R. v. Tindale, 2019 ONCJ 968

CITATION: R. v. Tindale , 2019 ONCJ 968 DATE: April 26, 2019 Information No. 18-25202-02 18-36493-00 18-36622-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. CARTER TINDALE R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE G. WAKEFIELD on April 26, 2019 at OSHAWA, Ontario APPEARANCES : J. Kim Counsel for the Crown S. Samet Counsel for Carter Tindale Wakefield, J. (Orally): Thank you for those comments. In some respect, they are a little bit surprising, because you present as a remarkably well-spoken young man. So, I’m glad that you have that ability to communicate.

And, I’m also glad I got the Stirpe’s report that gives me, perhaps, a better insight into some of the challenges that you've had in your life so far and will continue to have. I also have to take into account that the victim here would be the very rare individual who is not going to be haunted by this experience for the rest of his life. This is why I wanted to see the video again, just to see the reaction of somebody who didn’t quite go into a fetal position, but was crouched down in absolute terror, and that is something that I rather suspect that individual will never forget for the rest of his life.

I also have to take into account that I am not just sentencing you for what you did; I have to sentence you as a message to the community at large, especially when it comes to how easily it is to target a convenience store owner or employee. That’s called general deterrence. But, that general deterrence is often referred to as something to try and stop people just like you, and people just like you have challenges in their lives that perhaps might not understand that message to the same degree. Parliament has certainly said that the firearm offence has a one-year minimum.

That’s my starting point and I have to go up from there. So, the question is, where do I go between 15 months and 18 months, in terms of totality? And, I’m not allowed to take into account that you get time off for good behaviour, but I suspect that many of the community might wonder why it would take this amount of time to go over a three-month, at the high end of the defence position, difference. And, the reason we do that, frankly, is that, one, the victim here deserves that I take this extremely seriously. The community needs to know that there are consequences.

What I have decided is that while the Crown has already taken a position that is remarkably less than what the average defendant in this court would receive by way of a sentence, I’m looking at the sort of vulnerabilities that you are going to have in the system as well. And, I will have some other questions for Ms. Samet about forewarning in a moment, but what I’ve done is come to the conclusion that it will be the one year on the firearm offence.

There will be a consecutive three months on the robbery offence, which I’m right on the verge of saying it almost makes the robbery offence inconsequential, given the impact it had on the victim. But, I also have to look at my concerns for your vulnerabilities in the prison system, and the risk you are going to be at, I suspect, in some populations there. I’m going to do a little bit, to balance the books so to speak, something different in terms of the probation issues. So, that would be a consecutive sentence on the robbery.

The breach, I take those facts as on the one hand, being contemptuous of court orders, and that requires a firm response by the courts. Everybody knows you have to obey terms. On the other hand, what you did was immature. It is consistent with some of the descriptors in the Stirpe and Stones report. You have no prior record. In those circumstances, I am going to suspend the passing of sentence on that. With respect to all matters, there will be a three-year probationary period, not two. And, I am doing that because I see a lot of work ahead of you that needs to be supervised by the community.

The terms of that - and there will be some things in here that I have not been discussed in the pretrial process and I am open for the submissions by the Crown or defence - but the terms are to keep the peace and be of good behaviour; appear before the court if required to do so; notify the court or probation officer in advance of any change in name or address; and promptly notify the court or probation officer of any change of employment or occupation.

You are to report in person to a probation officer within two working days of your release from custody, and after that, at all times and places as directed by the probation officer, any person authorized by the probation officer to assist in your supervision. You will live at a place approved by the probation officer and not change that address without obtaining the consent of the probation officer in advance. We did not discuss a curfew during the pretrial process. This offence occurred, I believe, at 5:00 in the morning.

Is there any objection to a curfew of 11:00 p.m. to 7:00 a.m., subject to the probation officer’s ability to grant some flexibility of that for work purposes? MR. KIM: 11:00 - sorry? THE COURT: 11:00 p.m. to 7:00 a.m. MR. KIM: For three years? THE COURT: Not for the three years, no. MS. SAMET: Your Honour, I have a - the only reason I say this is because Mr. Tindale is now an adult. Although I think I understand Your Honour’s decision on that, and your suggestion on that this offence occurred at 5:00 a.m., Mr. Tindale would like to become employed in the future where he will work nights.

I’m sure that could be accommodated through any probation officer. I would think that this significant jail sentence would be of such deterrence for Mr. Tindale that a curfew would not be necessary in those circumstances. So, just given his own limitations and curfew breach, it would probably be problematic for Mr. Tindale. THE COURT: I hope not, but I had some concerns along the same lines, especially given the breach that he also plead guilty to, in terms of his ability to realize the consequences of his action.

And, again, I am not blind to the fact that anybody with the challenges that Mr. Tindale has will include a greater degree of difficulty in appreciating or foreseeing the consequences of his actions. It’s part of the ADHD diagnosis of what he has to do. On the other hand, I see a family here who are remarkably supportive. I would go so far as to perhaps say protective of him, and hopefully will remind him continuously of this.

So, the first 12 months of the order, you will remain in a residence or on the property of the residence at all times daily between the hours of 11:00 p.m. and 7:00 a.m., except for any medical emergencies involving you, or any member of your immediate family, or your - you don’t have a spouse, so any member of your immediate family. And, you must provide written justification to the probation officer within 72 hours of any such absence during your curfew hours.

Except for any hospital visit or funeral attendance, you must provide written justification to the probation office prior to any absence during your curfew hours. And, just to ensure that it doesn’t become a barrier to employment, except for travelling to, from, or while at work or school. And, finally, with the required written permission of your probation officer. So, for example, there may be other things that happen in his life, there may be some social issues, social entertainments that would take him past that, and that probation has the flexibility to grant that if it’s justified.

You will not associate or communicate, in any way, by physical, electronic, or other means, or in the company of Toufiq Vorani or Keano Aguiar. With respect to Mr. Vorani, there are no exceptions whatsoever with respect to that non-association, unless the Crown has an interest in the non-association, and I will have except for court appearances, in a moment, and with respect to Mr. Aguiar, again, except for court appearances, and communication through counsel.

You will not be within 100 metres of any place you know any of the persons named above to live or go to school, frequent, or any place you know the person will be, except for required court attendances. MR. KIM: Sorry, Your Honour, the court appearances exception is required for the stay away condition, but I wonder whether it’s really necessary for the non-association communication. Perhaps... THE COURT: You’re talking about the victim, as opposed to the co-accused? MR. KIM: For either, I think. THE COURT: Other than some people take the view that communication through counsel might otherwise be a breach. MR.

KIM: So, with that exception, communications through counsel, I agree that should go in there, but I don’t know that at required court attendance he needs to associate or communicate with either the victim or the co-accused. THE COURT: I’m just thinking, how do they stay 100 metres apart in a court hallway? MR. KIM: So, there should be an exception in that way, that the 100 metres apart there should be an exception, except at a required court attendance. But, on the association and communication part of it.... THE COURT: I see what you mean. All right.

And, that should only apply, I agree, the exception, to the radius, not to the non- association. MR. KIM: Yes. Thank you. THE COURT: With respect to the victim. With respect to the co-defendant, I think that has to be in there, except through lawyers, because that’s the association issue. MR. KIM: I agree. Yes. THE COURT: Paragraph 9, do not possess any weapons as defined by the Criminal Code .

I use the words “including” instead of “for example”, BB guns, pellet guns, firearm, imitation firearm, crossbow, prohibited or restricted weapon, ammunition, explosive substance, or anything designed for use or intended for use to cause death or injury, or to threaten or to intimidate any person. I was tempted to put in a prohibition against certain substances, but my fear is, again, it’s a tough road for anybody who is involved with that.

I’m not going to put that in here, although, obviously, if it’s a restricted drug under the Controlled Drug and Substances Act , that would still be a criminal offence, which would still be a breach of the good behaviour, keep the peace terms, which I hope Mr. Tindale understands. Paragraph 11, you will attend and actively participate in all assessment counselling or rehabilitative programs directed by the probation

officer, complete them to the satisfaction of the probation officer, including but not limited to substance abuse, psychiatric or psychological issues, stress management, life skills, and under “other”, any counselling that will assist in rehabilitation. And, I am directing that a copy of the Stirpe and Stones report, be attached to the probation order for the benefit of the probation officer in that regard. You shall sign any release of information forms as will enable your probation officer to monitor your attendance or completion of any assessments, counselling, or rehabilitative programs, as directed.

Again, I have imposed a term of imprisonment that is less than that, that is being requested by the Crown in circumstances where I think the Crown has been most responsible in taking into account all the issues that are faced here, but as well, the public interest in a sentence that is meaningful and is a message to the community. To help balance that gap, what I am going to do is this. Paragraph 12, you will perform 100 hours of community service work on a rate and

schedule to be directed by the probation officer but must be completed with 18 months of the start day of this order. And, as the incentive to get involved with the counselling, each hour of counselling satisfactory to the probation officer will count towards an hour of community service work. Paragraph 14, you will make reasonable efforts to seek and maintain suitable work and provide proof of same, as required by the probation officer. And, if necessary, attend school or an educational training program approved by a probation officer, and provide proof as required by a probation officer.

You say you want to get back on track, again, this is the ability of the probation officer not just to supervise you, but hopefully to motivate you to get involved with those things. I can tell, just from your family, that they want the same thing for you. We did not talk about whether there is any restitution necessary here at the pretrial. Is that an issue? MR. KIM: Not requesting it, Your Honour. Thank you. THE COURT: And, finally, under “in addition”, you will remain off the property of the Petro-Canada gas station, located at 1653 Taunton Road, I believe that would be within the City of Whitby. MR.

KIM: Clarington. THE COURT: Clarington. Thank you. MR. KIM: Sorry, and did Your Honour say - actually it’s Petro-Canada/Circle K. I supposed that covers it. THE COURT: Right. Petro-Canada/Circle K? MR. KIM: Yes. THE COURT: All right. Were there any other terms of probation the Crown was seeking, and are there any concerns about the terms of probation for either Crown or defence? MR. KIM: No. Thank you, Your Honour. MS. SAMET: Remain off the property? THE COURT: Yes. In other words, I appreciate Taunton Road is a major thoroughfare, and to do otherwise would create some issues there as well. MS.

SAMET: Thank you, sir. THE COURT: I believe the breach of recognizance is also a DNA-able offence now? MR. KIM: That’s correct, Your Honour, secondary. THE COURT: So, with respect to the primary ones, there will be an order of DNA. With respect to the breach of recognizance, again, somewhat moot, but given that there is no prior record, but the circumstances of these offences, the minimal impact on the personal integrity of Mr. Tindale, I am satisfied that it is in the best interest and administration of justice to make the order, and that DNA will apply to the breach of recognizance as well.

CLERK REGISTRAR: And, Your Honour, sorry, is the robbery and the firearm charge both primary, or is it just the robbery? MR. KIM: Court’s indulgence. THE COURT: I think everybody is double-checking that. I thought the imitation firearm was primary, but I could be about to be corrected on that. MR. KIM: So, that is a secondary designated offence.

THE COURT: And, again, for the same reasons as I expressed on the recognizance, that would apply to the imitation firearm. Thank you for checking into that. With respect to

Section 109, you are prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, explosive substance for a period beginning today and ending ten years from your release from imprisonment. And, you are further prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. There will be an order, pursuant to

Section 743.21 that you not have any communication whatsoever with either Mr. Toufiq Vorani or with Keano Aguiar. And, with respect to the warrant of committal, one, the wording will be a little bit different. I am recommending that the sentence be served at the Ontario Correctional Institute. But, add to that, would urge the reviewing authority to give this matter every consideration, given the vulnerabilities of Mr. Tindale. Secondly, I don’t know if the paperwork has already been flagged, but I am concerned about the prior suicidal attempts.

This is a matter which there should be appended a warning to the paperwork going to the jail. MS. SAMET: He can be identified as a vulnerable inmate, Your Honour. I think that’s a colour-coded thing that can be attached to the warrant of committal. THE COURT: And, that will be done, Madam Clerk. CLERK REGISTRAR: Thank you. THE COURT: Is there any aspect of sentencing that I have missed from either counsel’s perspective? MR. KIM: I don’t think so, Your Honour. And, I can just indicate, while I’m on my feet, we will withdraw the other charges that are still outstanding.

THE COURT: So noted, at the request of the Crown. Address upon his release, would he be back with the family, and if so, is that the same address on the information? MS. SAMET: Correct. THE COURT: All right, Mr. Tindale, you've got a tough road in front of you, but there is a light at the end of the tunnel, and the brightest of those lights is actually the three people seated behind you. Get through this. I hope that what you've told me is exactly what you mean, that this is something that you don’t want to ever happen again, and just keep that in mind.

Get through the next few months, and hopefully at OCI, you will be given some further techniques and tools to use to ensure you don’t make bad decisions again. Good luck. Thank you. ...MATTER CONCLUDED