R. v. Falk, 2020 ONCJ 233

CITATION: R. v. Falk , 2020 ONCJ 233 DATE: April 29, 2020 Information No. 19-17310, 19-2585, and 20-180 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. KYLE FALK (telephonically) S U B M I S S I O N S and R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE L. DEAN (telephonically) On April 29, 2020, at WINDSOR, Ontario APPEARANCES: A. D'Alessandro Counsel for the Federal Crown (telephonically) E. Brown Counsel for the Provincial Crown(telephonically) R. Russon Counsel for K. Falk (telephonically) ... MATTER BEGINS 11:09 a.m. MR. RUSSON: Good morning, Your Honour. It's Mr. Russon speaking. THE COURT: Yes. Good morning, Mr. Russon.

MS. BROWN: Your Honour, it's Ms. Brown. I'm just going to go on mute. I'm going to stay on the line in case I'm not required, so I'll just go on mute, but I'll be there, okay? THE COURT: All right. Thank you. MR. D'ALESSANDRO: Good morning, again, Your Honour. It's Mr. Armando D'Alessandro, the Federal Crown on the line, as well. THE COURT: All right. Thank you, sir. MR. RUSSON: Your Honour, I have an articling student in my office present, if that's okay with everyone? THE COURT: Of course. The courtroom is still a public courtroom. MR. RUSSON: Thank you. It's Ms.

Odem (ph), who I believe you know from her previous clerking while she's been in law school and I believe Mr. D'Alessandro knows her, as well. THE COURT: Yes. Good morning. MS. ODEM: Good morning, Your Honour. MR. D'ALESSANDRO: Good morning, Ms. Odem. ...PAUSE, waiting for parties, set up, and other matters addressed while waiting . MADAM CLERK: The matter of Kyle Falk. THE COURT: Mr. Falk, good morning, this is Judge Dean. KYLE FALK: Good morning, Judge Dean. THE COURT: Could you please state your date of birth for the record? KYLE FALK: November 6, 1990.

THE COURT: Is that what the information you've got, Madam Clerk? MADAM CLERK: Yes. THE COURT: All right. Thank you. The matter is here for sentencing. The Court has received materials from the Crown and the defence, and I've also forwarded to the defence a memo from the - from Corrections that I received this morning setting out the current circumstances, if that's the appropriate way of characterizing it, with respect to the COVID-19 pandemic within the institution here in the Province.

So counsel - both counsel have received that, and I will - before I go any further, just indicate that, that - the guilty pleas were entered and findings of facts were made on March the - I have it as March the 5th - I'm sorry, 6th, when I heard facts and took the plea and made findings. So we'll hear from Mr. Russon, counsel for Mr. Falk, at this time. MR. RUSSON: Thank you, Your Honour. First things first, administratively, I calculate Mr. Falk's presentence custody as 141 days and I will be asking that this be given one-and-a-half-to-one credit at 212 days.

I should note that typically when I relay presentence custody to a court, I double-check it across the information to ensure my notes are correct. Due to the situation, the COVID, I haven't been able to do that. So I've done that for my own notes, I think they're correct, but I would of course invite correction from the Court, from Mr. D'Alessandro, or someone else, on a different count. In any event, it's around 141 days which would be one-and-a-half-to-one to 212 days, which is a number conveniently close to seven months.

So I have [ indiscernible ] receiving those [ indiscernible ] at seven months [ indiscernible ] presentence custody. Apart from that, Your Honour, you will of course recall that this was subject to a judicial pretrial between yourself, myself, and Ms. Greenspan. We discussed the range of sentencing. At the time, Your Honour indicating a likely range of 16 to 18 months and after discussing it with the firm, we decided to issue on that range [ indiscernible ] and order the presentence report.

With regards to the presentence report, as I take it, both positive and gives an explanation as to how someone who does have a criminal record, but not a related criminal record, [ indiscernible ] line between one event and he [ indiscernible ] in connection between Mr. Falk's [ indiscernible ] and his substance abuse within [ indiscernible ] behaviour of selling substances to support that habit. The letters of support from South West Detention, as well as from the expectant mother of his child to be, Shawna McFadden (ph), also shed a light on his history, his struggles, and what I view as his will to change.

I can also note, in the presentence report he's not named as the owner of the autobody shop - or auto shop Kyle worked at off and on [ indiscernible ] Mir, M-I-R. I can confirm he's not currently in the county, I'm told [ indiscernible ] spoken to. But I know Mr. Mir has been [ indiscernible ] on more than one occasion. He's the only positive adult role model Kyle's ever known and he's been incredibly forgiving of Kyle and understanding that he's also a firm hand when Kyle, under his care, whether that be [ indiscernible ] employee. He is very strict, very firm, [ indiscernible ] Mr.

Mir is a strict Muslim and I can tell you that since of the completion of this presentence report, Kyle - Mr. Falk has also re-taken up the Muslim faith, which he's done before [ indiscernible ] he's currently fasting for Ramadan, is taking it very seriously and he knows [ indiscernible ] support in his long strive to establish and maintain sobriety. He's worked [ indiscernible ] in the jail [ indiscernible ] especially given the time he's been in there. That is to say, the programming and work has been [ indiscernible ] unusual, but he's still managed to do everything.

Obviously, when we did the pretrial, Your Honour, COVID-19 was something we were hearing about internationally. It was only - we were - none of us were cognizant that it would take such a massive toll on our society and our judicial system. So while I stated the position at that time, Your Honour takes the position at that time.... THE COURT: I'm sorry? MR. RUSSON: So I'd ask that, of course, COVID be considered in addition to everything that was discussed at the pretrial. Sorry, I think I'm echoing a little bit.

With regards to the cases I filed and the documents I filed, Your Honour, [ indiscernible ] covered Tabs 5 through 7 are, I'd almost say, trite at this point with [ indiscernible ] and they don't really focus on the specifics of this and COVID-19. I focus more on the affidavit of Dr. Orkin, which is Tab 8 of my additional sentencing brief, which speaks, at paragraph 24, to the seriousness and likely cause of outbreak in tight spaces, and not only and not necessarily that they are more likely to happen there, but instead when they do happen there, they're so much more overwhelming they spread like wildfire.

Most notably at paragraph 33, every person was discharged from a correctional facility to a private residence, is an opportunity to flatten the curve and improve health, but even [ indiscernible ], [ indiscernible ] facility in question. That puts the facility in question and the public.

Again at paragraph 35; "It is in the best interest of the community at large that an impressive approach be taken to depopulate the custodial facilities, be it the jails, [ indiscernible ] the penitentiary, reformatories, or detentions centres, and whether they be for males, or females, or youth, or adults." [ as read ] Your Honour, this is, of course - I'm asking you to take judicial notice of this affidavit which Justice Pomerance has in Regina and Hearns , and many other courts have, as well.

Comparing and contrasting it with the data received this morning from Your Honour and - or sorry, I should say, through Your Honour from the Ministry of the Solicitor General, I don't think there's a comparison in terms of - of expertise and validity. Dr. Orkin is an independent witness who is an expert specifically on the [ indiscernible ] involved. The authors of this response to COVID-19 information are noted as strategic advisors. I don't know the education, training, or expertise involved in becoming on a strategic advisor, but I know that they're - it's not noted, so we can't assume any of it.

With regard to the specifics presented at page 2, I'm [ indiscernible ]... ...AUDIO INTERFERENCE. MR. RUSSON: ...of course that this Court can give judicial notice of the data presented, but I would caution the Court, the Crown, and anyone to go beyond any judicial notice of the raw data and extrapolating any conclusions from such. I have some undergraduate training in statistics and I can tell you that what we're looking at here is 372 - 374 results out of 5,685 inmates. That means 6.5 percent of the inmate tests are available through extrapolated data. In basic common scientific terms, that is insignificant.

Meaning, unless that they're - unless we are assured that there has been proper psychometric sampling done to ensure true randomness and you get a higher number of these [ indiscernible ], the common - common theory behind that being the central limit theorem that given a population with a mean of... ...AUDIO INTERFERENCE. MR. RUSSON: ...[ indiscernible ] when the X [ indiscernible ] a limited form of distribution in a standard normal distribution. In plain English, Your Honour, we need more. If we tested four people and we say, there's 25 percent, okay, great.

If we tested four people, okay, there's zero percent. If we tested four people [ indiscernible ] is 100 percent. Now, 374 is more than four, but in comparison to 5685, it's simply not enough, and on top of that, I would say, we don't know anything about how the sampling was done, about how the population was picked. So from a scientific or extrapolation point of view, that that is [ indiscernible ].

It's - I'm sure it will be helpful once analyzed by a statistician and/or a scientist, but at its current status, there's simply nothing we can do to [ indiscernible ] who is an expert on data extrapolation or unpredicted modelling. There's not even - the common science included in here would be a - a ratio which would explain exactly how much we can rely on something, how much of - of a variance. These test results can't account for it. We don't have any of that. It's just raw data. It really tells us nothing. And I - I would caution this Court from taking any [ indiscernible ].

Moreover, even if - if this Court disagrees and the data's extrapolated, then it also doesn't really answer the concerns from Dr. Orkin's affidavit. If you look at - on page 2 where it says, Ontario Correctional Institute, you'll note, of course, that that breakout happened on April 20th and on April 15th there was no risk at all. So in five days it went from nothing to 82. Now, they explain on, I believe, it's page 3 that all inmates who have been transferred from OCI have been placed in medical isolation at different correctional facilities. And that's great, I applaud them for taking care of that one problem.

But my question is, what happens when it happens again? Because it's going to. It's a virtual certainty. No matter the precaution taken, no matter what anyone has - if there's no place where precautions are been taken more seriously than hospitals, and we still have nurses and doctors who are becoming COVID positive from going to work. No matter what happens, it's going to happen again in the jail, and when it does, what we've seen - with what happened at OCI, is that once it gets in there it's insidious and it spreads like wildfire.

And finally, we have the facilities who have taken care of this problem, supposedly, but what - what about the second time? What about the third time? It's a pure math game, as outlined by Dr. Orkin and it - his conclusion, I think, needs to be adopted by every court, okay, unless detention is absolutely necessary, unless release or [ indiscernible ] further jail would be so shocking to the administration of justice that the public would completely lose confidence, then people need to release and given a time served sentence. I note - I'll go through them one-by-one the cases presented by my friend, Mr.

D'Alessandro. First, and very briefly, is cases on range, Regina and Brown (ph). This is a Ontario Court of Justice case that I don't [ indiscernible ] value here. There's very little conflict given, it doesn't refer to Woolcock , there's no suggestion that the judge or the defence or the Crown were cognizant of Woolcock . It takes a selection based on Crown submitted cases to choose a range. I submit that it does nothing to dispel the well-established range in Woolcock .

Again, with Regina and Graham (ph), the is a Court of Appeal case, same level as Woolcock , but there's no context, it doesn't refer to Woolcock , and moreover, we don't know the argument brought by the defence, Your Honour. Given the timeline, I note that it's very curious that it was reduced to [ indiscernible ] two years less - two years less a day, which, to me, is pretty [ indiscernible ] drawn given the timelines for appeal, it's likely that two years would have been the best sentence for Mr. Graham because of - with regard to parole eligibility, and that's probably what the defence sought as a reduction.

I don't know that, but we also don't know the alternative, and given that the Court of Appeal released Woolcock [ indiscernible ] and didn't mention [ indiscernible ] it's a reasonable inference to draw. The three years was where they were looking to go down to. Regina and - and Flood (ph) again same thing, [ indiscernible ] but it's an Ontario Court of Justice case that had limited persuasive value to this Court, and again, no consideration of Woolcock , which would be binding.

With regards to the COVID cases submitted, I note Kandahi is both available to the defence and I appreciate my friend being fair and presenting a wide scope of cases. The last bullet point in his

summary is that it says, "The accused was in the general neighbourhood of the Crown's position and the matter was therefore brought forward looking for a time served disposition." Respectfully to my friend, the general neighbourhood of the Crown's position is irrelevant. What's relevant is the general neighbourhood of a reasonable sentence. Mr. Falk is in a time served, the range of reasonable sentences. Seven months given on this matter, pre- or post-COVID, would not be met with appellant intervention because it's within the established range of sentences.

Is it on the low end for someone who committed two of these offences while on bail? Yeah. That is if, perhaps, downplayed the aggravation of that [ indiscernible ] on bail? Yes. But in my respectful submission view that's balance out easily with the serious litigation that has to be considered with regards to COVID-19. The next case is an Ontario Court of case, Regina and Wilson .

It's just simply - I understand [ indiscernible ] the same, that it wouldn't be, you know, a time served or a short sentence wouldn't be appropriate in every single circumstance, but [ indiscernible ] you find there in Wilson forced his way into a home and assaulted a victim unprovoked, knocking him unconscious. I know that balance is considered a crime of the victim and drugs, depending on who are ask, are considered victimless or victim crimes, but the difference in risk and threat to the community is - is extraordinary, in the sense that violence is real violence.

There's not a long list of people who are looking to punch the victim in the face in Regina and Wilson , but there's a long list of people who can supply methamphetamine in Windsor. So when we're punishing someone for violence and we're saying that someone needs to be locked up away from society for violence, that's a real threat to that person. It wasn't going to be replaced by someone else. Drugs, however, while they are considered by many to be a crime with victims, I suggest they're not a victim - that they're - excuse me.

I suggest they are a victimless crime, but regardless, if they're not, again, the risk is theoretical. The war on drugs, we know how it works, nobody stops buying drugs because one drug dealer is busted, or because five drug dealers are busted, or because fifty drug dealers are busted. So the deterrence, the denunciation, and more importantly, the need for separation from society while they apply to assaults and drug cases similarly in light of COVID, when we're talking about protection of the general public, they need to be looked at very differently through the lens of real risk versus theoretical risk.

Regina and McConnell , just similar notes from the above case and I think it's the same sentencing judge, "While others that do not pose such a risk should be released upon disposition if possible and appropriate." And I agree. I think it's possible here and I think it's appropriate here. Regina and McGrath , I believe is - comment - the Khandai decision; "Does not stand for the proposition that all of the sentencing principles and practices must be laid in abeyance until the illness runs its course through society." [ as read ] I agree. Sentencing principles such as, restraint.

Sentencing principles such as the general idea that sentencing is holistic, more art than science, and that every case needs to be treated on its own merit. This is fact specific, this is case specific. Other cases that my friend's presented with higher sentences for possessing methamphetamine not only didn't have COVID to consider, they're just a different person and a different set of circumstances in a different jurisdiction with a different ground and a different lawyer and a different judge. There - unless you're talking about an appellant court saying, quite [ indiscernible ], this is a range.

This is the range. What other courts did, especially at your own level, Your Honour, is of very limited relevance. Onto - and this, again, crosses what I spoke to you about, Dr. Orkin, and the decisions presented by my friend. I'm looking at Regina v.

- I believe it's A.I. or A.L. [2020] ONCJ 198 [ sic ]. Reading this judge's decision as a member of the bar and as a member of the public, quite frankly, I'm disturbed that an honourable member of the bench would be so arrogant as to take snippets of data and presume to know better than Dr. Orkin's evidence, which he referred to as credible and reliable. It's indicative of a problem we have in society now that people are forming their own opinions with reckless disregard for expertise.

It's - I don't know, a cruel moment of poetic injustice, that after this decision was released on April 17 in this justice's very own jurisdiction, there was a massive outbreak at his local jail, OCI, in which eight staff and 60 inmates tested positive having zero cases five days earlier. The judge in this case says that, "The wildfire appears to have been doused." And that's the problem with language like "appears to have been." You can look at the data from the Ministry of the Solicitor General and say, it appears that it's working, but without an expert lens, you're just guessing. We don't know anything.

It - it appears it's been working, sure. I agree, it appears on its face that it's been working. But that's what he thought and then - and then things changed drastically overnight. Again, same thing, my friend filed the memo, it's the word of nonexperts who are more or less saying, we're doing our best, don't worry about it. The Windsor Star speaks about the Windsor jail population. My friend may not know this, not practicing defence, but sentenced prisoners don't stay at the South West Detention Centre, so it's not overly relevant.

However, I would note that he is correct, the jails are currently under capacity and I'm not making any suggestion that there's overcrowding. However, I hope that he's not making the suggestion that it's undercrowded to the point where COVID is no longer a massive threat. COVID is an extraordinary threat. Dr. Orkin's evidence has been unchallenged. The government has limitless resources. They decided to put together this COVID-19 information note authored by two people from their own staff. If the government could find a doctor who said Dr. Orkin's wrong, it would have done so, but they can't because he's not.

Because he's expert on the field, a leading expert in the field. Anyone who is going against him needs to at least match his credentials or at least snip his credentials. I don't have any reason to believe that Ms. Restra (ph) or Mr. Walker (ph), the authors of this paper, have any expertise whatsoever in medicine, data extrapolation, anything. They've offered blank statistics. That's fine. But they are, like I said, almost no value. So if you take Dr.

Orkin's words to heart and do so in a way similar to Justice Pomerance in the Hearns ' decision which is at Tab 10 of the defence case brief; "Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates [a] sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks a broader host of factors. A sentence may be fit even if it's not perfectly proportionate. Fitness looks, not only at the length of sentence, but the conditions under which it is served.

As a result of the crime health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection." [ as read ] Those lockdown conditions, I would note, I referred to in the COVID note from the Solicitor General. "Punishment is increased, not only by the physical risk of contracting the virus, but other psychological effects of being in a high-risk environment with little ability to control exposure." [ as read ] [ Indiscernible ] until you have no ability to control exposure.

Further, at paragraph 17; "Consideration of the circumstances might justify a departure from the usual range of sentence, such as that contemplated in Regina and Lacasse. " Madam Reporter, L-A-C-A-S-S-E, [2015] S.C.C. 44 [ sic ]. So what we have before us, Your Honour, is a situation where the established range, in my respectful submission, is six months to two years less a day. Mr. Falk has six months presentence custody. Your Honour has noted that - at the pretrial that a fit or proportionate sentence, I can't remember your terminology, was 16 to 18 months.

At the time, I had absolutely no reason to disagree and I entered the plea on that basis. At the time, the Crown also felt that that was reasonable and they accepted a plea in front of Your Honour on that date, and as you may recall, you gave them an extra opportunity to file an application to have Your Honour recuse himself if - if they thought that necessary and they chose not to do so.

Lastly, Your Honour, this is something [ indiscernible ] sort of came to me this morning, so I didn't file a case on it, but I will note that at the very least if the defence hasn't shown through case law and exploration of COVID-19 that Mr. Falk can be granted his time served plus a suspended sentence today, meaning seven months plus a suspended sentence, then it's important for the Court to look at why a conditional sentence isn't available and how that was held to be constitutional by higher courts. The case of relevance is Regina and Sawh , S-A-W-H, [2016] ONSC 7797.

In that case, Your Honour, counsel from Toronto brought an application to have the 742(1) [ sic ] declared invalid due to unconstitutionality [ indiscernible ] disproportional because it was denied an offender who ought to serve his sentence in the community, as opposed to the jail. The opportunity to do so because the bill introduced by the Harper government, I want to C-75, that took away conditional sentences for any - any events punishable by life, which possession for the purpose of trafficking is.

The reason, or at least among the reasons, that the court held the law was constitutional is that in any reasonable hypothetical presented to the court by counsel or considered by the court, the court was left with the option to suspend the passing of sentence instead of placing on house arrest. Meaning, if you read into the language, they're saying, if there were a mandatory minimum here, we may agree that this

is disproportionate, but there isn't. It's not available because of the minimum punishment, it's unavailable because of the maximum punishment. Therefore, it's constitutional because in any reasonable hypothetical where it would be an unduly harsh punishment, the judge would simply be able to suspend the passing of sentence. In my respectful submission, Your Honour, this is a situation in which further jail would be an unduly harsh punishment on Mr.

Falk and that ordinarily a court would be able to - ordinarily or before 2015 a court would be able to conveniently say, I sentence to incarceration, but I feel you need to serve that in the community. That's unavailable and that's been deemed as constitutional by a court higher than this one. So I can't challenge it here.

But I will say, in the manner it was deemed constitutional, leaves open the door for this reasonable hypothetical is now a reality that what if there was someone who because of a global pandemic was at an increased risk by staying in jail, and not only an increased risk to himself, but would impose an increased risk to society by staying jail? Wouldn't it then be unduly harsh to sentence him to further jail and wouldn't we then have to consider a conditional sentence instead of jail? Well, that court said that if that's how you feel, then you should suspend the passing of sentence because it's available.

So I would suggest that that is how this court should conclude here, that Mr. Falk is - it's obviously better for him and it's better for society as a whole. So in my view, I'm arguing for both parties and obviously the Crown will disagree as the voice of the public, but in my view, the better - the better sentence, the more fit sentence, maybe not the more proportionate sentence, as discussed by Justice Pomerance, but the more fit sentence is that of recognizing seven months presentence custody and suspending the passing of sentence on the drug matters.

If Your Honour disagrees, and I note that there is some case law that suggests when there's a drug offence along with a

Section 117 prohibition offence, that those sentences are to be served consecutively. We didn't get into the details of that at the pretrial because you offered a global sentence that probably took that into account. But I would note, however, Your Honour, that if that's the case, then Mr. Falk's sentence could be seven months and a suspended sentence on the drugs, and could be a conditional sentence on the weapons breaches. Your Honour, I would also note a case I discussed in front of you on multiple occasions, Regina and McGill (ph) that speaks about the deterrent value of a suspended sentence.

And the reason I'm asking for a suspended sentence as opposed to one further day is because I think that the sentence I'm proposing is low on the proportionality scale. I think what makes it fit, respectfully, on the fitness scale, is that a suspended sentence allows the Crown, if Mr. Falk is charged with any new offence or simply fails to report to probation for one day, it allows the Crown to bring an application before this court to have him re-sentenced. That is, to unsuspend the sentence. I know that is not done here, it's a common practice in the United States, but there is a mechanism for it.

The Crown can do that. The court - and the court could here that and if Mr. Falk continues offending, I have a very difficult time coming up with an argument why he shouldn't be re-sentenced to something closer to the range. So as I said, Your Honour, subject to any questions, my position is that a fit sentence on this would be to note seven months presentence custody on all matters, suspend the passing of sentence. If Your Honour disagrees, then a fit sentence would be to note seven months presentence custody, suspend the passing of sentence on all drug counts and sentence Mr.

Falk to a term of imprisonment to be served in the community conditionally under a strict conditional sentence order with regard to the weapons prohibition. Thank you, Your Honour. THE COURT: All right. Thank you, Mr. Russon. Mr. D'Alessandro, I'll hear from the Crown. MR. D'ALESSANDRO: Thank you, Your Honour. Firstly, in regards to Mr. Falk's presentence custody, the numbers that I had are a little bit different from my friend. So I just want to explain the numbers that I have and ask my friend where the variance comes from. But I have presentence custody from August 31st to September 3rd, that's four days.

October 17th to November 19th, that's additional 33 days. And January 20th to March 6th, which is an additional 47 days. And then on March 6th, Mr. Falk pled guilty. There was 54 days following that guilty plea before today on April 29th. So - and Your Honour, I apologize for my ignorance in this regard, but it was unclear from my reading of the

section whether or not a one to one-and-a-half presentence custody is applied to days served after a guilty plea? But.... THE COURT: That was - that's correct. MR. D'ALESSANDRO: It does. Excellent. Okay. In that event, Your Honour, my total would be 54 plus - I - I receive a total of 207 days in custody. THE COURT: All right. Is that before enhanced or after enhanced? MR. D'ALESSANDRO: That is after being enhanced, Your Honour. Which.... THE COURT: So a difference of five days, then? MR. D'ALESSANDRO: Yes, Your Honour. It's not - not obscene difference, but just for proper application.

It was 84 plus - I'm sorry, Your Honour, I just want to get the numbers down. So.... THE COURT: [ Indiscernible ]. MR. D'ALESSANDRO: For the record. I have 108 real days and that's enhanced at one and a half to - or sorry. 84 is what - so that's 138 real days enhanced at one-and-a-half-to-one for 207 days enhanced. THE COURT: Okay. All right. Like you said, it's not - make much of a different in the final analysis.

MR. D'ALESSANDRO: That's fair, Your Honour. In any event, moving forward. On March 6, 2020, Mr. Falk pled guilty to the following, that's on 19-17310, plea to CDSA 52, possession for the purpose of trafficking, 47.9 grams of methamphetamine. And on Count 2, possessing a firearm while prohibited. It was an air rifle pursuant to

Section 117.01 of the Criminal Code . On Information 19- 2585, there was a breach of a recognizance count and a possess ammo while prohibited count. And then on Information 20-180, there was a second trafficking charge on the same drug, methamphetamine, in the amount of 6.5 grams, and a guilty plea to breaching a release order. And that offence was committed while on a surety release. And Your Honour, as you're aware, the initial global Crown resolution position would have been 2.5 years or 30 months with the sentences concurrent.

Given the current COVID-19 pandemic and after reviewing the materials presented by defence, the Crown's reconsidered their position. We're now seeking a range of 18 months to two years less a day. This position accounts for aggravating and mitigating factors associated with the three informations. The aggravating factors taken into account from the Crown's position were the presence of guns and ammo, as well as drugs. The fact that methamphetamine is a very serious

Schedule I substance and is a blight on this community, in particular. That Mr. Falk was bound a release order at the time of his arrest on two of three informations. That Mr. Falk had - has a prior record, including one prior CDSA conviction, though it is for simple possession of a

Schedule II substance. And lastly, the temporal relationship of the three serious informations, they're within months of each other and seem to indicate a pattern of criminal behaviour. After reviewing the materials submitted by the defence, mitigating factors recognized by the Crown are guilty pleas and Mr. Falk's efforts at rehabilitation and positive behaviour while in custody. And as I've previously indicated, Your Honour, the Crown would be seeking a range of 18 months to two years less a day in custody with a term of probation to follow, including all conditions suggested in the presentence report. The Crown will also be seeking applicable DNA secondary orders, forfeiture order, and a

Section 109 order due to the trafficking convictions. In response to my friend's submission on the suggested - the range of sentence, my friend relies on Regina and Woolcock and while that's certainly a good Court of Appeal decision with regard to cocaine, just - in regards to methamphetamine, another

Schedule I substance, Regina and Woolcock was decided in 2002, which was prior to methamphetamines move into the

Schedule I substance. And further, the amount of substances seized in Regina and Woolcock is - I believe it was 7.5 grams of crack cocaine, which is significantly smaller than the amount of the substances before Your Honour today. And in Regina and Woolcock the accused was sentenced to 15 months on that 7.5 grams of crack cocaine. In the Crown's respectful submission, Your Honour, methamphetamine is a far more serious drug, especially in regards to this community, in particular. I'd like to address Your Honour just very briefly to walk you through the Crown's sentencing brief.

In Regina and Brown at paragraph 11, this is a decision by His Honour Hornblower, the indication is that the range for low-level offences in trafficking methamphetamine is two to three years, and a prior record is an aggravating factor. His Honour goes on, continues, that reformatory sentences are not inappropriate - or - it's a double negative. I'm sorry, Your Honour. Reformatory sentences are appropriate in this case, depending on the circumstances. Methamphetamine is a

Schedule I substance, and as a general rule, penitentiary sentences are appropriate. At paragraph 17, His Honour Hornblower has a brief description of methamphetamine and that - in regards to

Schedule I, and His Honour indicates that; "The harshest in penalties available under the Act are reserved for

Schedule I substances. While cannot ignore the steps of rehabilitation, the principles of denunciation and deterrence remain paramount. Methamphetamine is a highly addictive drug in the same category as cocaine and heroin. An addiction can arise easily and once in place is extremely difficult to overcome. Prolonged use of the drug leads to significant physical and mental health problems, and the use of methamphetamine in this community has grown over the years and its abuse continues to be prevalent as anyone sitting in this courtroom on a regular basis can attest.

It's a drug that ruins lives, often young lives, and can, and has resulted in the death of users. The addictive habit is often funded by those who resort to crime with the result of the effect of the addiction reached deeply into the homes of countless people throughout the community.

Those affected by addiction should come as no surprise to anyone and those who engage in the trafficking of drugs must bear the responsibility for the harm that they cause." [ as read ] On paragraph 18 His Honour continues, and says; "Denunciation is critical if for no other reason than that those who live a life respecting the law can be assured that those who do not will, on appropriate circumstances, be removed from the community for the protection of the community." And in respect to the Ontario Court of Appeal decision, Regina and Bram (ph) the Crown submitted, the Ontario Court of Appeal confirms at paragraph 3 that; "At a guilty plea and sentencing proceeding, Crown counsel asked for a penitentiary term of three years, defence asked for two years.

While the sentencing judge indicated that a great deal of credit needed to be given for the early guilty plea, she imposed the sentence suggested by the Crown. Nor is there any other indication that credit was actually given for the early plea, which not only indicates remorse, but saves the system substantial cost. Further, the case law brought before this court confirms that three years is at the high end for this question of methamphetamine." [ as read ] The quantity of methamphetamine in this case was two ounces, which is 56 grams, and the Court of Appeal here indicates that there is

a range and that three years would be at the high end. In the case - in Regina and Grant (ph), Your Honour, the accused pled guilty 10 days after his arrest, which the court granted was a substantive mitigating factor. So in the Crown's respectful submission, the range for this amount in this type of offence, notwithstanding the aggravating factors or the COVID-19 pandemic, would be two to three years.

In terms of sentencing during the COVID-19 pandemic; Your Honour, the Crown submitted a number of cases as there's a number of different approaches to how COVID-19 has affected judges and their sentencing decisions. The Crown wanted Your Honour to make a more informed decision based on a number of cases so Your Honour could come to the best conclusion Your Honour saw fit. Particularly with respect to Kandhai , that's the Ontario Superior Court decision. The paragraph within which - it's paragraph number 5 His Honour says; "We are now in the general neighbourhood of the Crown's position.

In my view, taking into account all pertinent circumstances, the appropriate overall total disposition is time served." The importance of that general neighbourhood of the Crown's submission statement isn't that the judge was basing his decision on the Crown's position, it - the matter was actually brought forward, I believe, at the request of the judge to be dealt with, accordingly, so that the accused might receive the time served position. At paragraph 7, and it is Justice Harris who says; " Hardship in serving a jail sentence has always been a proper consideration in crafting an appropriate sentence.

There is no specific evidence before me as to the effects [of COVID-19] on Mr. Kandhai, but there need not be. It is obvious at least up to a certain degree. The entire country is being told to avoid congregations of people. A jail is exactly that, a state mandated congregation of people, excluded from the rest of the population. The situation, which has led to drastic measures in society at large, is bound to increase day to day hardship in prison and the general risk to the welfare of prison inmates. Given how much time he has served thus far, it is in Mr.

Kandhai's interest and the public's interest as well, that he be released." [ as read ] Particularly with respect to paragraph 6 of that same case, Your Honour, His Honour Harris mentions that; " Most [important] to mention for the immediate purposes today is the pandemic threatening us all. Although there is a risk of overemphasizing it on sentence, the pandemic is nonetheless a significant factor." [ as read ] In Regina and Wilson , Your Honour, the judge concludes that the COVID-19 pandemic is a factor that can be accounted for in sentencing.

And at paragraph 38, indicates; "A further period of incarceration is appropriate, given the accused's history of violent offences, notwithstanding the COVID-19 concerns. This court does not believe that a conditional sentence is appropriate. There is insufficient evidence before the court about the circumstances regarding the conditional sentence being proposed. Considering all mitigating and aggravating factors and the current world crisis regarding COVID-19, the court finds a sentence of eight months' custody on the charge of assault causing bodily harm less pre-sentence custody, five months to be appropriate.

Although the Crown is seeking a lengthier period of incarceration, the court believes that a lengthier period of probation would assist the accused and ultimately society. Given the health concerns with respect to COVID-19, the amount of contact in the immediate future with a probation officer by the offender may be fairly minimal. Hopefully the concerns with respect to COVID-19 will subside and the legacy of this sentence order, will not be the period of incarceration, but the lengthier probation order." [ as read ] And in this case - I believe the Crown in this case was asking for 18 months. That's correct.

The Crown was asking for 18 months and the defence was asking for a time served at five months. And the accused was given a sentence of eight months less presentence custody. In Regina and McConnell , Your Honour, at paragraph 33 to 36; "The offender is being sentenced in the middle of a pandemic for property crimes. Courts have taken the view that, given the risks faced by individuals who are incarcerated, although the inmates who truly prove a risk to society should remain incarcerated, others who do not pose such a risk should be released if such a disposition is possible and appropriate.

The court when it imposes its sentence must recognize and consider, COVID-19 implications and the sentencing provisions of the Criminal Code including

section 718.2 ." [ as read ] With respect to Regina and McGrath , this matter speaks to the significance of the pandemic factor. At paragraph 28, His Honour Berg indicates; "While the decision of the Superior Court in Khandai indeed predicated to an extent on the existence of the pandemic, it does not stand for the proposition that all other sentencing principles and factors must be held in abeyance as the illness runs its course though our society.

What it does stand for is the principle that where there are urgent exigent circumstances, an offender who has served most of an anticipated appropriate sentence can receive a lesser sentence to mitigate those circumstances. This was made patently clear by Justice Harris in the last sentence of paragraph 7 of the Khandai decision." [ as read ] And Your Honour, I also included a case from the British Columbia Provincial Court, although I understand it's not binding and not

particularly persuasive on Your Honour, I thought His Honour McCarthy (ph) discussion at paragraph 188 to 190 was very helpful on, again, including COVID-19 as a factor in sentencing. His Honour continued at paragraph 88 that; "All the information regarding COVID-19 pandemic can change within hours and will likely do so. While courts must be able to react appropriately to important changing conditions in extraordinary times, in cases such as the one here, there must still be an adherence to the established laws of sentencing. That must continue, notwithstanding any immediate exigencies at any given time.

Were it otherwise, the rule of law will be eroded and public trust and confidence in our judicial system will be harmed. Based on my understanding of these post-pandemic cases and in light of pre-pandemic case authorities, a court may take judicial notice of the significant risk that the COVID-19 virus to both general population as well as inmate population." [ as read ] And those were the cases, Your Honour, in regards to COVID-19's factor in sentencing. Regarding the correctional facilities response to COVID-19, I included an informational note that I was able to locate, Your Honour.

I didn't see - I would thank you for providing that memo, that was something I was searching for that I saw other courts had referred to in their decisions, regarding the statistics in Ontario jails. But I certainly appreciate the submissions made by my friend in regard the dangers of COVID-19 in a correctional facility, and as my friend indicated, the informational notes, rather than - though there is evidence of data in them, I would suggest that the important aspects to glean from the informational notes is that correctional facilities are hard at work in deterring the virus as much as they possibly can.

And that there are plans in place, if an outbreak occurs, how to deal with it and that there are a number of plans and operational changes in effect that minimize the risk of COVID-19 to the inmate. In regards to my friend's suggestion of a suspended sentence or conditional sentence, in the Crown's submission that - that isn't an appropriate sentence for the crimes before Your Honour. I don't need to tell Your Honour how much of a problem methamphetamine is in our community and 47.9 grams of methamphetamine, it's a significant amount.

As previously indicated, the range for that - at least given by the Ontario Court of Appeal would be likely be in the two to three-year range. And while COVID-19 is certainly a factor Your Honour should consider, Your Honour should also consider the public perception of the fact that that's three very serious informations and three very serious crimes that were committed in a short span of time. And while I applaud Mr.

Falk for his efforts at rehabilitation and positive behaviour while in custody, the Crown's position is that a sentence of time served is simply not appropriate for this offender and for these circumstances, including the aggravating factors. Based on everything I've - the Crown put before Your Honour, the Crown believes a fit sentence would be in the range of 18 months to two years less a day. Subject to any questions, those are my submissions, Your Honour. THE COURT: All right. Thank you, Mr. D'Alessandro. Mr.

Falk, the Court, before I impose a sentence, is required to ask you if there's anything you would like to say before I give my decision. Is there anything you would like to say? KYLE FALK: Yes, Your Honour. THE COURT: Go ahead. KYLE FALK: I'd like to say that I know that my addiction has been a problem and on this I'm going to the John Button House, and also looking forward to my newborn, and I'm sorry for all the - the addiction and all the weapons, and stuff, that I've done. And so, that's about it. THE COURT: All right. Thank you, Mr. Falk.

R E A S O N S F O R S E N T E N C E DEAN, J. (Orally and written): The Court has heard lengthy submissions from both counsel in this matter. I've received quite a bit of information from both counsel, including case law, which I have reviewed and counsel have referred to. The Court has to take into account a number of factors when deciding what the appropriate sentence is in this matter.

As indicated by counsel, I conducted a pretrial back in the first week of March with respect to this matter and I indicated what I felt was an appropriate disposition in this matter, should the accused enter a guilty plea before me. He has done so. The Crown and defence have spoken of the aggravating and mitigating factors in this matter and I'll maybe repeat those a little bit later in

my decision. At the time of the pretrial, our society was not dealing with the COVID-19 pandemic. At this time, now, this Court has information before it regarding the pandemic and its impact on our society, including up until this point, the impact it has had in the Provincial correctional institutions, the remand facility, in particular. Mr. Falk has served the equivalent of anywhere between 207 and 212 days, depending on whose math is accurate. That's after giving him the one-and-a-half-to-one credit.

The challenging part of this sentence now is, of course, how much should the COVID-19 pandemic alter what this Court expressed as the appropriate sentence at the pretrial, and which defence counsel accepted as an appropriate sentence. He has repeated that acceptance here today, but has asked this Court, because of the pandemic, to consider a different sentence. In effect, asking this Court to consider time served rather than the expressed position that I gave at the pretrial. So in effect, asking this Court, at the low end of the 16 to 18 month range, to consider sentencing Mr.

Falk to some 9 months less than I had expressed at the pretrial, and at the high end, 11 months less than what I had expressed at the pretrial. Counsel have referred to the cases that have been decided, not all of them, of course, but most of the ones that have been circulated with respect to the pandemic and how it should affect the Court coming to a conclusion of what a just, fit, proportional sentence ought to be as a result of the pandemic.

The cases make it clear, or ought to make it clear, at least it's clear to this Court, that the pandemic should be a factor that's considered in the sentencing regime, but it should not be given a consideration more than the - certainly, the purposes and principles of sentencing that are found in the Criminal Code from Sections 718 through 718.2 of the Criminal Code . It should not be over emphasized, in other words, but it should factor into this court decision when it comes to sentencing. The Court takes no issue with Dr. Orkin's paper, if I can put it that way.

His report, which many of the cases have referred to, or have been presented with to consider, as well as this court today, was dated April 7th. Mr. Russon makes much about statistics. The Court is not in a position to make any comments of validity with regards to statistics, other than to say this, it is well-known that statistics are what they are and that not everything is revealed by statistics. That there are a lot of things behind the scenes when it comes to the collection of statistics and the analysis of statistics that needs to be looked at with a careful and scrutinizing eye.

So statistics are what they are. They help to make decisions, but they are not the be all and end all. Having said that, it is clear that it is a serious virus that has taken thousands of lives and will continue to take thousands of lives. That much no one can dispute. And it is still not completely understood. In speaking to the quality or qualifications of an expert, even Dr.

Orkin, who's been qualified as an expert before a court, but not this court, necessarily, but I take no issue with his expertise, but even the experts who have been speaking on our airways have learned between when this pandemic first started and now, are learning things along the way that they first felt was the case, is not the case. And so, this is an ever-changing situation when it comes to expert opinions.

As I said, one thing is clear and one thing that should be indicated, is that it is a very serious deadly virus and it is extremely dangerous for individuals who are congregating in a situation such as a jail facility. And the incident at the Ontario Correctional Institute makes that very clear. And that point made by Mr. Russon, is well taken. This Court must consider the fact that although the correctional institutions are doing their best, there's no question that the congregation of people inside of the jail presents a very serious situation should the virus come into that institution.

And certainly, one cannot say that the correctional institutions would be able to handle it as much as they are trying to handle it by their own practices that they have implemented, which they are to be commended for. It would be the wrong conclusion to suggest that once it enters an institution it wouldn't spread more quickly than, say, in the general public.

There's no certainty with this. That's one of the difficulties. One cannot say, although Mr. Russon feels that it's going to happen again, it is a certainty, as he put it. If it comes to pass, then he's right. But no one can say for certainty what is going to happen in the future. The probabilities are certainly high that it would be, in my view, but for the grace of God, that it would eventually enter the South West Detention Centre before there's a vaccine. So one has to take into account that the probability is there that at some point, it will enter the South West Detention Centre. So I am considering that.

And as the case law has pointed out, a court has to be mindful of it, but also be mindful of the purposes and principles of sentencing. Mr. Russon has indicated some things I don't entirely agree with, with respect to drug offences. Again, getting a handle on drug offences, as far as the damage that it's done in the community, is sometimes difficult to grasp. It is not a victimless crime, as he suggests. In my opinion, all crime - and I know Mr. Russon knows this, all crime that is committed is a crime against society.

So society is the victim and there is an approach that needs to be taken when tackling the issue of drugs in a community. And different people have different opinions about the best approach, but I think the - in my opinion, the best approach is a variety of approaches. Certainly, rehabilitation and providing rehabilitation and preventative measures are important factors in fighting the war on drugs, but so is the justice system in terms of general deterrence and specific deterrence.

The sociologists, and others, can argue about the effectiveness of a prison sentence on the war on drugs, but I think it comes down to an individual offender. Mr. Falk does not enjoy spending time in custody. Now, his addiction may be such that it's so overwhelming that when he comes to deciding whether to pursue selling or using drugs, he's not thinking at that moment about the jail sentence. That may be true, but for others, it may prevent them and cause them to think twice.

And in that moment of thinking twice, they may, in fact, be helped to not pursue that, whether it's a result of an intervention by a sponsor or whether it's the result of an intervention by their children, or a memory or thought of their children, or a thought or a word from their mother, or the mother of their child. So it's complex. It's a complex issue that no one type of assistance is going to win the war. I mention that in passing. It is my view that one cannot simply ignore that in certain circumstances a jail sentence is appropriate, depending on the amount of drugs and the type of the drug.

I am also considering the personal circumstances of the individual that is before the Court. Sentencing, as it's been said many times, is a very difficult and complex situation. The aggravating factors, as I alluded to earlier and counsel have set out here, are that Mr. Falk was involved with a

Schedule I substance. It was a substance that at one time was not a

Schedule I substance, but because of the seriousness and the prevalence of the drug, it has now been made a

Schedule I drug. He was arrested on the first possession for the purpose of trafficking, was released, and then was subsequently arrested after a relatively short period of time with the same drug. So his arrest and the process of going through bail didn't seem to have much of an effect on him at that time. The quantity of the drugs here is an aggravating factor. His past criminal record is an aggravating factor. On the mitigating side, is the guilty plea that he has entered, and that spares the court system a substantial amount of money.

I was very impressed with his efforts while he's been in custody, his efforts at rehabilitation. And I'm impressed by his desire to continue that rehabilitation, such as with the Launch Pad Recovery place. I've considered his presentence report and take note of his background and his lack of a father figure. I was saddened to hear about the death of his mother. And so, he has not had the easiest of lives.

I was impressed by his - I forget her name right now, I apologize, the mother of his other children, I was impressed with how she handled the situation and would not continue to allow him to be in her home, or with her, if he was continuing to use drugs. She now has indicated support of him, realizing that he is making real efforts for a change.

So the Court has come to the conclusion, and I should address Mr. Russon's final submission with respect to a conditional sentence and referring to a case that's not before the Court. There's no application, of course, before the Court with respect to the provision of

Section 742.1, and I'm not in a position - I'm not ready to address that issue that he raised without anything further being before this Court at this time. I should indicate that Mr. Russon provided the case of Ramos , a Superior Court decision, wherein the judge was prepared to equate - without any appellant authority, was prepared to equate a crystal methamphetamine sentencing with that of a cocaine sentencing. And Mr. Russon has spoken to the Woolcock decision, which expressed a certain range with respect to cocaine, certainly a lower amount of cocaine. Mr. D'Alessandro has responded to the Woolcock decision, noting that it was prior to crystal methamphetamine becoming a

Schedule I drug. But the case of Ramos came after it was a

Schedule I drug. It was not an appeal decision of the Superior Court, so it's not binding, but nonetheless, the Court has taken that into account. My conclusion is that Mr. Falk is not in a time served position as of today's date. The pandemic, although I've certainly considered that in my decision, does not, when I consider the principles and purposes of sentencing and the case law that's been provided. The pandemic, in my view, does not cause this Court to reduce its sentence that it felt was appropriate... ...AUDIO INTERRUPTION. THE COURT: ...9 to 11 months. As Mr.

D'Alessandro has pointed out, the cases that have discussed the pandemic involved offenders who were close to the time that was being asked by counsel, whether it was the Crown or the defence. That's not to say that it would have to be near, or how near does it have to be? I leave that to another day. But certainly, I don't think the pandemic should cause this Court to reduce its sentence by some 9 or 11 months.

The institutions have, through the memo that was provided, and we should indicate that for the record if it wasn't done so, specifically the memo that was provided by - through the Ministry of the Solicitor General was a memo that I received and provided to counsel this morning was dated April 28th. In that memo, it indicated that the institution will consider, and are considering, through the Temporary Absence Program, releasing individuals prior to the end of their sentences, if appropriate. So, I'm somewhat also encouraged that will be the case for Mr. Falk.

It seems like he has a very good chance of that, given his efforts and cooperation that he has had at the South West Detention Centre, including being assigned kitchen duty. But Mr. Falk, at the end of the day, I just can't see - and I'm perfectly aware of the situation as it faces you with regards to the pandemic, but there's more than the pandemic that his Court has to consider when imposing the sentence here today. So I've decided that a further five months jail is appropriate after giving you credit for the - and I'm going to make it a seven-month presentence custody that I'm going to give you credit for.

You will be sentenced to a further five months jail and that will be followed by 18 months' probation. And for Madam Clerk's purposes, the presentence custody can be noted on each count where there has been a finding of guilt on all of the Informations. And to keep things simple, I'll simply try and make it somewhat easy given that the remote appearance or court - courthouse that we are working in, to make the matters easy to endorse. So on Information 19-17310 on Count 1 it will be a five-month jail.

On Count 2 - I appreciate that perhaps normally that would be a consecutive sentence, but again just to keep things simple and... ...AUDIO INTERFERENCE. THE COURT: ...[ indiscernible ] of - Count 2, again, is a five-month sentence. On Count 1, there will be a

Section 109 order for a period of 10 years. That prohibits Mr. Falk from possessing any firearm as listed in that

section or as set out in that section.

DNA is secondary, as I understand it. I'm not ordering DNA, just to keep things easy, if I could put it that way, for everybody involved in terms of the pandemic. And I'm satisfied that his DNA is on file. Looking at his record, it's already on file. On Information 19-2585, Count 3, is a breach of recognizance. That will simply indicate 30 days concurrent on that matter. MADAM CLERK: With presentence custody noted.... THE COURT: No, we don't need to put presentence custody on that, Madam - thank you, Madam Clerk. I know what I said earlier, I said to apply it on that, but we don't need to, on that matter.

MADAM CLERK: And I'm sorry, I cut you off, was it 30 - 30 days concurrent or consecutive? THE COURT: 30 days concurrent to the first information. MADAM CLERK: Thank you. THE COURT: Then on Count 4, that matter should indicate five months concurrent to the first information. No presentence custody needs to be noted. No DNA with respect to those matters. I think for Count 4, that may require a

Section 109 order. Now, what's the

section number that he's charged under? Is that a 117? MADAM CLERK: Yes, it is. THE COURT: Yes? You said, yes, it is, Madam Clerk? MADAM CLERK: Yes. THE COURT: Yeah. I'm pretty sure that requires a

Section 109 order, as well, for 10 years. While I think of it, there's no - no victim surcharges will be applied here. On the last information, 20-180, five months concurrent to the first information with the presentence custody noted. Count 2, the breach of release order, that should be a 30-day concurrent, no presentence custody noted on Count 2. And no DNA ordered on that matter. I did not write it, but I'm pretty - Count 1 on 20-180, possession for the purpose? MR. D'ALESSANDRO: That's correct, Your Honour. THE COURT: Yes, okay. All right. So that - no DNA on that - those matters, either one. But a

Section 109 order should go on Count 1 for 10 years, as well. Now, Mr. D'Alessandro provided a forfeiture order. Mr. Russon, is there any objection to the forfeiture order? MR. RUSSON: I apologize, Your Honour, I neglected to look over it. I'm just going to take a quick glance, but I'm pretty sure there won't be. THE COURT: Yes, go ahead. Take your time. MADAM CLERK: Your Honour, if the forfeiture order is issued, I'll just need to know on what information. THE COURT: Yes. Okay, Madam Clerk. MADAM CLERK: Thank you. MR.

D'ALESSANDRO: Your Honour, I can clarify that Information 2019-17310, the forfeiture order is relating specifically to Mr. Falk and that two offence related property items, $260 in Canadian currency in packaging. And on Information 2020-180, there's a forfeiture order, as well, it's a multi-accused information in

Schedule A, the list of offence related property is laid out. I believe specifically the property as it relates to Mr. Falk would apply here. I - I don't know if we can complete a forfeiture order with regards to Mr. Wessel, who it appears the information is still outstanding for. MR. RUSSON: Your Honour, I've had a chance to review it. I would just note on the first forfeiture order, 20-180, that the Number 4 cell phone is Mr. Falk's personal cell phone. So I'd ask the Court to consider not having that forfeited and I echo what my friend said about Number 1 and Number 5, which are related Mr. Wessel.

Obviously, he - Mr. Falk can't take a position on that. THE COURT: Okay. So Mr. D'Alessandro, with respect to Item Number 4, which was the Samsung cell phone received Mr. Falk, do you have any comments to make in regards to what Mr. Russon has asked this Court? MR. D'ALESSANDRO: Your Honour, the Crown's position is that that item should be forfeited given that it was utilized in the commission of these offences. ...AUDIO INTERFERENCE. THE COURT: Okay. Now, what about the second one? I'll come back to that one in a moment. What about the second order of forfeiture? Everything okay with that? Mr. Russon?

MR. RUSSON: Yes. Yes, Your Honour. THE COURT: Okay. All right. So there - I note that on the first forfeiture order, that is the order referring to Information 2020-180, that there was a Motorola cell phone that was seized from Mr. Falk. And Mr. Russon, on behalf of Mr. Falk, is asking for the Samsung cell phone to be returned. That was his personal cell phone. All right. The Court believes there's a reasonable inference to be made that if there were two cell phones here that were Mr. Falk's, likely one was used for drugs and one was - a drug business and one was, perhaps, a personal cell phone, as Mr.

Russon has set out. So I'll leave - I'm going to cross that off on the forfeiture order and allow Mr. Falk to have the Samsung cell phone back. The Court will also eliminate the matters as they relate to Mr. Wessel. Madam Clerk, what I will do is, I will print out the forfeiture order and I will make those changes, cross them out and initial them, sign the order and I will scan it and send it to the email in the Windsor Resolution Court. MADAM CLERK: Okay. THE COURT: Okay? MADAM CLERK: Yes. THE COURT: Now, we still have to deal with probation.

Probation can just be on the last information, Madam Clerk, for 18 months. MADAM CLERK: Is that Information - you mean last, you mean the latest in time, 20-180? THE COURT: That's correct. MADAM CLERK: Thank you. THE COURT: On both counts. MADAM CLERK: Thank you. THE COURT: All right. Just - I'm just calling up the templates, here, for the probation order. So Mr.

Falk will be required to report - I'm going to say by audio, or by telephone - telephone is probably a more appropriate word, report by telephone 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 must cooperate with your probation officer by signing any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request. ...PAUSE. THE COURT: You are - Madam Clerk, this is under clause 6. You are not to contact or communicate in any way directly or indirectly by any physical, electronic, or other means with Ryan Rayner or Gary Wessel. You are not to attend within the 1800-block of Goyeau Avenue in the City of Windsor.

Moving to the counselling condition, you are to attend and activity participate in all assessments, counselling, or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, including substance abuse, bereavement or grief issues, and any other counselling as directed.

You are to sign any release of information forms that will enable your probation officer to monitor your attendance and completion of any assessment, counselling, or rehabilitative program as directed, and you must provide proof of your attendance and completion of any assessment, counselling, or rehabilitative programs as directed. You are not to possess or consume any unlawful drugs or substances. You are not to possess any weapon as defined by the Criminal Code . Those are the conditions of probation. I've considered the other conditions are within the presentence report, but I've chosen not to impose them.

There is one about maintaining employment, so I haven't included that. I believe that covers everything. Anything further, counsel? MR. D'ALESSANDRO: Nothing from the [ indiscernible ]... MR. RUSSON: Mr. Russon speaking.... MR. D'ALESSANDRO: ...Your Honour.

MR. RUSSON: Sorry. Mr. Russon speaking, I just want to confirm that the other outstanding counts have been withdrawn either on this day or the last? THE COURT: If they haven't been withdrawn, and I have some notes that some counts were withdrawn on the last date, but if they haven't been withdrawn, all counts as they relate to Mr. Falk only are to be withdrawn on all Informations. Is that correct, Mr. D'Alessandro? MR. D'ALESSANDRO: That's correct, Your Honour. My brief indicates that the - they were withdrawn on March 6. THE COURT: Okay. We'll just double-check that.

MADAM CLERK: They have been [ indiscernible ]. THE COURT: Anything further, Mr. D'Alessandro? MR. D'ALESSANDRO: No, Your Honour. I believe that concludes this matter. THE COURT: All right. Mr. Falk, you'll receive the paperwork. It'll be sent to the institution. KYLE FALK: Thank you, Your Honour. THE COURT: Okay, Mr. Falk. Good luck to you, sir. KYLE FALK: Thank you. ... MATTER CONCLUDED 12:41 p.m. FORM 2 Certificate of Transcript Evidence Act, subsection 5 (2) I, Brenda Wakelin, certify that this document is a true and accurate transcript of the record R. v.

Kyle Falk in the Ontario Court of Justice, held at 200 Chatham Street East, Windsor, Ontario taken from Recording No. 0811 200 20200429 085022, which has been certified in the Form 1 by Mary Brown. __________________________ (Date) ___________________________ (Signature of authorized person(s)) Brenda Wakelin, B.Sc., B.Ed., OCT, CCR, ICDR, ACT, CDLT Hill Transcription Inc.

Internationally Certified Digital Reporter, IAPRT Authorized Court Transcriptionist Certified Digital Legal Transcriber, TTA ba.reporter365@gmail.com hilltranscription.com PLEASE NOTE: ** This certification does not apply to the Reasons for Sentence which were judicially reviewed and edited.

Any copies of this transcript that are not signed in blue ink could contain errors and/or omissions. If additional copies are required, please contact the above noted ACT for a true copy.