R. v. Whelan, 2016 ONCJ 129

Information No. 2811-998-14-25248-04 CITATION: R. v. Whelan , 2016 ONCJ 129 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. CHARMAIN WHELAN REASONS FOR SENTENCE BEFORE THE HONOURABLE JUSTICE G.R. WAKEFIELD on FEBRUARY 3, 2016, at OSHAWA, Ontario

APPEARANCES : M. Newell Counsel for the Crown A. Glass Counsel for Charmain Whelan ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Transcript Ordered: February 3, 2016 Transcript Completed: March 10, 2016 Ordering Party Notified: March 10, 2016 WEDNESDAY, FEBRUARY 3, 2016 REASONS FOR SENTENCE WAKEFIELD, J. (Orally): THE COURT: I appreciate both counsel’s submissions, and the case law as actually helped in a number of respects, especially the decision of Justice Javed in the McCarthy sentencing. I am not going to be as formal with this sentencing.

I think the time has come to bring some certainty into everybody’s lives. This is a situation in which the victim impact statements was especially evocative of setting out all the long-term consequences of a residential break and enter. This is not a one-day offence. It is not even the hours that are spent trying to figure out what has been taken and what was not taken during the days following, it is the inability to put behind oneself the lack of security, the destruction of security of one’s own residence.

And that is why the offence is one that does carry a maximum life imprisonment, though that is not in our sentencing principles where one starts with an offender. But whatever the sentence is, it is going to be one that can never bring back the victims into the position they were before the offence was committed, and there is no sentence that I can impose that will have that impact. What I do have is the obligation to balance out the sentencing principles with respect to this offender and the offences which were committed. The number of residences involved is clearly an aggravating factor.

As I said before the break, the number of residences, the fact of residential break and enters, and the degree of going through the personal items, clearly in my view does not meet the need for public denunciation requirements for a conditional sentence, and certainly that is not appropriate here, and that is even without the prior difficulties that Ms. Whelan had on probation orders as reflected in the pre-sentence report. There has to be one of incarceration but it has to be ameliorated to the record that she has as compared to her co-accused.

Leaving aside the other cases the crown has presented which are important again to reinforce the impact on individuals’ lives from a residential break and enter, the best comparison is indeed the co-accused, and why parity is so difficult here. And defence counsel is quite correct in pointing out that there is a very different jump principle in sentencing that applied to Mr. McCarthy than applies to Ms. Whelan, who for a 58-year old lady had no prior offences before 2007.

So essentially when she was 49 or 50 years old is when all this started, which is consistent with the pre-sentence report impact on her of the loss of her mother, and that is on top of a few years earlier, the domestic issues, the break-up of her marriage, and the difficulties of relationships with her children. There is a continuing level of grief that certainly is a part of the underlying addiction issues that she faces, that I acknowledge.

As well, while her first foray into the criminal field garnered a 12-month conditional sentence and restitution of over $7,000, it was for fraud under, and I appreciate that is probably a result of the resolution discussions at the time. What concerns me more is that that did not serve a purpose of both deterring her criminal activity or getting her involved more intensely with the substance abuse issues that she clearly has. A functional addict, in my view, is a contradiction in terms. The addiction drives decisions that you make and the addiction drives you to the point where you are here today.

There was a gap from 2007 but in 2013 there is another theft under, but it only garnered two days pre-sentence custody. Two offences in 2014, one with a suspended sentence, the other with three days pre-sentence custody. That is the extent of actual incarceration in a real jail setting that Ms. Whelan has experienced before coming to court today. That is so very different from the record as described by Justice Javed about Mr. McCarthy, who fully justified the sentence imposed of five years in that case, less his pre-sentence custody. There is no science involved in finding the right sentence.

My main concern here is that 1) the public realizes that these offences are taken seriously, but also to give Ms. Whelan the opportunity to try and deal with the addictions and try and put herself back in a situation where the community is better protected from her decisions, and that is after dealing with the impact of the heroin addiction.

The best I can do for her is one that is consistent with an upper reformatory sentence with a recommendation for a treatment jail that will focus on the addiction issues, which hopefully will mean that she will not be back here again and facing a judge with a sentence that may, very well, be a firm foundation for a substantial jump into a lower penitentiary sentence such as Mr. McCarthy had on sentence of some years ago which garnered him three and half years, I am inferring, but I do not know that for break and entering type of offences.

The number I have come up with is a 21-month sentence less pre-sentence custody on each count concurrent.

That would result in a net figure of 15 months and 10 days, so 21 months was the sentence that would have been imposed with a 113 days of pre-sentence custody noted on each count concurrent to the other, with a value of 1.5 which would be the equivalent of 170 say or 5 months and 20 days, and please do double check my math on that, because the net impact that I wish to end up with is indeed a 15-month and 10 day sentence, which would be an appropriate period of time that it will ensure that there is the ability to get through the waiting period necessary to get into the Ontario Correctional Institute or a similar facility to deal with addiction issues.

And I am certainly making that recommendation on the warrant of committal. That will be followed by a period of three years probation. And that is the other aspect is that that I appreciate I am not allowed to take into account the parole system, but I am quite aware that the sentence I am imposing is actually going to end up having a longer period of court controlled, community controlled authority over Ms. Whelan than that of her co-accused in all likelihood will have, but I think that is an important consideration.

The community is going to have a mechanism to continue to monitor efforts that hopefully will be more effective than several counselling sessions that occurred in October and November of last year. One, in fairness to Ms. Whelan, did start in Spring of last year. But that is too little too late to really, in my view, carry a lot of further mitigation of the sentence that I have imposed.

The three years probation will, however, have a continuing ability to monitor an frankly, if you take advantage of it, will give you the ability to have somebody who can assist you in getting into other counselling, and be a contact and resource person to continue in talking through whatever pressures that you are feeling in life that can be more properly focused through the right sort of counselling so you do not lapse into the sort of decisions that gave rise to these offences. The terms of that probation order will be that you keep the peace and be of good behaviour.

You appear before the court when required to do so. You notify the court or 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 must report in person to a probation officer within two working days of your release from custody, and after that at all times and place as directed by the probation officer or any person authorized by the probation officer to assist in your supervision.

You will live at a place approved of by the probation officer, and not change that address without obtaining the consent of the probation officer in advance. Non-associations. Is there any reason why there should not, at the very least, be a non-association order with the various co-accused here, and if the crown requests, each of the individual victims of the break and enters? And should there be, perhaps either of you can make submissions why there should not be a radius, geographic radius preventing her from being in the areas of each of these homes. MR.

NEWELL: No, the crown would seek those terms, Your Honour. THE COURT: Any contrary submissions from the defence?

MR. GLASS: No, Your Honour. THE COURT: Do not contact or communicate in any way directly or indirectly by any physical, electronic or other means with Christopher Dacosta, Thomas Rudd, and... MR. NEWELL: It’s Rhys McCarthy. THE COURT: ...Rhys McCarthy, thank you. And then additionally, William Louis, Lucille Louis. Did you want any other victim names added – Margaret, I could not quite get the last names of Margaret and Charles Chorada (ph)? MR.

NEWELL: Yes, and with all of these I’d ask for an exception through legal counsel in case there’s any civil litigation and I can provide spelling afterward, but Margaret and Charles Cheeramida (ph), Marlon Herasingh, Costa and Giorgio Christou, Lucille and William Louis, and also Leslie and Elena Gounder. THE COURT: Any concern with any of those names? MR. GLASS: No, sir. THE COURT: And the only exception will be in the presence of or through legal counsel.

In addition, not to be within 100 metres of any place where you know any of the persons named above to live, work, go to school, frequent, or any place you know the persons to be except for required court attendances. And as well, not to be within 100 metres of 1545 Saugeen Drive in the City of Pickering, 909 Mountcastle Drive and I believe that is in the City of Pickering? MR. GLASS: Yes. MR. NEWELL: Yes it is. THE COURT: 1909 Bowler Drive in the City of Pickering, 1702 Silverthorn Square in the City of Pickering, and 24 Penny Crescent in the, I think it is still Town of Markham, but I am not sure.

Are you ware Mr. Newell? MR. NEWELL: I think it’s a town still. THE COURT: You will attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer for substance abuse, bereavement and grief issues, life skills, and under other, any other counselling to assist in rehabilitation. And especially, if there are other issues in your life, and I appreciate that the waived Gladue Report and First Nation heritage is not something that has been part of your background.

If there is anything that comes to mind down the road, I am imploring you to be open with your probation officer so that those areas can be explored if there are part of the triggering that has given rise to the addiction issues. On the issue of restitution, I am prepared to make a stand-alone order for the amounts that have been provided to the crown with regard to, confirmed amounts.

Have you had a chance though to confirm whether there has been any deductibles that should perhaps form part of a probation order and I have given the duration of the probation order enhancing the ability to make, to give rise to that obligation especially the pre-sentence report confirmation of the wish to live up to that obligation? MR. NEWELL: From Mr. Louis, I’ve seen in his victim impact statement that he had essentially damages in the amount of $15,000 for which he was compensated five, which would leave a $10,000 amount outstanding. THE COURT: Was there a deductible though?

There is a difference between the term in the probation order which I can make, I am quite happy that that be made by way of a deductible. Notwithstanding the best wishes expressed by the defendant, her track record of employment is not one that gives rise to a lot of optimism... MR. NEWELL: Right. THE COURT: ...that she is going to make a substantial amount of restitution that way, and I suspect the insurance company who you may also be in contact with at some point given the amounts of payments out to the various victims. MR. NEWELL: True. May I have the court’s indulgence? THE COURT: Absolutely. MR.

NEWELL: Your Honour, there was a $1,000 deductible, that $500 of which was waived because of the efforts of Mr. Louis in what he had to do in coming up with all of the receipts et cetera, so $500 deductible is the practical amount. THE COURT: Do you have any other deductibles from the other victims in your file? MR. NEWELL: No, I do. The $11,566.54 was the amount sought by Intact Insurance in relation to the repair of the door and the contents claim. Didn’t have any information from the homeowners and had never received any return calls from the homeowners in relation to that matter.

That’s the 24 Penny Crescent matter, which is count five. THE COURT: All right. So dealing first with the probation order, make restitution of $500 to William Louis, to be paid in full, and from that perspective, is there any reason why it could not be said in say 18-month, the first half of the probation order to come up with $500 to at least have some minimal compensation directly to Mr. Louis?

MR. GLASS: Obviously the suggestion is a reasonable one. She’s indicated to me she doesn’t know how she’s going to be able to pay it because she has no income now. She relies on Harvey Phillips income from the government as well as a pensions et cetera. THE COURT: If I said 24, in the first 24 months. I appreciate there will be some time when she is released from custody to get back on her financial feet, but certainly has the expression to the probation that she wishes to pursue education to be more self-sufficient. Is 24 months a period of time that she can commit to? MR. GLASS: Okay.

THE COURT: All right, so $500, and I appreciate from Mr. Louis’ perspective to wait two years for $500 with everything else he’s gone through must leave a somewhat bitter taste behind; I am not blind to that. It is the fact of so many victims that come before me that it does not come close to compensating what they’ve had to go through, but at least it is something, and I think it is important that Ms. Whelan take responsibility for at least that minimal amount. So within 24 months, payable to Mr. William Louis. Remind me not to forget the stand-alone order in case there is a lottery win or something like that.

Are there any other terms of probation the crown would be seeking? MR. NEWELL: We would seek a term that she not possess any weapons as defined by

section 2 of the Criminal Code . THE COURT: Any contrary thoughts to that? MR. GLASS: No, I’m fine with that. THE COURT: In that case, there will be a term that you not possess any weapons as defined by the Criminal Code , for example: BB guns, pellet guns, firearms, imitation firearms, crossbow, prohibited or restricted weapon, device, ammunition, explosive substance, or anything designed to be used or intended to be used to cause death or injury or to threaten or intimidate any person. Any breach of the probation order, and you know this, it is a new criminal offence if you are convicted.

You now have a record that will open of all sorts of different doors for sentencing both in terms of the crown elections and in terms of the various sentences available. What I am hoping is that you were able to survive the first 50 years, notwithstanding everything else that went on in your life as set out in the pre-sentence report without committing criminal offences, and if you get past this, you can go back that and the community will be safer for it. And that is now in your control. There will be a stand-alone order for $10,000 payable to Mr. William Louis, and $11,566.54 payable to Intact Insurance? MR.

NEWELL: I-N-T-A-C-T, Intact Insurance. And I have the address of the company. COURTROOM CLERK: You can give it to me afterwards. THE COURT: And I should turn to the defence, any difficult with either of those sums in the stand-alone order? I assume you have been given disclosure of what has been provided to the crown under the insurance issues. MR. GLASS: No. I am not able to argue against it, Your Honour. My friend has taken the steps to determine that amount, and so I’m not opposed to that amount. THE COURT: And given the nature of the charges, is there any contrary submissions to the DNA order?

I think it is a primary. MR. GLASS: No. THE COURT: And given primary, there will be an order that you provide a sample of your DNA. Does that cover off all aspect of sentence from both counsels perspective? MR. NEWELL: Yes it does. THE COURT: And the crown’s pleasure on any other charges before the court? MR. NEWELL: Withdrawn please. THE COURT: Right. Victim surcharges. I am off two weeks and I am already forgetting. I have no discretion on this aspect, $200 per count given that they are indictable offences.

There are five counts for a total of $1,000 to be payable within 60 days, which of course is not going to happen because you are going to be incarcerated for a longer period than that. As such, is counsel bringing an application to the court for an extension of time to pay the victim surcharges, and given the recent decision of Justice Glass on this issue, I would certainly be amenable to a period that would be exceeding the two years he granted given the amount of time that she is going to be in custody. Unless the crown objects... MR. NEWELL: No submissions.

THE COURT: ...four to five years in which to pay the surcharge. Is that something that you are prepared to make on her behalf? MR. GLASS: Well again, she has no funds to pay that but it seems like a reasonable amount of time. I’m in Your Honour’s hands as to the amount of time. THE COURT: So it is two days jail in default for non-payment, but five years in which to pay the victim surcharges. Frankly, I just hope that you are able to prioritize the victims here before the government, but I appreciate that it is going to be a challenge for you on all counts.

It is important, I think, for your rehabilitation that you take responsibility, at least make that initial $500 deductible as soon as you can once you are back into the community. Do you understand all the terms?

MR. GLASS: Yes. THE COURT: Good luck. I know it is going to be a challenge. I am counting on you to follow through with all these terms. MR. GLASS: So the application to.... THE COURT: I have made the application to extend the time for.... MR. GLASS: Formal application.... THE COURT: I’ve already granted that. MR. GLASS: Okay. COURTROOM CLERK: So how long is that? THE COURT: Five years. COURTROOM CLERK: Five years. And any time in default? THE COURT: Two days on each count. COURTROOM CLERK: Thank you. Any can I just confirm a couple of things. Probation is concurrent on every count? THE COURT: Thank you.

COURTROOM CLERK: And DNA noted on every count? THE COURT: I think that is appropriate. COURTROOM CLERK: Thank you. MR. NEWELL: Your Honour, thank you. THE COURT: Good luck. MR. GLASS: Thank you. THE COURT: Good luck and pass on the same sentiment to Mrs. Louis as well, please. MR. LOUIS: Thank you. MATTER ADJOURNED FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Chantelle M Quan-Vie, certify that this document is a true and accurate transcript of the recording of R. v.

Charmain Whelan the Ontario Court of Justice, held at 150 Bond Street East, Oshawa, Ontario, taken from Recording No. 2811-107-20160203-085334-10- WAKEFIG .dcr, which has been certified in Form 1 by Charisse Maynard. _______________________________ _____________________________________ Date Chantelle M Quan-Vie ACT ID# 4105418981 1-800-940-8218

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