R. v. Warde, 2018 ONCJ 396

CITATION: R. v. Warde, 2018 ONCJ 396 DATE: May 9, 2018 Court File No. 2811-998-17-21784 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN v. ARTHUR F. WARDE R E A S O N S F O R S E N T E N C E OF THE HONOURABLE JUSTICE P. WEST On May 9, 2018, at OSHAWA, Ontario APPEARANCES : L. Crawford Counsel for the Crown C. Claxton Counsel for Arthur Warde WEDNESDAY, MAY 9, 2018 ...SUBMISSIONS OF COUNSEL/GUILTY PLEA ENTERED/EXHIBITS ENTERED. THE COURT: Mr. Warde, you don’t have to say anything to me before I pass sentence. If you want to say anything, this is your opportunity to say whatever you would like to say.

ARTHUR WARDE: Your Honour, I must say I’m very sorry for my actions, what I did to Ms. Felix, and I come to the understanding –

understand that I need some help, and I’m gratefully looking forward to that, some kind of counselling, treatment or something to help me with my situation. Again, I’m very, very sorry, Your Honour. R E A S O N S F O R S E N T E N C E WEST J. (Orally): You heard the comments that I made to you previously. This is a very serious matter. It’s going to involve what is a penitentiary sentence. So that, in my view, reflects the seriousness of the actions that you engaged in.

The facts of the case, and I will say this to you as well, when someone is in an intimate relationship with someone for 23 years, one of the most important things is trust and respect, and when someone has an affair where there is infidelity or there is a belief that infidelity has occurred and there is an argument that arises over that, the 23 years of being together in that intimate relationship that is built on trust and built on respect and love, all of those values, should not lead to the individual who has been accused of infidelity to go down into the kitchen and grab a knife and come back and start stabbing their partner.

That is what makes this serious. It is also serious because there were two prior occasions when you had been involved in assaultive behaviour against Ms. Felix in 1999 as well as in 2012. Madam clerk, can I just see the criminal record again? COURT: Yes. THE COURT: It’s Exhibit 2. Thank you. And in both instances, it is assault with a weapon, and in both instances, you received a suspended sentence and probation and there was no pre-trial custody.

Maybe, if in 2012, despite the gap between the two offences there had been a short sharp sentence of imprisonment, maybe that would have brought home to you then that this is the kind of behaviour that cannot continue in an intimate relationship. Because I agree with the Crown, this is a serious aggravating circumstance.

You may not be aware, but under the Criminal Code , 718.2, it says that, A court that imposes a sentence shall take into consideration the following principles: The sentence should be increased or reduced to account for any relevant, aggravating or mitigating circumstances relating to the offence or any offender and without limiting the generality of the foregoing;(ii) evidence that the offender in committing the offence abused the offender’s spouse or common-law partner; [and] (iii) evidence that the offender in committing the offence abused a position of trust or authority in relation to the victim.

Those are both serious, aggravating circumstances that I, as a sentencing judge, must take into account. The fact that this happened on two previous occasions with Ms. Felix, your intimate partner, your common-law partner, increases the level of aggravation in respect to that. Now, I do take into account your guilty plea. I do take that as an indication of your remorse for your conduct, and I do consider this was always your intention to resolve these matters. It does also save the court time; that’s mitigation, and all those things have to be accounted for.

I don’t know if you attended the PAR Program as part of the probation orders that you were imposed back in the past, but it obviously did not sink in whatever was taught to you because here you are again, standing before a court charged with a far more serious offence involving an assault on your partner. The fundamental purpose of sentencing is to contribute along with crime prevention initiatives to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct: obviously this – my sentence must do that; (

b) To deter the offender and other persons from committing offences. That is what is referred to as general deterrence;

(

c) To separate offenders from society where necessary. This is a case that involves separating you, taking away your liberty because of the conduct which you engaged in; (

d) To assist in rehabilitating offenders. That is why the Crown and your counsel are both suggesting that I put you on probation for a period of three years because, as I said to you earlier, I think that there are some serious things that you need to address in your life as to why you get angry the way that you do and why you resort to violence when you get angry; (

e) To provide reparations for harm done to victims or to the community and you are going to be making restitution. You are not asking – you did not ask that no restitution be imposed, and I think you have been fair and reasonable to your counsel in respect of your request for restitution; and finally, (

f) To promote a sense of responsibility and there’s an acknowledgment of the harm done to victims and to the community. I think that has been expressed through your counsel. It’s expressed in your guilty plea. It’s also expressed in the words that you just told to me when I asked you if you had anything to say. And, of course, a fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is a grave offence.

This is a serious offence and counsel have indicated that, and you are the person who is responsible for that offence. Your moral blameworthiness clearly is reflected in respect of your involvement and the conduct that you engaged in with Ms. Felix. So, I do not have any difficulty with the joint submission that has been suggested to me. I was encouraged to hear from your counsel that when you read the victim impact statement of Ms. Felix, that it impacted you, because it should. This is something she will live with for the rest of her life.

She will live, frankly, for the rest of her life with the other two occasions that you assaulted her in the past. Obviously not as serious as the one that you are standing before the court charged with now and pled guilty to, but she, as a result of this attack, because of the scars that she has, every time she looks, she says, into a mirror, it instantly causes her to have memory of that particular occasion, and I can only imagine that it was terrifying to her. That is something you should be aware of, particularly if you become involved in another intimate relationship with someone.

You should be working to make sure that this never happens again because, as I said to you earlier, this could have been a lot more serious and it will be a lot more serious if you do not get things under control. There are programs in the penitentiary that you can take. You should take every program that would be applicable to assist you, that will also assist you in appearing before the Parole Board with respect to release; so, your co-operation with the institution. You have a very good work record as well.

I will indicate to you, as far as I am concerned, that is also a mitigating circumstance, and you have individuals who say very positive things about you. The one thing I will say to you though, Mr. Warde, is the following, that family members, people you work with, they see a different side of Arthur Warde than Ms. Felix has seen on the three occasions that you engaged in assaultive behaviour that led to you being charged. That is one of the things that is difficult in domestic violence, is that it often happens behind closed doors. It often happens, no one else knows about it.

The victims of domestic violence are often afraid. They are under duress. They are under fear of the person that they are with, and they don’t report it. There is an under-reporting of domestic violence.

So, on the one hand you may be this wonderful person that everybody writes beautiful letters about as you have been able to provide those kinds of letters, and I am sure that is who you are, but when you are in an intimate relationship, for reasons that I don’t understand, and I don’t believe you understand, when you get angry, when there is an argument, depending on what buttons are pushed, you become a violent person, and that will come back to haunt you in the future if you do not deal with that, and that is why the probation order is being put in place.

The sentence I am imposing is a two-year sentence in the penitentiary. It will be followed by three years of probation. There will be a victim surcharge on top of this which is a $200 fine. I am going to give you three years to pay that. You may not get early parole and, in this case, if you stay out of trouble you could be released in as soon as two-thirds of the sentence, whatever that works out to be. That is why I am going to – and I am not going to give you three years. I will give you two years to pay. In respect of the probation order, the statutory terms will apply.

You have been on probation twice before, so you know these terms. Keep the peace, be of good behaviour is the most important. You will report in person to a probation officer within five working days of your release from custody, and after that at all times and places as directed by the probation officer, to any person authorized by a probation officer to assist in your supervision. You will live in a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.

You are not to have any contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with – sorry, the first name again is? MS. CRAWFORD: Louann.

THE COURT: Louann. MS. CRAWFORD: L-O-U-A-N-N. THE COURT: That’s right. Felix, F-E-L-I-X. There are no exceptions to that, and you are not to be within 100 metres of any place where you know Louann Felix lives, works, goes to school, worships, frequents or any place that you know her to be. I will put this exception in, that is usually put in, “except for required court attendances”. There will not be any other exceptions. There will be a weapon’s prohibition.

You are not to possess any weapons as defined by the Criminal Code , for example, a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restrictive weapon or device, ammunition or explosive substance or anything designated to be used or intended to be used to cause death or injury or to threaten or intimidate any person.

You will attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for anger management, domestic violence and psychological issues or any other reason that the probation officer deems appropriate.

You will sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed, and you shall provide proof of your attendance and completion of any assessment, counselling or rehabilitative programs as directed. You will make restitution in the amount of $1,234.45 to Louann Felix to be paid in full by May 31 st , 2022.

Now, I will say this, because you are in custody and you may be released for a period of time, if you are released on parole, you will be on parole, and your probation I don’t think will commence at that point. It will commence once your parole is completed. But if for any reason your probation will be over before May 31 st , 2022, it will be before your probation is completed. Just so that we are on the same page. All restitution payments are to be made by cash or certified cheque or money order payable to the Minister of Finance to any criminal court for the payment to the victim.

I don’t think there were any other terms I was asked to impose other than the stand alone ancillary orders. There will be a s. 109 order under the Criminal Code which is a weapon’s prohibition for a period of 10 years, and there will be a DNA order. This is a primary designated offence under s. 487.04 of the Criminal Code . My understanding is you have already given a DNA sample, so it will not be taken from you on this occasion, but that needs to be confirmed by court security, but I anticipate that given what is on your CPIC record. Any questions about the probation terms that I have imposed, Mr. Warde?

ARTHUR WARDE: No, Your Honour. THE COURT: Okay. I will indicate to you, whether you are released on parole is going to be almost entirely dependent upon you, how you get along in the institution. So, as I say, whatever programs are offered, you should take them. Get yourself into a job as quickly as you can within the institution, whether it is working in the kitchen, working in maintenance, working in cleaning up, whatever. It will make your time go faster. It will also – you will get reports from people who are supervising you as to your co-operation and your suitability to be released on parole.

These are all things that will assist you in making that application after a third of your sentence. If you choose to not do those things, then you may end up serving the two-thirds of your sentence. It is really up to you. Good luck. MS. CLAXTON: And, Your Honour may I ask that the warrant to remand be marked for medications? Mr. Warde does have a prescription from his doctor... THE COURT: Yes. MS. CLAXTON: ...that will accompany him. THE COURT: Okay. MS. CRAWFORD: Thank you. And the remaining counts in the information can be marked withdrawn, Your Honour. Sorry, the remaining counts can be marked withdrawn.

THE COURT: The remaining charges withdrawn. Thank you. M A T T E R C O N C L U D E D ********