R. v. Pearsall, 2011 ONCJ 374

Information No. 4611-998-111222 Citation: R. v. Pearsall , 2011 ONCJ 374 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JOSHUA DAVID PEARSALL ********** P R O C E E D I N G S BEFORE THE HONOURABLE JUSTICE N.S. DOUGLAS on July 6, 2011 at GUELPH, Ontario **********

APPEARANCES : J. MacDonald Counsel for the Crown R. Hintsa Duty Counsel for J. Pearsall ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Proceedings Page 1

Transcript Ordered: July 6, 2011 Transcript Completed: July 10, 2011 Ordering Party Notified: July 11, 2011 WEDNESDAY, JULY 6, 2011 MS. MACDONALD: If we can deal with Mr. Pearsall please. We don’t have any security though. COURTROOM CLERK: I have called and let them know that we need Mr. Pearsall. MS. MACDONALD: Thanks. THE COURT: Is this for plea, Ms. Hintsa? MS. HINTSA: It is. THE COURT: To the charge robbery? MS. HINTSA: Yes. MS. MACDONALD: Yes. MS. HINTSA: And this is Mr. Pearsall coming before the court, Your Honour. Assisting as duty counsel.

There is a one-count information and he does intend to plead guilty to that single count. THE COURT: All right. Mr. Pearsall, this is a serious charge, robbery. You understand that, right? MR. JOSHUA PEARSALL: Yes, Your Honour. THE COURT: And whatever the lawyers say to me I will take into account but there is, as far as I know – is there a joint submission here or not? MS. MACDONALD: There is not. The Crown is going to be seeking a pre-sentence report. THE COURT: So you are aware of all that, Mr. Pearsall?

MR. JOSHUA PEARSALL: Yes, Your Honour. THE COURT: Okay. Do you waive the reading of the election? MS. HINTSA: I do. THE COURT: And elect trial by me today? MS. HINTSA: Yes. THE COURT: That means you have the option to have a trial in a higher court, or a plea in a higher court, but you want to deal with this today? MR. JOSHUA PEARSALL: Yes, Your Honour. THE COURT: Okay. Arraign Mr. Pearsall on the robbery charge please. COURTROOM CLERK: Information 11 1222. Joshua David Pearsall you stand charged on or about the 30 th day of June in the year 2011 at the City of Guelph in the Central West Region, did rob Mary Ann Colangelo of prescription Oxycontin pills, contrary to s.344(1) (

b) of the Criminal Code of Canada . How do you plead, guilty or not guilty? MR. JOSHUA PEARSALL: Guilty. THE COURT: Just have a seat then, Mr. Pearsall please. MR. JOSHUA PEARSALL: Yes, Your Honour. MS. MACDONALD: Yes. On July the 1 st of 2011 at 8:25 p.m. police received information that the accused Joshua Pearsall was currently at his parent’s residence located at – oh, excuse me, I’m reading the arrest synopsis. Sorry about that, Your Honour. On June 30 th , 2011 at 5:10 p.m. the accused attended to the front of 217 Dufferin Street in Guelph .

He had attended over to that address which is the residence of Mary Colangelo. Ms. Colangelo had known Mr. Pearsall for approximately three weeks and this was only the second time she had met him. He came over today and her husband was not at home at the house. Shortly after arrival he engaged in conversation with Mary Colangelo and another witness that was there, Diane Ouellette. Mary returned inside of her residence after having the conversation outside of the residence in order to take her prescription for Oxycontin which she has medically prescribed.

The accused followed Mary inside 217 Dufferin Street and grabbed a bottle of her medication containing 14 80 milligram pills of Oxycontin tablets off the table in the living room. The accused then made his way back to the front of the residence. When Mary tried to stop him he placed his right hand on her left shoulder and pushed her out of the way. The accused then swung the open front door with such force that a small pane of glass broke as it struck an object sitting behind it.

The broken glass caused Mary Colangelo to suffer a small cut to her right leg as she brushed past the door in order to try to catch the accused as he was fleeing the scene. The accused got into an awaiting vehicle and left the scene with the bottle of Oxycontin. The accused was subsequently arrested on July the 1 st , 2011 at 8:25 p.m. at a residence in the City of Guelph , at 62 Darby Road . He was hiding behind a basement furnace. His family let him into the residence and then they located the accused hiding. He was subsequently arrested for robbery. THE COURT: Where did she receive the cut? MS.

MACDONALD: To her leg. THE COURT: Did it require any medical attention? MS. MACDONALD: It doesn’t appear so. THE COURT: Are those facts admitted, Ms. Hintsa? MS. HINTSA: Substantially correct, is that not true sir? The facts are substantially true? MR. JOSHUA PEARSALL: Um, well … THE COURT: Stand up Mr. Pearsall please. MR. JOSHUA PEARSALL: Sorry, Your Honour. THE COURT: Yes, you get a chance to say something. MR. JOSHUA PEARSALL: She actually was my Oxycontin dealer for the last couple of months and her and her husband have, their doctor is cutting them off for selling them.

They both been convicted of selling them. There has been messages at my house calling 265-

0508 at my parent’s house. They call me to come and pick up the script all the time. I didn’t, like what happened was she wanted to sell them to me. I grabbed, I took the bottle. I gave her the money and then I walked out the door and then that was it and there was no problem. Then the next day my mom told me that the cops came to the house and I was really, really messed up at the time. This is the first time I’ve been clean in a long time. The reason I was hiding is I didn’t want to go to jail sick because I was going to be.

Now that I’ve been clean for the last, I know that it’s not a long time, like seven days. I know right now I’m not ready to be on the street and I just know that I need to get to rehab. Rehab or jail is the best place for me right now and I really just want to address this and just get myself better so I can move on in my life sir. THE COURT: Mr. Pearsall, listen to me very carefully. Based on the story that you tell me, you should not be pleading guilty to robbery. You’re going to have a robbery conviction on your record which is one of the most serious charges in the Criminal Code .

You can get life imprisonment for robbery. It may not mean much to you now. All you’re thinking of is short term, that you want a place to dry out and get your head together but you’re going to have a robbery conviction on your record for the rest of your life. I don’t know if you have a criminal record but, you know, people don’t normally just come in from bail court and plead guilty to robbery. This is a case where if the facts as read in by the Crown are true it’s technically a robbery but it’s really not that serious a robbery, okay, as far as robberies go.

Probably if you had hired a lawyer and the lawyer had talked to the Crown, and I’m sure the duty counsel has tried to do that, but because you want to get this thing rushed I’m not sure this is what you want to do. I’m not being critical of anybody here but you might want to think about this a little bit. You might want to get a lawyer for this and try to talk to the Crown about maybe a lesser charge or something.

If you end up pleading guilty – first of all, I can’t accept your plea anyway because based on what you tell me this was a dealer that you bought Oxycontin from and you didn’t strike her or cause her any harm, is that what you’re saying? MR. JOSHUA PEARSALL: No. No, Your Honour, I didn’t. THE COURT: Then why are you pleading guilty to robbery? MR. JOSHUA PEARSALL: Because I’m not ready to, well I have nowhere to go. My parents won’t let me go until I complete a rehab program. I really, I don’t even really want to be on the streets right now. I want to just get, like this is the best place for me right now.

THE COURT: Okay. All right. I’m not going to let you out on the streets. Has he got a record, Ms. MacDonald? MS. MACDONALD: He does. One prior conviction for assault cause bodily harm. THE COURT: What I want is a transcript of this whole thing and I want you to think about getting a lawyer for this very serious charge. I’m going to strike the plea because based on what you tell me I can’t accept the plea anyway. MR. JOSHUA PEARSALL: If I just – sorry, I didn’t mean to interrupt Your Honour. I apologize. THE COURT: Listen, I’m trying to help you here so talk to me. I don’t mind you talking to me.

We’ve got all day. MR. JOSHUA PEARSALL: I kind of just don’t really – I just really, I really want to get this done with today sir. Like I don’t know. I just really want to get it done with today. I get very anxious. I just want to get on with my life. I want to start building my life back up and get back to the person I used to be because I’m just a shadow of what I am. I understand what they’re saying about the robbery is a serious charge. I understand. I just believe that God has a plan for me and I believe that this is, I want to take care of this and I want to just move on with my life sir.

I just know this is the best thing truly from the bottom of my heart. THE COURT: I believe you. I believe you. Now I have a job to do. I have a sworn duty, oath, to do my job. I cannot convict somebody of a crime that they didn’t commit just because they think it would be better for them if they went to jail. Do you understand that? MR. JOSHUA PEARSALL: I understand. THE COURT: I would be breaching my oath if I … MR. JOSHUA PEARSALL: I know. I understand what you’re saying, Your Honour. THE COURT: So if what you tell me is what happened, and I don’t know what happened. Ms. MacDonald doesn’t know what happened.

Ms. Hintsa doesn’t know what happened. We weren’t there. MR. JOSHUA PEARSALL: I understand, Your Honour. THE COURT: All we have is the lady’s word of what happened and you tell a completely different story. So I cannot accept your plea of guilty or I would be breaching my oath. Do you understand that? MR. JOSHUA PEARSALL: Yes, Your Honour. THE COURT: Also, listen to me when I tell you it’s in your best interest not to plead to this serious charge of robbery today based on what I know. You need some advice from a lawyer who can get the file and take some time with it. Ms. Hintsa is a busy duty counsel today.

She’s very good. She’s a good criminal lawyer and I respect her view. I know she wouldn’t do this if she didn’t think that you were technically guilty of robbery but I’m sure she believes it’s a technical guilt of robbery and not, you know, robbing a bank at gunpoint with a mask. That’s robbery too. MR. JOSHUA PEARSALL: Yes, Your Honour. THE COURT: And so a judge in the future looking at your recording and seeing a robbery on it, he doesn’t know that it’s buying some drugs from a dealer and you didn’t even touch her. He’s going to think you’re a dangerous man, or she. Am I making any sense to you? MR.

JOSHUA PEARSALL: You are, Your Honour. You make tons of sense but I just – I don’t like to – it’s not that I don’t like you.

It’s not that I don’t like the courts, I just don’t like coming to the court. I just want to start, I’d just rather get it done with today. I just want to plead … THE COURT: You know what, a lot of people like you are in the trouble that they’re in because they are short term thinkers. They don’t think long term. You don’t even want to think two weeks down the road. I’m telling you what I’m going to do, and I’ve tried to explain it to you so you would understand it. I am going to strike this plea. Has he had his bail hearing? MS. HINTSA: As far as I know … MS. MACDONALD: No. MS. HINTSA: No, Your Honour.

And if I could just add something into the fray. THE COURT: Sure. MS. HINTSA: A certain amount of – certain things have come up during the course of this proceeding that were news to me and certainly in respect of some of the things that this gentleman has said … THE COURT: I’m sure of that. MS. HINTSA: … on the record. However, I did not have a fulsome opportunity to speak to my friend. I was unaware of the fact that a pre-sentence report was going to be requested by my friend. This gentleman has an interesting enough background that that would be reasonable actually from a sentencing perspective.

That certainly changes the fray even in terms of this gentleman’s time lines for resolving this thing. I think that what I would suggest is that I have another quick opportunity to speak to him and that we discuss next steps and recommendations along the lines of what Your Honour has recommended. There hasn’t been a bail hearing but I don’t believe there is a bail plan. MR. JOSHUA PEARSALL: My parents won’t be my surety unless I – sorry … THE COURT: No, no. Go ahead. MR. JOSHUA PEARSALL: My parents won’t be my surety unless I finish a rehab program. I don’t even want to go because I’m not ready to go home yet.

I know that. I’m not ready to go. I just want to learn how to live life again. I just want to get back to how I used to be. THE COURT: Are you confident with Ms. Hintsa? MR. JOSHUA PEARSALL: Yeah. I get along with her. She’s awesome. THE COURT: What about if I appoint her as your lawyer so she’s not duty counsel and that will give her some payment that she can spend some time with you. She has heard everything that’s gone on here today and maybe she can make some other suggestions. What I can do is I can appoint her as your counsel. I have the power to do that I think, I’m going to do it anyway.

You spend some time with her today … MR. JOSHUA PEARSALL: Okay. THE COURT: … and what I’ll do is I will remand you in custody for your bail hearing. You will go back down there. You can adjourn your bail hearing if you want and I’m going to bring you back here in front of me next week. MR. JOSHUA PEARSALL: Okay. THE COURT: Ms. Hintsa will have talked to you. She will be retained. She will have had a chance to talk to the Crown. Maybe the Crown will accept a plea to theft, who knows, once they figure out what really happened here.

The Crown hasn’t had an opportunity to – you’ve probably just seen this brief today, have you Ms. MacDonald? MS. MACDONALD: Yes. It came up from the bail court, Your Honour. THE COURT: Yes. I mean everybody is in a rush here and so much is at stake for you that you would be nuts to plead guilty to robbery today. MR. JOSHUA PEARSALL: Okay, Your Honour. I appreciate you taking the time to explain this to me too. This is the first time I’ve been thinking clear in a couple, like I … THE COURT: You know what? You may be guilty of robbery, I don’t know.

I don’t know what the facts were but the facts need to be fleshed out, that’s for sure. Ms. Hintsa, would you take an appointment from me? MS. HINTSA: I will. MS. MACDONALD: Your Honour, I’m not sure, the Crown can’t consent to that but I think the Attorney General ends up paying for it if the court does that without a Rowbotham Application. I’m not sure the court can do that. THE COURT: Well, I’ll tell you what. I know you’re saying that because the Attorney General pays for it but on the merits of the thing don’t you think he needs a lawyer? MS.

MACDONALD: Yes, but he certainly can apply for duty counsel, or for Legal Aid, and I’m sure he’s eligible for Legal Aid given –

I’m sure he’s eligible for Legal Aid. THE COURT: I know, and of course he can. You’re right. Who pays for that? Doesn’t the Attorney General pay for that? MS. MACDONALD: But it comes from the Legal Aid Plan as opposed to from a Rowbotham Application which is not before the court. THE COURT: Well, all I’m trying to do is this guy is in custody and … MS. MACDONALD: I appreciate that. THE COURT: … it’s not the most serious robbery charge in the world. MS. MACDONALD: We have a duty counsel representative in – sorry, a Legal Aid representative in the court. I’m sure that Ms.

Hintsa can facilitate the … THE COURT: Who is that, Ms. Renfrew? MS. MACDONALD: No. There’s a lady that works in the courthouse that can facilitate the application. MS. HINTSA: She won’t. She will not. We’ve been told repeatedly that they will not see in custody individuals at the office here in the courthouse. I’m content to give him my card, Your Honour, and given your comments I don’t think there’s a conflict with my role as a duty counsel. I can give him my card and have him make an application through Maplehurst. THE COURT: Does that suit you then? MS. MACDONALD: Yes.

THE COURT: I don’t want him, you know, waiting in custody while a Rowbotham Application is proceeded with. I just think that if you would do that you will get Legal Aid and Ms. Hintsa is willing to act for you and will hopefully by next week have this thing under wraps so that everybody can do what they need to do and do it right. MR. JOSHUA PEARSALL: Thank you, Your Honour. I really appreciate you explaining everything to me, honestly. MS. HINTSA: Your Honour, now in terms of scheduling I can indicate that I actually have resolution meetings scheduled with my friend’s office for next Tuesday.

I can easily add this matter onto that list so I’m wondering if we can bring him back sometime after that. THE COURT: Am I here next Wednesday? COURTROOM CLERK: Yes. THE COURT: Okay. That’s what I’m going to do. I will remand him in custody. He’ll go back to bail court I guess for his bail hearing. He can waive his bail hearing, he can adjourn his bail hearing, whatever he wants to do but I want him in front of me next Wednesday at 9:30 in this courtroom and hopefully Ms. Hintsa you’ll be on board by then.

You’ll have had an opportunity to speak to a Crown who has had more than five minutes to look at the file as Ms. MacDonald has today. Maybe we can get some justice done here. MS. MACDONALD: Your Honour, is the plea to be struck given his comments? THE COURT: Yes. The plea is struck. He will go back to bail court and he will be in front of me next Wednesday at 9:30. MS. HINTSA: So we’re sending him back to bail court today? MS. MACDONALD: Yes. THE COURT: Yes. MS. HINTSA: Okay. I get that. THE COURT: Thank you, and I would like a transcript of everything that was said, a copy for Ms.

Hintsa, a copy for the Crown, and I want one. MS. HINTSA: Thank you, Your Honour. ********** FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act

I, D. Black, certify that this document is a true and accurate transcript of the recording of R. v. Joshua David Pearsall in the Ontario Court of Justice held at 36 Wyndham Street South , Guelph, Ontario taken from Recording No. 4611-36-CR2-20110706-090657, which has been certified in Form 1. July 10, 2011 D. Black (Original signed in ink) Date Certified Court Reporter