R. v. Wheeler, 2018 NLSC 225

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Wheeler, 2018 NLSC 225 Date : November 8, 2018 Docket :201804G0052 & 201804G0053 HER MAJESTY THE QUEEN v. COLIN WHEELER Before: Justice Vikas Khaladkar Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: October 16 and November 6, 2018 Date of Oral Judgment: November 8, 2018

Summary: The Accused was convicted of two breaches under section 145(3), assault with a weapon under s. 267(

a) and one count of mischief under s. 430 of the Criminal Code of Canada . The trial judge was unable to continue with sentencing. Amicus Curiae was appointed to assist the Court since the Accused was self-represented. He confirmed that it would not be necessary to declare a mistrial and that a replacement judge could proceed with sentencing. Amicus was requested to, and made, submissions with respect to an appropriate sentence. These augmented the sentencing submissions made by Mr. Wheeler on his own behalf.

The Accused was on remand for a period of 383 days to the date of sentencing. He is given credit for 1.5 days to 1, totaling 575 days. Heis sentenced as follows: s. 267(a) - 1095 days s. 430 - 180 days (concurrent) s. 145(3) - 90 days (consecutive) s. 145(3) - 90 days (consecutive) Total: - 1275 days Less credit for time served on remand 575 days (calculated at 1.5

x) Time left to serve: 700 days Appearances: Adam Sparkes, Q.C. Appearing on behalf of Her Majesty the Queen Colin Wheeler Appearing on his own behalf Andrew May Amicus Curiae Authorities Cited: CASES CONSIDERED: R. v. Mathieu, 2008 SCC 21 , [2008] 1 S.C.R. 723; R. v. Lewis (2002), (NL SC),212 Nfld. & P.E.I.R. 145, 637 APR 145, (N.L.S.C.(T.D.)); R. v. Philpott, 2011 NLTD 30; R. v. Wheeler, (NL PC) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT INTRODUCTION [1] Colin Wheeler was convicted of four offences that took place at, or near, Benoit’s Cove, in the Province of Newfoundland andLabrador on October 21st, 2017 and on November 16th or 17th, 2017. The reasons for those convictions are set out in the judgment ofMurphy, J. reported at R. v. Wheeler, 2018 NLSC 147.

Briefly, they involved an assault with a threat to use a weapon, namely a knife,the interference with his aunt’s use and enjoyment of property, namely the residence of her mother, and two breaches of warrants ofremand that directed him not to contact two named individuals. [2] The victim of the s. 267(

a) offence was Mr. Wheeler’s girlfriend. Inasmuch as they were in a relationship at the time of the offence,I must take notice of the fact that this was an aggravating factor, and I have taken it into consideration in arriving at an appropriatesentence in this matter.

[3] Mr. Wheeler has a lengthy criminal record. It stretches back to 1996 and includes convictions for uttering threats, mischief (3),assault (2), assault causing bodily harm, aggravated assault and assault with a weapon or imitation. He has variously received sentencesas high as 48 months for these criminal adventures. [4] Mr. Wheeler also has a number of convictions for failure to follow court orders or breaches of undertaking totaling 22. Typicallyhe has been sentenced to serve 30 days for these offences.

In 2004 he was sentenced to 3 months for breaching and failing to comply withhis undertaking. [5] The record above is Mr. Wheeler’s record in the Provincial Court of Newfoundland and Labrador. He has amassed a record inBrampton, Ontario – where he was convicted of assaults, uttering threats, failure to comply with probation orders, possession of aweapon, robbery and the use of an imitation firearm. [6] Most recently, Mr. Wheeler has convictions from Victoria, British Columbia, in 2015 where he was convicted of assault with aweapon, aggravated assault, hostage taking and possession of a cross-bow.

He was sentenced to 4 years imprisonment for hisinvolvement in those crimes. [7] The charges for which Mr. Wheeler is being sentenced today arose from an incident that took place shortly after his release fromprison in British Columbia. CROWN’S POSITION [8] Mr. Sparkes, Q.C. took the position that Mr. Wheeler was in a position of trust towards the complainant. He said that despite thefact that the complainant has recanted, Mr. Wheeler’s actions were deserving of 3-4 years’ imprisonment for the s. 267(

a) charge with 3months consecutive for each of the breaches. The Crown had proceeded by indictment on the breaches and, therefore, he stated that alonger period of incarceration was mandated in respect of same. He took the position that the sentence for the mischief charge could beserved concurrently with the others. To paraphrase his position, he indicated that a sentence of 3.5 to 4 years was appropriate in this case. [9] It is the Crown’s position that the protection of society is paramount in this case. He stated that there is nothing mitigating in Mr.Wheeler’s favour.

His record is aggravating, he has exhibited no remorse, he is not youthful and there was no guilty plea. The Crownacknowledged that the range for these types of offences is from a suspended sentence to 6 years, with the 6 year sentences beingreserved for those instances where there was more serious physical harm. [10] The Crown’s position with respect to time served on remand was that a credit of 1 to 1 is sufficient. Mr. Sparkes, Q.C. felt that theAccused’s continued contact with the complainant after these charges were laid should disentitle him from receiving any greater creditfor time served.

SUBMISSIONS OF AMICUS CURIAE ON SENTENCE [11] Mr. May indicated that a sentence in the range of 18 months to 30 months would be appropriate in this case. He indicated that thebreaches should draw sentences in the range of 30-45 days consecutive, and that the sentence for the mischief charge should beconcurrent to the other sentences. [12] Mr. May indicated that there was some question as to whether or not Mr. Wheeler has aboriginal status, but that he refused todiscuss his status with the writer of the pre-sentence report. SUBMISSIONS OF COLIN WHEELER [13] Mr.

Wheeler indicated that he is suffering from a number mental disorders including ADHD, PTSD and various psycho affectivedisorders such as oppositional defiance disorder and generalized anxiety disorder. He says that he has been denied medication for theseconditions while he has been incarcerated on remand. In addition, he says that he has been in segregated detention for virtually all of thetime that he has been awaiting trial and sentencing in this matter. He says that his treatment, while in segregated detention, is cruel,unusual and unwarranted under all of the circumstances.

He feels, as a result, that he should receive credit at a rate of 3 to 1 for the timeserved on remand. [14] With respect to sentence Mr. Wheeler argued that he should be allowed to serve his sentence in the community, and that aconditional sentence order of 18 months to 24 months would be appropriate in the circumstances. [15] Mr. Wheeler argued that most of the breaches on his record are from a time period when he was in his early 20s, that he is 36 yearsof age now and has a better understanding of the importance of obeying Court orders. [16] Mr.

Wheeler explained the circumstances surrounding his conviction for assault with a weapon. He indicated that he had struckhis friend with a knife, that it required three stitches and that his friend was only in the hospital for about 10 minutes. He indicated that,at the time, he had been overprescribed his prescription of Ritalin and that he had, in his system, three times what it should have been. Inthe course of preparing these reasons for my decision on sentencing, I had occasion to read R. v.

Wheeler, (NL PC).It is clear from Gorman, J.’s description of what transpired that the incident was remarkably understated by Mr. Wheeler. While JudgeGorman acknowledged that Mr. Wheeler might have been overdosed on Ritalin, he found as a fact that it did not have any bearing on hisability to understand that the nature and consequences of his actions. Luckily no one was killed in that incident. Mr. Wheeler appears tohave learned nothing from his past brushes with the law. [16] Mr. Wheeler self-identified as an aboriginal person. While he may well have aboriginal heritage, Mr.

Wheeler refused toparticipate in the completion of the pre-sentence report from a Gladue perspective. Since there is no information before the Court, as aresult of Mr. Wheeler’s refusal to cooperate, it is not possible to determine whether Gladue sentencing principles are applicable to thisoffender, I have no alternative but to proceed on the basis that these factors do not exist. In order for Mr. Wheeler to avail himself of asentencing regime based upon Gladue considerations, he must be in a position to justify that they exist. This requires him to cooperate

with the author of the pre-sentence report as required. THE PRINCIPLES OF SENTENCING [ 17 ] The principles of sentencing are codified by virtue of sections 718 - 718.2 of the Criminal Code . A sentence must be commensurate with the gravity of the offence and the degree of responsibility of the offender. It should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 18 ] To the extent possible, a sentence must protect the public, promote respect for the law, and assist in maintaining a peaceful and safe society. The court must impose sanctions that are just.

Section 718 sets out the objectives of sentencing, and I am mindful of them. To paraphrase, the objectives include denunciation, deterrence: general and specific, separation of the offender from society where appropriate, rehabilitation, reparation and the promotion of a sense of responsibility in offenders. ANALYSIS [ 19 ] Mr. Wheeler has requested that I impose a conditional sentence Order. I am prohibited by the Criminal Code of Canada from doing so.

Section 742.1 (c)(iii) says that if the offence is prosecuted by indictment, which was the case here, is punishable by a maximum term of imprisonment of 10 years, which was the case here, and involved the use of a weapon, which also was the case here, then I am prohibited from granting a conditional sentence order. [ 20 ] Furthermore, the pre-sentence report states that Mr.

Wheeler is not a suitable candidate for probation or other community supervision owing to his ongoing mental health issues and the lack of appropriate community supports to assist him in succeeding in the community. [ 21 ] Lastly, even if I were able to accede to Mr. Wheeler’s request to make a conditional sentence order, he has not provided me with any information about where he might reside or how he would support himself. The lack of any plan militates against the granting of such an Order. [ 22 ] Mr. Wheeler has requested that I grant him credit of 3 to 1 for time served on remand.

The maximum that I am allowed to grant under s. 719(3.1) of the Criminal Code , if the circumstances warrant, is 1.5 days for each day spent in custody. [ 23 ] I have taken into account Mr. Wheeler’s assertion that he has spent most of his time on remand in segregation. I do not doubt for a moment, based upon my own experience with Mr. Wheeler, that he may have brought on some of that segregation upon himself by his own actions.

However, I am willing to give him the benefit of the doubt and give him credit for remand time at the maximum rate of 1.5 to 1. [ 24 ] The circumstances of the assault with a weapon offence are at the lower end of the scale as far as assaults with a weapon are concerned. There was no touching of the complainant with the weapon – there were threats to kill accompanied by lunges that did not meet their mark. They were preceded by Mr. Wheeler holding the knife to his own throat and threatening suicide. However, I have already alluded to the aggravating factors and Mr.

Wheeler’s long and related involvement with the criminal justice system. Accordingly, a sentence at the lower end of the range is not appropriate under the circumstances, but neither is a sentence of 4 years as advocated by the Crown. [ 25 ] A sentence of three years, or 1095 days, for the assault with a weapon charge is appropriate given the nature of the offence and Mr. Wheeler’s antecedents. I must be cognizant of the fact that the overarching principles governing this sentencing are protection of the public, general and specific deterrence. Mr.

Wheeler’s actions in this matter, and in Court, underline that there are significant anger management issues at play that need to be brought under control. Increasingly longer sentences have not deterred Mr. Wheeler in the past, but they do have the effect of removing him from society so that members of the general public will not suffer harm at his hands. [ 26 ] I sentence Mr. Wheeler to 180 days for the offence of mischief, to be served concurrently with the sentence for assault with a weapon. [ 27 ] I sentence Mr. Wheeler to 90 days incarceration for each of the breaches.

These consisted of contact with the complainants while he was on remand and are deserving of a sentence that is more elevated than the normal 30-60 days levied for ordinary breaches of court orders. I am mindful, as should Mr. Wheeler be, that the Crown proceeded by way of indictment in relation to these breaches. He should anticipate that future breaches will probably receive the same election from the Crown and, should convictions result, Mr. Wheeler may

find that he will be sentenced to longer and longer periods of incarceration for breaches of undertakings and Court orders. [ 28 ] Mr. Wheeler is sentenced as follows: s. 267(a) - 1095 days s. 430 - 180 days (concurrent) s. 145(3) - 90 days (consecutive) s. 145(3) - 90 days (consecutive ) Total: - 1275 days Less credit for time served on remand 575 days (calculated at 1.5

x) Time left to serve: 700 days [ 29 ] Mr. Wheeler is impecunious and will not be able to pay any Victim Fine Surcharge. It is hereby waived. [ 30 ] Assault with a weapon is a primary designated offence within the meaning of s. 487.04 (

a) of the Criminal Code and, therefore, there shall be a mandatory DNA Order pursuant to s. 487.051 of the Criminal Code requiring the offender to provide the number of bodily substances that are reasonably required for the purpose of forensic DNA analysis. [ 31 ] I order that pursuant to s. 109 of the Criminal Code that Mr.

Wheeler is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life. [ 32 ] Since the sentence that I am imposing is less than 2 years in duration after taking into account the credit for time served, I am placing Mr. Wheeler on probation for a period of 2 years following his release. The terms of that probation are as follows: 1. Keep the peace and be of good behaviour. 2. Attend Court when directed to do so by the Court. 3.

Report to, and be under the supervision of, an adult probation officer within 48 hours of your release from custody and avail yourself of such counseling programs and services as may be directed by the probation officer – including anger management and addictions counseling. 4. Reside in such dwelling as approved by your probation officer and give your probation officer at least 7 days’ notice in writing of your intention to relocate. 5. Notify the probation officer of any change in address, occupation, name or employment. 6.

I prohibit you from contacting or communicating with Hilda Donahue and Jackie O’Connell except for such contact as is specifically initiated by them.

7. Do not leave the Province of Newfoundland and Labrador without the permission of the Court. ______________________________ Vikas Khaladkar Justice