) Mr. M. Kantor ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. K. Gowenlock v. - and -, 2014 MBPC 15

Cite: 2014 MBPC 15 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Mr. M. Kantor ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. K. Gowenlock and - and - ) Ms. S.

Soldier ) for the Accused GORDON WILLIAM KOVICH, ) ) Sentence delivered Accused. ) January 15, 2014 _____ HARVIE, P.J. (Orally) The accused has entered guilty pleas to the following charges: Four counts of break and enter with individual offence dates ranging from December 20th, 2010 to June 19th, 2011; one count of failing to comply with a probation order by failing to report between March 27th and April 11th; five counts of break, enter with intent from May the 12th, 2012; five counts of break, enter and commit from May the 12th, 2012; one count of housebreak, enter and theft from June 2nd, 2012; one count of motor vehicle theft also from June 2nd, 2012, arising out of the same incident as in respect of the housebreak.

At issue is the appropriate sentence to be imposed. Crown counsel is seeking a total sentence of seven years for these offences. Crown counsel also takes the position that the accused ought not to be given any enhanced credit for the time he has in pre-sentence custody. Defence counsel recommends specific sentences for each of the offences and argues that the total sentence should include an enhanced credit for the time he has spent in pre-sentence custody. Ultimately defence counsel's recommendation would see that the accused serve a penitentiary sentence on a go forward basis.

I am going to begin by commenting a little bit about the proceedings because through no fault of either party, the proceedings have been somewhat protracted. It is helpful, I think, to review the various stages of this case to understand some of the delay in bringing this matter to a resolution. On June 12th, 2012, the accused was arrested and charged with a number of offences, including a number of counts of break, enter and theft, with the offence dates ranging from December 2010 to June 2012. Initially he did not make a bail application.

On October 16th, 2012, the accused was arrested while in custody and charged with a number of further offences including the 10 counts of break, enter with the offence date of May the 12th, 2012. On November 30th, 2012, the accused applied for judicial interim release with a plan to reside at the Behavioural Health Foundation residential treatment facility. His bail application was denied primarily based on his record and the reasons for the detention were recorded pursuant to Criminal Code Section 515(9.1).

A preliminary inquiry was scheduled to begin with the calling of evidence on a voir dire regarding the admissibility of the statement made by the accused on August the 22nd, 2013. That was the date of the preliminary. After the commencement of the preliminary inquiry, counsel had some further settlement discussion. As a result of those discussions, on September the 11th, 2013, the accused entered guilty pleas to a number of charges which are now the subject of the sentencing hearing. All the remaining charges were stayed. A pre-sentence report with a Gladue component was ordered.

The accused brought a motion challenging Criminal Code Section 515(9.1) and after arguments, on December the 11th, 2013, the court ruled in favour of that motion. Also on December the 11th, a sentencing hearing commenced with the accused calling viva voce evidence and filing some materials. The sentencing hearing continued on December the 16th with both counsel completing their submissions. At the conclusion of the sentencing submissions, counsel were invited by the court to provide authorities supporting the sentence that each had suggested to the court.

Defence counsel provided three cases to the court in the intervening period. The matter had been adjourned to this date for a decision on sentence. With respect to the facts that are underlying all of these offences, it is important to provide at least a brief overview of the facts for each of the offences, although I recognize that they are not in issue. It is also important to note that some of these offences were committed over an extended period of time while others could better be classified as a spree.

Most of the break and enters were to commercial properties with the exception of the June 2012 housebreak and related motor vehicle theft. The maximum punishment for commercial break-ins is 10 years while the maximum for housebreak is life imprisonment. On December the 20th, 2010, the accused attended to a Zellers store located at 1455 Henderson Highway. He went during regular store hours and hid within the store until after it was closed. Once closed, he attended to the jewellery section, stealing a large quantity of gold and jewellery.

On March 13th, 2011, the accused attended to a Safeway store at 1441 Henderson Highway. He attended there after store hours and used a crowbar to pry open a locked door. He entered the store and stole a quantity of cigarettes and tobacco. He was ultimately identified through a DNA sample taken from blood left at the smashed glass cabinet. Attempts to locate the accused at that time were unsuccessful and a warrant issued for his arrest on December the 6th, 2011. On June 9, 2011, the accused attended the Sears store at 1555 Regent Avenue and he attended there during regular store hours.

He once again concealed himself in the store until after it closed and once it was closed, he attended to the jewellery

section and again stole a quantity of gold and jewellery and made good his escape. On June 19th, 2011, the accused and a co-accused attended to the Sears store on McPhillips Avenue after store hours. They gained entry by smashing an exterior window. Once inside, the pair stole a quantity of jewellery but dropped it before escaping. Police seized a glove left behind by the accused and were eventually able to obtain a DNA sample which implicated Mr. Kovich. A warrant was issued for his arrest on December the 7th, 2011.

On May 12th, 2012, the accused was in the company of a co-accused when he committed a series of break-ins at the University of Winnipeg Duckworth Centre, located at 400 Spence Street. Entry was gained to the premises by forcing a door and through a door that had been left open by staff. Once inside, 10 offices were broken into, resulting in damage to each of the office doors. Five of the offices had items stolen such as cameras and computers. With respect to the other five offices, no items were taken. Upon leaving the building the pair were confronted by security.

After an exchange between the parties, the two accused sprayed the security guards with a fire extinguisher, allowing them to make good their escape. A DNA sample was taken from the blood on the fire extinguisher and that matched that of the accused. A warrant was ultimately obtained and executed on the accused who by that time was in custody for the earlier commercial break-ins. On June 2nd, 2012 the accused attended to a residence in Winnipeg, entering by an unlocked door and stealing a quantity of electronics and other personal items including the homeowner's personal identification.

He also located keys to the homeowner's vehicle which was also stolen. Forensic examination of the home identified the accused's fingerprints within the residence. The accused was arrested on June 20th, 2012 after which he made a video statement to the police. The admissibility of that video statement was in issue. Throughout the time that these offences were being committed, the accused was the subject of a probation order which was imposed on July the 4th, 2011, requiring the accused to report as directed to do so and I note that the accused was failing to report as required by his probation order.

Crown counsel filed as an exhibit in the sentencing several reports which set out a list of the items stolen. Defence counsel took issue with the value attached to each of the stolen items but not the list itself. For his part, the accused acknowledges that while he stole a vast quantity of items, he only received a fraction of their value when they were sold to fuel his drug habit. Suffice it to say that the actual loss occasioned by the commercial break-ins may be difficult to quantify, but it was very significant. I am also mindful of the fact that there was damage caused as a result of each of the break-ins.

Dealing now with the circumstances of the offender, I note that the accused is still a relatively young man and was 21 years of age at the time of his arrest, younger still when some of these offences were committed, and is now 23 years of age. He is an individual who presents with a very troubled personal and legal history. Among the aggravating facts in this case, which I will address later, I note that the accused has a significant criminal record which was filed as an exhibit. It is lengthy, it is related and it includes multiple break and enters and other charges.

As I noted earlier, he was on probation for much of the time that these offences were committed. The evidence about the background of the accused came from a variety of sources: the pre-sentence report with a Gladue component, letters filed by the accused, viva voce evidence called by the staff at the Headingley Correction Institute and from submissions from counsel. It appears that the accused's motivation for all of these offences was an addiction to OxyContin.

With respect to the earlier commercial break-ins, I note that the accused's position is that they were crimes of opportunity and that the process of remaining in the store until closing was something that he learned on TV. Dealing with some of the Gladue components that were outlined in the pre-sentence report, I am mindful of the fact that the Supreme Court of Canada, in R. v. Ipeelee , expressed the concern that courts were only paying lip service to the principles of sentencing set out in the Criminal Code

Section 718.2(e), particularly as it relates to aboriginal offenders. This concern was repeated by the Manitoba Court of Appeal in R. v. Gabriel , 2013 MBCA 45 . Bearing that in mind, it is important to review the background of the accused with specific attention to be paid to the so-called Gladue factors. The accused is described as Métis. His mother is described as an aboriginal non-status individual who herself had an extremely difficult upbringing while living with her own parents, that being the accused's grandparents. That upbringing was marked by sexual and other abuse. Things for his mother were somewhat better when she lived with her grandparents.

I am mindful of the fact and note that there is little direct evidence of cultural or traditional practices and neither is there direct evidence of residential school or other specific assimilation traumas. I do note, however, that there is an ongoing history of family dysfunction. The cycle of abuse appears to have continued for this accused at the hands of the accused's father, an individual who has an extensive criminal record for domestic violence and drug offences.

While it certainly does not excuse the accused's behaviour, it is perhaps not surprising that the accused has spent much of his youth either in and out of custody or in and out of various care placements. He describes a history of physical and sexual abuse, drug use, gang affiliation, although on a positive note I note that he is not a gang member, and he presents as an individual with little in the way of employment history or little in the way of pro-social community supports.

I am mindful of the fact that the accused has been suffering from a significant problem with drugs for a number of years and I am also mindful of the fact that these offences were motivated to feed a drug addiction. I note that the accused has started attending AA classes to attend to his addictions problem. I am concerned about the fact that while in the community he has demonstrated a history of compliance problems with court orders that have been in place to try and assist him to address some of his challenges.

I do note that he has demonstrated an interest in accessing programming while he is in the institution. His witness indicates that while it is always difficult to tell how an accused will behave while in the community, while in the institution he identified the accused as an individual who has made significant efforts to participate in programming, and when I use the term programming, I reference some of the more general meetings that are held while in the institution.

Considering the offences and the background of the accused, it is important to review the authorities when considering the appropriate sentence to be imposed. As I indicated earlier, Crown counsel suggests a global sentence of seven years. Crown counsel provided only one authority in support, the Bruce decision, 2008 MBPC 8 , a decision of my brother, Judge Preston. I am mindful of the fact that the Bruce decision did reference other cases.

I am also aware of the fact that Bruce is a case where a sentence of 66 months less credit for 11 months of time in custody was imposed for 17 counts of break and enter to commercial premises. Mr. Bruce was described by Judge Preston as having, and I quote, "master-minded 17 cleverly planned and expertly executed break-ins" resulting in the theft of "a staggering total of $214,000 cash", approximately $30,000 in cigarettes and liquor and $180,000 in damages. The crimes were described as “shockingly sophisticated” with the accused learning in advance how to disable alarm systems.

The offences were committed to fuel a drug habit and to purchase luxury goods. When caught, the accused made a full confession. Suffice to say, the facts in the Bruce case are significantly different than the facts presented in this case. Defence counsel provided four authorities: R. v.

Constant , a decision from the Manitoba Court of Appeal in which a total sentence of three years and three months was imposed for three counts of break and enters to a dwelling house on a 42-year-old offender with a lengthy criminal record who was described as a high risk to reoffend and was the subject of an unfavourable pre-sentence report. R. v. Matychuk , 2008 Carswell Saskatchewan 145. A 29-year-old offender was sentenced on appeal to 13 months less three months of time in custody for three commercial break-ins.

He was an offender with an extensive criminal record, a chemical dependency and was considered a high risk to reoffend. R. v. Powis , 2007 Carswell B.C. 483 . While serving a conditional sentence for three counts of break and enter, the accused broke into four further dwelling houses. On appeal, the 47-year-old drug addicted accused was sentenced to three years. And R. v. Supernault , 2004 Carswell Alberta 1895. A severely addicted accused committed eight break and enters. During two of those break-ins he committed an assault, possess illegal weapon and utter threats.

The sentencing judge disregarded a joint recommendation of two years and imposed a sentence of three and a half years. Counsel both agree that principles of denunciation and deterrence are of primary importance in this case. Defence counsel also submits, and I agree, that given the age of the accused and his background, rehabilitation does remain a sentencing factor that must be considered by the court. I am of the respectful view that the Crown's suggested sentence does not adequately take into account the principles of rehabilitation.

Having said that, it is important for the court to weigh the aggravating and mitigating factors in this case and in doing so, I note the following aggravating factors. The nature of the commercial offences and the amount of loss sustained is significant. Unlike the Bruce case, these offences cannot be classified as sophisticated but the retailers did sustain a significant loss as a result of each one of these incidents. Each of these break-ins, all of the commercial break-ins, and I include in this the University of Winnipeg break-ins, were committed over an extended period of time.

I recognize that the break-ins committed at the University of Winnipeg represent more of a spree as they all occurred on the same day, but when you couple those with the earlier break-ins, we are considering offences which occurred over a period of one and a half years. I am also concerned about the fact that the University of Winnipeg break-ins were coupled with some aggression to the security guards. By definition, a break-in to a dwelling house is serious.

I recognize that this offence was also not premeditated, but I am also concerned about the fact that the homeowners sustain significant loss, including the loss of their personal identification and that this offence was coupled with the theft of their motor vehicle, all of which must have resulted in significant upset and trauma for the family. A further aggravating factor is the lengthy record of the accused. I am aware that this is a record which occurred while the accused was both a youth and an adult.

I am also aware of the fact that the bulk of his break and enter convictions were committed while he was a youth. Having said that, the majority of his adult record is made up of drug and weapons convictions and by failing to comply with court orders, all of which is consistent with the offender's ongoing addictions issues. These offences were committed while the accused was on probation and that too is an aggravating factor.

I am also concerned about the fact that he was non-compliant with the probation order and was not taking advantage of the help that was put in place to try and assist him in keeping out of this type of behaviour. The pre-sentence report classified the offender as a high risk to reoffend and that was because of his limited social family support in the community and his limited job experience. In mitigation, I am mindful of the fact that the accused has entered guilty pleas. While a preliminary inquiry had commenced, a plea bargain was reached relatively early in the proceedings.

I note that there were pleas entered on charges for which there was significant evidence implicating the accused such as DNA and fingerprints. I am also aware of the fact that the accused was challenging the admissibility of the statement to the police and while the court was not asked to rule on the statement, it appears that there were some issues that would have merited the court's consideration.

As a result of the resolution of these charges by way of guilty pleas, court has been spared a significant amount of time and witnesses have been spared to come and testify and indeed I note that there was a significant amount of time actually set for the preliminary inquiry. In mitigation as well, I am aware of the fact that the accused is a relatively young man, 23 years of age at this time. He went into custody at the age of 21 and would have been even younger as I noted earlier when these offences began.

The offences were committed while the offender was "homeless" and all were crimes of opportunity which could not be classified as sophisticated. The accused called evidence about his behaviour while he has been in custody and while he has certainly not been perfect, he has been taking advantage of programming and has provided the court with a package of material in terms of the Bible study and other programming that he has been participating in. I am aware of the fact that the accused had a very difficult upbringing and that there are some Gladue factors which require the court's consideration.

Again, not the type of residential school or other sixties scoop factors that we see with some accused, but there has been a generalized dysfunction in his upbringing and a variety of abuses. Applying all of this to the sentencing principles as set out in the Criminal Code , I am going to go through the various offences and identify the amount of time that I feel is appropriate for each and then at the end what I intend on doing is going back and, as directed by the Court of Appeal, consider the Gladue and the principle of totality for a "last look" at the sentence.

So with respect to the four commercial break-ins, the appropriate disposition for each of those counts -- I will go through it with you, Madam Clerk, so you have it. The disposition will be one of six months and that should be consecutive. MR. KANTOR: Is that number 4 on the docket? THE COURT: I beg your pardon? MR. KANTOR: Is that number 4 on the docket? THE COURT: Yes. I can go through it on the -- let me go through it first in general terms and then we will affix it.

So the initial four commercial break-ins to the Zellers, the Safeway, beginning December 10th, 2010, there will be a disposition of -- that is the matter at number 4, yes. The sentence will be one of six months on each of those counts. With respect to the offences at number 5, the University of Winnipeg break-ins, there will be a disposition of eight months on each count. They will be concurrent but consecutive to the commercial break-ins. With respect to the housebreak, and that is the offence from June 2012, the disposition will be one of 18 months.

With respect to the related auto theft, the disposition will be one of one month. And with respect to the breach of probation, the failing to comply by failing to report, there will be a disposition of one month. That gives us a total sentence of 52 months. Now taking a “last look” and considering the principles of totality as I had mentioned earlier, I am inclined to reduce the University of Winnipeg break-ins from eight months to six months and I am inclined to make the auto theft and the breach charges concurrent. So there will still be a one month on each but they will be concurrent.

That gives us a total of 48 months. MR. KANTOR: I'm sorry, Your Honour, I'm lost. I'm just -- THE COURT: Well I am going to go through it at the end. MR. KANTOR: Oh, you'll go through it again, okay. All right. THE COURT: Because I still want to deal with the pre-sentence custody. MR. KANTOR: Of course. THE COURT: All right. And that will bring us to the total sentence. By my calculation the accused has a total of 19 months of time in custody. He has asked for an enhancement of the credit for the time that he has spent.

I am sorry, counsel, do you want to go through the calculation now before the pre-sentence custody? MR. KANTOR: I'll defer to the court. THE COURT: Are you following? Well you are new to the game, so.

MS. SOLDIER: Yes. I'm just marking it on my docket. I did miss a couple. THE COURT: I didn't have this particular docket in front of me -- MS. SOLDIER: Okay. THE COURT: -- when I was -- MS. SOLDIER: And I'll just check with Madam Clerk after, so. THE COURT: All right. MS. SOLDIER: She seems to be on top of it. THE COURT: All right. So then dealing with the issue of the pre-sentence custody, as I indicated he has 19 months of time in custody. He has asked for an enhancement for some of that time. He has, through his counsel, acknowledged that he is not entitled to he full 1.5 to one credit.

All counsel acknowledge that the court can provide any enhancement that is appropriate up to 1.5 to one. Crown counsel opposes any enhancement. He suggests rightly that first of all the onus is on the accused which is consistent with the Court of Appeal's decision in R. v. Stonefish . Crown counsel argues that the evidence does not support any enhancement of the credit. The accused called an employee from Headingley Correctional Institute, Mr. Sturby. He called him because that is where he has spent part of his pre-sentence custody time.

He has also filed a number of certificates and letters confirming his participation in Bible studies. The letter, which was filed as Exhibit 3, from Acting Assistant Superintendent Cooney, confirms both some positive aspects for the accused, some employment for some lengthy periods of time, as well as some disciplinary issues, particularly during the months of July, August and September of 2013. I have to consider the letter filed as Exhibit 3 in light of the evidence of Mr. Sturby who was not the accused's case worker. Mr. Kovich did not have a case worker because he is not a sentenced prisoner.

It is fairly clear from the evidence that an assessment of pre- sentence custody or as the witness described it, earned remission, occurs on an ongoing or monthly basis. The case worker assigned to a sentenced prisoner will meet with others who work with the prisoner and assess on a monthly basis whether or not the accused is entitled to any earned remission. Once that remission is earned, it is considered to be credited to the accused and is not lost by any future misconduct. According to Mr. Sturby, he was not aware of the accused's criminal record and for Mr.

Sturby, and for those individuals he personally has been a case worker for and assessed in the past, his view is that the criminal record really has little or any impact at all. The central focus, in terms of whether or not an accused earns any remission, is his institutional behaviour. Now I do not intend on commenting on the merits of the system that is in place at Headingley Correctional Institute, but it appears from the evidence of Mr.

Sturby that the accused would have been assessed on a monthly basis and it appears that he would have been entitled to some earned remission had he gone through a monthly assessment and had he been a sentenced prisoner. Defence counsel has approached the calculation in a couple of ways. He has suggested one of the approaches is credit for some months and no credit for others. I am mindful he has also suggested that the court could simply approach it by applying a 1.25 to one credit to the time that is spent in custody.

I have considered both of these approaches and I want to say that I am taking a blended approach for the following reasons. I am mindful of the fact that the accused has had some months where it appears that disciplinary issues may have impacted on his earned remission. He may not have received any. I am also mindful, however, that there have been some delays in the proceedings, which are certainly not the fault of the accused and in fact are otherwise unavoidable. Some of the delays relate to obtaining preliminary inquiry dates, particularly given the length of this case.

Some consideration has to be given to the amount of disclosure that would have been required. Although I must say I am mindful and concerned that an accused should not necessarily benefit because he is involved in a large number of offences. More significantly, I am concerned about some of the delay that might have been attributable to the arguing of the motion which at the end of the day was successful.

Some of the delays in terms of obtaining a pre-sentence report and Gladue report, although I have to credit counsel for ordering those in a timely fashion, and there were some delays in the actual sentencing hearing.

Unlike the monthly review of offender's institutional conduct which occurs when a sentenced prisoner is assessed for earned remission, calculation for enhanced credit for a pre-sentence custody is trickier because it is less detailed, there is less actual hands on and monthly review that would occur if he were a sentenced prisoner, but I am satisfied on the totality of the evidence that the accused would have been eligible for and would have been afforded some credit for his pre-sentence custody.

So looking at all of the factors, including his institutional behaviour, some of the challenges that he has had while in the institution, some of the disciplinary problems, some of the more positive behaviour in terms of his employment, some of the programming that he has been involved in, and some of the delays in terms of the proceedings in the case, I am satisfied that an appropriate calculation is 1.25 days to one. So applying that calculation to the 19 months that he has spent in custody, I come up with a total of 23.75 months.

If we look at the 48 months that has been imposed by the court in terms of the sentence, less 23.75 months, that gives us 24.25 months on a go forward basis. Given the nature of the problems that the accused has encountered in the past, given the motivation to become involved in some of these offences and the generalized recommendation in the pre-sentence report that probation is appropriate, I am going to round that down to 24 months because I want to place this offender on probation.

So at the end of the day he will be required to serve 24 months on a go forward basis and I am imposing three years of supervised probation. I consider this to be a significant sentence for a relatively young man. I recognize it is a penitentiary sentence. I think it adequately reflects the principles of denunciation and deterrence. It takes into account the sentencing principle of rehabilitation. It does,

to quote the Court of Appeal, give some light at the end of the tunnel for this offender. It also will require him to be the subject of a lengthy probation order where he will be supervised in the community. With respect to that probation order, the terms are that: He report immediately upon his release to his probation officer and thereafter as directed to do so by his probation officer. He attend for an addictions assessment as directed to do so by his probation officer.

He attend, participate and complete any counseling or programming as directed to do so by his probation officer, including, but not limited to, addictions counseling, anger management counseling or any other counseling or programming. He is to provide his address to Probation Services and he is to advise Probation Services of any change of address forthwith. I am ordering an abstention clause. I am doing that because he has been in custody for a long time.

He has been off the substances and I think that given the nature of these offences, it is critically important that he stay off of all drugs and alcohol while he is in the community. Do you understand? THE ACCUSED: Yeah. THE COURT: So he is not to possess or drink any alcohol. He is not to possess or use any illegal drugs. He is not to use any other substances that might make him intoxicated. Are there any other specific conditions that the Crown is seeking? There is a number of locations that he attended. MR.

KANTOR: Firstly, I didn't bring the pre-sentence report with me in terms of any -- were there recommended conditions on the probation order itself, or the pre-sentence report? THE COURT: Well it made a couple of recommendations. It made a recommendation for employment, schooling, things of that nature. It also made a recommendation for community service work, which given the nature of the sentence I have imposed, I am not inclined to. So I do not know if you are seeking -- MR. KANTOR: Did it specify anything in terms of non-attendance conditions to any of the -- THE COURT: No, nothing like that. MR. KANTOR: Yeah.

I think, quite frankly, some of them, the Sears I believe, they are no longer in -- I believe they're no longer around, the Sears stores. MS. SOLDIER: No, no, I think there's a Sears store -- MR. KANTOR: There is? MS. SOLDIER: -- at Kildonan Place. I think it's a Target -- MR. KANTOR: It's a Target? MS. SOLDIER: -- is the Zellers now. MR. KANTOR: Was Zellers, okay. THE COURT: Yes. I mean there's so many different stores that I don't want to ban him from going to all the stores. MR. KANTOR: Yeah, I'm not going -- THE COURT: I am prepared to say, first of all, he is not to attend the University of Winnipeg. MR.

KANTOR: Okay. THE COURT: I think that that makes a lot of sense. I think he is to either seek and maintain employment, participate in job training, or participate in some educational programming. I am going to waive the costs and the surcharge. MR. KANTOR: Yes. I didn't seek restitution given I was obviously aware that the court would likely be imposing some further jail. THE COURT: Yes. MR. KANTOR: So I'm not going to go there. I can't think of anything else in terms of -- THE COURT: What about -- I am going to order -- I know that there has been -- MR. KANTOR: A DNA order?

THE COURT: There has to be a DNA order with respect to the housebreak.

MR. KANTOR: For the housebreak, yes. THE COURT: Madam Clerk, that is a primary designate offence. Are you seeking any type -- I know there was some problems and concerns in terms of University of Winnipeg incident with the security guard. It wasn't technically a weapon but are you seeking a weapons prohibition? MR. KANTOR: No, I'm not going to seek a weapons prohibition, Your Honour. THE COURT: All right. MR. KANTOR: But I would like some clarification -- THE COURT: I do think we have to now go back and go through some of the -- MR. KANTOR: Okay.

THE COURT: I just want to make sure that the clerk has all of the information accurately recorded. So I am just going to walk through it in terms of the docket, Madam Clerk. At the end of the day, number 1, fail to comply, that is one month but that is going to be concurrent to the other charges. With respect to the, let me jump ahead for a moment, number 4, the housebreak -- THE CLERK: Yes, which count is that, Your Honour? THE COURT: That is 18 months -- THE CLERK: Which count is that? THE COURT: There will be one month with respect to the motor vehicle theft and that is going to be concurrent, all right? MR.

KANTOR: That's at number 4 on the docket, Madam Clerk, count -- MS. SOLDIER: Fourteen and 15 and 16. THE CLERK: I'm having a hard time finding the count -- THE COURT: That's count 14. It's number 4 but it is count 14 on the Information. THE CLERK: Okay. THE COURT: All right? THE CLERK: And that is 18 months. THE COURT: All right. Now let me just -- MR. KANTOR: And what was the theft of the vehicle, I'm sorry? THE COURT: -- help you -- THE CLERK: One month. MR. KANTOR: One month. THE COURT: -- with respect to the -- because I have the facts set out.

With respect to count 22, that is the break-in to the Zellers, that is six months and that is number 4, count 22. MR. KANTOR: And that's six months consecutive? THE COURT: That will be consecutive. MR. KANTOR: Okay. THE COURT: The count 18, still at number 4, Madam Clerk, that is the break-in June 9th, 2011, that is to the Sears store and that is going to be six months. MR. KANTOR: Concurrent? THE COURT: Right. MR. KANTOR: Concurrent or consecutive? THE COURT: No. The first four commercial break-ins, the Zellers, the Safeway, the Sears and the Sears, that is six months on each for a total of 24 months.

MR. KANTOR: Okay. THE COURT: All right. So I am finding those on the docket now for Madam Clerk. MR. KANTOR: Yes. THE COURT: The March 13th at number 2, count 1 at number 2, March 13th, 2011, that is the Safeway store and that is six months. June 19th at number 3, break-in, that is the break-in to the Sears on McPhillips and that is six months. So that gives us a total of 24. Twenty-four plus 18 is 42. Now we turn to the University of Winnipeg break-ins. There is six months on each count concurrent but consecutive to the other charges. So 42 plus six brings us to a total of 48. Everyone follow? You follow?

THE ACCUSED: Yes. THE COURT: Four years less -- you have got 19 months of dead time. I am giving you 1.25 to one for that. So that is almost 24 months, so I can calling it 24 months just because I want to reduce it down enough to put you on probation for three years. You understand? THE ACCUSED: Yeah. THE COURT: All right. _____