The Defence Toolkit – January 16, 2021

This week’s top three summaries: R v Eisnor, 2020 ABCA 459: #narrative error, R v Gerbrandt, 2020 ABPC 261: mandatory min making child porn available  #unconstitutional , and R v Mori, 2020 ONCJ 620: CSO for #fentanyl trafficking

R v Eisnor, 2020 ABCA 459

[December 14, 2020] Narrative Exception to Hearsay Error [Reasons by Jo’Anne Strekaf J.A. with Jolene Antonio and Kevin Feehan JJ.A. concurring]

AUTHOR’S NOTE: The narrative exception to hearsay is often the bane of a defence lawyer’s existence. Through this supposedly narrow exception to hearsay, judges who serve as triers of fact and sometimes juries hear the most prejudicial forms of evidence that undermine fair trials: the details of a call for service from a neighbour: “overheard loud argument and banging in the home – sounded like a fight”, the details of a police officer’s CPIC check on a car: “Registered Owner has a criminal record for trafficking”, etc… These tidbits of testimony not only explain the next action of a police officer, but they firmly implant inadmissible propensity-based thoughts into the mind of the trier of fact. Rarely is this evidence truly necessary for the trier of fact to hear, but it’s admission is often rationalized successfully by the combination of a Crown prosecutor’s desire to win a case, a judge’s pure curiosity and unreasonably elevated belief in the their power to “disabuse” their minds. The results depend on the case.  Sometimes they become a footnote in an otherwise successful defence.  Sometimes they become something that the process cannot shake, and yet no one will talk about in the courtroom for fear of causing an appeal. In this author’s experience, the narrative exception has rarely, if ever, provided actual value to the exercise of finding facts on the basis of admissible evidence. Most often, it has been a barrier to arriving at a just result based on law. This case provides a quick and easy demonstration about how that can happen. What occurred here is only remarkable for the fact that it was said out loud by the trial judge (which turned the matter into a successful appeal), not for the fact that it occurred. It must be remembered that the narrative exception is rooted (like all traditional exceptions to hearsay) in the necessity/reliability analysis required by the principled exception.  It is difficult to understand why it was truly necessary for the Crown to lead the hearsay of the reasons for police response in this matter. 

Facts

[1] The police found a sawed-off rifle in the open bed of the truck that the appellant was driving, and of which he was the sole occupant. The appellant was convicted of being an occupant of a motor vehicle in which he knew there was a firearm (a sawed-off rifle), contrary to s 94(1) of the Criminal Code.

[2] The key issue at trial was whether the appellant had the requisite knowledge that the firearm was in the vehicle. In concluding that he did have that knowledge, the trial judge stated:

The Court in this case, finds that the fact that the truck bed was an open bed, the fact that the sawed off rifle was found right behind the driver’s side of the truck bed in – in open view, not concealed, the fact that it was immediately seen by the officer as be approached the point where the accused was actually standing on the driver’s side of the truck, the size of the rifle, the contextual background of the reason for the call by the — to the police in the first place, all relevant factors which allow the Court to draw the only reasonable inference that can be drawn in this case and that is that the accused, as the sole occupant and driver of the truck in which the rifle was located immediately behind the driver’s side in the open bed of the truck in plain view, had the requisite knowledge and control that is required in a circumstantial evidence case.

[emphasis added]

[4] The appellant submits that the evidence of “context” referred to by the trial judge was hearsay. While the evidence was admitted without objection, it was narrative evidence that could be used only for the purpose of understanding the unfolding of events surrounding the offence. Such evidence is not admissible and cannot be used for the purpose of determining the guilt of the accused.

[5] When questioning Constable Waters about the investigation, Crown counsel advised the trial judge that “this next bit is just for narrative purposes”. He then asked Constable Waters how she came to be involved in the investigation. The constable stated:

The call initially came in as a disturbance call at [address in Calgary]. The information we had about the call was there were — there was a male and a female outside their home, yelling. The male was becoming aggressive and that he kept sort of coming and going in a tan pickup truck with a bow bar. So we attended the area. As we approached [the area], we saw the truck and conducted a — a nose-in T-stop. So we went nose-to-nose with our vehicle.

Law and Analysis

[6] In R v Hall, 2014 ABCA 401, a new trial was ordered where the trial judge referred to inadmissible statements, which the Crown had characterized as narrative, as evidence in reaching her verdict.

[8] The difficulty we have with this proposition is twofold. The trial judge specifically referred to this evidence when summarizing the “relevant factors”, and it therefore appears that the conviction was based, at least in part, on this hearsay. If the trial judge concluded that it was the appellant who was “coming and going” in the truck, then that enhances the appellant’s connection with the truck and might be viewed as increasing the likelihood that he may have observed the rifle in the bed of the truck, in which case that evidence is not reasonably described as “irrelevant”.

[9] We are satisfied that the trial judge erred in law in relying on this inadmissible narrative as a relevant factor.

[12] The burden on the Crown to demonstrate that application of the curative proviso is appropriate in a particular case is high, as described in R v Sarrazin, 2011 SCC 54, [2011] 3 SCR 505 at para 28:

…there is a significant difference between an error of law that can be confidently dismissed as “harmless”, and an assessment that while the error is prejudicial, it is not (in the after-the-fact view of the appellate court) so prejudicial as to have affected the outcome. Such delicate assessments are foreign to the purpose of the curative proviso which is to avoid a retrial that would be superfluous and unnecessary but to set high the Crown’s burden of establishing those prerequisites. The same can be said for the other branch of the curative proviso. As a result, the burden of the Crown to demonstrate an “overwhelming” case or a “harmless” error of law should not be relaxed.

[13] We are not satisfied that the trial judge’s error in this case was harmless.

[14] The appeal is allowed, the conviction is set aside and a new trial is ordered.

R v Gerbrandt, 2020 ABPC 261

[December 18, 2020] Charter s.12 – Mandatory Minimum for Making Child Pornography Available Unconstitutional – Mental Health and Sentencing [A.J. Brown P.C.J.]

AUTHOR’S NOTE: In this case not only is there a finding that the mandatory minimum was unconstitutional for this accused, but ultimately the circumstances of the offender led to her obtaining a non-custodial sentence. While the case is obviously an outlier, it provides an example of how other offenders might be able to reach the same objective. As with most such cases, the facts will be difficult to match.

Overview

[1] The mandatory minimum one-year sentence for the offence of making child pornography available is grossly disproportionate to Ms. Gerbrandt’s moral culpability and would constitute cruel and unusual punishment, contrary to section 12 of the Charter.

[2] Therefore, for the offences of possession of child pornography and making child pornography available, the passing of sentence is suspended and Ms. Gerbrandt is placed on probation for three years.

[6] Superior courts have ruled unconstitutional the mandatory minimum one-year sentence for possession of child pornography; Ms. Gerbrandt challenges the constitutionality of the oneyear mandatory minimum sentence for the more serious offence of making child pornography available. The basis of her challenge rests on the grossly disproportionate effect of imprisoning a person with her significant cognitive deficits.

[8] The Defence argument is that Ms. Gerbrandt’s moral blameworthiness is greatly reduced as a result of her extremely low level of intellectual functioning. The argument is based on the opinion of forensic psychiatrist Dr. Cynthia Baxter, a preeminent expert, with special expertise in the treatment of high risk sex offenders; her opinion was elucidated in an expert’s report and in viva voce testimony.

Facts

[10] Ms. Gerbrandt became a target of an international task force investigation into distribution of child pornography on the peer-to-peer file sharing networks “e-Donkey” and “eMule.” A one-to-one connection with Ms. Gerbrandt’s computer through e-Donkey enabled police to download six files containing videos of child pornography directly from her computer; similarly, a one-to-one connection through e-Mule enabled a direct download of 42 video files of child pornography.

[11] Police executed a search warrant at Ms. Gerbrandt’s home. When the police entered the home to conduct the search, one of Ms. Gerbrandt’s computers was running a file sharing program and was in the process of uploading 15,768 files and downloading 3,173 files onto the computer. A number of the files had names that suggested they contained child pornography.

[12] Forensic examination of devices seized from Ms. Gerbrandt revealed:

One computer tower contained 4,321 images and 679 videos of child pornography;

At the time of execution of the search warrant, 47 child pornography files were being made available through upload to an unknown number of users;

Ms. Gerbrandt had used the internet to access web pages containing child pornography; her access to and interaction with the child pornography files was documented by use of bookmarks and jump lists;

Only one of two encrypted containers could be accessed, as its computer was open and running when the search warrant was executed; the code on the other encrypted container was never cracked.

[13] The images and videos discovered in Ms. Gerbrandt’s system were some of the worst imaginable, including exploitation of very young children and of fellatio, bondage, bestiality and penile penetration.

[14] Ms. Gerbrandt’s computer set-up was considerably more sophisticated than a typical home computer. In her home office, there were three computers set up together, she was using a server and a domain controller, and had custom set encryption on the two containers.

[15] Ms. Gerbrandt was cooperative with the police and gave a statement after her arrest in which she acknowledged her familiarity with and use of Peer-to-Peer file sharing….

[16] Now 39, Ms. Gerbrandt was 36 at the time of her offences. Born Douglas Edward, a biological male, she has, from as young as 5, had urges to be female and has now for at least four years presented as female, named Zoey. She was receiving feminizing hormone treatments until recently when the cost became prohibitive for her. She wishes in time to complete her transition to female. Ms. Gerbrandt’s parents and her wife, to whom she has been married for eight years, are supportive of her gender transition.

[17] Both Ms. Gerbrandt and her wife receive PDD (Persons with Developmental Disabilities) and AISH (Assured Income for the Severely Handicapped) support. Ms. Gerbrandt has a support worker for four hours, twice a week.

[18] As a very young baby, Ms. Gerbrandt was diagnosed with a medical condition of “failure to thrive;” extra feedings were prescribed at four months to stimulate necessary weight gain. Her motor skills, language and cognitive development were all significantly delayed and by 4 years old, she was exhibiting serious behavioural problems.

[19] A CT scan of 5 year old Ms. Gerbrandt’s head revealed a serious brain development problem, “agenesis of the corpus callosum.” Forensic psychiatrist Dr. Cynthia Baxter gave expert testimony at the sentencing hearing and described this condition as a failure of the bridge between the left brain and right brain to develop. The connection between the two halves of the brain forms early in a pregnancy, ordinarily, and develops throughout childhood until age 12.

[20] The failure of the right-brain/left-brain connection to develop leads to many disorders. An explanatory chart in Dr. Baxter’s expert report lists among the cognitive problems, these: difficulty with problem-solving and complex tasks; lack of ability in assessing risk; difficulty understanding abstract concepts; problems understanding slang or sarcasm; giving untrue information but believing it is true. Social and behavioural problems can include the following: social immaturity; lack of self-awareness; difficulty understanding social cues; hyperactivity; and obsessive or compulsive behaviour.

[21] Ms. Gerbrandt required special supports throughout her schooling, which appears to have ended part way through Grade 11. She is said to read at a Grade 3 level. Her employment has been intermittent, most recently, for three years in a row, sorting bottles for recycling in the infield during the 10 days of the Calgary Stampede. She has also done some night time security work and runs a home computer repair and programming business. According to Dr. Baxter’s report, “A 1999 vocational assessment was reportedly not optimistic about [her] ability to achieve occupational stability.”

[23] Ms. Gerbrandt has a dated criminal record: she received a suspended sentence and a year of probation in 2004 for an arson offence; and was discharged conditionally in 1999 for an assault.

Decreased Moral Blameworthiness Due to Cognitive Deficits

[26] In her live testimony, Dr. Baxter elaborated on the information contained in the report; her elaboration included:

Ms. Gerbrandt will have lifelong difficulties as her fundamental deficits are not going to change;

she is able to learn but there is a cap to her learning capacity, a cap that is much lower than that of higher functioning people;

she is adept at adaptive functioning or “counterfeit competence;”

there is a difference between intelligence and adaptive functioning;

low functioning individuals can be quite adept at computer technology;

and, Dr. Baxter has low functioning clients who have their own youtube channel.

[28] After reading the bail transcripts and having seen the youtube and police statement videos, I have concluded that Ms. Gerbrandt is indeed extremely low functioning; I accept Dr. Baxter’s opinion in that regard, including her explanations about facility with computer technology and use of advanced language.

[35] In addition to assessing Ms. Gerbrandt to be a low risk to reoffend, Dr. Baxter concluded, at p 14:

Given M[s]. Gerbrandt’s cognitive limitations, [s]he would not be suitable for any of the usual sex offender programs. The provincial in-custody program (Rocky Mountain Program) and the sex offender program at FAOS are both group-based – and it seems unlikely that M[s]. Gerbrandt could manage a group program, even the developmentally-disabled group at FAOS (i.e. the Rebound group) would likely not be manageable for [her] with [her] interpersonal deficits. [S]he will likely require individual treatment, but it is unclear that even individual sessions will be of particular benefit and I think the prognosis for psychological change is guarded. Having said that, [s]he falls into the low-risk category for sex offences, so treatment is more to address general emotional and behavioural management, rather than necessary for risk management.

It should also be noted that any placement in custody . . . will be complicated by [her] current transgender transitioning from male to female and will require some careful consideration.

[36] In testimony, Dr. Baxter also said with virtual certainty that Ms. Gerbrandt would not receive any treatment in a federal institution as the programming is focussed on high and moderate risk offenders.

The factors of deterrence and denunciation play a lesser role in the sentencing of mentally ill offenders, even in circumstances where there is little prospect for cure and rehabilitation.

. . .

Even in circumstances where the evidence does not disclose that the mental illness was a direct cause of the offence or that it was carried out under periods of delusion, the presence of a mental illness can significantly mitigate sentence: Ayorechat para 10.

Put simply, an offender who has a significant mental illness is generally considered to have less moral blameworthiness than someone operating with an unimpaired view of the world. It is therefore imperative that a sentencing judge appreciate the extent and manifestation of the illness and link it to the degree of moral blameworthiness.

[38] Ms. Gerbrandt functions at a level lower than 99.9% of the population; although she acknowledges that she was wrong to commit her offences, her thinking about them is manifestly distorted. She is an offender whose moral blameworthiness is greatly reduced because of her cognitive deficits.

Aggravating and Mitigating Factors

[43] The aggravating factors in this case are: the number of images and videos; the extreme vulnerability of the very young victims; and the depravity of the images, including acts of violence, bestiality and bondage.

[44] The mitigating factors are Ms. Gerbrandt’s guilty plea, reduced moral blameworthiness due to extremely low cognitive functioning, amenability to counselling and low risk to reoffend.

Conclusion

[45] I conclude that the warehousing of Ms. Gerbrandt that would be the inevitable result of a custodial sentence constitutes cruel and unusual punishment and she has therefore established a breach of her s. 12 Charter right; accordingly, the one year mandatory minimum sentence for making child pornography available is unconstitutional in its application to Ms. Gerbrandt.

[46] As a result of my finding, I do not need to consider the reasonable hypotheticals posited by Defence Counsel.

[47] Crown Counsel has most fairly declined to argue that the one year mandatory minimum I have found to be unconstitutional is saved by s. 1 of the Charter.

[48] Therefore, I suspend the passing of sentence and place Ms. Gerbrandt on probation for three years. I will stipulate the conditions of the probation order after hearing any further submissions from counsel.

R v Mori, 2020 ONCJ 620

[December 30, 2020] Sentencing – CSO for Possession for the Purpose of Trafficking in Fentanyl [De Filippis J.]

AUTHOR’S NOTE: For perhaps the past 7 years, fentanyl trafficking has been punished in the courts with ever-higher sentences of imprisonment. Reaching the dizzying heights of a 9-year start point sentence in R v Felix, 2019 ABCA 458, lawyers may be forgiven for thinking the numbers were ever only going to proceed in one direction in this area of law. In this ONCJ decision, Justice De Filippis reminds everyone that sentencing is individualized and even a fentanyl trafficker can make their way to a CSO in the right circumstances. 

Overview

[1] These reasons explain why I have decided the defendant will be subject to a conditional sentence order for possession of a scheduled drug for the purpose of trafficking. The defendant pleaded guilty to possession of a mixture of fentanyl and heroin. As I will explain, a conviction with respect to both is justified. However, the sentence reflects my finding that the defendant believed he had heroin, not fentanyl.

[2] I will begin by setting out the history of this matter as it is relevant to my decision. The defendant was arrested on September 6, 2017. Fifteen months later, his lawyer was appointed to the bench and present counsel took over the matter. One year after that, on December 2, 2019, the defendant pleaded guilty before me, on the date set for trial. A Gardiner Hearing was held several weeks later and a presentence report (PSR) ordered. On February 19, 2020 the case was further adjourned to April 19, 2020 so that Defence counsel could review the PSR with his client and address certain issues. On this date, and again on June 19, the case was not reached because of the pandemic. On July 17, the sentence hearing was adjourned, on consent of the Crown so the defendant could complete a 60-day residential treatment program for substance abuse. With this done, I heard sentence submissions on October 15, 2020.

[3] The facts of this offence can be briefly stated: The police stopped a vehicle operated by the defendant after conducting surveillance on reasonable grounds to believe he was selling drugs. The police found 38.66 grams of a powder that contained both heroin and fentanyl, seven grams of crystal methamphetamine, and a small amount of cocaine. The powder was contained in several bags. Police also seized a bag with a few grams of a heroin/fentanyl mixture and another, with a few grams of pure fentanyl, in the purse of a passenger, Natasha Beam, his partner (i.e. common law spouse).

The Gardiner Hearing

[5] Paul Mori 40 years old. He testified that he has been a heroin user since his early teens. He has taken fentanyl twice but he “did not like it”. He described it as a blue or purple powder, in contrast to the brown powdered heroin he has always purchased. With respect to the powder found by police in his car, the defendant said he believed it to be pure heroin; if there was fentanyl in it, it had to be minimal as the powder was brown in colour. He added that he bought the product as heroin from his dealer in Toronto and that when he consumed a portion, “it tasted like heroin”. He explained this by noting that fentanyl is “like a tranquilizer”, whereas heroin “is more like a good feeling”.

[6] In cross-examination, the defendant said that he has used the same supplier for two years and had asked him for heroin, crystal methamphetamine, and cocaine. He did not ask for fentanyl. He cannot explain why some of the bags seized by police contain a mixture of heroin and fentanyl and why Ms. Beam had one bag with several grams of pure fentanyl. He said he has sold heroin to fund his own addiction and does “not make money beyond that”; indeed, his accumulated debt to his supplier is $60,000. In this regard, the defendant suggested an explanation for the heroin/fentanyl mixture by noting that fentanyl is less expensive (and reduces the cost to his supplier).

[7] The Crown did not call evidence on the Gardiner Hearing. Moreover, apart from the defendant’s testimony about the differences in colour for heroin and fentanyl, I do not have a qualitative analysis to inform me about the percentage of each drug in the seized bags….

Sentencing Hearing

[9] In Stewart, [2020 ABCA 252] the defendant was stopped in a motor vehicle that was found to contain 80 pounds of marihuana and one kilogram of cocaine.  The accused testified that she knowingly transported the marihuana but had no knowledge about the cocaine.  The trial judge accepted her testimony, but convicted with respect to possession for the purpose of trafficking in both drugs.  In so doing, the judge held that if a person knowingly possesses a scheduled drug, it does not matter if she thought it was another drug on the schedule.  The defendant’s appeal with respect to her conviction for possession for the purpose of trafficking in cocaine was dismissed.

[10] The ruling in Stewart is also the law in Ontario; see R v Lewis 2012 ONCA 338. However, it does not support the Crown’s assertion in the present case that the defendant should be sentenced for possession for the purpose of trafficking in fentanyl.  Stewart was a conviction appeal, with a sentence appeal yet to be heard.  The Court was unanimous in dismissing the conviction appeal.  However, two of the three judges added these comments:

[50] That said, we wish to make a few additional remarks regarding the possible relevance of Ms Stewart’smens reafor purposes of sentencing, which in turn requires that we address the question of wilful blindness.

……………

[52] A mistaken belief that one is transporting marijuana rather than cocaine, though irrelevant to conviction, can be highly relevant to the sentence imposed…..That is because “[t]here is a considerable difference in the moral blameworthiness of a person who believes he is importing marihuana… and one who knows he is importing cocaine”….. The same may be said of possession for purposes of trafficking.

[11] In my respectful view, the additional comments in Stewart must be correct. How could I sentence the defendant to the higher penalty range for fentanyl, after finding that his knowledge of this drug has not been proven? As Stewart makes clear, the doctrine of wilful blindness means such a finding will be” rare”, but that is my conclusion in this case. I repeat, I am sentencing defendant for possession for the purpose of trafficking in heroin, not fentanyl. Accordingly, I will not address the submissions and caselaw offered by the Crown with respect to the latter drug.

[14] … At the age of 30, the defendant met his biological father. The latter served a 10-year sentence for drug trafficking in California. For the past several years, the defendant has not had a good relationship with his siblings. During much of this time, he has been unemployed and financially supported by social assistance. The defendant began using marihuana in grade 8. Over time this progressed to the consumption of L.S.D., cocaine, and heroin. The latter has been his drug of choice for many years. He has been involved with the methadone program for 15 years. The defendant told the author of the PSR that the present offence was financially motivated, after his business failed, to fund his addiction after he had a relapse.

[15] I have reviewed two letters from the defendant, one from Ms. Heidi Mori, his stepgrandmother, and a fourth from Ms. Jane McGuigan, a family friend. These were received in evidence, on consent. The defendant and Ms. Mori also testified at the sentence hearing.

Defendant’s Evidence

[16]  … The defendant “never fit in”. This was aggravated because, as a teenager, the defendant inadvertently caused his younger brother to suffer a serious head injury while the two of them set up a tent in the backyard. He said that after this he went to live with his grandparents and one night his intoxicated father came to that home, “pounding on the basement window to tell me he was not my father and he was happy I was not his child”. Soon after, he was sent to the Robert Land Academy, a military school.

[17] The defendant described the military school as “horrible”. A fellow student committed suicide. The defendant started using hard drugs, “to numb the pain”, and he soon ran away. Within one year, at the age of 17, he told his mother he had begun to use heroin. He testified that she did not seem to care; in any event, assistance was not offered to him. At the age of 19, the defendant fathered a child. At this time, he committed a break and enter into the home of his mother’s newest husband. He said he did so at the instigation of her previous vengeful husband. The defendant was sentenced to 90 days in jail.

[19] The defendant found a job as a superintendent at an apartment building. With the help of his employer, Tony and Susan Vendetti, he became “clean again for three years”. With the encouragement of the Vendetti’s he opened a landscaping company. The defendant enjoyed success in this business. However, it depended on having access to a pick-up truck. The defendant reports that his mother had this truck taken away from him because of a dispute with his brother. The defendant relapsed again and found a dealer in Toronto who was willing to provide him with heroin on credit. This is the dealer referred to in the testimony at the Gardiner Hearing. Around this time, a friend died from a fentanyl overdose. As such, the defendant was relieved by the Toronto dealer’s assurance that his product was heroin. Within one year, the defendant was arrested on the present charges.

[20] The defendant and his partner of 28 years will soon be married. The latter has returned to school. With the support of his step-grandmother, they are living in a home with their three children. This is the first time they have been together as a family. The defendant is also grateful that his step-grandmother paid for the cost of a residential treatment program. The defendant has never had such counselling. He successfully completed the program in September 2020. This is to be followed by weekly meetings with a psychotherapist. He plans to return to school to study horticulture [the family business] or work in landscaping again.

Submissions

[25] The Defence seeks a conditional sentence. Counsel points out that the defendant is now 40 and has been addict for most of his life. This is due to personal circumstances that diminish his moral responsibility. For the first time, there is a viable plan, with appropriate support, to leave his past behind and move forward in a different direction. The Defence submits that a jail sentence will undermine the genuine prospect of rehabilitation.

Analysis

[29] Drug addiction, especially to “hard drugs” is a pressing social problem. It causes misery to the addict, suffering by those who love the addict, much secondary crime, and significant social costs to deter and rehabilitate the addicts. This is why penalties have been severe for those who traffic in drugs, even addict traffickers. Where the drug is heroin, this almost always means a penitentiary sentence. However, in the present case, I am persuaded that a reformatory sentence is appropriate.

[30] In coming to this conclusion, I consider the defendant’s guilty plea, as an expression of remorse, and several unique factors. The defendant has been on bail for more than three years with significant and gradually reduced restrictions, including house arrest and an inability to see his partner and children. His unsupported efforts in the past failed to overcome his addiction. He has now completed a residential treatment program for substance abuse with outpatient counselling going forward. For the first time in his life, he has his family with him and a home to share with them. The defendant has realistic and achievable plans for study and/or work. His hopes for a better life rest on the firm foundation provided by his step-grandmother. His risk of re-offending is much reduced. In these unique circumstances, I would have imposed a sentence of two years less one day.

[31] Having decided that a penitentiary sentence is not required in this case, Sharma means I can consider whether the period of incarceration can be served in the community under terms of house arrest. Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[32] The first two criteria are met in this case. As I have noted, the defendant has been provided with the structure and resources to move forward to a healthy and productive life. These personal circumstances mean community safety should not be endangered by the imposition of a conditional sentence. The difficult question is whether such a disposition meets the fourth criterion set out in the legislation.

[33] Denunciation and deterrence can be reflected through a conditional sentence, even in the most serious offences. The Court of Appeal for Ontario made this clear in R. v. Kutsukake 2006 CanLII 32593 (ON CA), [2006] O.J. 3771, a case involving criminal negligence causing death. The Court of Appeal considered the leading case of R. v. Proulx 2000 SCC 5 (CanLII), 140 C.C.C. (3d) 449 (SCC) and stated as follows:

The Supreme Court of Canada held, at para. 114, that even in the presence of aggravating factors which might indicate the need for denunciation and deterrence, “a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance.” Writing for the court, Lamer C.J.C. added at para. 100: 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. 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 circumstances.

[34] House arrest, with appropriate exceptions, is not jail.  It is, however, a significant restriction on liberty. Moreover, unlike jail, there is no remission.  The house arrest in this case will be for the maximum term allowable, without reduction.  It is also worth mentioning, as a general matter, that I rarely impose a conditional sentence without the electronic supervision program. The defendant has been approved for that program.  That means he cannot cheat.  If he violates the house arrest term, the authorities will know.  As such, the sentence is meaningful and effective.  In this unusual case, I am of the opinion that the maximum allowable conditional sentence serves to properly denounce and deter. Importantly, this will enhance, rather than undermine the substantial prospect of rehabilitation.

Result

[36] The defendant will serve a conditional sentence for a period of two years, less one day, in accordance with the electronic supervision program and subject to these terms….