R. v. Burns, 2018 ONCJ 392

CITATION: R. v. Burns , 2018 ONCJ 392 DATE: January 18, 2018 Information Nos. 17-70000450, 17-75003205, 17-15005370 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. COLE ROBERT BURNS REASONS FOR SENTENCE BEFORE THE HONOURABLE JUSTICE E. RONDINELLI on November 23, 2017 and January 18, 2018 at TORONTO, Ontario APPEARANCES : Mr. D. Mitchell Counsel for the Crown

Ms. M. Murphy Counsel for Cole Robert Burns THURSDAY, NOVEMBER 23, 2017 ... THE COURT: So, Ms. Murphy, have you had an opportunity to do a plea inquiry with Mr. Burns? MS. MURPHY: I have, Your Honour. THE COURT: Okay. So, you understand, Mr. Burns, you’re giving up your right to have a trial... COLE ROBERT BURNS: Yes. THE COURT: ...this morning? COLE ROBERT BURNS: Yes. THE COURT: And you are doing so voluntarily, and no one has forced you or pressured you into pleading... COLE ROBERT BURNS: Yes, that’s right. THE COURT: ...guilty? COLE ROBERT BURNS: That’s right.

THE COURT: That you are going to admit the facts as - or the allegations in terms of assaulting... COLE ROBERT BURNS: Yes. THE COURT: ...this morning. And that despite any submissions I hear from your counsel or the Crown, I am the one that ultimately will decide what your sentence is? COLE ROBERT BURNS: Yes. THE COURT: Okay. I am satisfied that he understands that he is voluntarily pleading guilty this morning. So, has there been - I guess no election yet. MR. MITCHELL: No, but I can advise Your Honour as well we’re anticipating asking for a presentence report and not going to sentencing... THE COURT: Oh. MR.

MITCHELL: ...today. THE COURT: Oh, I see. MR. MITCHELL: Proceeding to sentencing another day. I will give Your Honour more information obviously after... THE COURT: Sure. MR. MITCHELL: ...the plea. THE COURT: Did you want to do the arraignment... MR. MITCHELL: Please. THE COURT: ...today and - okay. We can do that then. CLERK REGISTRAR: Mr.

Cole Robert Burns, you stand charged that on or about the 7th day of July in the year 2017 at the City of Toronto in the Toronto Region, did steal from Irina Ilysaova, I-L-Y-S-A-O-V-A, and at the time thereof use violence to the person of Irina Ilysaova and thereby commit robbery contrary to

section 343 (

b) of the Criminal Code of Canada . You stand further charged that on or about the 7th day of July, in the year 2017, at the City of Toronto in the Toronto Region did, while bound by a probation order made by the Ontario Provincial Courts, College Park, on August 2nd, 2016, without reasonable excuse fail to comply with such order, namely keep the peace and be of good behaviour contrary to

section 733.1(1) of the Criminal Code of Canada . You stand further charged that on or about the 7th day of July, in the year 2017, at the City of Toronto in the Toronto Region did, while bound by a recognizance under

section 810.2 of the Criminal Code made by the Ontario Provincial Courts, College Park, on February 8th, 2016, commit a breach of that recognizance by failing to comply that you keep the peace and be of good behaviour contrary to

section 811 of the Criminal Code of Canada . Where the Crown has an election, how do you elect to proceed?

MR. MITCHELL: By indictment, please. CLERK REGISTRAR: By indictment. MS. MURPHY: I am prepared to waive the reading of the election and Mr. Burns elects to be tried by a justice of the Ontario Court of Justice. CLERK REGISTRAR: And how do you plead to the charges as read, guilty or... COLE ROBERT BURNS: Not guilty. CLERK REGISTRAR: ...not guilty? MS. MURPHY: Well, Mr. Burns will enter a plea of not guilty to the charge of robbery but guilty to assault as an included offence. MR. MITCHELL: The Crown consents. CLERK REGISTRAR: And how do you plead to the charges as read, guilty or not guilty?

COLE ROBERT BURNS: Guilty. CLERK REGISTRAR: Thank you. THE COURT: All right. MR. MITCHELL: Thank you, Your Honour. On Friday, July 7th, 2017, at approximately 9:45 a.m. the - the victim, Irina Ilysaova, was walking to work northbound on Yonge Street, north of Wellesley Street, in the City of Toronto. She heard a scream and was punched on the right side of her head. Her hand went to her right ear and touched it, she felt blood on her hand, and realized her earring was missing. She turned around and saw the accused, Mr. Burns, standing right beside her. There was no one else there. She asked Mr.

Burns for her earring back, but he only screamed at her. The victim advised that she would call the police, but the accused ignored her. The police arrived on scene and located the accused. He was placed under arrest without incident. The earring was recovered and returned to the victim. The victim advised that she did not require medical attention for her injuries at this time. The accused was transported to 52 Division, charged and held for show-cause. Police from the Major Crime Unit continued the investigation and additional information came to light.

On December 7th, 2016, the accused had been convicted of fail to comply under an 810.2 failing to comply - sorry, as a result he was placed on probation by Justice Rutherford for a period of three years, therefore he was in breach of the keep the peace and be of good behaviour. On August 2nd, 2016, he was convicted of fail to comply with recognizance by Justice Blouin. He was placed on probation for a period of 36 months, one of the conditions was to keep the peace and be of good behaviour. It is obviously alleged that that was breached in this incident.

On February 8th, 2016, he entered into a recognizance under 810.2 by Justice Blouin. He was under a condition that he keep the peace and be of good behaviour. It is obviously our assertion that he breached that. With respect to the earring, the earring was not located on the accused; it was located at the scene and provided back to the complainant so he - he was not found with it on his person. Those are the facts. THE COURT: Sorry, and just in terms of the peace bond, who was that entered into? MR. MITCHELL: The 810? THE COURT: Yes. MR. MITCHELL: Was Justice Blouin. THE COURT: Blouin, okay.

Okay, are those facts admitted? MS. MURPHY: Yes, those facts are admitted. THE COURT: Okay, so on the basis of the admitted facts I find Mr. Burns guilty. ...SUBMISSIONS: ADJOURNMENT FOR PRESENTENCE REPORT THE COURT: Okay, Mr. Burns, then your matter is going to return on January 18th, 2018, in courtroom 112. We put 10 o’clock right now but it will likely be traversed to me at some point. ... MATTER ADJOURNED THURSDAY, JANUARY 18, 2018 ...SUBMISSIONS ON SENTENCE

EXHIBIT NUMBER 1: Presentence Report – Produced and marked. EXHIBIT NUMBER 2 : Criminal Record – Produced and marked. EXHIBIT NUMBER 3 : Victim Impact Statement – Produced and marked. EXHIBIT NUMBER 4 : 810.2 Order – Produced and marked. EXHIBIT NUMBER 5 : Probation Order – Produced and marked. ...SUBMISSIONS ON SENTENCE... REASONS FOR SENTENCE RONDINELLI, J. (Orally): Mr. Burns has pled guilty before me and accepted responsibility for assault and various breaches of the

section 810.2 recognizance that he was subject to at the time of the assault. Some of the aggravating factors in this case. The assault was completely unprovoked and occurred at 9:45 a.m. as the complainant was walking to work along a busy street of the city. The complainant did not know Mr. Burns, so it is not surprising that she has suffered some significant emotional trauma to go along with the physical injury she sustained. Her victim impact statement speaks to the change of character and her newly-found mistrust of strangers in our city. The breach of the

section 810.2 recognizance is also seen as a particular serious matter. The case law referred to by the Crown makes clear that the principles of specific and general deterrence are of a heightened importance because the community faces a potentially significant risk to its safety when an offender, bound by such an order, fails to comply with it. This is now the third time that Mr. Burns is being sentenced in relation to breaching the same

section 810.2 recognizance making this a significant aggravating factor. Apart from these earlier breach convictions, Mr. Burns’ adult criminal record includes a conviction for sexual assault for which he received three years in the penitentiary. Finally, one of the more troubling aspects of Mr. Burns’ presentence report is his resistance to seeking or maintaining professional counseling of any sort despite recognizing and acknowledging the need for it. Some of the mitigating factors in this case. Mr. Burns has pled guilty and expressed remorse for his actions.

Although the guilty plea was formally entered on the eve of the trial I understand that Mr. Burns made an attempt to plead almost immediately after his arrest. Mr. Burns is still a relatively young man, at 24 years of age, so the Court cannot lose sight of the rehabilitation objectives of sentencing. Mr. Burns faces various challenges including substance abuse and mental health issues. The challenges are amplified due to his unstructured and transient lifestyle.

With respect to pre-trial custody, the fact that presentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release justifying enhanced credit, see R. v. Summers , 2014 SCC 26 .

However, the Crown may challenge this inference by showing that it is unlikely that the accused will receive early release or parole in any event either because of the nature of the offence or the offender or because of the offender’s conduct while in jail, again R. v. Summers , 2014 SCC 26 . In any of these circumstances denying enhanced credit may be justified. In this case, I agree with the Crown that there is evidence on the record that Mr.

Burns’ behaviour should deprive him of eligibility for early release or parole as evidenced by his penitentiary sentence where he was held in prison right up to his warrant expiry date. As such Mr. Burns will receive credit for the 196 days of presentence custody that he has already served on a one to one basis. So, considering (

a) the protection of society; (

b) the need for specific deterrence; (

c) the need to denounce Mr. Burns’ conduct; and (

d) a sentence that may assist in the rehabilitation of Mr. Burns; I find that the appropriate sentence is 18 months imprisonment minus 196 days of presentence custody, plus 3 years of probation with the same conditions as those of Mr. Burns’ current probation. The only other condition I would add would be not to have any contact with the complainant, Irina Ilysaova. The standard victim surcharge will apply, and I will end by making a recommendation that Mr. Burns serve his sentence at St. Lawrence Valley Correctional and Treatment Centre. ... MATTER CONCLUDED