Click here to see more: R. v. Durnford, 2014 PCNL 1313A00105 Date: January 13, 2014 N THE PROVINCIAL COURT OF NEWFOUNDLAND AND LABRADOR JUDICIAL CENTRE OF CORNER BROOK

R. v. Durnford, 2014 CanLII 357 (NL PC)

Date:	2014-01-13
File number:	1313A00105
Citation:	R. v. Durnford, 2014 CanLII 357 (NL PC), <http://canlii.ca/t/g2kq2>, retrieved on 2018-06-01

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IN THE PROVINCIAL COURT OF NEWFOUNDLAND AND

LABRADOR

JUDICIAL CENTRE OF CORNER BROOK

Citation: R. v. Durnford, 2014 PCNL 1313A00105

Date: January 13, 2014

HER MAJESTY THE QUEEN

V.

DANA ALICIA DURNFORD

________________________________________________________

Before: The Honourable Judge Wayne Gorman

      ________________________________________________________

Place of Hearing: Corner Brook, NL.

Hearing Date: January 10, 2013.

Summary: An absolute discharge was granted for the offences of theft and failure to appear in court (two counts), contrary tosections 145(5) and 334(b) of the Criminal Code of Canada, R.S.C. 1985.

Appearances:

Ms. L. St. Croix counsel for Her Majesty the Queen.

Mr. J. Luscombe counsel for Ms. Durnford.

CASES CONSIDERED: R. v. Latimer, [2013] NZCA 562, R. v. Sellars, 2013 NSCA 129 (CanLII), R. v. Hackett, [2013] N.J. No. 419 (P.C.), R. v. Torske, [2013] A.J. No. 516 (C.A.), R. v. Burke, 1996 CanLII 11083 (NL CA), [1996] N.J. No. 179(C.A.), R. v. Edmunds, 2012 NLCA 26 (CanLII), [2012] N.J. No. 177 (C.A.), R. v. House, [2012] N.J. No. 219 (C.A.), R. v. Branton, 2013 NLCA 61 (CanLII),  R. v. Lundrigan, 2012 NLCA 43 (CanLII), R. v. Knott, 2012 SCC 42 (CanLII), R. v. Cluney, 2013 NLCA 46 (CanLII), R. v. Briand, 2010 NLCA 67 (CanLII), [2010] N.J. No. 339 (C.A.), R. v. Prowse(1998), 1998 CanLII 18024 (NL CA), 168 Nfld. & P.E.I.R. 289 (N.L.C.A.), R. v. C.C., [2012] N.J. No. 121 (P.C.), R. v. Reid,[2012] N.J. No. 164 (P.C.), R. v. Roberts, [2013] N.J. No. 214 (P.C.), R. v. J.B., [2013] N.J. No. 218 (P.C.), R. v. Park, [2013] N.J. No. 244 (P.C.), R. v. Flynn, [2012] N.J. No. 346 (P.C.), R. v. Williams, [2013] N.J. No. 347 (P.C.), R. v. Williams, [2007] N.J. No. 97 (P.C.), R. v. Gale, [2006] N.J. No. 87 (P.C.), R. v. J.E.M., [2004] N.J. No. 117 (P.C.), R. v. J.G.S., [2003] N.J. No. 77 (P.C.), R. v. Giovannini, [2005] N.J. No. 94 (P.C.), R. v. Sheppard, 2006 CanLII 12274 (NL PC), [2006] N.J. No. 116 (P.C.), R. v. Cox,[2009] N.J. No. 333 (P.C.), R. v. Elsharawy (1997), 1997 CanLII 14708 (NL CA), 119 C.C.C. (3d) 565 (N.L.C.A.), and R. v. Sutherland, [2013] N.J. No. 53 (P.C.).   

STATUTES CONSIDERED: The Criminal Code of Canada, R.S.C. 1985.

JUDGMENT OF GORMAN, P.C. J.

(SENTENCE)

INTRODUCTION:

[1]     Ms. Durnford is twenty-two years of age.  While in her third year of a nursing program she began to have problems with her memory and to become confused. She was diagnosed with Bi-polar Disorder. The difficulties caused by her disorder forced her to withdraw from the nursing school and her life has been dramatically altered. 

[2]     Ms. Durnford has pleaded guilty to the offences of theft and failure to appear in court (two counts), contrary to sections 145(5) and 334(b) of the Criminal Code of Canada, R.S.C. 1985.  In June of 2012, Ms. Durnford stole three digital video discs from a department store.  She subsequently failed to appear in court on two occasions.  The Crown proceeded by way of summary conviction in relation to each charge.  Ms. Durnford has no prior convictions.

[3]     The sole issue for determination is the imposition of an appropriate sentence for these offences. For the reasons that will follow, I have concluded that this is an appropriate case for the imposition of an absolute discharge.  Let me explain my reasons for this conclusion by commencing with a review of the circumstances of the offences committed by Ms. Durnford.

THE CIRCUMSTANCES OF THE OFFENCES

[4]     On June 29, 2012, Ms. Durnford was involved in the theft of three digital video discs from the Wal-Mart store in Corner Brook. Her accomplice placed the three discs into his pants and Ms. Durnford stood in front of him to provide cover. 

[5]     Ms. Durnford was arrested and charged with the offence of theft.  She appeared in the Provincial Court on September 18, 2012, at which time the charge was adjourned to October 2, 2012.   

[6]     On October 2, 2012, Ms. Durnford failed to appear in court and a warrant was issued for her arrest.  The police went to her residence and were advised that she was asleep.  She was awoken, arrested and released to appear in court on February 12, 2013.

[7]     On February 12, 2013, she failed to appear in court.  On February 18, 2013, Ms. Durnford went to the police station and turned herself in. 

[8]     Ms. Durnford was released on February 19, 2013.  Since that time, her charges have been called in this Court on March 19, May 7, June 11, July 16, July 18 and August 20, 2013, at which time the guilty pleas referred to earlier were entered.  Her matters were then adjourned to October 24, 2013 and then January 10, 2014, for the preparation of a pre-sentence report.   

[9]    In R. v. Lundrigan, 2012 NLCA 43 (CanLII), the Court of Appeal indicated that a “fit sentence” is one “that takes account of the circumstances of the offences and the offender.”

THE CIRCUMSTANCES OF THE OFFENDER

[10]   Ms. Durnford is twenty-two years of age and she has no prior convictions.  She was born in Corner Brook and grew up in Burgeo.  The pre-sentence report notes that Ms. Durnford described “her formative years in positive terms. There are no indications of such negative behaviours as substance abuse, marital discord, physical or verbal abuse within the home environment.  On the contrary, the accused’s father states that the accused was ‘quiet, an honors student’ that spent most of her time at home.  He adds that they never experienced any problems with her re discipline, substance use, negative peers, etc.”

[11]   When she was nineteen years of age Ms. Durnford enrolled in the School of Nursing at Corner Brook.  In her third year, problems related to a Bi-polar diagnosis arose.  Ms. Durnford began to experience problems with her memory and found she was easily confused.  Ms. Durnford indicated to the author of the pre-sentence report that “much of the past few years is a ‘blur’” to her. 

[12]   The pre-sentence report states that Ms. Durnford has experienced “manic and depressive episodes in no particular order and of varying intensity and duration. She indicates that when she is seriously manic she ‘doesn’t eat or sleep’ and has trouble concentrating or focusing for ‘longer than five minutes’.  On the other hand, during a severe depressive episode she states that she ‘can’t get out of bed or leave the house’, has no motivation and no decision making abilities.  The accused also indicates that her ‘stable or balanced’ periods grew less and less frequent from roughly 2010-2012.  Medications did not work, worked to some degree or in some cases made her symptoms worse.”

[13]   Ms. Durnford’s illness caused her to withdraw from the nursing program.  She is presently unemployed, living with friends and bereft of any income.  She had worked part-time while studying nursing and full time in the summer.     

[14]   The pre-sentence report notes that Ms. Durnford’s “bi-polar illness has had a devastating affect on [her] life, plans and present circumstances.”  The report concludes that she is a suitable candidate for community supervision:

[Ms. Durnford] is a first time, young, non-violent, property offender. As such there is no history of community supervision on which to base an assessment for future compliance. She presents as an intelligent, articulate, albeit at times confused and/or depressed individual. Besides dealing with her illness, the accused also appears to be depressed and frustrated by her present situation. She expresses shame for being on social assistance, for the present matters, and is experiencing great difficulty coming to terms with her inability to finish the nursing program.

Except for the instability presently inherent in her illness and possibly inappropriate coping strategies (such as alcohol use or negative associates) there are no dynamic criminogenic risk factors that would be addressed by community supervision. As such, should the accused be placed on probation she would probably be supervised at a low level. If Ms. Durnford’s situation stabilizes or improves, even to a modest degree, then she would be placed inactive. 

Community supervision, if so ordered by the Court, could act as a minor adjunct to medical intervention, could monitor the accused’s stability and provide supportive counselling.

Considering all of the foregoing, Ms. Durnford is deemed a suitable candidate for community supervision.

[15]   Ms. Durnford is no longer receiving social assistance and has no income.

[16]   In R. v. Branton, 2013 NLCA 61 (CanLII), the Court of Appeal considered the issue of imposing sentence upon an offender suffering from a mental illness. In Branton, the accused was convicted of the offences of sexual assault and breach of probation. The trial judge imposed a period of nine months incarceration for the sexual assault offence and one month incarceration, consecutive, for the breach of probation offence.  The Crown appealed from the sentence imposed and one of the arguments the Crown raised in support of its position was that the sentencing judge placed too much emphasis on the offender’s mental illness.

[17]   The Court of Appeal increased the sentence imposed for the sexual assault offence to twenty-three months imprisonment.  The Court of Appeal concluded that the trial judge erred in placing undue emphasis on the offender’s “mental health issues.”  At paragraph 34, the Court of Appeal indicated that the “general principle articulated in Peters, Edmunds and Lundrigan is that an offender’s mental health issues are a relevant factor in his or her sentencing when there is an established connection between an offender’s mental health issues and the commission of his or her crimes.”  However, the Court of Appeal stated that the presence of a mental illness does not “automatically justify a lighter sentence than would otherwise be appropriate” (at paragraph 35):    

Mental illness covers a broad spectrum of behaviours, and it does not, by itself, absolve an offender of responsibility for an offence (outside of the provisions of section 16 of the Criminal Code) or automatically justify a lighter sentence than would otherwise be appropriate.  When an offender has mental health issues, treatment can sometimes be provided to him or her while incarcerated and if probation is ordered, through the imposition of conditions directing that the offender seek medical assistance, participate in treatment programs, and so forth.  Such conditions are designed to assist in the offender’s rehabilitation and supervise him or her with the objective of preventing him or her from reoffending. These probationary conditions are “blunt tools”, as Crown counsel put it in argument, and they do not guarantee results. 

[18]   The Court of Appeal concluded that though Mr. Branton’s “medical diagnoses are part of his personal circumstances and were therefore a legitimate consideration for the sentencing judge in the same way an offender’s health is often a sentencing consideration…they were overemphasized and afforded great weight when there was no connection established between them and the offences committed, and no recognition that Mr. Branton had been assessed and counselled in relation to his behaviours in the past and that despite same, he has continued to offend.”

[19]   This does not mean that Ms. Durnford’s illness is irrelevant to sentencing.  She has committed relatively minor offences and her illness has had a devastating impact upon her life.  To ignore it would be to ignore the reality of Ms. Durnford’s present circumstances and the “profoundly contextual” nature of the sentencing process (see R. v. Webber, 2013 ABCA 189 (CanLII)). 

THE PRINCIPLES OF SENTENCING

[20]   In R. v. Knott, 2012 SCC 42 (CanLII), it was held that "the purpose and principles of sentencing set out in the Criminal Code are meant to take into account the correctional imperative of sentence individualization." 

[21]   Section 718 of the Criminal Code states that the fundamental purpose of sentencing "is to contribute...to respect for the law and the maintenance of a just, peaceful, and safe society."  This is to be achieved by imposing sentences which have, among other objectives, the objectives of:

-separating offenders from society, where necessary;

-denouncing unlawful conduct;

-general deterrence;

-rehabilitation; and

-the promoting of a "sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community."

 [22] Section 718.2(b) of the Criminal Code states that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances."

[23]   Section 718.1 of the Criminal Code states that any sentence imposed must be "proportionate to the gravity of the offence and the degree of responsibility of the offender."  In R. v. Cluney, 2013 NLCA 46 (CanLII), the Court of Appeal, at paragraph 16, indicated that the “principle of proportionality applies to sentencing for all criminal offences…The appropriate range of sentence is related to the gravity of the offence and the moral blameworthiness of the offender.”

[24]   Section 718.2(a) of the Criminal Code indicates that a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." In R. v. Briand, 2010 NLCA 67 (CanLII), [2010] N.J. No. 339 (C.A.), the Court of Appeal stressed the importance of considering an offender's personal circumstances in applying section 718.2(a) of the Criminal Code.

[25]   Section 718.2(d) states that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances" and section 718.2(e) states that "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."

SENTENCING PRECEDENTS

THEFT:

[26]   The range of sentence for minor thefts ranges from the imposition of a discharge to relatively short periods of imprisonment when the offender has a related criminal record (see R. v. Prowse (1998), 1998 CanLII 18024 (NL CA), 168 Nfld. & P.E.I.R. 289 (N.L.C.A.), R. v. C.C., [2012] N.J. No. 121 (P.C.), R. v. Reid, [2012] N.J. No. 164 (P.C.), R. v. Roberts, [2013] N.J. No. 214 (P.C.), R. v. J.B., [2013] N.J. No. 218 (P.C.), R. v. Park, [2013] N.J. No. 244 (P.C.) and R. v. Sutherland, [2013] N.J. No. 53 (P.C.)).  A prescriptive range of sentence has not been established.  

FAILURE TO APPEAR IN COURT:

[27]   For the offence of failing to appear in court, sentence has been suspended (see R. v. Flynn, [2012] N.J. No. 346 (P.C.) and R. v. Williams, [2013] N.J. No. 347 (P.C.)) and periods of imprisonment of one day (see R. v. Williams, [2007] N.J. No. 97 (P.C.)), one month (see R. v. Gale, [2006] N.J. No. 87 (P.C.), R. v. J.E.M., [2004] N.J. No. 117 (P.C.) and R. v. J.G.S., [2003] N.J. No. 77 (P.C.)), two months (see R. v. Giovannini, [2005] N.J. No. 94 (P.C.)) and three months (see R. v. Sheppard, 2006 CanLII 12274 (NL PC), [2006] N.J. No. 116 (P.C.) and R. v. Cox, [2009] N.J. No. 333 (P.C.)) have been imposed.  A prescriptive range of sentence has not been established.  

THE POSITIONS OF THE PARTIES

THE CROWN:

[28]   The Crown submitted that a conditional discharge, with a community service condition, should be imposed for the theft offence and fines totaling $600.00 should be imposed for the failure to appear offences. 

[29]   As pointed out earlier, Ms. Durnford has no source of income.  Because of her disorder, the likelihood of future employment is uncertain.  A fine totaling $600.00 is well beyond her means to pay, even if a considerable period of time to pay was provided. 

MS. DURNFORD:

[30]   Ms. Durnford sought the imposition of an absolute discharge in relation to each offence.  In support of his position, Mr. Luscombe referred to Ms. Durnford’s lack of a criminal record, her pleas of guilty and the devastating impact her illness has had upon her.

THE COURT’S STATUTORY AUTHORITY TO GRANT AN OFFENDER A DISCHARGE

[31]   The Court's authority to grant an offender a discharge is found in section 730(1) of the Criminal Code.   It states as follows:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[32]   Thus, this provision allows the Court to refrain from entering a conviction, despite proof that an offence has been committed, if it is satisfied that two prerequisites exist.  The Court must be satisfied that a discharge is (1) in the best interests of the offender; and (2) not contrary to the public interest. 

[33]   In R. v. Elsharawy (1997), 1997 CanLII 14708 (NL CA), 119 C.C.C. (3d) 565 (N.L.C.A.), the Court of Appeal indicated that the first factor "presupposes that the accused is a person of good character, usually without previous conviction or discharge" and the second factor "involves a consideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminal law" (at paragraph 3).

[34]   In R. v. Sellars, 2013 NSCA 129 (CanLII), the accused pleaded guilty to the offence of fraud.  It involved “obtaining monies from her employer’s health care plan.” The accused requested that a conditional discharge be granted, but the trial judge declined and suspended sentence and placed the accused on probation.  In declining to grant a discharge the trial judge stated:

Under these circumstances, I don’t think it’s in the public interest to grant a conditional discharge.

[35]   The accused appealed from the sentence imposed.  The Nova Scotia Court of Appeal referred to the trial judge’s comments and concluded that he had incorrectly “placed an obligation on the appellant to demonstrate a positive impact on the public interest.”  The Court of Appeal held that this was not the test for determining if a discharge should be granted.  It held that the granting of a discharge “does not have to be in the public interest” (at paragraph 27):

A discharge does not have to be in the public interest. It is available so long as the offence is not punishable by fourteen years, or life, it is in the best interests of the offender, and not contrary to the public interest. The difference between requiring a positive impact on public interest and demonstrating the sentence would not be contrary to the public interest is well expressed by LeBlanc J. in R. v. D’Eon, 2011 NSSC 330 (CanLII) where he wrote:

[25] If the Sentencing Judge did apply a test requiring that a conditional discharge be “in the public interest” rather than being “not contrary to the public interest,” this would be the wrong test. There is a substantive difference between the two phrases; the correct “not contrary” test simply means that a conditional discharge would not be deleterious. It is not required to be have actual positive effect on the public interest.

[36]   The Court of Appeal set aside the sentence imposed by the trial judge and granted the accused a conditional discharge with probation for three years.  In doing so, the Court of Appeal made the following comments, which apply equally well here:

We live in a compassionate society; one that recognizes that for some offenders, the full weight of a criminal conviction is not necessary. I cannot help but think that a reasonable observer, with full knowledge of the documented psychiatric history of the appellant, the role that it played, and the other circumstances, would be moved to say a discharge is not contrary to the public interest.

[37]   In R. v. Torske, [2013] A.J. No. 516 (C.A.), it was held that the discharge provisions should be used "sparingly" and "still more sparingly the more serious the offence."  However, as we have seen, section 730(1) of the Criminal Code does not use the word “sparingly” and it is, in my view, incorrect to incorporate it as a feature of section 730(1).  As we will see, discharges have been granted by the Court of Appeal of this Province in relation to very serious offences.

[38]  In R. v. Burke, 1996 CanLII 11083 (NL CA), [1996] N.J. No. 179 (C.A.), the accused, a former Christian Brother, was convicted of the offence of assault causing bodily harm in relation to a child at the Mount Cashel Orphanage in 1975 and sentenced to a period of one month imprisonment by the trial judge.  On appeal, an absolute discharge was substituted.

[39]   In R. v. Edmunds, 2012 NLCA 26 (CanLII), [2012] N.J. No. 177 (C.A.), the accused pleaded guilty to one count of breach of trust by a public officer and two counts of theft. The offender, who was employed as a correctional officer, stole monies from two prisoners.  The sentencing judge imposed a conditional discharge with twenty-four months of probation.  The Crown appealed from the sentence imposed.  The Crown’s appeal from sentence was dismissed.  The Newfoundland and Labrador Court of Appeal concluded that “the Crown has not pointed the Court to any binding or persuasive authorities that would suggest that a conditional discharge was a demonstrably unfit and clearly unreasonable sentence in these circumstances.”  The Court of Appeal noted that in “some circumstances, evidence of particular effects on the offender will be required if the offender is relying on such factors.  However, a sentencing judge may take judicial notice of the fact that a criminal conviction will have a negative impact on a person's future, whether related to employment opportunities, travel, and so forth.”  

[40]   In R. v. House, [2012] N.J. No. 219 (C.A.), the accused was convicted of the offences of assault and unlawfully being in a dwelling house.  In concluding that a conditional discharge was warranted for both offences, the Court of Appeal indicated that the accused is "a promising young man who, in his twenties, is still maturing and developing the basis for a productive life including employment and relationship opportunities and decisions" (at paragraph 24):

As discussed in Elsharawy, in an assessment of whether a conditional discharge is in the best interests of Mr. House, the first condition presupposes that the accused is a person of good character, ordinarily with no previous criminal conviction or discharge. Based on the above, this supposition is satisfied in this case. As to the need for personal deterrence or rehabilitation, I note that Mr. House was on release, with conditions, on a Promise to Appear prior to his trial, and that he obtained judicial interim release, again with conditions, pending determination of his appeal. He has been compliant with the terms of release, particularly the requirement to keep the peace and be of good behaviour, for almost four years. Given the nature of the offence and Mr. House's conduct since the offences were committed, personal deterrence and rehabilitation are not matters of concern. Finally, regarding adverse repercussions from a criminal conviction, Mr. House is a promising young man who, in his twenties, is still maturing and developing the basis for a productive life including employment and relationship opportunities and decisions. A criminal record, where such is unnecessary for purposes of protection of the public, may result in roadblocks in terms of this development. Such a result is to be avoided provided Mr. House is otherwise a proper candidate for a conditional discharge.

[41]   In R. v. Latimer, [2013] NZCA 562, the accused was convicted of the offence of burglary.  Though the offender was sixteen years of age when he committed the offence he was sentenced as an adult because he was eighteen years of age when the charge was laid.   The accused sought a discharge, but the trial judge had what the Court of Appeal described as an “adverse reaction” to this submission and imposed a penalty of forty hours of community work and ordered the accused to pay reparation of $2,500.00.  The accused appealed from sentence and argued that he should have been discharged without conviction pursuant to the Sentencing Act.

[42]   The Court of Appeal of New Zealand noted that section 107 of the Sentencing Act “stipulates that the court must not discharge an offender without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.” The Court of Appeal concluded that a discharge should have been granted (at paragraphs 12 and 13):

…after careful consideration, we are satisfied that the Judge was wrong not to consider the application and that the s 107 test is met. Although the burglary was reasonably serious, it did not involve a dwelling house and it was not premeditated or targeted. Mr Latimer was very young. He had only just turned 16, was still at school and had no previous convictions. He was under the influence of an older teenager (aged 18 and a half) who had a criminal record. Since the burglary, Mr Latimer has tried to better himself by enrolling in tertiary educational programmes and has this year successfully completed a 12 month carpentry course, being one of only 80 out of an original class of 200 to do so. He now wishes to get work experience and obtain an apprenticeship but is finding that the conviction for burglary is hampering those efforts.

In all those circumstances we consider that the consequences of the conviction are out of all proportion to the gravity of the offence and that a discharge should be granted. 

[43]   As can be seen from these precedents, discharges have been granted in   this Province for very serious offences.  The circumstances in Burke, House and Edmunds are more serious than what occurred here.

ANALYSIS

[44]   Ms. Durnford committed a relatively minor theft and failed to appear in court on two occasions.  On the second occasion, she turned herself into the police.  Ms. Durnford is a youthful first offender.  She has pleaded guilty to the offences and though there is no clear bright line between her psychiatric difficulties and her offences, her life is dominated by the difficulties her disorder has caused and continues to cause for her.  She has and is receiving psychiatric assistance.  As pointed out by the pre-sentence report, Ms. Durnford is an intelligent and articulate young woman who is attempting to deal with the havoc caused to her life by her disorder.  The author of the pre-sentence report points out that if she was placed on probation she would be supervised at a “low level” and her file possibly deemed “inactive.”

[45]   This is an overwhelming case for resort to the discharge provision in the Criminal Code.  I am satisfied that a discharge is in Ms. Durnford’s best interest and it is not contrary to the public interest.  One might ask: what would be achieved or what principle of sentencing promoted by entering a conviction in this case?  Therefore, I am satisfied that this is an appropriate case for a discharge to be imposed.  Based upon the contents of the pre-sentence report, I am satisfied that supervision by a probation officer is not necessary.  Therefore, the discharge will be an absolute one.

A VICTIM SURCHARGE

[46]   Ms. Durnford’s offences occurred prior to the Increasing Offenders' Accountability for Victims Act, S.C. 2013, c. 11, having been proclaimed into force (on October 24, 2013) and thus, I have the authority to waive the payment of victim surcharges (see R. v. Hackett, [2013] N.J. No. 419 (P.C.)). The imposition of victim surcharges would constitute an undue hardship for Ms. Durnford.  As a result, the payment of the victim surcharges is waived.

CONCLUSION

[47]   For the reasons provided, an absolute discharge is granted.

[48]   Judgment accordingly.