violence in her home caused by Mr. Deacon.

[ 25 ] D.V. suffered both physical and emotional injuries. She described the impact of the April offence as follows: The beating that Derek gave me made me feel like I got hit by a truck. My ears were ringing nonstop the next day and it hurt when I tried to talk. My head was hurting so bad because I was punched in the back of my head and my face was so swollen. I was so drained.

I was heartbroken and I felt so humiliated that the man that was supposed to love and care for me, just physically abused me and treated me like I was nothing. [ 26 ] Since her report to the police D.V. continues to be fearful in her own home, and continues to be concerned for her safety and the safety of her children and other family members. She is hesitant to trust new people. F. Injuries [ 27 ] As a result of the April incident D.V. suffered bodily harm. As noted previously, the photographs show significant bruising and swelling to D.V.’s face and left eye. G. Pre-Sentence Custody [ 28 ] Mr.

Deacon spent 239 days in pre-sentence custody. The parties agreed that he is entitled to credit on a 1.5 to 1 basis. This results in credit for 359 days custody. H. Governing Sentencing Principles [ 29 ] According to s. 718 of the Criminal Code , the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society" by imposing "just sanctions" that have one or more of the following objectives, namely: (

a) to denounce unlawful conduct; (

b) to deter the offender and others 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 the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community. [ 30 ] Further, according to s. 718.1 of the Code , the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. [ 31 ]

Section 718.2 of the Code dictates that, in imposing sentence, the court must also take into account a number of principles including the following: (

a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (

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.

[ 32 ] Parliament has deemed certain conduct to be a statutorily aggravating circumstance. Of significance are s. 718.2(a)(ii) and s. 718.2(a)(iii.1) which provide that “evidence that the offender in committing the offence, abused the offender’s spouse or common-law partner” and “evidence that the offence had a significant impact on the victim…” are statutorily aggravating circumstances. I. Mitigating Factors [ 33 ] The relevant mitigating factors include the following: • Mr. Deacon has entered guilty pleas.

Although the guilty pleas occurred during the trial and do not have the same mitigating effect as an early guilty plea, they do reflect an acceptance of responsibility. Although D.V. testified in-chief, she was not subject to cross- examination. • As noted above, Mr. Deacon has accumulated a significant amount of pre-sentence custody, equivalent to a credit of 359 days. • In terms of rehabilitative prospects, Mr. Deacon continues to have the support of his mother and a number of relatives and friends. J. Aggravating Factors [ 34 ] There are a number of significant aggravating factors including: • Mr.

Deacon has a serious prior criminal record that includes a long history of violence, although, as noted, there are no prior domestic violence convictions. • The offence took place in the context of a domestic relationship, a statutorily aggravating feature. • The offence took place in D.V.’s home, a place where she was entitled to feel safe from harm of violence. • The prolonged and sustained nature of the incidents, particularly the events of April 2016. • The incidents were not isolated, but rather were part of a pattern of abuse and violence. • The serious nature of the assault and the level of violence of the April incident which resulted in significant bruising and swelling to D.V.’s face. • The use of a weapon during two of the incidents. • The profound impact on D.V., a statutorily aggravating factor. • The fact that two of the offences occurred in the direct presence of her children, and all occurred while the children were present in the home. • The offences involved abuse of alcohol. [ 35 ] In respect of the breaches of the s. 810.2 recognizance there are also a number of aggravating features including: • The history of non-compliance with community supervision. • Mr.

Deacon failed to keep the peace and be of good behavior shortly after he entered into the s. 810.2 recognizance. • In respect of the second allegation of breach of the s. 810.2 recognizance, the facts reveal that after briefly complying with the address and reporting conditions Mr. Deacon failed to report his address while there was an outstanding warrant for his arrest. The reasonable inference is that he did not report his address, or report as required in order to avoid being arrested. This was not merely a technical breach. His conduct demonstrated a complete disregard for the court order.

[ 36 ] Collectively the breaches are serious. The conditions breached were intended to allow for the monitoring of the accused’s circumstances in the interest of protecting the public from further offences. He evaded those conditions by failing to inform the officers of his change of address and failing to report. This is not a situation where the offender simply changed residence and failed to report the change nor is it a situation where the offender voluntarily reported his breaches. K. Position of the Parties [ 37 ] Mr.

Struthers submits that a punitive sentence would be a global sentence in the upper reformatory range, prior to credit for pre- sentence custody being given. He submits that a harsh sentence, after credit is given for time served would be a further twelve to fifteen months jail. [ 38 ] The Crown submits that I should impose a period of custody of 3.5 years for the assault with a weapon, assault cause bodily harm, and assault charges, and 12 months consecutive for the breaches of the s. 810.2 recognizance for a global sentence of 4.5 years, prior to credit being given for pre-sentence custody. L.

Applicable Legal Principles [ 39 ] Appellate authorities have consistently confirmed that in serious cases of domestic violence the principles of general and individual deterrence and denunciation must be the paramount sentencing considerations in order to adequately protect the public. [1] In Getachew , Justice Campbell emphasized that: “Spouses are entitled to be protected against violence within the sanctuary of their own home. In cases where significant bodily harm has been inflicted, such violence must be repudiated and denounced by the sentence imposed.

The existence of the spousal relationship serves not only to aggravate the circumstances of the offence as the violence of the accused is a flagrant breach of the trust inherent in such intimate relationships. The application of these principles is especially important in cases where the victims have had to endure persistent or prolonged assaultive behavior over a period of time”. [2] [ 40 ] The vulnerability of victims and the serious impact of domestic violence was described by Justice Pomerance in R. v. T.R.M as follows: Partner violence is a serious social problem.

It often takes place in the privacy of the home, without other witnesses. Often the victim is subject to physical and emotional abuse that leads to feelings of helplessness, hopelessness and fear, such that it is difficult for the victim to leave the relationship.

Family violence destroys the sense of security and safety that normally attaches to the home, it can have debilitating impact. [3] [ 41 ] In Smith [4] , the Ontario Court of Appeal concluded that “a sentence of one to two years will generally be appropriate for a conviction for common assault when committed against a spouse or domestic partner in the context of a lengthy pattern of domestic abuse”. (emphasis added).

The common assault allegations in Smith related to a situation of domestic violence where over a period of years the accused was alleged to have pinched the victim’s legs, elbowed her in the stomach, thrown forks at her, whipped the back of her legs with a wire, grabbed her hair, and hit her on the back of the head and kicked her. Mr. Smith was sentenced to ten months custody for the allegations of simple assault occurring over a lengthy period, 2 months consecutive on a charge of uttering threats, and 2 years consecutive on a charge of sexual assault. [ 42 ] Mr.

Deacon has been convicted not only of simple assault, but also assault with a weapon, and assault bodily harm. Mr. Smith, had only one prior assault conviction. Mr. Deacon, in contrast, has an extremely serious criminal record that is punctuated by crimes of violence. In my view, given the nature of the offences, and Mr. Deacon’s criminal record, the upper end of the sentencing range for assault expressed in Smith , must be the starting point of the range of sentence appropriate for the assault related convictions in this case. [ 43 ] In R. v.

Getachew , the accused was convicted of assault with a weapon, assault bodily harm, and causing the complainant to ingest a noxious substance. Justice Campbell, referencing Smith , concluded that a sentence in the vicinity of 2 years less a day was appropriate stating as follows: In my opinion a sentence, at the upper end of that range is more appropriate in the circumstances of the present case. First, the accused

has not been convicted of “common assault”, but of the more serious crimes of assault causing bodily harm, assault with a weapon, and causing the complainant to ingest a noxious substance with the intention of endangering her life. Second, by comparison to R. v. Smith , the violence inflicted by the accused on the complainant in the present case was significantly more serious and caused greater physical injuries. [5] Notably, in Getachew , the accused had no prior criminal record, however the injuries suffered by the victim were more severe than in this case. [ 44 ] In R. v.

T.R.M Justice Pomerance imposed a sentence of 35 months (prior to credit for time served) for two counts of assault with a weapon, and breach probation. The accused struck the victim, his domestic partner, with a metal clothing rack breaking her ankle, and on a separate occasion threw a mug at the victim’s head, causing a scar, and punched her in the nose. The accused was of indigenous heritage and suffered from a serious drug addiction.

He had a criminal record with sixteen prior convictions, including five prior assaults, one prior conviction for choking, a conviction for uttering threats to cause death, and convictions for breaches of probation. Three of the prior assaults occurred in a domestic relationship. [ 45 ] I have concluded that the rehabilitative prospects for Mr. Deacon are poor and specific deterrence is of particular concern in this case. As noted earlier, the only reasonable conclusion is that Mr. Deacon poses a significant risk to commit future acts of violence.

At this point, given his lengthy criminal record, and the failure to comply with community supervision in the past, a significant period of custody is necessary to specifically deter Mr. Deacon, and to protect the community. In addition, having regard to the gravity of the offences, a significant period of custody is required to properly denounce his conduct and to adequately reflect the principles of general deterrence. [ 46 ] In my view this case requires a sentence similar to the sentences imposed in Getachew and T.R.M . Mr.

Deacon committed repeated acts of domestic violence that were part of a pattern of abuse. A weapon was used on more than one occasion, D.V. suffered physical injury, and Mr. Deacon has a substantial and serious criminal record.

Although the injuries suffered by D.V. were less severe than those suffered by the victims in T.R.W , and Getachew , the offences were still very serious and the April attack in particular involved a prolonged and vicious attack which had a significant impact on D.V. [ 47 ] In sentencing for a breach of a s. 810.2 recognizance, general and specific deterrence and the need to protect the public from high risk offenders must be the paramount considerations. The sentencing judge must also consider proportionality and rehabilitation; the gravity and seriousness of the breach; and the criminal history of the offender.

The gravity of the breach should be considered in the context of the offender’s history. The very purpose of the s. 810.2 recognizance is to protect the public from future criminal activity. [6] [ 48 ] In R. v. Labbe [7] , the accused successfully appealed sentences of 21 months imposed for two counts of breach of a s. 810.2 recognizance. The sentence was reduced to 12 months concurrent on each count. The accused was described as a “career criminal” and had a lengthy criminal record which included numerous convictions for crimes of violence, dishonesty, and offences against the administration of justice.

He had previously been sentenced to the penitentiary on three separate occasions for serious crimes of violence and had six prior convictions for breaches of court orders. [ 49 ] The breach allegations in this case were more serious than in Labbe . Labbe breached a requirement to carry a copy of his recognizance with him at all times and to produce it upon request and failed to keep the peace and be of good behavior by spitting in the face of the police officer who arrested him.

But for the operation of totality, the two counts of breach of the s. 810.2 recognizance in this case would demand an equivalent or lengthier sentence than that imposed by the Court of Appeal in Labbe . M.

Conclusion: [ 50 ] In my view, considering all of the facts, the relevant legal principles and the appropriate range of sentence identified in the authorities, and taking into account the principle of totality, a global sentence of 2 years and 11 months (prior to credit being given for pre-sentence custody) is appropriate. [56] For the offences of assault bodily harm, assault with a weapon, and assault, a sentence of 2 years concurrent on each count properly reflects the gravity of the violent offences committed by the accused, and will adequately deter and denounce his conduct.

I have already concluded that in light of the presentence custody that Mr. Deacon shall receive a credit of 359 days on these offences. This means Mr. Deacon has 371 days remaining to serve.

[57] In respect of count 13, the breach of the s. 810. 2 recognizance there will be a consecutive sentence of 11 months (330 days). In respect of the breach of the s. 810.2 recognizance for failing to report there will be an11 month (330 day) concurrent sentence. [58] This means that the sentence I now impose is a total sentence of 371 days plus 330 days which equals 701 days. [59] This sentence will permit the imposition of a probation order which will be of benefit to protect the community, and D.V. The terms of the Probation Order [60] Upon his release, Mr. Deacon will serve a three year term of probation.

This will include the statutory terms outlined in s. 732.1(2) of the Criminal Code . Mr.

Deacon shall be subject to the following additional terms: • Report to a probation officer within two working days of his release from custody, and thereafter as directed by the probation officer; • Reside at a place approved of by a probation officer and not change that address without obtaining the consent of the probation officer in advance; • Shall not contact or communicate in any way directly or indirectly, by any physical, electronic or other means with D.V. except through counsel or except pursuant to a family court order made after today’s date; • Shall not be within 500 meters of any place where you know D.V. to live, work, go to school, or frequent or any place you know her to be. • Shall attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for domestic violence, which may include the Partner Abuse Response Program, and for alcohol abuse. • The accused shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs as directed; and shall provide proof of attendance and completion of any assessments, counselling or rehabilitative programs as directed. • The accused shall not possess any weapon as defined by the Criminal Code . [61] I have made an order for alcohol counselling as it is evident that alcohol was a significant factor in the commission of the offences, and Mr.

Deacon’s sobriety will be critical to prevent the commission of further offences. Ancillary Orders s. 743.21 [62] Pursuant to s. 743.21, Mr. Deacon is prohibited from communicating, directly or indirectly with D.V. during the custodial period of the sentence. s. 109 order for life [63] Pursuant to ss. 109(1)(a)(a.

i) and (3), Mr. Deacon, having been convicted of an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which the person may be sentenced to imprisonment of 10 years or more; and having been convicted of an offence in which violence was used against his current or former spouse, is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.

DNA databank order [64] Pursuant to s. 487.05(1) of the Criminal Code , I am making an order in Form 5.03 requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The offences of assault with a weapon, and assault bodily harm are primary designated offence as defined in s. 487.04 (

a) of the Criminal Code , and accordingly such an order is statutorily mandated in the circumstances. The offence of assault is a secondary designated offence, and in respect of that offence I am satisfied that it is in the best interests of the administration of justice, having regard to the nature of the offence, the circumstances surrounding its commission, and the impact such an order would have on Mr. Deacon’s privacy and security, to make an order in Form 5.03. Released: January 17, 2018. Signed: Justice Marcella Henschel [2] Getachew , at para. 27 . [5] Getachew , at paras. 33 and 40 .

Justice Campbell imposed an 8 month sentence in R. v. Outram , 2015 ONSC 1934 wherein the accused was found guilty of assault for choking the victim, and on a separate occasion for assault bodily harm for punching the victim and causing the victim to temporarily lose consciousness. However, in Outram , the acts were not part of a pattern or history of conduct, the accused had not previously received a jail sentence, had no record of violent offences, and good rehabilitative prospects. In R. v. St.

Martin , 2015 ONSC 3840 , the accused was convicted of assault with a weapon for allegations that included slapping the victim, and, after she fled the vehicle due to his violence, chasing the victim at a high rate of speed with a truck and threatening to hit her with the vehicle, and also punching her in the face. St. Martin was also convicted of assault causing bodily harm for an attack on a fellow inmate while awaiting trial. The second attack resulted in serious injuries to the other inmate, who lost many of his teeth.

Justice Pomerance accepted a joint submission to impose 12 months in addition to 34 months credit given for time served, the equivalent of a 46.5 month sentence. The accused had 40 prior criminal convictions including breaches of court orders, and numerous prior convictions for violence, including “many” other convictions for domestic violence. [6] R. v. Zimmerman , 2011 ABCA 276 ; R. v. Labbe , [2006] O.J. No. 4347 (Ont. C.A.) , at para. 6 .