R. v. Vine, 2013 ONCJ 741

ONTARIO COURT OF JUSTICE COURT FILE No.: Sault Ste. Marie 1280 & 1342 DATE: 2013-11-8 Citation: R. v. Vine , 2013 ONCJ 741 BETWEEN: HER MAJESTY THE QUEEN — AND — MARTIN SIMONIE VINE Before Justice John Kukurin Heard on September 24 and November 5, 2013 Reasons for Judgment released on November 8, 2013 D. Kirk ...................................................................................................... counsel for the Crown K. Walker .............................................................................. counsel for the defendant M. Vine KUKURIN J.: [ 1 ] Martin Vine was found guilty by me on November 5, 2013 of the charge of threatening under

section 264.1(1) (

a) of the Criminal Code . [ 2 ] The threat was made by him at the booking in room at the police station where he was being processed following his arrest for public intoxication. The words of the threat were “I will kill Debbie Amaroso.” This was repeated “By act of God, I will kill Debbie Amaroso.” Debbie Amaroso is the mayor of this city. She was not present when the threat was uttered. Three police officers were present. [ 3 ] The offender was charged with threatening.

He was released on a recognizance of bail two days later with a bail condition that he report to the bail program at the John Howard Society on June 4, 2013. He did not report on that day. He was arrested a day later and was back in bail court on June 7, 2013. The endorsement on that date indicates: “S. 524 granted – released pending surety” , and the case was adjourned to June 11, 2013. [ 4 ] Martin Vine was never released thereafter. He was unable to find an acceptable surety.

According to my calculations, he was in custody from May 29, 2013 to May 31, 2013 [three days], then again from June 5, 2013 continuously to today, November 8, 2013, which intervals includes June [26 days], July [31 days], August [31 days], September [30 days], October [31 days], November [8 days], equals 157 days plus the three days in May, for a total of 160 days in custody. [ 5 ] Martin Vine was also charged with breach of recognizance for not reporting.

He pleaded guilty to that charge following my finding of guilt on the threatening charge. [ 6 ] The sentence I am imposing this day is on these two charges and follows hearing arguments on sentence three days ago on November 5, 2013. [ 7 ] The Crown argues for a sentence of 45 days in addition to the time the offender has spent in pre-trial detention, followed by an order of probation for three years with conditions that he keep his distance from the mayor and keep away from City Hall. The Crown also asks for a weapons prohibition order for ten years.

[ 8 ] The offender, through his counsel, argues for a sentence of one day time served which on November 5, 2013, he claimed was 165 days, a figure that the Crown did not dispute, and by today would be 168 days. He does not disagree with a probation order with provisions that he stay well away from the mayor. However, he claims he has business at City Hall and objects to the propriety of a condition preventing him from attending there. He does not address the request for a weapons prohibition order.

In fact, he is still subject to a prior ten year order made in September 2004. [ 9 ] The offender asserts that he should be given credit at the rate of 1.5 days for each day spent in pre-sentence custody (or pre- trial detention). He cites the Summers [1] decision to support the calculation of a credit on this basis. He also makes in a somewhat casual fashion, reference to having spent his time in custody in “segregation”. [ 10 ] At 1.5 to 1, his 160 days would yield a credit for time in custody of 240 days (or eight months).

This, he argues, is considerably more than the time the Crown is suggesting is appropriate for these two offences, namely, 165 days (pre-sentence custody at 1 to 1) plus 45 days (on the threatening and breach) for a total of 210 days. [ 11 ] The Crown disagrees that a credit for time in custody should be allowed at 1.5 to 1. It should be 1 to 1. For an enhanced credit claims the Crown, circumstances “beyond the ordinary” are required.

Enhanced credits is at the discretion of the sentencing judge, and that discretion should not be exercised in this case in favour of the offender. [ 12 ] The Crown contends that the “evidence” as to segregation during custody is too vague to count as circumstances to justify the granting of an enhanced credit. In the same breath, some vague reference is made to the offender’s cross dressing while in custody, and the need to have information as to why and/or when this segregation occurred. [ 13 ] The Crown is correct.

Considerable more information relating to the segregation would be needed for it to constitute a circumstance to justify an enhanced credit. The onus is on the accused to bring forth this information if he intends to rely on it to support such argument. [ 14 ] The offender is an Inuit.

However, no argument was made with respect to the application of any Gladue principles at the time of sentencing. [ 15 ] The Summers decision confirms that, in Ontario, sentencing courts may give enhanced credit to a maximum of 1.5 days for each day spent in pre-sentence custody, based on ineligibility during such detention for any remission or parole eligibility. This may qualify in the words of section 719(3.1) “… if circumstances justify it …” [ 16 ] In the present case, the circumstances weigh both for and against this credit. The offender was, in fact, released on bail.

It was his failure to report to his bail program that landed him back in custody. This was not an onerous requirement. Reporting is almost a universal requirement of those accused persons released on bail. Moreover, this was his initial reporting date. [ 17 ] His subsequent inability or failure to produce a surety kept him custody. I admit I have difficulty following the diametrically opposed claims of counsel that he did not or that he did have bail after his second go-around in bail court. This to me is somewhat academic as he could not simply leave the court, ergo, he was detained and remained in custody.

If the argument is that, but for his inability to come up with a surety, he would have been released on bail, I concede that the record shows this is likely so, but even if this is so, it has only marginal relevance as a circumstance to justify enhanced credit. [ 18 ] There are, however, other circumstances that prolonged the offender’s time in custody. One is that the justice system could not accommodate his request for a trial for over three months. He was an in-custody accused, self-represented, on July 17, 2013 when his trial date was set for September 24, 2013.

This is a long time to wait for trial when one is in custody. [ 19 ] In addition to this, his time in custody was further prolonged following the hearing of evidence on September 24, 2013 by an order admittedly made by the court, but instigated by counsel for the Crown for an assessment of “not criminally responsible (NCR)”. That the report expressed a negative opinion on NCR does not detract from the fact that the offender spent from September 24 to November 5 still detained in custody primarily due to the time required to obtain this assessment report. [ 20 ] In

summary, I am inclined to accord the offender 1.5 to 1 credit for some, but not necessarily all of the time he has been in pre-sentence custody. [ 21 ] This preoccupation with pre-sentence custody credit ought not eclipse the much more important purposes of sentencing in

section 718, the fundamental principle of proportionality in sentencing in

section 718.1 and the additional principles in

section 718.2 of the Criminal Code . [ 22 ] Ultimately, the goal in sentencing is to engender respect for the law and to maintain a just, peaceful and safe society. We do so through deterrence, denunciation, rehabilitation, reparation to victims and, at times, separating offenders from society. How we do this depends on the offence and on the offender. A sentence has to be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 23 ] In this case, the offence was one of uttering words. But the words were highly significant.

They were words that expressed an intention to kill another human being. This is clearly an offence with elements of violence, intended, if not actual. The recipients of the threat were police officers. It is clear they took the threat seriously in the circumstances but it was not a threat to them. The victim of the threat was the mayor of this City, a person much in the public eye and an extremely important cog in the workings of this community. It may seem ironic that so prominent a figure would by reason of her public position, be rendered that much more vulnerable to this particular type of offence.

All of this is very aggravating. [ 24 ] Equally aggravating is the fact that the offender arrived at the time, place and circumstances when this threat was made by his own, in retrospect, stupidity in drinking alcohol all day to intoxication.

[ 25 ] The offence was not made directly to the victim of the threat. That it was indirect is somewhat mitigating. That it was a threat uttered while the offender was clearly intoxicated is also somewhat mitigating. Drunk people say and do stupid things they often regret the next day. [ 26 ] The offence is one element of the proportionality principle. The offender is the other. For this case, the offender is not a newcomer to the criminal justice system. He has a record. It is not a short record but neither is it an overly long record. The last offence was in October 2010, some three years ago.

However, the record discloses a number of convictions for offences of violence for assaults, one assault of a police officer, one of disarming a police officer, and, very relevant to this sentencing, to two convictions of threatening. Of significance is that, in 2005, he received a three month sentence for his first threatening offence consecutive to two months for a contemporaneous assault, after spending 99 days in pre-sentence custody. This totals 8.3 months, and conceivably even more if he had any enhanced credit for his pre-sentence custody at that time.

The inference I make is that the threat at that time was rather significant. I also infer that the offender’s custodial sentence which was followed by three years probation, was not effective as he re-offended the very next year with two additional assault offences. [ 27 ] What we have in the offender is someone who continues to re-offend, does so with offences that involve violence or threats of violence, and is in many respects a loose cannon in this community. He engages in substance abuse, both alcohol and drugs, and has mental issues that overlie his everyday functioning.

He is able to function independently but his conduct is dysfunctional with overtones of being manipulative. So far as can be determined, he has had no significant treatment for substance abuse or for any mental health problems. [ 28 ] The Crown proceeded by

summary conviction. The maximum term of imprisonment for an offence under

section 264.1(1) (

a) is 18 months. Arguably, 18 months would be deserved by the worst offender committing the worst offence. In the present case, the offender is not the worst, nor is the offence. There are both mitigating and aggravating factors at play. Having regard to all of these, I would consider a custodial sentence of six months would be appropriate for this charge of threatening. [ 29 ] For the breach of recognizance, I consider one month custody to be appropriate. I would impose this consecutively. The breach was egregious in that the offender did not report even once and was to report only days after being released.

He did not surrender – he was arrested, and this necessitated yet another bail court attendance. He had no acceptable reason for his default. He has had sufficient encounters with the justice system, including prior convictions for breaches of probation and failure to appear, to comprehend that there may well be penal consequences for not showing up where and when he was ordered to show up. [ 30 ] I do not see that more time in custody for Martin Vine on these two offences is going to appreciably advance the objectives of sentencing.

I am prepared to give him credit of seven months for his cumulative time in pre-sentence custody on these two charges. This seven months off-sets the six months and one month consecutive sentences on the threatening and breach of recognizance offences respectively. [ 31 ] The odds are more favourable that a probation order will have a greater role in advancing the purposes of sentencing at this point.

I agree with the submissions of counsel for the Crown that the offender should be required for the next three years to stay well away from the mayor, Debbie Amaroso, and to keep away from City Hall, except should he be legally required to attend Provincial Offences Court, and then to attend no other portion of the City Hall. If he has personal business, he should do so by mail or by means other than personal attendance.

If this creates a hardship he can always return to ask for an amendment of this probation term. [ 32 ] The sentence I impose is as follows: * There will be a notation that he has spent 160 days in pre-trial detention with a credit for pre-trial detention of seven months. * On information 1280 – threatening – six months imprisonment less six months pre-sentence custody credit results in one day time served. * On information 1342 – breach of recognizance – one month imprisonment consecutive less one month pre-sentence custody credit results in one day time served. * Probation for a period of three years follows on the threatening charge and will be concurrent on the breach charge.

The terms of probation are: - That the offender keep the peace and be of good behaviour; - That he report to a probation officer within 48 hours of release from custody and thereafter as directed; - That he not attend at City Hall in Sault Ste.

Marie unless he is le gally required to be in Provincial Offences Court, and then not to attend at any other portion of City Hall; - That he not communicate directly or indirectly with Debbie Ama- roso; - That he not molest, harass or physically interfere with Debbie Amaroso; - That he not attend at the place of residence or employment or education of Debbie Amaraso; - That he not be within 100 metres of Debbie Amaraso. * In addition to the foregoing there will be a weapons prohibition on the threatening charge for a period of ten years. Released: November 8, 2013

____________________________________ Justice John Kukurin, Ontario Court of Justice