R. v. Avery, 2019 ONCJ 688

CITATION: R. v. Avery , 2019 ONCJ 688 DATE: August 29, 2019 Information Nos.: 19-00331 19-34915 19-25125-01 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JEFFERY AVERY REASONS FOR SENTENCE BEFORE THE HONOURABLE JUSTICE G.R. WAKEFIELD on August 29, 2019, at OSHAWA, Ontario APPEARANCES : S. Thompson Counsel for the Crown D. Barrison Counsel for Jeffrey Avery WAKEFIELD, J. (Orally): You are saying all the right things in terms of your future pathway. You know you are making bad choices and you know choices lead to jail especially with your work.

And you are going to be separated from the community, all the communities in your life, for a fairly long period of time. The only thing I am going to ask you to do is to think very carefully. You have got support of people here. You have something positive to look forward to when you get out but each one of these people, I am sure, is going to hate hearing the cuffs and the shackles going back onto you and you being led out back into the cells knowing at some point after you being categorized that

you are off to a penitentiary for a good long while. There are programs at the penitentiary. There are programs including aboriginal cultural programs. I do not know if perhaps reaching out a bit more for that part of your heritage is a pathway for you or not. The only person who really knows that is you.

What I do not know, if you have heard the phrase before, you are the perfect example of somebody who is doing a life sentence in jail on the installment plan and every time you come out you probably get yourself stabilized just long enough to get back into trouble again and you are losing the ability to get a job. You have got your credits at least after the volunteer work. I think that is something else you can accomplish.

So you have your diploma when you get out of custody but you are destabilizing yourself and until you are able to survive back in the community without getting into trouble again, you have to put the roots down that you need so that you do not make the choices you make and half of those choices, I will bet you, are decided in the moment without really thinking through the consequences and that is the skill you really have to develop and I say this to everybody that comes in front of me with at least ADHD and certainly everybody that has the challenges of FASD.

It is tough to get past that and you have to find the strength and the resolution to develop the skills so you do not come back here. So, I will note 97 days of real jail for a credit of 146 days as presentence custody noted on the forcible confinement, both robberies, the assault with a weapon and the trafficking in the substance no doubt to be heroin. And then from that point forward or this point forward today, there will be a two year sentence on the — now is it easier if I say it with the longest sentence first, Madam Clerk? CLERK REGISTRAR: For my purposes it’s easier if you go in chronological order.

THE COURT: Chronological order? CLERK REGISTRAR: Yes. THE COURT: Okay. March 28 th ; forcible confinement, robbery and assault with a weapon, I believe that is a joint submission for three years concurrent one onto the other and similarly on the April 15 th robbery and trafficking in the substance, three years concurrent one onto the other as well as the March 28 th . Then, for the April 21 st offence of possession of property, two years concurrent to all matters.

And on the April 22 offences; two years concurrent on the theft of motor vehicle, the breach of probation and the use credit card and on the possession of personal property of Ms. Bradbury; six months concurrent. Does that cover off all the offences here? CLERK REGISTRAR: I think that’s ten counts. I think we have nine. Perhaps you’re — the one that was struck… THE COURT: I have ten. CLERK REGISTRAR: …was the possession. We struck the plea on the possession over. THE COURT: And then re-arraigned on the…. CLERK REGISTRAR: Possession under which is… THE COURT: Possession under. CLERK REGISTRAR: …six months.

THE COURT: Yes. CLERK REGISTRAR: Yes. THE COURT: But I still have ten in total. CLERK REGISTRAR: I have nine. THE COURT: Do you have the possession of property from April 21, 22? CLERK REGISTRAR: Is that not the possession of property under? THE COURT: No, that was a separate one with respect to Steve and Paula Brown. CLERK REGISTRAR: Oh, I missed that one, court’s indulgence. Yes, that one I have missed actually, okay. THE COURT: He was arraigned on it. CLERK REGISTRAR: Yes. THE COURT: And did plead to it. CLERK REGISTRAR: Yes, there is a check mark on it.

THE COURT: And on that count that is two years concurrent to everything. And just so it is clear, the joint submission is for a remnant, in other words the amount of jail from today on the totality of three years totality. MR. BARRISON: Sorry, the intention was three years less the presentence custody. THE COURT: Oh, all right, that was not the pretrial discussion.

MR. BARRISON: I thought it was actually, that’s what my note had said and that’s what the Crown’s noted so that’s why I didn’t want to let Your Honour finish the sentencing before confirming that with Ms. Thompson. MS. THOMPSON: Yes, and I wasn’t present for the pretrial, Your Honour, but I just have Ms. Pollock’s note that the sentence is less as of August 29 th , of the presentence custody time which was 146 days. THE COURT: All right. So we will have the 146 days on the March 28 th and April 15 th three year sentences concurrent on the other, less 146 days which is how many days?

You didn’t calculate that part did you? MR. BARRISON: No. So 365 minus 146 would be 219. THE COURT: There was a question mark influx of total voice for that, how many? MR. BARRISON: I think its 219 so it would be…. THE COURT: Two years and 219 days? MR. BARRISON: I believe so, yes. I think Ms. Thompson’s correcting me, 949 further days. THE COURT: 949 further days from today’s date is the remnant sentence.

Just tell you where you started off on the pretrial discussions, my note is the Crown started off looking at five and half years and then was prepared to look at the issue of totality which brought you to your first real penitentiary sentence. If you come back here again, five and half years you might consider really lucky to get. This is what I meant earlier, the longer things go you spend more and more of your life in custody and losing the connections with the people around you outside.

Additionally, there will be an order pursuant to 743.21 that you not communicate with either Brandon Deinnger or Wesley Smith and some other names that Madam Clerk — Madam Crown will read into the record in a moment. There is a mandatory order for DNA. You are already on the DNA databank. Outside the officers will not ask for it again but if they do you cooperate with them and that DNA is to be taken by five o’clock and pursuant to

Section 109 of the Criminal Code — now, because of your First Nation heritage in normal circumstances I would be saying, should there come a point and time that that firearm becomes part of something that you want to incorporate into your heritage, you should bring an application. But frankly with your record now, very doubtful that would ever occur and as such I am indeed making an order for a lifetime order. Firstly, that you are prohibited to possess any firearm, crossbow, restricted weapon, ammunition, explosive substance for a period beginning today ending for the lifetime.

As well, you are further prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. And that just leaves any additional names I think. MS. THOMPSON: Thank you, Your Honour. I just canvassed with my friend, I, I think I’m just going to be seeking three additional names as it relates to the offences. With respect to firstly, Ms. Jacqueline Farr is the complainant as it relates to the motor vehicle, its J- A-C-Q-U-E-L-I-N-E last name F-A-R-R. Her partner, Mr.

Lee L-E-E Keenan K-E-E-N-A-N, again, relating to the motor vehicle in progress theft that Mr. Avery has pled guilty to. And finally, with respect to the complaint from Ms. Cheri-Lee Bradbury and Cheri-Lee as I have it spelled C-H-E-R-I hyphen L-E-E and then Bradbury B-R-A-D-B-U-R-Y. THE COURT: Do you understand each of those names? JEFFERY AVERY: Yeah. THE COURT: Those are incorporated into the 743.21 order as well but I think I overheard that you do not know any of these people individually anyway. JEFFERY AVERY: Yeah, no. THE COURT: All right, anything further on the Crown’s pleasure on other charges? MS.

THOMPSON: No, Your Honour, I’d just be seeking that the other charges before the court be marked withdrawn. THE COURT: So noted at the request of the Crown. I don’t think any of these are new enough to be under the new victim surcharge regime and finally, address upon release? MR. BARRISON: Put as no fixed address. THE COURT: Fair enough, no fixed address at this point and time. Good luck, sir. JEFFERY AVERY: Thank you, Your Honour. THE COURT: I just do not want to see you back here.

I am just so worried that with the challenges you have you are going to make mistakes, all the more reason to reach out and get all the resources you can while you are in custody and any parole resources as well so you can get the techniques you need not to make these decisions. Good luck. JEFFERY AVERY: Okay, thank you. THE COURT: Good luck to your family as well. JEFFERY AVERY: Thank you. CLERK REGISTRAR: Your Honour, just to clarify the six months concurrent, was that the possession of property in regards to…. THE COURT: That was the possession of personal property of Cheri-Lee Bradbury.

CLERK REGISTRAR: Cheri-Lee, thank you. THE COURT: Thank you. ....WHEREUPON THESE MATTERS ARE CONCLUDED.