R. v. Holland, 2011 ONCJ 581

COURT FILE No.: 11 1636 Citation: R. v. Holland , 2011 ONCJ 581 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — RAYMOND ALBERT HOLLAND DECISION ON SENTENCE OCTOBER 3, 2011 Mr. Scott Pratt for the Crown Mr. Kenneth Marley for the accused Raymond Albert Holland CAMPBELL J.: BACKGROUND 1 . This forty – six year old offender was found guilty of uttering a threat to cause death, possession a weapon for a purpose dangerous to the public, pointing a firearm and possessing cannabis marijuana for the purpose of trafficking. 2 . Counsel are in agreement that a period of imprisonment is in order.

However, Mr. Holland’s counsel has argued that notwithstanding the fact that Mr. Holland has previously been sentenced on forty-two separate occasions for seventy-six convictions, all amassed between 1985 and 2011 and all of which are separate and apart from the matters that are now before me, Mr. Holland should nevertheless receive a Conditional Sentence in the range of fifteen to eighteen months. 3 . The Crown seeks incarceration in a corrections centre for a period of two years less a day followed by Probation. 4 . THE FACTS 5 .

On July 18 th , 2011 the offender was approached by two neighbors inquiring about whether Mr. Holland had thrown water on an autistic child. The complainants and an independent witness described how Mr. Holland stated “who do you think you are. I’ll fuckin kill you bitch” and then went into his home only to return moments later holding a long barrel rifle (later determined to be BB rifle). After repeating the same remark again directed toward one victim, Mr. Holland then raised and pointed the rifle at her sister and stated “I’ll fuckin shoot you bitch”.

The police responded and while locating and taking possession of the firearm that was hidden in a closet, the police also found approximately one half a pound of marijuana together with three scales, baggies and a debt list. 6 . Before the police arrived, and after Mr. Holland put the rifle away, he came back outside to apologize to the two women. SUBMISSIONS AS TO SENTENCE

7 . Mr. Holland’s Counsel argued that based on information contained in the Pre-Sentence Reports filed and the testimony of Patricia Brown, a Court Support Worker with the Canadian Mental Health Association, a Conditional Sentence would meet the principals of sentencing and serve not only the offender but the best interest of the community in the long term insofar as Mr. Holland would get the necessary help he needs. 8 . To this end Ms. Brown highlighted the fact that Mr. Holland suffers from a concurrent disorder; namely, bipolar and substance abuse.

The diagnosis was confirmed by way of medical report from a consulting Psychiatrist, Dr. Robert Fairbairn of Chatham. 9 . While the record was devoid of any definitive statement in regard to when Mr. Holland was diagnosed with the bipolar disorder, the earliest reference to this disorder is contained in the Pre-Sentence Report dated December 3 rd , 2010. That report was prepared before Mr. Holland was sentence for resisting arrest. 10 . Mr.

Holland indicated at that time that he had been diagnosed with Bipolar disorder and was then involved with CMHA, having initially received services from the Windsor Branch but had been receiving CMHA assistance in Chatham, since October, 2009. 11 . Mr. Holland’s counsel held the opinion based on past representation of Mr. Holland that his client’s diagnosis may date back as far as 2004. 12 . Counsel for Mr. Holland argued that the incident at issue occurred at a time when the offender had not been taking his prescribed psychiatric medication for approximately a month. Ms. Brown held the opinion that Mr.

Holland had “fallen through the cracks” when he relocated this time from Wheatley now back to Windsor and as a result was without mental health support during that time and was likely unaware of how to access emergency mental health services on his own. 13 . Counsel for the offender also argued that there is a bit of a gap in Mr. Holland’s criminal record between 2008 and 2010 and that this was during a period of time when Mr. Holland was receiving CMHA support. 14 . With this backdrop, Ms. Brown testified that Mr. Holland has a bed available and waiting for him at the Salvation Army where, if Mr.

Holland was allowed to reside there, he would be able to receive his medication, support and counseling. In particular, Ms. Brown explained that Mr. Holland would participate in the M.A.S.T. (Men’s Addiction Support Treatment) Program. The M.A.S.T. Program operates five days a week and is run jointly by the Salvation Army and the CMHA. Participation in the program would include the requirement that Mr. Holland takes his medication and during weekends when the program is not operating, he could participate in N.A. and A.A. meetings.

The program includes group discussions in regard to life skills, relapse prevention, anger management and individual counseling. 15 . In addition, Counsel pointed out that not only has Mr. Holland taken responsibility for his actions, he has expressed remorse. Firstly, following the offences when he returned outside to apologize to the victims before the police had even arrived. Secondly, implicit by his pleas of guilt and lastly, as reflected in the Pre-Sentence Report communicated to the Probation Officer. 16 . Mr.

Holland himself said at the time of sentencing that he has gained insight during his seventy-eight days of pre-sentence custody. He stated that it has taken intervention to help him understand his priorities better with respect to himself and his family. As a result he stated that he has agreed to comply with the plan arranged through CMHA so that he can get the help he needs. 17 . The Crown argued that a Conditional Sentence is not available as a consideration by the court, for two reasons. Firstly, that this was a “serious personal injury offence” as defined in

Section 752 of the Criminal Code . Secondly, the Crown feels that the community would be at risk if Mr. Holland was sentenced to serve a term of imprisonment in the community. DECISION 18 . It is certainly unusual for an individual such as Mr. Holland who has been convicted of having committed so many offences and sentenced so many times over the course of so many years for offences including violence, drugs, breaches, obstruction, fraud, property and driving offences to come before the Court after twenty-five years of consistent criminal activity and numerous periods of

incarceration to seek a Conditional Sentence. Notwithstanding, that past alone does not in and of itself foreclose the availability of such asentence. The principles of sentencing and s. 742.1 outline the necessary considerations. 19.

Section s. 742.1 eliminates the availability of a Conditional Sentence Order in the event of a “serious personal injury offence”.Section 752 of the Criminal Code defines serious personal injury offence as follows: “serious personal injury offence” means: (

a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (

i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely toendanger the life or safety of another person, or inflicting or likely to inflict severe psychological damage upon another person and forwhich the offender may be sentenced to imprisonment for ten years or more… 20. Notwithstanding the Crown’s submission for a reformatory sentence of two years less a day, the Crown elected to proceed byIndictment.

The conviction in Count 3 for possessing a weapon for a purpose dangerous to the public peace contrary to Section 88 (1) ofthe Criminal Code provides for a period of imprisonment for a term not exceeding ten years. So, this pre-requisite for “serious personalinjury offence” is met insofar as subsection 752 (a) (ii) is concerned. 21. But there is more. Counsel for Mr. Holland relied on the facts and decision of this court in R. v. Ullah [2010] O.J. No. 671. In thatcase, the offender opened a glove box to show the victim an imitation hand gun concurrent with a demand for money.

Justice Bourquefound as a result that there was no actual violence and only a potential for the infliction of psychological damage but no evidence tosupport such a finding. He ruled that a conditional sentence was available and made the order. 22. Mr. Holland’s Counsel submitted that even though Mr. Holland pointed the rifle at his victims, there is no evidence to indicate thatthey sustained any psychological injury and in fact argued that the evidence suggested otherwise insofar as the victims have requestedonly that Mr. Holland simply be kept away from them. 23.

I am not of the opinion that the definition of serious personal injury offence as defined in

Section 752 (a) (ii) is subjective. Thelanguage clearly requires the Court to consider the conduct as inflicting or likely to inflict severe psychological damage upon anotherperson. To my mind this is an objective standard to be weighed by the sentencing Judge having regard to the conduct of the accused andits potential albeit likely affect on a person. 24. The essential question insofar as subsection (a) (ii) is concerned is whether in the circumstances of the commission of this offenceMr.

Holland used or attempt to use violence; or, his conduct was such that it was likely to endanger the safety of another person or waslikely to inflict severe psychological damage. In addition to the decision in R. v. Ullah (supra), Mr. Holland’s Counsel made reference tothe decision in R. v. Middleton 2009 SCC 21 , [2009] S.C.J. No. 21 where the Supreme Court of Canada considered the questionof whether the imposition of a Conditional Sentence of more than ninety days renders illegal an unexpired intermittent sentence imposedon the same offender but for a different offence. 25.

Counsel made reference to this decision only in regard to the facts and not the ratio. 26. In Middleton, the offender had received an eighteen month conditional sentence of imprisonment for having uttered a death threatand for pointing a firearm. This was five months after having been convicted for assault and sentenced to ninety days imprisonment to beserved intermittently. 27. The Supreme Court decision in Middleton was released in 2009. I have no information in regard to whether the serious personalinjury offence amendment to

Section 742.1 that occurred in 2007 was in effect at the time of Mr. Middleton’s original conviction foruttering the threat and pointing the firearm for which he received a Conditional Sentence of imprisonment. And, as I indicated, thatsentence itself was not under consideration. In fact, Paragraph 2 of the Supreme Court’s decision reads as follows: “it is conceded thatall three sentences were legal in themselves. It is conceded as well that they were carefully crafted by the trial judge in compliance withthe sentencing principles and the correctional objectives applicable in the circumstances of this case.

Neither the appellant nor therespondent has drawn to our attention a single provision of the Criminal Code, RSC 1985, c. C-46, that prohibited either the intermittent

sentence or the concurrent conditional sentences when each was imposed”. 28 . Accordingly, it is my view that neither Middleton nor Ullah , for reasons previously indicated, are of assistance to me. On the facts of this case, I am of the opinion that the conduct at issue may have endangered the safety of the individuals involved but I am not able to determine that it was likely to endanger anyone’s safety. Nothing was said about whether the rifle was loaded or capable of being fired or even if any pellets were seized with the weapon. And, notwithstanding the lack of any evidence to indicate that Mr.

Holland’s victims were in fact psychologically harmed, there can be no doubt that the conduct at issue could have resulted in some individuals being adversely impacted psychologically but I am not satisfied that the conduct was likely to inflict severe psychological damage to a person. 29 . Insofar as

section 752 (a) (

i) is concerned, Justice Hill’s comments in R. v. Naess [2005] O.J. No. 936 (S.C.J.) at Paragraph 54 are helpful. He indicated that the court need only make a determination as to whether or not the circumstances of the case depicted violence or attempted violence. He stated that once violence has been identified, there is no requirement to go further and measure the degree of violence. 30 . There can be no doubt from the circumstances of this case that Mr. Holland was not only attempting to impose his will but was doing so in a manner that was by any standard violent.

After first uttering his threat to kill one or both of his victims in public, loud enough for an independent witness to hear, he retrieved a firearm, raised it and pointed it at his victim and stated “I’ll fuckin shoot you bitch”. Subsection (a) (ii) does not require a physical act of violence against the person. It is the actions or conduct of the offender in the circumstances that must be considered. Mr. Holland’s actions equate to a use of violence within the meaning of

Section 752 (a) (

i) of the Criminal Code . 31 . I am satisfied that this was a serious personal injury offence within the meaning of

Section 742.1 (1) and as such a Conditional Sentence of Imprisonment is not an available option. 32 . I would add that even if this was not a serious personal injury offence, I am of the opinion that notwithstanding the good work of the CMHA and Mr. Holland’s Counsel to create an environment where Mr. Holland might receive the treatment he needs, with a view toward perhaps allowing him to present as a lesser risk to the community, this goal has inherent risks. 33 . The gap in Mr. Holland’s record of convictions during 2008, 2009 and 2010 is at best modest.

Serving as bookends to this gap are, on the one side, three separate convictions in 2007 which include a failure to comply with a recognizance, resist arrest and most notably a breach of a conditional sentence order. The conditional sentence was imposed in April, 2007 being two or perhaps three years after when, I understand, Mr. Holland was diagnosed with a Bipolar disorder. I am of the opinion from the materials that Mr. Holland would have been receiving treatment at the same time when he breached his conditional sentence and as a result was required to serve the remainder of that sentence in custody. 34 .

On the other end of this modest gap, Mr. Holland was convicted of resisting a peace officer. He was working with CMHA at the time of that offence and in fact had a caseworker who met with him weekly for the purpose of addressing anger management and medication compliance. Notwithstanding his involvement with that agency, its worker and being prescribed psychiatric medication for regular use, Mr. Holland nevertheless reoffended and the nature of that offence was one of, again, refusing to be compliant. 35 . Moreover, a careful review of his past and the present Pre-Sentence Report reveals that Mr.

Holland is still not likely to comply with conditions. Following his conviction and sentence in January, 2011 Mr. Holland’s Probation Officer referred him to a substance abuse counselor. The Pre-Sentence Report indicates that Mr. Holland attended only the first appointment and missed the next two. The reports reveal that Mr. Holland needs to address his mental health issues in order to be successful in the community. But he did not follow through on that recommendation and referral. Consistent with all of this is the observation made by Mr. Holland’s former common law spouse. She indicated that Mr.

Holland recognizes that he is more likely to reoffend if he doesn’t take his medications but he nevertheless objects to taking his psychiatric prescription drugs because he doesn’t like the side effects. And, there is more reason to be concerned. The medical report of Dr. Fairbairn, Psychiatrist at Chatham, indicates that Mr. Holland has had a history of cancelling or not showing up for appointments. 36 . With all of this, it is difficult for me to accept that Mr.

Holland’s failure to take his medication at the time of the offences at issue was the result of falling through the cracks of support apparently lost when he moved from Chatham to Windsor and wasn’t being monitored by CMHA. It may be that CMHA lost contact with Mr. Holland during that time but it was Mr. Holland’s responsibility to make suitable arrangements. He knew where the office was located in Windsor. He had dealt with that office previously.

37 . It is clear to me that Mr. Holland knows what he needs to do. He needs to take his medication and he needs to attend for counseling and treatment but he has chosen not to do so. CMHA has done everything in it can reasonably be expected to do to assist him. The materials reveal that even a daily “MED PROMPT” service offered through CMHA to remind Mr. Holland to take his psychiatric medication was of little utility. 38 . It is apparent to me that Mr. Holland simply refuses to take responsibility for himself. Mr. Holland continues to pose a threat to the community.

That threat will not be negated by his residency at the Salvation Army and enrollment in the M.A.S.T. program. He will do as he sees fit and as such remains a high risk to reoffend. That is not to say that Mr. Holland may not benefit from proper structure and treatment. This end that may be achievable in a correctional institute that may be able to provide access to psychologists and social workers who might be able to assist Mr. Holland with his behavior in taking responsibility for himself. SENTENCE 39 . Mr. Holland is hereby sentenced concurrent on Counts 1, 3, 4 and 8, as follows: 1.

Nine further month’s imprisonment at a Correctional Facility. It is my understanding that the Ontario Correctional Institute in Brampton is a well recognized treatment centre that may serve you well. Having regard to your psychological condition, substance dependency and lengthy history of anti-social and criminal activity, you may benefit from being placed at the Ontario Correctional Institute in Brampton. Accordingly, I am recommending that you serve your sentence in that facility. The seventy eight days pre-sentence custody has been taken into consideration and will be noted on the information. 2.

Following your release from custody, you will be placed on probation for a period of two years. In addition to the terms prescribed by statute, you are ordered to report within seventy-two hours of your release from custody to a probation officer and to attend with your probation officer as and when required. You will attend for such assessment, treatment and counseling as recommended by your probation officer. You are also ordered to follow the advice and recommendations of your treating physicians, psychiatrists and psychologists.

You are also ordered not to have any contact directly or indirectly with Lisa Freedman or Margaret Freedman and further in this regard you are ordered not to attend at their places of residence or employment. 3. And you are ordered not to own, carry or possess any weapons as defined in the Criminal Code of Canada . All of the foregoing is concurrent on all counts. 40 . Pursuant to

Section 109 of the Criminal Code of Canada you are prohibited, for life, from possessing all of the weapons listed in that

section of the Criminal Code. That Order is made in respect of Counts 3 and 8. 41 . Pursuant to

Section 110 of the Criminal Code of Canada you are prohibited, for a period of ten years from possessing all of the weapons listed in that

section of the Criminal Code. That Order is made in respect of Counts 1 and 4. 42 . You are also ordered to provide a sample of blood for DNA analysis which will be maintained indefinitely on the National DNA Databank System. That Order is made in respect of counts 1 and 8. 43 . There will be no Victim Fine Surcharge. Released this 3 rd day of October, 2011 at Windsor. __________________________

Justice Gregory A. Campbell Ontario Court Justice