PROVINCIAL COURT OF NOVA SCOTIA
Citation: R v. Thibault, 2023 NSPC 22
Date: 20230512
Docket: 8311721, 8311722,8311725
Registry: Kentville
Between:
His Majesty the King
v.
Colton Leigh Thibault
Judge: |
The Honourable Judge Ronda van der Hoek, |
Heard: |
April 18, 2023, in Kentville, Nova Scotia |
Decision |
April 20, 2023 |
Charge: |
Section 268 of the Criminal Code of Canada Section 270(1) of the Criminal Code of Canada Section 733.1(1) of the Criminal Code of Canada |
Counsel: |
Nathan McLean, for the Crown Colin Coady, for the Defendant |
By the Court:
Introduction:
[1] Mr. Thibault is before the court for sentencing having plead guilty to three Criminal Code charges. While an invited guest at the home of Mr. Bailey Hall, Mr. Thibault fell asleep on the couch after an evening of drinking and was asked to leave. He argued with Mr. Hall and, grabbing a knife from his pocket, chased Mr. Hall and a woman who was also present, as they ran into a bedroom and shut the door. Mr. Hall leaned against the closed door to keep Mr. Thibault out. Mr. Thibault used his knife to repeatedly stab the door, puncturing Mr. Hall’s back through the door.
[2] Police arrived and Mr. Hall was taken to hospital where a doctor treated his wounds. Mr. Thibault pled guilty to committing an aggravated assault on Bailey Hall, contrary to s. 268 of the Criminal Code.
[3] Upon being taken into custody, Mr. Thibault assaulted one of the arresting police officers by hitting him in the head. He pled guilty to assault contrary to s. 270(1)(a) of the Criminal Code.
[4] Mr. Thibault was on probation at the time of the offences. He pled guilty to breaching a condition, keep the peace and be of good behavior, contrary to s. 733.1(1) of the Code.
[5] Defence counsel argues Mr. Thibault’s mental health conditions support a 20-month Conditional Sentence Order (CSO) followed by 24 months probation. Despite a related criminal record for somewhat similar matters, counsel says Mr. Thibault meets the test for such a sentence and this could represent one last chance for him to benefit from state control outside of an institution.
[6] The Crown, determined not to resile from a previously proposed plea proposal not to seek a federal sentence, seeks a provincial custodial sentence between 14 and 18 months followed by two years of probation. He argues Mr. Thibault does not meet the test for the imposition of a CSO as he is a danger to the public and such a sentence would not accord with the purposes and principles of sentence.
[7] It is worth noting, when these offences were committed in 2019 a conditional sentence was not available for Mr. Thibault. As a result of the inordinate delay in bringing this matter to conclusion - application to withdraw guilty pleas, illness, covid, etc. - that sentence option is now available as Bill C-5 passed into law on November 22, 2022.
Decision:
[8] I would like to thank Counsel for their helpful submissions and briefs, and in particular Mr. Coady who came to the matter quite late but gave it the attention and vigour the Court has come to expect from him.
[9] After considering the submissions, facts, case law, and the purposes and principles of sentence, and having given the matter a great deal of thought, I reach the conclusion Mr. Thibault must be incarcerated for 14 months followed by 24 months of probation. He does not meet the test for a CSO and will not, based on his inability to comply with release conditions imposed in these very matters, and in the past, comply with court ordered conditions. He continues to represent a risk to the public. These are my reasons for reaching this conclusion.
The purposes and principles of sentence:
[10] Sections 718 to 718.2 enumerate the applicable sentencing principles which include imposing a sentence that serves to protect the public and contribute to respect for the law and the maintenance of a safe society.
[11] Section 718 directs the Court to impose a just sanction that has, as its goal, one or more of the following: denunciation; general and specific deterrence; separation from society where necessary; rehabilitation of the offender; promotion of responsibility in offenders; and acknowledgment of the harm done to victims and to the community.
[12] Section 718.1 requires application of the proportionality principle, noting it is a fundamental principle of sentencing that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[13] Section 718.2 requires a court to consider any aggravating and mitigating factors relating to the offence or to the offender, apply the principles of parity and proportionality, and directs that an offender not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. As a result, the Court must consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community.
The presentence report:
[14] A Pre-sentence Report (PSR) was prepared for this Court on July 13, 2022, and largely confirmed the details of an earlier report prepared for a different Court on February 11, 2020.
[15] Mr. Thibault and a sister were raised by their employed parents. He did not report any form of violence in his family of origin, but did report spiritual abuse in the church he and his family attended for “several years” until he was fourteen years old. He says the church had a negative impact on his childhood, for example suggesting home schooling due a speech impediment. His mother was interviewed for the PSR and says bullying about the speech impediment led to that suggestion. Her son was homeschooled until grade seven when he returned to public school and the bullying resumed.
[16] Mr. Thibault reports a good relationship with his mother who attended court for all appearances, and a strained relationship with his father who was said to be dismissive of a teenaged suicide attempt. Mr. Thibault reports being in trouble as a child but also being blamed for things his sister did. He says his father was the disciplinarian who administered a belt or strap for negative behaviours.
[17] He says he does not feel close to any member of his family, noting they all hate him.
[18] He reported a three-year on-line relationship with a woman from another country.
[19] Mr. Thibault also reported three young offspring in this country. He does not see these children, nor does he provide for them in any meaningful way.
[20] His mother reports a family history of bi-polar disorder. She believes her son exhibits similar behaviours. She says he has autism, and other mental health issues and has attempted self harm.
[21] Mr. Thibault completed high school on an independent learning program, and says his life and school contributed to a suicide attempt as early as grade three. He says he was diagnosed with hearing loss at five years old which affected his speech development, but he overcame this and can read and write. He reports working with Global World Vision in Ottawa, expressed a desire to become an electrician, and “thinks I have solved the homelessness and worldwide hunger issues, but I cannot do anything about it until I get my own problems sorted out”.
[22] Mr. Thibault was not employed at the time of sentencing but worked briefly in a fishery related business in 2017 and another business in 2020. He has no assets and has incurred debt for ambulance services. He lives with his parents and pays room and board. He reports paying money for a child or children when he is able.
Health concerns:
[23] Mr. Thibault reports kidney stones, back pain, asthma, and low weight. He does not have a family doctor. In 2020 he told the PSR writer that he believed his health was deteriorating.
[24] Mr. Thibault reported a history of mental illness - severe anxiety and depression, borderline personality disorder, autism, and Cluster B Personality disorder. He reports a prescribed list of medications that he has taken for the past two years - Citalopram and Ativan. He says he has been emotionally dysregulated since childhood and has attempted suicide many times.
[25] A 2016 psychiatric assessment led to a diagnosis of adjustment disorder, polysubstance abuse, and underlying anxiety.
[26] The PSR author confirmed he attended the Digby Wellness Clinic for six appointments between January 2020 – November 2020. In January 2022 he had an urgent care risk assessment that recommended an assessment for bi-polar, and attended Valley Mental Health between February and June 2022.
[27] In May 2022, an urgent care assessment identified antisocial personality disorder and borderline personality disorder. It was recommended he take medication, receive dialectic behavioural therapy, and refrain from daily consumption of 3.5-5 grams of marijuana.
[28] Mr. Thibault reported drinking twelve beer a day and considers himself an alcoholic. He identified a link between his poor health and alcohol use, and reported daily use of as much as seven grams of marijuana. He says this was consumed in support of suicide attempts.
[29] The PSR author noted Mr. Thibault has trouble focusing, goes off topic, and seems easily influenced and lacks critical thinking skills. He also subscribes to conspiracy “theories”. She concluded he should be seen by a psychiatrist for a comprehensive assessment and, due to self-inflicted head trauma, may benefit from a neuropsychological evaluation. She also recommended anger management, staying away from people with criminal records, and not using drugs and alcohol.
[30] Mr. Thibault was asked about the offences. He says he has no memory of the assault on Mr. Hall due to a black out, has no remorse for the incident, but is self concerned about the court outcome.
[31] Digby RCMP shared their concerns. They point out most of Mr. Thibault’s offending relates to drug and alcohol use and a lack of self regulation- assaults, threats. They say his friends are heavily into illicit drug activity and he needs help with drug use and self regulation.
[32] While Mr. Thibault says he is Metis, there was no support whatsoever for such a conclusion.
[33] With all of the forgoing information, it is now necessary to assess Mr. Thibault’s degree of responsibility of the offences.
Mr. Thibault’s degree of responsibility:
[34] While Mr. Thibault has been diagnosed with some mental health conditions, his continued use of substances impacts his ability to lead a crime free life. He reported drinking on the occasion of these offences and says he was blacked out for a portion of time. He also brought a fish knife to the Hall residence and used it. He actively pursued Mr. Hall, and stabbed the door behind which two people had fled in fear for their safety. It appears the only issue that led to that event was the request to go home after he had fallen asleep. His level of responsibility for that offence is in the mid range, and only because of the purported black out, his mental health issues, and the alcohol/medication combination.
[35] His level of responsibility for assaulting the officer was at a higher level given he had been awake for some time and was non-compliant. He was also on probation and should not have placed himself in situations where he could not keep the peace and be of good behaviour by choosing to consume alcohol while medicated for his various conditions.
[36] Overall, Mr. Thibault is very much responsible for his choices on that night in 2019. Of note, by 2016 he had been diagnosed with adjustment disorder, polysubstance abuse, and underlying anxiety. His other diagnosis came well after the night of these offences.
The relevant aggravating and mitigating circumstances related to the offence or the offender:
[37] Mr. Thibault entered guilty pleas, but resiled from those pleas and unsuccessfully sought to withdraw them. His application was denied, and a Gardiner hearing also followed resulting in Mr. Hall testifying about the incident. It was agreed by the parties that those decisions somewhat lessen the full impact of mitigation for the pleas.
[38] Mr. Thibault suffers from diagnosed mental health conditions, some before and some after the offence date, and his own suspected conditions not actually diagnosed. He was subject to strict bail conditions. Although the Crown points out those conditions were made increasingly restrictive since 2019 due to his continued involvement with the police throughout the province. He has three outstanding court matters in different jurisdictions that followed his release from custody on May 17, 2021. Those matters are set for trial, and he was found guilty of Dartmouth matters which I will discuss later in the decision.
Aggravating circumstances:
[39] Mr. Thibault engaged in unprovoked violence in the victim’s home while attending there as an invited guest, where he consumed a significant amount of alcohol.
[40] There was no apparent reason for the unprovoked attack on Mr. Hall, except perhaps taking offence at being asked to go home.
[41] Mr. Thibault possessed a fish knife, on his person, for no legitimate reason while subject to probationary conditions.
[42] These are not Mr. Thibault’s first convictions for assault or even assault on a police officer, nor breach of probationary conditions.
[43] Since being placed on restrictive release conditions, Mr. Thibault has been convicted of breaching those release conditions by committing assaultive offences. This is mentioned simply in relation to the CSO option, as he has not respected his release conditions.
[44] Mr. Thibault did not express remorse for Mr. Hall, or otherwise, and is instead self-centred with respect to these offences.
[45] Mr. Thibault is unemployed, appears to have produced three children, with three different women, for whom he is not financially responsible. He does not appear to lead a pro-social life.
[46] The offence can best be described as relentless, as Mr. Hall was assaulted twice, once before he hid behind a bedroom door along with the woman in the residence, and while hiding behind his bedroom door.
[47] Mr. Hall suffered physically and emotionally as a result of the injuries, was not able to sleep, and suffered anxiety.
[48] The police officer was simply doing his job when subjected to the unprovoked assault.
The criminal record:
[49] The criminal record is relevant and related:
• March 2019, sentenced to one day deemed served for a September 2018 breach of probation.
• December 2018, sentenced to a fine for a September 2018 breach of probation.
• December 2017, during a consolidated sentencing hearing, sentenced for a July 2017 fail to comply with undertaking, mischief, threats, and assault police to a 60-day CSO. On that same day, for offences that occurred in May 2017, assault, threats to cause death, and threat to cause bodily harm, a 60-day CSO. For an assault in December 2016, he also received the aforementioned CSO. An eighteen-month period of probation followed the CSO.
• April 2017 fined for over 80 and possession of a substance.
[50] Mr. Thibault awaits sentencing for four breaches of release conditions, including house arrest, not to consume alcohol, not to occupy the seat of a conveyance, and failure to keep the peace. He was also found guilty of two counts contrary to s. 270 subsequent to the offences before the Court; those counts were sent for post-conviction restorative justice, and await sentencing. These matters are mentioned as they factor into the test for a CSO.
The law:
The effect of strict bail conditions:
[51] Defence counsel argues strict bail conditions should be considered on sentencing per: R v. Knockwood, 2009 NSCA 98. Mr. Thibault has been on house arrest for 682 days and that should be considered a mitigating factor that comes “into the mix” when considering an appropriate sentence. He points out that because Mr. Thibault did not have a job while subject to house arrest, these conditions were rendered particularly strict. The Crown reminds the Court that the strict conditions arose through Mr. Thibault’s own decisions post offence. I observe that there was no evidence of hardship arising from the conditions.
Suspended sentences:
[52] The defence provided a number of cases for consideration, and while the defence was not seeking a suspended sentence, they involved matters for which a suspended sentence was imposed for aggravated assault: R v. Shand, 2021 NSSC 263; R v. Moore, 2018 NSPC 48; R. v Nakamura, 2012 BCSC 327; R. v. White, 2014 ONSC 2878; R. v. Nichols, 2013 BCSC 1145; R. v. Forman, 2015 BCPC 104; R. v. Ross, 2015 SKQB 150; and R. v. Greenough, 2013 BCJ No. 1822.
[53] It is useful to insert defence counsel’s case summaries in his brief. They suggest a wide range of available sentences for aggravated assault, including suspended sentences:
In R v Shand, [2021] N.S.J. No 359 Justice Boudreau handed down a suspended sentence for stabbing in Dartmouth, Nova Scotia. The victim and Mr. Shand were attempting to buy drugs and an argument ensued. The victim tried to flee, slipped on ice, and fell to the ground. As the victim lay vulnerable Mr. Shand took out a knife and stabbed the victim twice in the back which resulted in serious and traumatic injuries to the spinal cord. Like the facts at bar the victim of this stabbing was considered a vulnerable person. The court noted, in paragraph nine (9), that it appeared that the victim life was permanently changed for the worst.
In R v. Moore, 2018 N.S.J. No. 513, the offender was an 18-year-old aboriginal woman that pled guilty to an aggravated assault and breach of Undertaking. She was sentenced to a 2-year suspended sentence after stabbing an acquaintance in the abdomen. Ms. Moore was on an Undertaking not to consume alcohol and was intoxicated at the time of the offence. Ms. Moore had also been on house arrest for about a year before being sentenced.
In R v. Nakamura, [2012] B.C.J. No. 437, the accused was an 18-year-old convicted of robbery and aggravated assault after stabbing the victim in the face and stomach. The co-accused beat the victim with a bat as well. Injuries caused by both parties were life threatening. Mr. Nakamura had no criminal record. The Crown sought 4 years jail and the Court gave Mr. Nakamura a 2-year suspended sentence with Probation and 500 hours of community service work.
In R v. White, [2014] O.J. No. 2344, the accused was found not guilty of attempted murder, but guilty of aggravated assault after trial. Ms. White stabbed a domestic partner in his right chest causing a lung laceration and three days of hospitalization. The offender had no record and was on conditions of bail for 4 years with no breaches or new charges. The accused also spent several days in custody before getting bail. Ms. White was sentenced to a suspended sentence of 2 years with a curfew for the first year of Probation.
In R v. Nicholls, [2013] B.C.J. No. 1369, the accused was convicted after trial of an aggravated assault and assault with a weapon after stabbing the victim multiple times and resulting in two stab wounds. Mr. Nicholls was a 21-year-old aboriginal male with no record and had followed two years of strict bail conditions with no further issues. He was given a suspended sentence with 30 months of Probation.
In R v. Foreman, [2015] B.C.J. No. 866, the accused pled guilty to aggravated assault after using a knife to slash the arm of a domestic partner. Children were present or nearby at the time of the offence and the offender was on conditions to stay away from the victim at the time of the assault. The offender also incurred 9 more charges while awaiting resolution of this matter. Ms. Foreman was given a suspended sentence of 2 years with house arrest the first 6 months, followed by a curfew for the remainder.
In R v. Ross, [2015] S.J. No. 290, the accused was found guilty of aggravated assault, by a jury, after stabbing her sister in the face. The injuries sustained required between 20 to 30 stitches. The offender was a 28-year-old aboriginal woman that had no prior criminal record. Ms. Ross was given a 2-year suspended sentence.
In R v. Greenough, [2013] B.C.J. No. 1822, the accused pled guilty to aggravated assault after unexpectedly throwing a beer bottle in the victim’s face. The bottle smashed and “devastating facial injuries” with permanent scarring. Ms. Greenough was 21 years old and had no prior record. Ms. Greenough was given a suspended sentence with 2 years of Probation.
[54] It can certainly be said that all of the facts of the foregoing cases involved violence to a degree similar to or more aggravating than that inflicted on Mr. Hall. Those cases involved, among other things, a youthful first offender, homelessness, remorse, apology, Gladue factors, etc.
[55] Defence counsel also submitted case law with respect to conditional sentences that had been imposed for similar offences. These cases included R. v. Johnson, [2005] O.J. No. 1762; R. v. Nguyen, [2021] O.J. No. 5147; R. v. McCabe, [2022] ONCJ 217; R. v. Nicholls, [2022] O.J. No. 4226.
[56] Once again, I will reproduce defence counsel’s summary from his brief:
In R v Johnson, [2005] O.J. No. 1762 Justice Henderson sentenced the accused to an eighteen-month Conditional Sentence Order after Johnson pled guilty to an aggravated assault and assault causing bodily harm. Mr. Johnson chased two brothers with a golf club and struck one of them in the head rendering him unconscious. That brother suffered a fractured skull. The other brother was then stabbed with the (then) broken golf club in the back. Johnson had a criminal record for drinking and driving and assaults.
In R v Nguyen, [2021] O.J. No. 5147 Justice Silverstein handed down a sixteen-month Conditional Sentence Order after Nguyen pled guilty to aggravated assault. Nguyen blitzed the victim with numerous punches to the head and upper body. These assaults continued when the victim was on the ground. The injuries were very serious: a broken jaw in two places, a concussion, a bloody face with bruising, and eight (8) screws and two metal plates had to be attached to his jaw. The victim said this assault changed his life forever.
In R v McCabe, [2022] ONCJ 217 Justice McLeod sentenced McCabe to twenty (20) months for an s.268. McCabe had a criminal record for assault but had never been incarcerated. Within a domestic context, the victim sustained severe facial injuries which required two surgeries. The injuries consisted of factures to the nasal bone, vomer, orbital and significant subconjunctival hematoma which resulted in lasting injuries.
In R v Nicholls, [2022] O.J. No. 4226 Justice Wheeler handed down an eighteen-month Conditional Sentence Order for an aggravated assault after Nicholls pled guilty. Nicholls had a confrontation with the victim and then stabbed him twice in the abdomen. The victim was taken to the hospital and needed surgery to repair a lung and spleen.
[57] Defence counsel reminds the Court of the principles of proportionality, parity, and restraint, pointing out that Mr. Hall did not suffer long-term physical effects from the stabbing, instead he suffered back pain for weeks, was not able to sleep, and suffered anxiety. While he was treated at hospital, his wounds were not life threatening, and he was bandaged without need for stitches. By comparison, the victim in Johnson required multiple surgeries to repair a skull fracture, the victim in Nguyen suffered a broken jaw that required surgery and eight screws and two metal plates, the victim in McCabe required two surgeries as a result of a brutal beating with lasting injuries, and the victim in Nicholls required surgery with respect to a lung and spleen injury. Despite the serious degree of injury, all of those offenders received conditional sentence orders.
[58] Defence says the facts of Mr. Thibault’s case compares favorably to those of Shand and Nichols. With respect to Shand, two stab wounds were delivered with far more medical intervention than was required by Mr. Hall, and in Nichols the injuries were also more severe, involving a month-long stay in hospital and the temporary loss of the use of a leg. But unlike Mr. Thibault, Shand was a first-time offender and that is why the defence is seeking a conditional sentence order and not the suspended sentence received by Mr. Shand. If Mr. Thibault did not have a related criminal record, defence argues his sentence should be in line with that of Mr. Shand.
[59] Mr. Nichols received a 450-day conditional sentence order without probation and he, as was the case in Shand, also came before the court without a criminal record. Because Mr. Thibault comes before the court with a criminal record the defence seeks additional court supervision via strict conditions on a conditional sentence order, five more months, and 24 months of probation to follow that would assist with rehabilitation and provide structure to Mr. Thibault's life. Finally, he says Foreman involved the accumulation of nine convictions before sentencing and a suspended sentence was imposed for slashing her domestic partner’s arm.
[60] Once again, I find, all of these cases involved a level of violence that was much more severe than that inflicted on Mr. Hall. But note these cases also involved Gladue factors, different degrees of responsibility, minimal or lack of a criminal record, provocation, acceptance of responsibility, remorse, recompense, strong rehabilitative potential - essentially quite different life circumstances than Mr. Thibault. While the decisions are helpful, sentencing is ultimately an individual exercise, and one must meet the test for a CSO.
[61] Correctly anticipating that the Crown would not support a CSO, defence counsel points out that the breaches of Release Orders issued by this Court resulted in restorative justice in Dartmouth, and notes his client benefits from the presumption of innocence with respect to the other charges that arose under that Release Order.
[62] Finally, defence counsel argues the Court is required to apply the principle of restraint and consider all sanctions other than incarceration. Balancing the mitigating and aggravating circumstances, the nature of the injuries and circumstances of the offence, a review of the case law where CSO's have been imposed for far more egregious facts, defence asks the Court to consider giving Mr. Thibault one more chance to prove that he can learn from his mistakes and impose a non-custodial sentence. The imposition of strict conditions would of course mean that should Mr. Thibault breach, he would be subject to a return to court and likely face incarceration for breaches.
[63] The Crown accepts that Mr. Thibault suffers from mental health issues however notes that he has been found fit to stand trial and is not exempted from criminal responsibility. While he has been diagnosed by Dr. Theriault as having Cluster B Personality disorder with antisocial and borderline personality traits, it was also pointed out that Mr. Thibault commits offences while under the influence of alcohol which aggravates his mental health conditions. Dr. Theriault says people who suffer from Mr. Thibault’s particular afflictions do not lose touch with reality as a result of those disorders. Dr. Theriault also pointed out that Mr. Thibault’s primary areas of difficulty are his personality makeup and his decision to abuse substances.
[64] The Crown asked the Court to consider R v. Robinson, 2021 NSPC 20, wherein my sister Judge Elizabeth Buckle described general ranges for the offence of aggravated assault at paragraphs 7 and 8, and 50 to 53. He also asked the Court to consider my brother Judge Tax’s decision in R. v. Gaudet, 2009 NSPC 54, at paragraphs 25 and 36. I find, it is clear from a review of those cases, 14 - 18 months is well within the range.
[65] The Crown argues there is a need for a custodial sentence in the mid range based on the foregoing cases and taking into account Mr. Thibault’s related record for violent offences. The Crown says his position on sentence takes into account Mr. Thibault’s significant mental health issues, relative youth, and the guilty pleas entered as part of resolution discussions. Despite the application to withdraw the guilty plea, the Crown will not resile from those discussions and seek an otherwise warranted, federal sentence. His recommendation also accounts for the time Mr. Thibault spent on bail conditions. A custodial sentence is required to address the overriding sentencing concerns: denunciation and specific and general deterrence. The Crown says the 24 months of probation to follow will address the need for rehabilitation which always remains a sentencing imperative.
[66] The Crown ultimately argues Mr. Thibault does not meet the test for a conditional sentence pointing to the Supreme Court of Canada’s decision in R v. Proulx, 2000 SCC 5, at paragraph 102, which recognized the comparative leniency of such as compared to “a jail term of equivalent duration”. He asks the Court to undertake a risk assessment and determine Mr. Thibault presents a risk to the safety of the community. He points to the decision in R. v. Soldat, 2012 MBCA 39, wherein the court recognized, at paragraph 14, that the offender who has a record for committing offences while on release, in that case parole, finds himself facing a factor that weighs against the imposition of a conditional sentence order.
I also agree with the crown that this accused is not an appropriate candidate for a conditional sentence, especially when he was convicted of a crime occurring while he was on parole and which is of a similar nature to that for which he was sentenced to five years in jail.
[67] The Crown argues Proulx, at paragraph 69, addressed how to assess the risk to the community and directs that assessment be divided into two dimensions: the risk of the offender reoffending, and the gravity of the damage that could ensue in the event of re-offence.
[68] In R. v. Melvin, 2010 NSCA 5, at para. 9, Bateman J. noted previous noncompliance with court orders is a factor that weighs against the availability of a conditional sentence.
[69] The Crown notes Mr. Thibault’s two prior convictions for breaching probation orders committed prior to these offences on February 6, 2019, combined with his probation status when he committed these offences, render him “not a good candidate for conditional sentence”. He was also found guilty of three breaches of this Court’s Release Order while awaiting resolution of these matters; those breaches involved consumption of alcohol contrary to the conditions of the Order. While Mr. Thibault has served a CSO in the past, the Crown argues it clearly had no effect because Mr. Thibault committed offences shortly thereafter. Even strict house arrest conditions for a significant period of time were not enough to keep Mr. Thibault from reoffending. If the past predicts the future, Mr. Thibault will continue to reoffend, and the nature of his offending presents a danger to police officers and others as evidenced by his record.
[70] Finally, the Crown says considering the seriousness of the offences and the degree of Mr. Thibault’s responsibility, incarceration is necessary in support of the purposes and principles of sentencing. He reminds the Court that assaults on police officers and an unprovoked stabbing of one’s host, should be addressed in a serious manner.
Decision:
[71] The Crown’s request for a sentence between 14 –16-months is fair and accords with a mid-range period of incarceration for the wounding charge. It also accords with the principles and purposes of sentence.
[72] The offences are serious. Aggravated assault, for example, is punishable by a maximum sentence of 14 years and is not eligible for discharge. This offence held the potential for severe injury, and occurred while subject to a Probation Order. Mr. Thibault has a prior conviction for assaulting police, as well as assaults and threats on other citizens. It is clear, the aggravating factors I have set out in this decision clearly outweigh the mitigating factors.
[73] Mr. Thibault does not meet the test for a CSO. These offences occurred while he was on probation, and even now in 2021 he has not complied with this Court’s Release Order, having been found guilty of breaches while on increasingly strict conditions. I cannot find that he will comply with conditions of a CSO, and note his most recent offences for which he pled guilty also involve an assault on a police officer. Clearly court orders hold no sway nor do they deter his actions.
[74] Given the concerns in the institution at present and his need for continued mental health services, I am imposing the low end of the range sought by the Crown. Mr. Thibault will serve 14 months in custody for aggravated assault on Mr. Hall, a concurrent 6 months for assault on the officer, and a concurrent 30 days breaching the condition of his Probation Order. Upon release he will be subject to 24 months of probation with conditions sought by the Crown and agreed to by defence. The lengthy period of probation will lend itself to monitoring and rehabilitating Mr. Thibault for a significant period of time and aid the protection needs of the community.
[75] Judgement accordingly.
Ronda van der Hoek, JPC