R. v. Irvine, 2020 ONCJ 131

CITATION: R. v. Irvine , 2020 ONCJ 131 DATE: February 5, 2020 Information No. 19-35221-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ERNEST IRVINE EXCERPT PROCEEDINGS REASONS FOR SENTENCE BEFORE THE HONOURABLE JUSTICE G. WAKEFIELD on February 5, 2020, at OSHAWA, Ontario INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE OF CANADA AND 517(1) BY ORDER OF JUSTICE OF THE PEACE G. RYAN ONTARIO COURT OF JUSTICE, DATED SEPTEMBER 16, 2019 APPEARANCES : N. Young Counsel for the Crown J. Guile Counsel for Ernest Irvine WAKEFIELD, J. (Orally): All I can do is endorse the warrant of committal with not just a recommendation, but a strong recommendation that you be entered in OCI. I think that is your best chance to try and reintegrate yourself back into the community. The sentence has to be one that is denunciatory. The type of material involved in here is the sort of material that society does find

reprehensible and calls out for the sort of sentence that is reflective of society's views on this sort of charge. At the same time, the sentence has to be balanced from the Gladue report. You stand before me as somebody who is the progeny of four generations of Indigenous people, Indigenous family members who have more than a trifecta of the sorts of actions on indigenous communities that have impeded so many people from moving forward with their lives. It may be that part of that is also the causation of the FASD. I was curious, and I am glad that Mr.

Guile told me an update that you are going through the assessment stage for FASD, because remember we chatted about that on the last occasion. That, I think, is going to form not only a large component of your rehabilitation, but is a necessary insight for OCI to really put together a program for you to work with. All I can do is encourage you to work closely if you get in there. If, for any, reason you do not get to OCI, do not abandon the sort of assessments and counselling that you are involved with.

The community is safer if you get that sort of help, your life is better if you get that sort of help, and that will also, I suspect, help you have access to your child down the road, once there is stability in your life again. In all the circumstances, I would just thank both Crown and defence for putting their heads together with what I think is a perfectly balanced sentence that takes into account not only the severity of the charge, but the very personal factors that arise from the Gladue report, and taking that into consideration as well.

I am sentencing you to essentially eight days of pre-sentence custody, which will be the equivalent of 16. I will note eight days for the value of 16 days. That would be essentially 17 and a half months left of a sentence that would have been 18 months duration. That will be followed by a period of three years probation. The terms of which are that you will keep the peace and be of good behaviour, appear before the Court when required to do so.

Notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of 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 directed by the probation officer, or any person authorized by a probation officer to assist in your supervision. The only term is counselling on the probation order. MR. YOUNG: Just the one thing. Your Honour said he should get credit for 16 days of pre-sentence custody. He has....

THE COURT: My math was even worse than yours. Twelve days. MR. YOUNG: Twelve days. And.... THE COURT: You are right. Half of eight is four for 12. Instead of bringing it down to days, 17 and a half months remnant on the sentence for a sentence that would have been 18 months. You will attend and actively participate in all assessments, counselling, and rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation. Any counselling to assist in rehabilitation, open up all the doors there.

You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling, or rehabilitation programs as directed. You know that if there is any breach of the probation order, that is a new charge, and your record does not leave a judge a lot of choices as to what sort of sentence you have to be subjected to. Now, because I am aware, having been the trial judge in the other matter, he probably still has a period of probation left on that? MR. GUILE: Yes, he does.

I -- I -- frankly I can't remember off the top of my head how -- how much is left, but.... THE COURT: My point is leading up to, would that be as part of the joint submissions that this is a concurrent or consecutive order to

the one currently being served by the gentleman? MR. YOUNG: Don't see why it couldn't be concurrent. MR. GUILE: Yeah. Thank you. THE COURT: In that case I will confirm that this sentence is indeed concurrent, being served at the same time as, the sentence you are currently finishing off from the last time you saw me. Additionally, there will be a

section 161 order, that is on consent in terms the wording? MR. GUILE: It is, Your Honour. THE COURT: I will pass to Madam Clerk what the Crown has provided to me. For all the terms that are set out in the 161, and that now applies to you. I believe that is for a 10-year duration. MR. GUILE: That's correct. THE COURT: There will be an order under SOIRA, that is now a lifetime order, and you remember those terms from the last, but you will get a new document that shows all the terms this time around as well.

There will be a forfeiture order that I will sign once I see it, and that is for everything that was seized by the police, as I understand the joint submission. Anything further from Crown or defence? MR. YOUNG: No. The remaining charge can be marked withdrawn. THE COURT: So noted at the request of the Crown. CLERK REGISTRAR: DNA? THE COURT: Pardon me. CLERK REGISTRAR: DNA. THE COURT: DNA, you are already on the DNA bank, I know that, but I have to say that the circumstances are primary, there will be an order that you provide a sample of your DNA if requested.

Odds are they are going to say thanks, but no thanks, but if you do have to provide it, you have to cooperate with the officers. That DNA should be completed by four o'clock, if taken. Anything else I have forgotten, Madam Clerk? The address remains the same, Mr. Guile? MR. GUILE: I'll provide the new address thank you. THE COURT: Thank you very much. This, I think, predates the surcharge timeframe, so I do not need to worry about that. ...WHEREUPON THESE PROCEEDINGS WERE COMPLETED ...WHEREUPON THESE PROCEEDINGS WERE COMPLETED ...MATTER RE-ADDRESSED MR.

YOUNG: Your Honour, I'm going to ask that we re-address the matter of Irvine, and I'll let your - I'll repeat it when Mr. Irvine's back up. But when.... ...MATTER HELD DOWN ...MATTER RECALLED THE COURT: And I don't know yet either why.... MR. YOUNG: Sure. There's -- when Mr. Irvine was taken into custody by the guards, there's a standard set of questions they ask him. They ask him is, you know, on any substances. So Mr. Irvine's answer -- I was advised by the guard was that he had smoked marijuana before court today. And then there's a question, are you impaired right now, and his answer was, yes.

That's why we're here. THE COURT: All right. MR. YOUNG: I tried to get a hold.... THE COURT: Is Mr. Guile gone? MR. YOUNG: What's that? I tried to get a hold of Mr. Guile, he's apparently in Bowmanville, he won't be able to return today. THE COURT: Well, I think, in fairness, I have to have Mr. Guile back here. I am not going to engage a conversation with Mr. Irvine directly. I thank him for his honesty in answering the questions with the guards, that's appropriate, but it also means that I need to

engage in further conversation with him about the plea inquiry I made with him. And while his answers were very clear there, that needs to be reiterated in the very near future. Did Mr. Guile leave any sense of availability? MR. YOUNG: If I could make a call to his office, like I'm -- I'm actually suggesting we come back tomorrow, it that suites Your Honour's.... THE COURT: If I were here, that would... MR. YOUNG: Okay. THE COURT: ...be good. Friday is a continuation of a sexual assault trial, but this shouldn't take that long. Are you suggesting I take 5 or 10 minutes away from that? MR. YOUNG: Yeah.

I'm anticipating this won't take that long, it's just a matter of reaffirming everything. THE COURT: Exactly. All right, sir, just stand up for a moment. Essentially because you advised that you had consumed earlier today and that might have had an impairing effect on you, I need you to come back when we know that you're sober to go through your agreement to the plea comprehension today, and I feel that's only appropriate that you have counsel here when you do that, okay? ERNEST IRVINE: Yeah.

THE COURT: So you're back here in front of me in person, this Friday, February 7th, 2020, 408 court, 9:30 in the morning, and try and deal with that first thing if Mr. Guile is available. Thank you. ...DISCUSSIONS BETWEEN HIS HONOUR AND MADAM CLERK THE COURT: Just a second. Oh, yeah, I can put that on. Just while I was listening though. Best keep all the paperwork until Friday as well then. MR. YOUNG: Yes, that's -- yeah, I'm trying to save work for everybody. THE COURT: All right. CLERK REGISTRAR: He's out of custody until such time as [indiscernible] .

THE COURT: All right, so the warrant of committal has to be done today, but the ancillary orders will have to wait, otherwise - you're right. I'm just thinking through the complexities. If there's a - just, just leave him there... CLERK REGISTRAR: Sorry, Officers. THE COURT: Officer, just leave him there so he's listening to this for -- for a second. MR. YOUNG: Come -- come back. That's what I was thinking, that Your Honour has jurisdiction under the circumstances. THE COURT: I think that's the -- the better approach. MR. YOUNG: Yeah. THE COURT: So I'll cancel the bail, remit him in custody.

I have jurisdiction giving rise from... MR. YOUNG: Yeah. THE COURT: ...the plea, and that way he can be brought -- he can be kept in custody, kept sober, and just -- I just ask that you remind me when we're doing the brief calculations, that he has credit for between now and Friday in the sentence calculation. MR. YOUNG: Sure. THE COURT: All right. Thank you very much, Officers. ...WHEREUPON THESE PROCEEDINGS WERE COMPLETED