R. v. Gallagher, 2015 ONCJ 439

ONTARIO COURT OF JUSTICE DATE: 2015·08·10 COURT FILE No.: Halton 1768/14 Citation: R. v. Gallagher , 2015 ONCJ 439 BETWEEN: HER MAJESTY THE QUEEN — AND — JOHN GALLAGHER Before Justice L.M. Baldwin Heard on February 25, 2015 Reasons for Sentence released on August 10, 2015 Mr. J. Dibski ............................................................................................ counsel for the Crown Ms. R. Gratl ............................................................ counsel for the defendant John Gallagher BALDWIN J.: [ 1 ] Following a trial held on February 25, 2015, I found Mr.

Gallagher guilty of uttering a threat to cause bodily harm to Sarah Giilck on June 6, 2014. The Crown proceeded summarily. [ 2 ] Ms. Giilck was on duty as a correctional officer at the Maplehurst Correctional Complex in Milton. She was working on the range with inmates who were in the segregation unit. Mr. Gallagher was one of those inmates. [ 3 ] Inmates in segregation are locked in their cells for 23 hours a day.

They are let out of their cells to access the yard and a shower, if the institution is not on lockdown due to staff shortages or for security reasons. [1] [ 4 ] When the inmates are out of their cells, it is the correctional officer’s duty to search the inmate’s cell for any security breaches and/or contraband. [ 5 ] On June 6, 2014, when Mr. Gallagher was out of his cell, Officer Giilck searched his cell per the institution’s policy. She found bread and condiments that had not been consumed during the meal time. This is considered contraband, so she disposed of them.

Officer Giilck explained that inmates keep bread, condiments and fruit to make an alcohol brew. [2] [ 6 ] When Mr. Gallagher returned to his cell and observed that the items had been removed he became agitated and abusive to her. He said, “Why would you throw out my food you f’in bitch – you whore.” [ 7 ] Officer Giilck calmly tried to explain why she had disposed of the excess food. [ 8 ] Mr.

Gallagher continued, “I’m in here for murder you cunt – one more will be no problem – I’ll throw a cup of piss on you – next time I will throw piss in your face – you’re going to get it.” [ 9 ] The Officer took the threat seriously as she was the one who would have to open the door for Mr. Gallagher to leave his cell for approved reasons like a lawyer’s visit. Mr. Gallagher would then have the opportunity to make good on his threat. [ 10 ] Mr. Gallagher was in custody pending a bail hearing facing charges of being an accessory after the fact to murder and carrying a concealed weapon arising in Kitchener.

[ 11 ] Mr. Gallagher spent another 10 days in segregation because of this offence as penal punishment. [ 12 ] Mr. Gallagher was released on bail on the Kitchener charges on September 19 th , 2014. That bail contained strict house arrest which required Mr. Gallagher to be in his residence 24 hours a day unless for medical emergencies or pre-arranged medical or dental appointments or in the presence of one of his sureties between the hours of 9:00 a.m. and 6:00 p.m. [ 13 ] Mr. Gallagher was released on bail on the Halton utter threat charge on September 22 nd , 2014.

That bail mirrored the Kitchener bail with respect to house arrest and other conditions, including not to possess any cell phone, pager or personal digital assistant. [ 14 ] At the end of the trial evidence on February 25, 2015, the Crown submitted that 6 months of jail should be imposed for this offence, as well as an 18-month Probation Order, a

section 110 order for 5 years and a DNA sample should be ordered. [ 15 ] The Crown submitted that Mr. Gallagher was entitled to 4 days of pre-trial custody between September 19, 2014, when he was released on the Kitchener charges and September 22, 2014, when he was released on this charge. [ 16 ] Defence counsel did not agree with the pre-trial custody count and sentencing was adjourned to May 28, 2015, for that issue to be sorted out and a Pre-Sentence Report was ordered. May 28, 2015, Submissions: Pre-Trial Custody Credit: [ 17 ] Counsel both agreed that Mr.

Gallagher has pre-trial custody credit dating from August 24 th , 2014, through to the date of his release on September 22 nd , 2014 which equals 30 days. [ 18 ] Counsel agreed that, enhanced on the 1.5 basis, the pre-trial custody credit is 45 days.

House Arrest Bail Conditions: [ 19 ] Counsel disagree on the credit to be given for the house arrest bail conditions attached to the Halton Utter Threat charge. [ 20 ] Both the Crown and Defence agree that the conditions on the Halton release mirror the conditions on the Kitchener release, with the exception that the Kitchener release includes a condition not to communicate with 113 people. [ 21 ] Defence counsel submits that the Halton bail terms should not have mirrored the Kitchener bail terms which were attached to a far more serious charge in another Region of the Province.

Defence counsel submits that this is particularly aggravated by the fact that the charge of being an accessory after the fact to murder charge has been withdrawn in Kitchener and Mr. Gallagher is facing the sole count of possession of a weapon. [ 22 ] The Crown submits that since Mr. Gallagher is still on a house arrest bail in Kitchener that he should get some small credit only for the house arrest condition on the Halton bail. Segregation Factor: [ 23 ] As a result of this offence, Mr.

Gallagher was given 10 more days in segregation. [ 24 ] Defence counsel submits, and the Pre-Sentence Report echoes, that segregation was unusually hard for Mr. Gallagher because of his physical and mental health disabilities. [ 25 ] The Crown submits that Mr. Gallagher likes “peace and quiet” and that there is no evidence that segregation was unduly harsh in the circumstances of this offender. Physical/Mental Health Issues: [ 26 ] Mr.

Gallagher has been a recipient of the Ontario Disability Support Program (ODSP) for the past five years due to deteriorating discs in his spine and bone spurs that pinch nerves in the same area. He also has osteoarthritis. [ 27 ] He suffers from anxiety and depression. In 2012, a psychiatrist also diagnosed Mr. Gallagher with multi-substance abuse issues, attention hyperactivity disorder and mixed personality disorder. Grief Issues: [ 28 ] Mr. Gallgher was very close to his mother and father. His father died suddenly on May 17, 2014, when he was in custody awaiting bail on the Kitchener charges. Mr.

Gallagher was released to attend his father’s funeral. [ 29 ] He returned to custody and was placed in segregation. The threat to the correctional officer was made on June 6 th , 2014, not long after his return to custody. Criminal Record: [ 30 ] Mr. Gallagher has three assault convictions on his record as follows: 1990-10-24 in Cambridge sentenced to 15 days jail and

probation for 12 months; 1993 in Kitchener sentenced to 21 days intermittent and probation; 1996 in Cambridge sentenced to 30 daysIntermittent and Probation for 12 months. [31] Other entries include theft under, possession of a narcotic; Over 80 and Impaired Driving. [32] His criminal record ended as of the year 2000 until he was charged in the Kitchener matters. Two Fail to Comply withRecognizance charges have been dealt with in 2014 which have absorbed all other pre-trial custody he has served which equals 119 days(30 of which were served in segregation not including the 10 days served for this offence).

Defence counsel advised that the breachesrelate to driving on streets related to the no contact with the 113 people conditions. Other Personal Circumstances: [33] Mr. Gallagher is 44 years old. He has a 22-year-old son who is employed out west. He is close to his son and his son travelshome monthly to visit with him. [34] Mr. Gallagher has been dating his surety, Ms. Michelle Benoit, for the past year. She has no concerns with his behaviour andsays that he has always treated her with respect. [35] Although Mr.

Gallagher maintains that he did not threaten the guard with bodily harm, he is willing to engage in angermanagement treatment. He has tried to initiate regular treatment while on bail, however, his strict house arrest conditions have made thisdifficult. [36] Mr. Gallagher’s mother is now very ill with cancer and it is expected that she will soon require residential care. Sentencing Range: [37] A number of cases were provided to the Court by counsel.

It was agreed that for inmate-on-guard threats in penalinstitutions, the sentencing range is a low of 30 days jail right up to the penitentiary depending on the nature of the offence and thecircumstances of the offender. It is agreed that the higher range penalties included acts of physical violence on the guard as well as thethreat. (R. c. Charrette, 2011 QCCS 5886, 2011 CarswellQue 12585, EYB 2011-197984 (C. S. Que.); R. c. Anglehart, 2012 QCCA 771,2012 CarswellQue 3922, EYB 2012-205617 (C.A. Que.); R. v. Byers (1987) (NL SC), 66 Nfld & P.E.I.R. 225(P.E.I.S.C.); R. v. Belair [2010] O.J. No. 2707 (OCJ); R. v.

Mtengwa [2014] O.J. No. 1217 (OSCJ). Position of the Parties: [38] The Crown maintains its original position of 6 months in jail, with credit given for 45 days of pre-trial custody; 18 months ofprobation; 5 year weapons prohibition order and a DNA order. [39] The Defence submits that there should not be any more jail imposed and asks for a time served disposition with probation for12 or 18 months; no weapons prohibition order and no DNA order. Decision: [40] The Ontario Court of Appeal in R. v.

Christopher Sharp has stated that “Correctional workers have very difficult jobs anddeserve to be protected by the courts.” (brief endorsement released April 5, 2004 Docket: C40664) [41] In R. v. Byers (supra, at paragraph 6), it is stated that there are certain risks and dangers inherent in the position of peace orcustodial officers.

For this reason, society is obligated to ensure that when they are subjected to violence or to the threat of violence inthe course of their duties, society’s response should be quick and unequivocal. [42] The case law makes clear that the prime sentencing factors in this kind of case are general deterrence and denunciation. [43] There are a number of unusual factors in this case which brings the remaining sentence to be served to a time serveddisposition. [44] The first unusual factor is the house arrest bail on this charge of uttering a threat.

I agree with defence counsel that this bailis not related to the charge before this court and there was no reason for the Halton bail to mirror terms of bail on a far more seriouscharge laid in another Region. This is particularly aggravated by the fact that the more serious charge has been withdrawn. [45] The Halton house arrest bail has impacted Mr. Gallagher’s life profoundly.

This impact has included his inability to engage inanger management counselling which he is very motivated to complete. [46] The house arrest bail in this case deserves to get enhanced credit equal to at least 3 months of actual custody.[3] [47] Another significant factor in this case is the effect of segregation on this particular offender. [48] The offence took place while Mr. Gallagher was already in segregation having returned to jail awaiting bail (on the nowwithdrawn charge) after attending his father’s funeral. [49] Mr.

Gallagher has physical and mental health disabilities as noted above, and there is no doubt that being in segregation wasextremely hard for him to endure. I completely reject the Crown’s submission that Mr. Gallagher may have preferred segregation as hecraves peace and quiet.

[ 50 ] Canada’s Correctional Investigator, Howard Sapers, has declared that the use of solitary confinement is “out of control” as its use has increased over the past decade. (source ‘Report on Canadian Prisons’, Globe and Mail, May 29, 2015) [ 51 ] This is another factor that mitigates against sending Mr. Gallagher back into prison as part of this sentence. Sentence/ Including Mandatory Victim Fine Surcharge: [ 52 ] Because the mandatory victim fine surcharge will be another hardship for Mr.

Gallagher, who is supported by ODSP, the sentence to be imposed today will be a fine of $30.00 and I will give him 6 months to pay. The victim fine surcharge is 30% of that fine which is $10.00 and I will give him 6 months to pay that fine as well. [ 53 ] The record will reflect 30 days of actual pre-trial custody served with enhanced credit on the standard 1.5 basis which equals 45 days. [ 54 ] Mr.

Gallagher shall be on probation for 12 months with terms as follows: (1) report to a probation officer as directed; (2) attend for anger management counselling, grief counselling; mental health counselling and any other counselling as directed and sign consents so that compliance can be monitored; (3) have no contact directly or indirectly with Sarah Giilck except for incidental contact if incarcerated; (4) not to own or possess any weapons as defined by the Criminal Code of Canada ; (5) abstain absolutely from the purchase, possession or consumption of non-medically prescribed drugs; and (6) keep the Peace and be of Good Behaviour. [ 55 ] A DNA sample is ordered given the nature of the offence and the dated convictions for assault on Mr.

Gallagher’s record. [ 56 ] A s. 110 weapons prohibition order is appropriate. It will be for 2 years. Released: August 10, 2015 Signed: “Justice Lesley M. BALDWIN” [1] There were 900 lockdowns in Ontario’s provincial jails caused by staff shortages last year, a figure that has more than tripled since 2009, according to figures released by the province under the Freedom of Information Act . The full and partial lockdowns which can last a day or several days, have been triggered by shortages of staff including correctional officers and or managers.

In 2014, Maplehurst Correctional Complex in Milton had the highest number of lockdowns reported as 120 days. (Toronto Star Report, Tuesday July 14, 2015) [2] There was no evidence that Mr. Gallagher kept this sandwich for this purpose.