R. v. Tough, 2019 ONCJ 760

CITATION: R. v. Tough , 2019 ONCJ 760 DATE: October 1, 2019 DC-18-00002407-0000 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. NATHAN TOUGH ********** R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE MR. JUSTICE G. R. WAKEFIELD On October 1st, 2019, at OSHAWA, Ontario Courtroom 409 ********** APPEARANCES L. Crawford, Ms. Counsel for the Crown R. Chartier, Esq. Counsel for the Defence Wakefield, J.: (Orally) Well, I would like you not to do anymore crime, not to do any more time and that is why I really like the recommendation for either OCI or St. Lawrence.

You have got challenges in terms of how you make decisions and you have frankly, when you add those challenges because of the neurological challenges you have, to the reality of how drugs and alcohol impact your ability to make decisions and good choices, you are just going to trip into trouble all over again if you are not careful. Hopefully, you will develop the tools you need to stop this revolving door of coming back into the court system through an extended period at one of the more appropriate jails that try to help people with similar sort of challenges.

But you have to understand that you are right on the edge of going to the penitentiary with these sorts of charges. Your last entry, I think, was for the equivalent of about nine months, maybe ten months and it is appropriate that there is a substantial increase from that point. Next time around, if you make the same choices I suspect the Crown will not be saying two years, they will be saying three years or four years and then you are in the penitentiary system. I do not want to see that for you. I really hope you are going to work hard if you get into OCI or St.

Lawrence and to continue to work hard with your people down at -- which hospital is that? It was not St. Mike’s. MR. CHARTIER: Toronto Western. THE COURT: Toronto Western. You have got to listen to those people, support group. You are lucky in many ways that not all the people that come here have, you have a supportive family. And I hope you understand how -- how good that is to have somebody who cares enough to come to a place like this when you are in a courtroom. THE ACCUSED: Yeah, I know, I understand that.

THE COURT: So today you have a 123 days pre-sentence custody for the equivalent of 185 days or roughly six months. I am going to impose a further sentence of 12 months on top of that pre-sentence custody for a sentence that would have been 18 months.

I do that knowing that on the one hand there has to be a strong message sent out to the community in terms of the robbery of convenience stores, but on the other hand, as a measured increase in the length of the sentence and a sentence that hopefully will get you into one of those institutions and I am indeed making a strong recommendation that you be considered for either OCI or St. Lawrence and as soon as possible.

Now I appreciate that it takes time for that request to be processed, I realize I cannot make an order for it, though I would if I could, but that the sooner you get into one of those facilities the sooner you get down to work and hopefully develop the skills you need not to come back here. THE ACCUSED: I understand that. THE COURT: That will be followed by a three year probationary term. The terms are that you will keep the peace and be of good behaviour. Report to court when required to do so.

You will notify the court or the probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change or employment or occupation. I know you have heard this over and over again, before, but you have to focus on this, okay? As well, you will report in person to a probation officer within two working days of your release from custody and after that, all times and places directed by the probation officer, or any person authorized by a probation office to assist in your supervision.

You will not associate or communicate in anyway by physical, electronic or other means or be in the company of; Parth Sukhadiya or Michael Spencer. There are no exceptions to that. There it is. And not to be within 100 metres of any place where you know any of those persons named above, to live, work, go to school, frequent or any place you know the person to be except for required court attendances. It would appear that the victim is still working at the same location. Is the 100 metres going to be an issue in terms of (indiscernible) Marslin (ph)? MR.

CHARTIER: I don’t believe so but let me just confirm if I may? TRANSCRIPTIONIST NOTE: Discussion off the record. MR. CHARTIER: That won’t be a problem, Your Honour. THE COURT: And then additionally, there will be a term that you will remain 100 metres then away from the Marland Convenience Store located at 282 Marland Avenue, in the city of Oshawa.

Paragraph nine, you will not possess any weapons defined by the Criminal Code including BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon, ammunition, explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person, and specifically, you will not possess any knives outside of your place of residence, except for the preparation and consumption of meals, or for the purposes of employment. So you can’t walk around with a knife anymore, do you understand that? THE ACCUSED: Yes. THE COURT: Good.

THE ACCUSED: I understand that. THE COURT: You will attend and actively participate in all assessment, counseling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer. I will check off substance abuse, so included but not limited, substance abuse, psychiatric or phycological issues, and under other, any other counseling to assist in rehabilitation.

You will sign any release of information forms as needed, and your probation officer will monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. You will make restitution of $600. Now does it go to the gentleman or to the store? I am not sure if he is an employee or not. MS. CRAWFORD: The store, the convenience store. THE COURT: To the Marland Convenience Store to be paid in full, one month prior to the completion of the probation order in installments of not less than $20 per month.

You are going to have to change the wording there, as well, commencing two months after release from a prison, because it make take some time to get back into the ODSP payment scheduled if those are stopped while he’s in custody. The Crown content with a the payment schedule? MS. FINEBERG: Absolutely. The name of the store is Marland Super Variety, just going off the pictures here. THE COURT: Thank you. Marland Super Variety then. It may even have a different corporate name but hopefully that will get the restitution to the right people. I think that covers off all the terms of probation. MR. CHARTIER: Yes, sir.

THE COURT: Any breach -- you know this. If you break the probation, the rules, it is a new charge and with your record you will probably go back to jail. You do not want that.

THE ACCUSED: Yes, I don’t what that. THE COURT: Good. Additionally, given the prior record, the circumstances of this offence, the minimal impact on you physically, I am content that it is in the best interest of the administration of justice to make the order. You will provide a sample of your DNA if the officers want it. They may not, that is fine, but if they do you have to cooperate with them, all right. Also there will be the

section 490 order as requested for items seized. And finally, pursuant to

section 109, you are prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, explosive substance for a period beginning today. It is a lifetime ban, commencing after release from imprisonment. And you are further prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition, for life. Does that cover off everything? MS. CRAWFORD: Yes, Your Honour, thank you. MR. CHARTIER: Yes, thank you. THE COURT: Good luck, sir. Don’t want to see you back here.