R. v. Chaves, 2018 ONCJ 1014

CITATION: R. v. Chaves , 2018 ONCJ 1014 DATE: January 5, 2018 Information No. 2811-998-17-21847-00 2811-998-17-22112-00 2811-998-17-27083-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JOSEPH CHAVES P R O C E E D I N G S A T P L E A A N D S E N T E N C E BEFORE THE HONOURABLE JUSTICE G. R. WAKEFIELD on January 5, 2018 at 150 BOND ST. E., OSHAWA, Ontario APPEARANCES : M. Gillen Counsel for the Crown M. Hickey Counsel for Joseph Chaves FRIDAY, JANUARY 5, 2018 R E A S O N S F O R S E N T N E C E WAKEFIELD, G. R. (Orally):

All right. And again, the Supreme Court of Canada has directed that I give serious weight to joint submissions. In the circumstances here, the record might suggest it’s a somewhat light sentence, but the circumstances of it being joint, and frankly I agree with Mr. Hickey that, in light of the anticipated impact on the Family Court proceedings, taking responsibility today is an expression of very real remorse and responsibility, so I accept that. Let me turn to Mr. Chaves. Stand up, sir. Anything you want to say before I pass sentence? You don’t have to, but this is your opportunity.

JOSEPH CHAVES: I have nothing to say. THE COURT: I’m glad the Crown told me that the child was not present during the assault. The assault, as described to me, is a most serious one, and I just ask that you think about if there were two black eyes, your child would obviously have seen his or her mother coming back in with those injuries and wonder what’s going on. On the other hand, this is not an end of your involvement in your child’s life. You have to earn that privilege back, but there’s nothing to stop you from earning that privilege back, and that’s why these exceptions are built in here.

So, in the circumstances, I will impose – sorry, is there any presentence custody I am supposed to be crediting? MR. GILLEN: In the initial case, he was released the same day of his arrest. That’s the mischief. And I’m not sure when he was arrested on the assault, but he was released on the 1st of October. Let’s see if I can find the arrest report. MR. HICKEY : My client’s advised me that he was, on his assault arrest, he was in for a day and a half. MR . GILLEN : Thank you. THE COURT: So is the proposed four months on top of the day and a half, or less a day and a half? MR.

GILLEN: Less a day and a half, so that would be two days, equals three days. THE COURT: As such, on the assault, I will sentence you to what would have been a four-month sentence and credit you with a day and a half of presentence custody. That would be three days enhanced, so there would be a remnant of three months and 27 days. On the mischief, I am suspending the passage of sentence, and on both charges, placing you on a two-year probationary period.

The terms are that you will keep the peace and be of good behaviour, that you will appear before the court when required to do so, notify the court and probation officer in advance of any change of name or address, and promptly notify the court or probation officer of any change in employment or occupation. You will 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, or any person authorized by a probation officer, to assist in your supervision.

You will not contact or communicate, in any way, directly or indirectly, by any physical, electronic, or other means with Sarah Cassidy, and the only exceptions will be pursuant to a Family Court order made after today’s date, or four of the purposes of conducting or defending Family Court proceedings, or in the presence of, or through legal counsel, or for the purpose of making contact arrangements for and having contact with your child, through a mutually agreed-upon third party. That means you cannot contact her to get her consent; it will have to be done through somebody else.

And if you have counsel in the Family Court proceedings, that’s the obvious person to turn to. Do you have any possessions left – oh, you’ve been not living together, so there’s no possessions to be exchanged. And then you’re not to be within 200 metres of any place you know any of the persons named above to live, work, go to school, frequent, or any place you know that person to be, except for required court attendances. Now, just – I had mother’s name as a non-association. We are not dealing with non-association with the child, as I understand the joint submission? MR. HICKEY : That’s correct, Your Honour. MR.

GILLEN : That’s correct, Your Honour. THE COURT: All right, and you will attend and actively participate in all assessments, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of your probation officer. And I gather I can just leave it under “other,” any counselling to assist in rehabilitation. Or is there – the Crown was asking for counselling, I thought. MR. GILLEN : Yes, Your Honour. THE COURT: And is there any particular counselling you’re asking, or just a generic “to the discretion of the probation officer?” MR.

GILLEN : That’s correct, Your Honour. THE COURT: Is that your understanding, or not? MR. HICKEY : That’s my understanding. I’m content with that, and it would be helpful in Family Court anyways, so. THE COURT: Well that’s what the next words out of my mouth were going to be. So you’ll, under “other,” participate in any counselling to assist in your rehabilitation, that’s generic. You might want to talk to probation about parenting skills and other sorts of counselling that might be a little bit cheaper for you as a probationary individual that can utilize them in the Family Court proceedings.

In any event, you will sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs as directed. I think that’s all the terms of probation being sought here. I did do the 200 metres. So any breach of this order is a new criminal offence. You know this. If you get convicted, with your record, you’re not giving the judge a lot of flexibility about the sentence you take. Additionally, these are secondary offences. Is the mischief a secondary, or not DNA, it’s just the assault. MR.

GILLEN : It’s just the assault, Your Honour. THE COURT: So, on the assault, given the prior – and, is it part of the joint submission for the DNA and the 110 in any event?

MR. HICKEY : It’s all agreed. THE COURT: But, given the prior criminal record, the circumstances of this offence, the minimal impact on your bodily integrity, and I appreciate you’ve already given DNA in the past, but there will be a new order that, should the authorities want a fresh sample from you, cooperate with them, because I am finding this in the best interest in the administration of justice to make the order. Mr. Chaves is under a lifetime ban, I’m assuming, for the 109, but I’ll ask anyway: he does not require a grace period for the 110 order? MR. HICKEY : That’s correct.

THE COURT: And, pursuant to s. 110 of the Criminal Code , you are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance for the period beginning today and ending ten years after your release from imprisonment. There are two

summary conviction offences: one-hundred dollar surcharge on each. One day in jail in default on each. He’s going to be tied up for the next 30 days, which is the timeframe that the order accounts for to pay this, so I’m anticipating an application of extension of time to pay that. Is one year sufficient for him to get back on his feet, or a bit longer? MR. HICKEY : One year should be sufficient, Your Honour. Thank you. THE COURT: All right. Don’t forget about these. You’ve got to pay the two one-hundred dollar surcharges within one year. The Crown’s pleasure on any other charges? MR.

GILLEN : They can be noted withdrawn, please. THE COURT: Anything further from Crown or Defence? MR. GILLEN : No, Your Honour. THE COURT: And, Madam Clerk, anything that you need? CLERK REGISTRAR: I’m sorry, current address? MR. HICKEY : I’ve got it. CLERK REGISTRAR: And did you wish the same exceptions for the remain away as the non-contact order? THE COURT: Yes. CLERK REGISTRAR: Thanks. THE COURT: Now is this the officer who will be taking the prisoner down? Or is somebody else coming up? OFFICER: Yes, sir. THE COURT: All right. Have a good day, sir. MR. HICKEY : You too. **********