R. v. Smith, 2015 ONCJ 447

Information Nos. 14-811, 14-734 Citation: R. v. Smith , 2015 ONCJ 447 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DANIEL ROBERT SMITH ******** R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE G.J. BROPHY, on June 8, 2015, at GODERICH, Ontario **********

APPEARANCES : T. DONNELLY Counsel for the Crown D. REID Counsel for Daniel Smith MONDAY, JUNE 8, 2015 R E A S O N S F O R S E N T E N C E BROPHY, J. (Orally): I am prepared to rule on this matter now. Mr. Daniel Robert Smith has pled guilty to a number of offences; there are two separate incidents. The first one was on the 9 th of November, 2014 and essentially that was an incident involving his mother and his mother’s husband. On that occasion, Mr.

Smith, who has a significant substance abuse problem, was hoping and trying to get some money from his mother, we think to pay for drugs and he was very forceful, intimidating and threatening towards her. In the process of that he threatened at one point to I think the word was smash her with a syringe that had some red liquid in it. Nobody knows exactly what the liquid was, but the implication it was something that was harmful. Mr. Smith said that to his mother and he also, in the course of that interaction, threatened to inject that into himself in some fashion to harm himself as well.

As a result of all of that and some damages that were caused in the home he was charged and has pled guilty to uttering a threat to his mother, Cheryl Lynn Wilkinson, that is an offence contrary to

Section 264.1(1)(

a) of the Criminal Code . He also breached a probation order that was outstanding from the 14 th of July, 2014 by failing to keep the peace and be of good behaviour. He also threatened to damage the property of Ms Wilkinson, again his mother, by saying that he would smash all of the household items if he did not get his way. And then the final count related to that incident is that when all of this was happening he kicked a door and damaged the door in a significant way and that was an offence under Section 430(4) of the Criminal Code . If I did not say so, of course, the threat to cause the damage to the household goods was an offence under 264.1(1)(

b) and the offence of breaching probation was under

Section 733.1(1) of the Criminal Code . The police were called by Ms Wilkinson while Mr. Smith and her husband were out of the house trying to get some money for him. He comes back with the husband, the police arrive, there is an arrest made. And another significant fact is that when Mr. Smith was arrested by the police in the course of that he stated to one of the officers, I think the officer’s name was Abbott I am reminded today, that he might spit on him which is a threat in the instance of Mr.

Smith which has some significance because he is HIV, pardon me not HIV, he is Hepatitis C positive and that is a communicable disease as we understand it. He did not do that, but did make a gesture in that direction. So, that is what happened on that occasion and then some ten days later it would appear on the 17 th of November,

2014 when Mr. Smith was being transported to the Goderich court by the prisoner transport vehicle, Mr. Smith, or rather the vehicle made a stop at the Highway Detachment of the Ontario Provincial Police and Mr. Smith became agitated because of the delay, there was something happening. One of the officers noted that he was self harming himself, banging his head off the wall, or the door of the transport van. Sergeant Stephen MacNally, who had some responsibility in this matter, goes out and tries to speak to Mr. Smith and tried to calm him down essentially, but unsuccessfully. Mr.

Smith who was very agitated, very angry, spat through the grill that was in the door and by spitting had the spittle hit Officer MacNally, some of it went in his eye, some of it went on his face and Officer MacNally obviously became concerned about his wellbeing as a result of this contact that was made by Mr. Smith. On those facts, of course, there is other evidence about Officer MacNally having to seek medical treatment and he has had a series of follow-ups related to that all with the concern about whether or not he contracted Hepatitis C as a result of this event.

Fortunately it would seem at this juncture, although it is not final yet, that that is not the case. There has been a series of follow-ups, but I understand there is a nine month follow-up that has to take place as well. So, as a function of that event, Mr. Smith was charged with aggravated assault and he ended up pleading guilty to assault causing bodily harm if I understand the endorsement here correctly and that happened on April the 1 st , 2015 which was subsequent to the entry of guilty pleas on the matters involving his mother which took place on March 27 th .

The matter was not dealt with on April the 1 st because there was some information provided that an intensive presentence report could be prepared which would be of some assistance in understanding Mr. Smith’s situation. And the reason why that was of some consequence is because Mr. Smith has a very long criminal record. He is a man only of 35 years, I think, and the record is very extensive beginning when he was a youth and it carried on after that for some considerable period of time. Just give me one moment here.

In the process of reviewing the presentence report and there was a serious effort, I should back up just a little bit. Because of the history of this matter, the nature of the events that we are dealing with, the profound substance abuse problems, the anger that has been displayed by Mr. Smith on numerous occasions, the lengthy criminal record and this threatening aspect to his behaviours, along with his suicidal statements from time to time, I decided on April the 1 st it was important to get this presentence report and I think it has proved beneficial because there is better information related to Mr.

Smith and Mr. Smith has had further time to contemplate his situation. So, I now have that presentence report and I thank the authors of that because it coordinates all of the appropriate information and is very useful. In looking at the record, I will start there, that is set out in the presentence report I noted that there were 18 prior convictions for crimes of violence in one form or another.

Some of them simply uttering threats, sometimes assault charges, sometimes assaulting peace officers and matters of that nature and also criminal harassment, but when I went through the presentence report there was 18 prior convictions. There are other miscellaneous convictions for break and enters and matters of that nature, breaches of various control orders. Mr. Smith has been, and I think this is fair to say, and we will talk in a minute about why it is, but he has been incorrigible in the sense that he has not been able to back away from these behaviours.

Although, in fairness to him, there was a brief respite between 2011 and 2014. Mr. Smith has been subject of some significant diagnoses, but they would seem to come back to two basic problems and one is a personality issue; personality disorder antiauthoritarianism, or matters of that nature and it is commented upon by the various psychiatrists that have spoken to Mr. Smith over the years and that coupled with this substance abuse problem has made Mr. Smith unable to move away from these situations where he is in confrontations with people and commits crimes.

I am going to come back to that in a moment in terms of the diagnoses and the recommendations that have been made and the facts that have been presented by the various psychiatrists. But before I do that I think it is useful to comment on a couple of other things. First of all, Mr. Smith has identified that he has some aboriginal background and I think it was told to me today that his paternal grandmother was Ojibway.

He, in the presentence report, indicates that he has no connection with aboriginal life, he is not a member of a band and during his life up to this point he has not made any significant connection to aboriginal people, or practices. However, it would seem in an effort to try to understand himself a little bit, perhaps reach out and find some kind of spiritual basis for his existence, he has now apparently tried to engage in some aboriginal involvement. There is a letter from the John Howard Society of Toronto dated May 26 th , 2015 that Mr. Reid has presented to the Court and an

individual by the name of Bernadette, no last name, the native inmate liaison officer with the John Howard Society in Toronto indicates that Mr. Smith has become a client of theirs, that they contacted him, or he contacted them in the institution and that he has been engaged to some degree in a native spiritual program. She confirms that he has displayed the utmost level of respect and has been engaging, courteous and forthcoming with issues surrounding his charges and has displayed sincerity learning more about native culture and history and the ancestry of other nations.

So, that is obviously a positive feature in a situation which does not have many positive features. So, let us give Mr. Smith credit for reaching out to that service and perhaps trying to find a way that it would be of assistance and support to him. The other positive feature I think I can point to in Mr. Smith’s circumstances is the undying loyalty of his mother, notwithstanding that she is a significant victim in the offences I am dealing with and that she has been victimized in the past by Mr.

Smith inveigling monies from her, threatening her, threatening to kill himself, all for the purpose of getting her to help him get drugs. Nevertheless, she remains a positive and she remains supportive. She has provided the Court with a letter dated May 27 th , 2015 that has been received as an exhibit in these proceedings and in that letter she speaks about several things, I will not go into them in detail other than to indicate that Mr.

Smith has in the past made oblique references to the facts that he was sexually abused when he was in custody as a young person and that this was a guard who sexually abused him. He has not spoken about this. He made vague references to it I think indirectly previously, but his mother was never sure about what had happened. Now since April the 1 st , I believe, she has had conversations with him and he has disclosed in some detail what took place and in her letter she writes eloquently about what that has meant to Mr. Smith and the profound impact it has had on his behaviours.

Now, this Court is not in a position to assess what happened, to make any findings related to what happened, or to do anything more than simply acknowledge that Mr. Smith says this is what happened. But his mother is convinced that he was abused and that that has had an impact on his ability to cope in life and probably to deal with the substances. She suggests that he has used substances to bury the issue. The second thing she says in her letter that is of consequence and forms part of what Mr. Reid is arguing for and that is that she thinks Mr.

Smith continues to be a person who might benefit from assistance, supportive assistance and she thinks, and she obviously is speaking from basic general knowledge, or information she has been provided with that that can best be accomplished through a Provincial jail situation as opposed to a Federal jail. She does not speak from any expertise related to that, but just from a mother’s heart. So, I, again, accept that letter as being a positive in Mr. Smith’s circumstances.

But then turning to other aspects of this matter, it has to be acknowledged and should be acknowledged that notwithstanding that Ms Wilkinson, the mother of Mr.

Smith, in a sense she does not maybe forgive, but she is prepared to accept that her son has problems, there is another significant victim in this matter and that is Officer Stephen MacNally and it is spoken about in detail on the presentence report and he has provided a victim impact statement as well and it is easy to understand the apprehension that Officer MacNally would have about his circumstances, his personal circumstances whether he has been harmed by Mr. Smith. And it is not simply just him. For a number of months then he had to be on guard with reference to his family members.

I think, it does not say it in the victim impact statement, or the presentence report, I think he said he has a family, presumably children and that the ability to hug and embrace those children is limited.

He would be conscious of his circumstances, he would be very concerned about delivering anything to them that might be harmful and no doubt for a number of months until he received some preliminary all clears and then hopefully a final all clear, this would be very troubling indeed and I do not want to overstate that, but nevertheless it has to be something that was extremely traumatic to the officer and I think that has to be acknowledged. And it is part of the basis for the seriousness with which this sentencing decision is taking place.

Then I turn to I think what needs to be commented upon most directly and that is the various reports that have been provided in the presentence report and there is a copy of two of the reports that are here. And they are very troubling because they speak to the difficulties of Mr. Smith. Mr. Smith did not have an easy childhood to say the least. He had a father who was abusive. His mother, I think, tried her best but found it very difficult I suspect to cope with him and life generally. Mr. Smith has been in and out of custody on many occasions.

It is noted in the presentence report that he has been on some form of community supervision for over 20 years and notwithstanding that supervision has consistently reoffended.

Although I quickly add that on page nine of the report under the response to community supervision the last sentence says the following: “It is noted that when the subject was supervised in the community he completed the domestic violence program and rarely missed an appointment with his probation officer.” So let us give him marks for that, but nevertheless the probation did not seem to intervene or stop his offending. So why is that? Well, obviously there are issues and it may well go back to the sexual assault that Mr.

Smith says took place, but in addition to that, of course, he has been resistant to authority from a very early age. He became involved in substance abuse problems at a very early age and he has been subject to those on a constant basis for many years including in his most recent iteration, crystal methamphetamine, and indeed that is what is the drug, not of choice, but of most current usage.

Involving all of that, when he had been in custody it is noted in the presentence report that the Ministry of Community Safety and Correctional Services have recorded 65 institutional misconducts while he has been in custody. That is a gross number which is unexplainable other than Mr. Smith is a person who is, I am not saying he seeks confrontation, but confrontation finds him and he does not back away and Mr. Smith has been involved in a number of incidents which suggest a pattern of behaviour that is problematic. So, again, going to the reports themselves, it would appear that if I read this correctly, Dr.

Conlon who has at one point or another been involved with Mr. Smith has through various psychiatric reports suggested that there are the following diagnoses for Mr. Smith: a severe substance abuse disorder and antisocial personality disorder and the possibility of severe impulse control disorder. Dr. Conlon indicated there might be a history of ADHD as well. Dr. Conlon described Mr. Smith as a very volatile individual, has significant problems and according to Dr. Conlon there is no specific treatment that is going to improve the subject’s symptoms and he is a poor candidate for any degree of counselling.

So, that is a very difficult matter to say the least. In addition, while he has been at the St. Thomas Forensic Unit, the Regional Mental Healthcare Centre, there were two events that took place. One of which is most unusual. In 2005 he was sent to the Regional Mental Healthcare Unit for the purpose of assessing whether or not he was fit to stand trial on outstanding matters before the Court and in a most unusual series of events he was admitted on July the 27 th , 2005 and discharged on July 29 th , 2005 due to his aggressive and violent behaviour.

A decision was made at the healthcare unit that he had to be returned to the jail because of extreme concern for his safety as well as the safety of staff and other patients and ultimately the report was never prepared, most unusual 2005. Having said that, in 2008 he was again referred to the Forensic Unit at the Regional Mental Healthcare, St. Thomas Centre to assess his fitness to stand trial. At that point there was some work done and it says here, and it is an interesting comment, that he requested a risk assessment regarding the probability that he would criminally reoffend.

And then a devastating finding was made following a psychometric segment of the forensic examination, he was placed in a particular category, or profile and the profile then went on and Ms Grant read this into the record and it is important to understand this is a profile only, it is not specific to Mr. Smith, but it is a category of people who can exhibit some of these behaviours and then they go on to talk about intimidating, dominating, narcissistic and so on.

And I will not repeat them, but it did go on to say they provoke fear in others as a way of controlling them and are generally verbally and or physically abusive towards others. This is consistent with what I understand the behaviours of Mr. Smith have been towards his mother specifically. There is no information about domestic partners, although it is noted that in his record there were events involving at least two other domestic partners that gave rise to criminal charges.

The report also stated that people with this profile may react with a verbal force of anger and explosive outbursts stemming from loss of control over emotions as a common reality. And most importantly it was indicated in the report the subject’s risks for criminal, violent recidivism would be inordinately high, if not approaching certainty. And the report goes on to state that the subject’s apparent underlying psychopathic personality structure suggested that this elevator risk of violent recidivism is more likely than not to be unremitting for the duration of his life span.

That is a pretty significant statement. Having said that, I again say that that is an analysis that is based on averages, if I understand it correctly, and places Mr. Smith in a segment of society, it does not mean Mr. Smith in and of himself has been diagnosed, but rather it is a placing him in a clinical profile. Nevertheless, it is consistent with what we know about Mr. Smith’s behaviours in the past as they have been accentuated by the substance abuse problems. The report is of great assistance as well because it also captures what is available in both the Federal system and in

the Provincial system. It is interesting to note that on page 11, where this information is summarized, the maker of the report contacted the program coordinator of the Joyceville Institution, which is a Federal institution, part of the Federal correctional system, and it is a curiosity that as of April the 1 st , 2015 they have implemented an integrated correctional program model where all programming is made available at all Federal institutions. It is fascinating to think that that suddenly has been decided as a good idea.

One would think that it should have been a good idea 50 years ago, or something to that effect, and I am sure the people who are trying to work that out are trying to do it with the greatest sincerity and are trying to develop programming which is applicable to persons who are there who have difficulties, some like Mr. Smith, some other difficulties that we are not speaking about here.

But it is an interesting statement because it suggests they are working out the program and as we all know from our own professional experience, innovative programs take a while to get up and running and will they be successful, nobody knows until they have been tried. So, is the programming that is going to be available in the Federal institution going to be of significant assistance to Mr. Smith? I think there is a big question mark after that concern. The maker of this report, however, goes on then to comment upon the other services that are available in the Provincial system.

She reviews, I think it is she, sorry, yes, Caroline Lobombard (ph) she goes on to review the Algoma Treatment and Remand Centre and the Ontario Correctional Institute and Mr. Reid concedes that neither of those facilities would meet the, well they might meet the needs of Mr. Smith, but Mr. Smith is not going to fit into what they need to have as part of their programming. Having said that, the St.

Lawrence Valley Correctional Treatment Centre is perhaps more viable in that it is a psychiatric facility in a correctional institute and that the criteria would appear to be that an individual who is suspected of having a major mental illness and requires an assessment and treatment it could apply to be received there. The report notes as well that further criteria would include a history of psychiatric issues and suicide ideation attempts, both of which exist in the case of Mr. Smith.

And it was noted that inmates with personality disorders, intellectual disabilities and substance abuse would be considered only if they have a major mental illness. So, it is not that a substance abuse problem would not be dealt with there, but there has to be an underlying major mental illness that is in place. And most importantly, I think, core programs include sexual offending, substance abuse and anger management. Now, sexual offending by Mr. Smith is not before the Court, but substance abuse and anger management clearly is.

So, having considered all of that information and having then considered the presentence custody and the submissions made by counsel, I have decided this: the Crown seeks a term of three to five years in a Federal Penitentiary. In my view I would, putting aside for a moment the presentence custody, think that 36 months, or three years is the appropriate timeline for a custodial disposition for Mr. Smith, but having said that, I am mindful of the sentencing principles that have to be looked at. And the principles in this case include obviously the denunciation of the unlawful conduct both towards Mr.

Smith’s mother and towards the officer who was spat upon. That is abhorrent behaviour on the part of Mr. Smith. Mr. Smith has difficulty internalizing that, coping with it and understanding it, but nevertheless it is behaviour that has to be denounced. In addition, the Court has to be concerned about deterring Mr. Smith and other persons from committing offences, so there is both specific and general deterrence involved and I would suggest general deterrence is important here, specific deterrence it is difficult to see how that works with Mr. Smith because he has not been deterred in the past.

And then the Crown makes a very strong argument that Mr. Smith should be one of those rare individuals who should be considered as an individual who should be separated from society for the protection of society. It is not an argument that is made very often in the Provincial Court, but in this case it is certainly applicable and one that the Court has to give some weight to. The Crown would argue that rehabilitation should not play as large a role in this case because Mr. Smith has proved to be immoveable in the past in terms of taking up programming actively changing his behaviours. Mr.

Reid argues strongly that the Court should always consider rehabilitation as a sentencing principle and I think there is a recent Court of Appeal decision that speaks to that. It says that rehabilitation has to play a role in every sentencing decision. It may play a larger or lesser role depending on the fact situation, but rehabilitation remains

important. The emphasis the Court places on each of the objectives will vary according to the nature of the crime and the circumstances of the accused and this Court takes that into consideration. So, when I look at all of these factors, I note the following: that Mr.

Smith’s behaviours have been of such a nature and with the history of similar behaviours in the past, the spitting on the officer that we are dealing with, the threat of spitting on Officer Abbott and the incident a number of years ago, two years ago I think if I have my dates correct, maybe three, spitting on an Officer Boyd I think it was, that all suggests that there has to be a serious and significant response to this event today.

Having said that, I am satisfied that the Crown is correct in saying that the range should be three to five years, but I am not satisfied that it should be at the high end of the range, I think it should be at the low end, 36 months. And then I am confronted with this issue. The presentence custody would appear to be 213 days, if I gross that up on a 1.5 to 1 basis, that is the equivalent of 320 days and that becomes 10.5 months. If I look at 36 months and then deduct 10.5 months from that, that leaves me with 25.5 months. And what that means is that it is close to the cutoff point for a Provincial penalty.

Then I look at the question of what services might be available. I am uncertain as to what services are going to be available for Mr. Smith in a Federal Penitentiary. One would hope, of course, there would be services, but I do not have a great deal of confidence in what exactly would be offered to him. I fear that he would be condemned to segregation for his term in the Federal Penitentiary and although Mr. Smith, I say this with some reluctance but it is true, he brings a lot of this on himself, nevertheless it is something to be avoided if you can avoid it.

Whereas I do have the possibility, and it is a possibility only because he has to be accepted that he could benefit from being in the St. Lawrence Centre, the St. Lawrence Correctional Institute I think it is called, St. Lawrence Valley Correctional Treatment Centre. There is a possibility, it is a psychiatric facility in an institutional setting and it takes people with the factors that are at play in Mr. Smith’s life and it strikes me that if he can be received there, if he can apply and be accepted then there is a reasonable possibility that he might benefit from that. And that means that there is some hope.

It may be a fond hope, it may be a distant hope, it may be remote, but there is some hope that there could be some rehabilitative aspects to what is happening. Now that he has made the disclosure, as he calls it, of the abuse that he suffered as a young offender while in custody and that is put on the table and if he can bring himself to discuss that with counsellors maybe there is some hope for Mr. Smith after all. I remain uncertain about that.

I remain concerned about whether that is possible, but I think from the perspective of protecting society that 24 months less a day in a Provincial Institution with a recommendation that he serve that at the St. Lawrence Valley Correctional and Treatment Centre is the appropriate response today. I do not see any strong argument to be made for 25 months in the Federal Penitentiary with the uncertainty that that brings. I do not know whether he is going to get in to St. Lawrence. I do not know if he gets into St.

Lawrence it is going to make a difference, but at 35 he is too young to give up on and I think we should give it one more shot. So, having said all of that, that is the disposition in terms of jail. It is 24 months less a day, recommendation to serve at the St. Lawrence Valley Correctional Institute and Treatment Centre. In addition, there will be a three year probation order.

The probation order will include a number of things and I think they are all fairly obvious, but they would include reporting immediately upon his release from custody in person to a probation officer as directed and thereafter report at such times and places as that person may require.

While he is on probation he will abstain absolutely from the purchase, possession, consumption of alcohol, or other intoxicating substances and the purchase, possession, consumption of any controlled or prohibited drug as defined by the Controlled Drugs and Substances Act except in accordance with a medical prescription in his name.

I pause to say that I am aware of the fact that he is an addict and that he is going to have great difficulty with that, but if he is in custody for something in the neighbourhood of 14 months perhaps, perhaps there will be the ability for him to wean himself off those substances and perhaps an ability to not use them in the future. What I do know is this, is if he is using substances, he becomes dangerous and by putting the abstention provision in I think we have done what we can do to try and save him from himself.

In addition, counselling; he will attend and actively participate in such assessment, counselling or rehabilitative program as recommended by his probation officer. He will sign releases and provide reports to confirm his attendance and participation in that programming and he will not discontinue that programming until he has been discharged from it by his probation officer. That programming may include counselling for alcohol abuse, substance abuse, anger management and mental health issues.

In addition, he is not to associate or hold any communication directly or indirectly with Stephen MacNally, save and except as may be required by Stephen MacNally’s professional duties as a police officer. Further, he is not to attend at or enter any premises known to him to be the residence, place of education, place of employment of Stephen MacNally, save and except as required by the professional duties of Stephen MacNally as a police officer. Further, he is in any event he is not to be within 250 metres of any residence known to him to be the residence of Stephen MacNally. That deals with Stephen MacNally.

In addition, he is not to associate or hold any communication directly or indirectly with anyone else specifically named by his probation officer. I have considered the question of making a provision that he not have any communication with his mother with some exceptions, but I think that becomes problematic and will not solve anything if the probation officers are satisfied that he should not have any communication with his mother then so be it, they can simply name her.

In addition as part of this probation order he should abstain from owning, possessing, controlling, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, or weapons as defined by the Criminal Code of Canada and not reside in any residence where firearms are present or stored. Further, he is to reside where directed by his probation officer and not change that place of residence without the prior written approval of his probation officer.

Then several other considerations, if I did not say it, I think I did, about abstaining from owning, possessing, controlling, and carrying any firearms, did I give that one already? MR. REID: No, you haven’t said that, Your Honour. THE COURT: No, that standard provision in the probation order will go, Madam Clerk, I will not read that out. That is the probation order. In addition, with reference to the two offences, the assault causing bodily harm and the threat to cause bodily harm to Cheryl Lynn Wilkinson. There will be secondary DNA orders on those. Or there may be a primary on the assault causing bodily harm.

Whichever it is, there will be DNA orders and Ms Glenn will help me with whether it is primary or secondary in a moment. There will be a Section, I wonder if I can do a

Section 109 firearms prohibition order, it may be moot but. I think because you proceeded by indictment on the assault bodily harm it is, yes, so it is a

Section 109 firearms prohibition order on the assault causing bodily harm. It is a lifetime ban on the possession of firearms. With reference to the victim fine surcharges, I am not prepared to backup from any of the charges, Mr. Reid, so I think the

victim fine surcharges will apply in the ordinary course, $200 per count and I will give him three years to pay the victim fine surcharges. Then finally with reference to allocation of the penalty, Madam Clerk, on the assault causing bodily harm with reference to Officer MacNally, it will be 24 months less a day. On the uttering a threat to Cheryl Lynn Wilkinson, which I find very, very abhorrent, it will be 24 months less a day concurrent. Then on the threat to damage property, we will make that six months concurrent.

On the breach of probation, I am doing these out of order, Madam Clerk, on the breach probation it will be three months concurrent. On the threat to damage property, it will be six months concurrent. And on the mischief, it will be three months concurrent. I think those are all legal sentences. I looked at them earlier. I think the only one that was short was mischief was only six months and I have just given three months on that. Okay, I think that is everything. Have I overlooked something? COURT CLERK: How do you want to show the presentence custody?

THE COURT: Oh, the presentence custody should, in my view, be allocated because I do not think there is any value. Some of it existed with reference to the threat to mom, but I think it is then really applies to the assault on the Officer MacNally. So, I think all the presentence custody should apply to Officer MacNally and to repeat those numbers, Madam Clerk, 213 real days grossed up by 107 days to 320 total.

And just to complete the picture I fixed on 36 months, took 10 and a half months off, left 25.5 months and I have just on my own motion, so to speak, I have reduced that to 24 months less a day so that he stays in the Provincial system. Okay, Mr. Reid, anything else? MR. REID: Just, if I can just speak to my client... THE COURT: Yes. MR. REID: ...briefly. Nothing in addition to add. THE COURT: Nothing else. Okay and let me just make sure I do not walk off with any of the exhibits. Madam Clerk, I think I am giving you everything there and, Ms Donnelly, anything else from you? MS DONNELLY: You did say

Section 109 order, did you say the length? THE COURT: I said life. MS DONNELLY: Okay,... THE COURT: For life. MS DONNELLY: ...thank you, I missed that. And Mr. Frayne is in the courtroom and he’s just saying that sometimes it helps if the probation order also reflects that you’re recommending he go to St. Lawrence Valley. THE COURT: Sure. Sure, I have no problems doing that, so I will put that on the information and on the warrant of committal and on the probation order. MR. REID: Thank... THE COURT: Okay. MS DONNELLY: Yes,... MR. REID: ...you. THE COURT: All right,... MS DONNELLY: ...and I believe...

THE COURT: ...and we will... MS DONNELLY: ...that that takes care... THE COURT: ...be sending... MS DONNELLY: ...of everything. THE COURT: ...along with the information copies of the exhibits. MR. REID: Okay,...

THE COURT: I think it is... MR. REID: ...right,... THE COURT: ...important... MR. REID: ...okay,... THE COURT: ...whoever is... MR. REID: ...absolutely. THE COURT: ...dealing with Mr. Smith have the exhibits available to them. MR. REID: Okay. THE COURT: Okay. MR. REID: Thank you, Your Honour. THE COURT: All right. COURT CONCLUDED Form 2 Certificate of Transcript I, Lindsay Gionet, certify that this document is a true and accurate transcription of the recording of R. v.

Daniel Robert Smith, in the Ontario Court of Justice, held at Goderich, Ontario, on June 8, 2015, taken from Recording Number 1411_CrtRm3_20150608_154107__6_BROPHYG. _______________________ _________________________ Date Signature

Transcript Ordered: .........................June 10, 2015 Transcript Completed: .......................July 29, 2015 Ordering Party Notified: ....................July 29, 2015