R. v. Davis, 2019 ONCJ 864

CITATION: R. v. Davis , 2019 ONCJ 864 DATE: November 25, 2019 Information No. 18-38218-00 19-25042-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. RYAN DAVIS REASONS FOR SENTENCE BEFORE THE HONOURABLE JUSTICE G. WAKEFIELD on November 25, 2019, at OSHAWA, Ontario INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE OF CANADA APPEARANCES : F. Stevens Counsel for the Crown S. Yeghoyan Counsel for Ryan Davis REASONS FOR SENTENCE WAKEFIELD, J . (Orally): A lot of what I have to say you have already from my comments to the two lawyers. I acknowledge that I cannot even begin to understand what it is like to have been gay in this particular region back in 80s.

I can certainly tell you it was tough enough in the 60s and 70s in the Toronto area in the high school I went to, because at that point anybody that exhibited any sign of being gay would be subjected to all the cruel taunts that one can possibly imagine. It took a lot for a couple of friends I made there to actually be open and talk to me. So I may have some sense of what they went through. I have certainly got a better sense over the years as a lawyer representing people who have been shunned by their families even, because of something that is quite natural to them.

That is not just what we are talking about here. We are talking about, however, something that feeds into all the wrong stereotypes of being gay, and that is accessing child pornography and becoming involved in a relationship with somebody too young to do so, with respect to the making of the shower movies. The fact that it is a shower movie is itself a breach of trust, as my understanding is, is that he was unaware at the time of those being made.

Secondly, it is a breach of trust of the expectations of trust of the family when S. would come over. I might infer that S. is going through his own process of discovery. It is just not clear to me, nor do I have the evidentiary foundation. But there is a better way to be a mentor, if that was indeed the case, and that is not to be open to making the relationship that much more intense of an intimate, but rather as a sounding board. And you breached a trust there, I suspect. In all the circumstances, those are two discreet offences, the possession, and the making.

Now, obviously you became into possession by making the films of S., but there are so many other items on the iPhone and the iPad that are completely discreet from the situation with S. In all the circumstances I feel that a consecutive sentence for each is fully justified here, because of the circumstances. Having said that, even if there were constitutional challenge, in the circumstances of this case for the age groups involved, I would still be comfortable looking at one year on both for a total of a two-year sentence, but it does not stop there. You have been in custody for a very long time.

And I would ask both counsel to double check my math on this. On the count of possessing, I will note 232 days with an enhanced credit of 116 days for 348 days, which I believe would leave a further 17 days on that count, for a sentence that would have been one year on that count. There would then be a consecutive further year on the making, for a total sentence of one year and 17 days being consecutive one onto the other. I now have to look at the Duncan credit.

Even today, I suspect, that things were not easy for you at the jail in the best of circumstances, and these circumstances, there was this continuing difficulty in Central East being able to live up to their obligations to all prisoners, including yourself, and there should be a reflection of that on the sentence. Just to keep things straightforward here, on the making, I will give you a credit of 60 days as recommended by Mr. Yeghoyan, credit on that.

So on the making there is now a remnant of 11 months for a sentence that would have been a year on that, which means you have a total remnant, if my math is correct, of 11 months and 17 days duration of incarceration. MR. LAWYER: Ten months. THE COURT: Sorry, let's try 10 months. This is why I had both of these lawyers double check my math too. So 10 months and 17 days is the total sentence left. That will be followed by a period of two years probation. Again, I would ask counsel to listen to the terms I have made to see if they are content with the language.

You will keep the peace and be of good behaviour, appear before the Court when required to do so by the Court. Notify the Court or probation officer in advance of any change in your 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 release from custody, and after that at all times and places as directed by a probation officer or any person authorized by a probation officer to assist in your supervision.

However, your reporting requirement ends when you have satisfied your probation officer that you have completed all of your counselling. And you have a lot of things to work through here. Not least of which I suspect there is a constant fear with epilepsy that it is beyond your control. I suspect you have had good results of the medication you are on, from the sounds of things. But even with the mediation, you ended up having seizures that required you to, what, spend four days, I think, in medical segregation? So this is something that, again, must be a shadow haunting you and another reason for counselling.

But most important for me, we will get to the counselling that you deal with whatever motivated you to make the choice you did. RYAN DAVIS: And they don't – can I speak? THE COURT: Yes. RYAN DAVIS: And they don't consider that a problem there. And I've been trying to fight then since day one about getting my medication on time, when I should get it. When they put me into segregation they didn't even know why I was there, but they put me – told me that I was there to be looked after knowing that I just came from the hospital and had a seizure.

But when I asked the guard, you know, when am I able to go back to my cell they say, well, why are you here. But how can they ask me why I'm here when they're supposed to look after me. THE COURT: Right. I am glad you told me that, because one of the things I will do, and it is a recommendation, it is not enforceable in

the sense of a judge's order, but I am going to have Madam Clerk endorse on the warrant of committal that you are to be provided with all prescribed medication on a timely basis in compliance with that prescription. RYAN DAVIS: And then asking for... THE COURT: And I gather Mr. Yeghoyan has already been in contact with the jail a few times because of an inability to follow through on that in the past. I am sure that Mr. Yeghoyan's office will continue to advocate that, but there is other advocate resources that you can reach for the balance of the sentence.

RYAN DAVIS: Yeah, I've asked them for treatment, or I've asked them for phycologists or psychiatrists since day one, and I still haven't been allowed to see one. THE COURT: And they probably still are looking to you on a remand basis and not providing the resources that they seem to provide differently to those who are serving a sentence basis if that problem still exits. RYAN DAVIS: And since the, the day that Peter, his associate, sent the letter to the jail, I am being shunt – or shunned, if that's the word to, to use, by the nurses there.

So some of them I go ask them a question and they just turn their back and walk away from me. And that is not a professional medical thing, if I have a problem and they're – because of a letter or telling them that they're not doing their job correctly is now even putting more pressure onto me. That I can't even trust that I put in a request that, that request is even being sent to the doctor or sent do anywhere like that. THE COURT: I do not have an answer for you other than you have to be resilient to sometime unfair practice. It sounds remarkably reminiscent of what I hear about old age homes.

That the people who actually complain get further exclusions from the programming and things like that. It is an unfair and inappropriate response by people running institutions, and all I can do is hope that Mr. Yeghoyan's office will continue to advocate on that. RYAN DAVIS: And whenever I've said to the doctor, if I said that my neurologist says that I should be taking these pills at these times of this time, there remarks to me were always, it doesn't matter what any doctor or physician says, it's jailhouse rules. THE COURT: Well, that is unfortunate they have that attitude.

All I can do, as I said, is trust that Mr. Yeghoyan's office will continue to advocate for you there. I would hope, and certainly it is being told to us by the medical staff at Central East that they supposedly do comply with doctor's prescriptions, and yet I hear time and time again from people in custody that that is not the case. So the best I can do is make the endorsement and hope that they follow through with it. I need you to hear a couple of other terms here. There is a term in probation about not to be the company of anybody under the age of 16.

Do you feed the 161 order satisfies any need for the probation order as well? MR. CROWN: I do. I think the 161 suffice. THE COURT: However, you will not associate or communicate in any way, by any physical, electronic, or other means or be in the company of S. or Sx., except the presence of or through legal counsel and/or a peace officer. And I will amend the next one. As may be necessary or required for court appearances. I do not think we need the exceptions for employment or school here. I do not think there are any other exceptions that would apply here.

Rather than do not be within, Madam Clerk, it will be, remain off the property of any residence that the S.'s may reside, both Sx. and S. Counselling: You will attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by a probation officer, and complete them to the satisfaction of the probation officer, including, but not limited to, any counseling to assist in rehabilitation. I realize that there are specific types of treatment for individuals involved in these sorts of sexualized charges, I just cannot remember the name of the program.

This way it opens up all the counselling array for you. And it is more than just the offences before the Court, because you must have gone through some challenges as you grew up here in the region. And if any of those issues are impacting the choices you make now, I am just going to ask you, even if painful, that you be open with the counselors to work through those issues so you do not put yourself back into a situation like this, because you would be looking at a very hefty penitentiary term if you do come back.

You will sign any release of information forms as will enable to your probation officer to monitor your attendance and completion of any assessment, counselling or rehabilitative programs as directed. And given the Crown's suggestion, any objection to the life skills being check off as well, Mr. Yeghoyan? THE COURT: No, Your Honour. And I should indicate something. You may recall, Detective Sable (ph) took

part in the judicial pre- trial, and she was going to make efforts to essentially record any non-child pornographic [indiscernible] on Mr. Davis' device, that's particularly photographs involving his mother who deceased – passed away last year and return those to Mr. Davis. So if the Court needs to implement anything in its order for that to be returned, I'd ask you to do so. THE COURT: That would be by way of a 486 I suppose. [Indiscernible] 486, the return of property. So the return of those

photographs of his mother. CLERK REGISTRAR: Yes, Your Honour. THE COURT: Because I assume the Crown's also going to ask for seizure of the electronic device? THE COURT: Correct, sir. And I'll fill out that form, Your Honour. THE COURT: Actually, just talk to Mr. Yeghoyan for a second. MR. CROWN: They've already been returned, Your Honour, thank you. THE COURT: All right. On that basis, Mr. Stevens, can you pass on my thanks for the officer being sensitive on that issue. MR. CROWN: Yes, sir. THE COURT: So life skills to be typed in as well as any other counselling to assist in rehabilitation.

I have said that you will sign any release of information forms as to enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. I think that covers off all the terms of probation. Any difficulty of wording from Crown or defence? MR. CROWN: No, thank you. THE COURT: Mr. Yeghoyan? MR. LAWYER: No, thank you, Your Honour. THE COURT: And, sir, you have to understand if there is a proven breach of any of these terms, that is a new criminal charge, criminal conviction and you would be at high risk of custody in the circumstances.

Additionally, both charges are primary DNA? MR. CROWN: They are. THE COURT: As such, I do not need go through the assessment. There will be a DNA order. I am sure Mr. Yeghoyan has explained it to, it is a drop of blood from your finger. That will be done later today in a safe.... ACCUSED: It's been done already. THE COURT: Well, it may have been done for something else, but I have to make an order for.... ACCUSED: For this, for this case. THE COURT: Well, there was probably DNA application at some point then? That is fine. There is another order.

If they already have it, the officers may not bother again, but if they do, you have to cooperate with them. ACCUSED: All right, that's fine. THE COURT: All right. And that DNA, if taken, will be done before three o'clock this afternoon. There will be an order pursuant to 743.2(1) that you not communicate in any manner whatsoever while you are in custody with either S. or Sx. You will not, pursuant to

section 161, do in the numerated matters under (a), (b), (c); (

c) will have the exception of your father. Are there any other individuals, Mr. Yeghoyan, can be itemized here that the Crown can agree with? MR. LAWYER: Perhaps we can include his brother, Your Honour, who has children, and it'd just be for the purpose of, I guess, contact with his nephews and nieces, Gregory Davis. THE COURT: Any difficulty from the Crown's perspective? MR. CROWN: Is that the brother? ACCUSED: Yes.

MR. LAWYER: Yeah. MR. CROWN: Okay, no, no difficulties. THE COURT: And father's name? MR. LAWYER: Robert. THE COURT: Robert Davis or brother Gregory Davis. That 161 order is for a duration of 10 years. Finally, there will be an order of SOIRA for a period of 20 years. I think that covers off all aspects of sentencing other than the Crown's [indiscernible] of the charges? MR. CROWN: Yes, thank you. There should be remaining charges on this information, which is a replacement information, to be withdrawn please. And also, am I correct that the charges from the original information....

CLERK REGISTRAR: They appear at line [indiscernible] on the docket. MR. CROWN: Right, 18-38218. CLERK REGISTRAR: Yes. MR. CROWN: Yes, withdrawn as well please. And I'll, I'll fill out the 490 for forfeiture now. THE COURT: 490, yes, thank you. It is not the end of the road, but I am just counting on you to follow through with the counselling. That is probably the best thing for the community and the best thing for you, that you do get involved with that, and, as I say, work through all the issues that you need to work through.

There will be an endorsement, as I said, on the warrant of committal as to compliance with prescribed medication. Good luck, sir. Do not want to see you back here. ...WHEREUPON THESE PROCEEDINGS WERE COMPLETED