R. v. Edwards, 2012 ONCJ 519

COURT FILE No.: Central East Region-Newmarket 12-03544

DATE: 2012·08·07

Citation: R. v. Edwards, 2012 ONCJ 519

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TREVOR EDWARDS

Before Justice Peter C. West

Heard on May 14, 2012, June 28, 2012 and August 7, 2012

Reasons for Sentence released on August 7, 2012

Mr. M. Demczur for the Crown

Ms. L. Shemesh for the accused Trevor Edwards

WEST J.:

On June 10, 2011, an 11 day preliminary hearing concluded dealing with numerous charges faced by Trevor Edwards respecting charges involving Jessica McKenzie. Mr. Edwards was committed to stand trial on a number of charges.

Mr. Edwards’ charges were returned to the Ontario Court of Justice on consent of all parties and with the knowledge of Justice Minden of the Superior Court of Justice for the purpose of resolving his charges by way of guilty plea. On May 14, 2012, Mr. Edwards appeared before me to enter pleas of guilty to ten charges contained in a replacement information and two charges from a separate information. An agreed statement of fact was entered as Exhibit 1 and was read by Mr. Demczur. Mr. Edwards agreed with the facts. Both counsel also agreed that because I had been the preliminary hearing judge, I was familiar with the evidence of Ms. McKenzie and the other witnesses who had testified.

Mr. Edwards entered pleas of guilty to the following charges:

1. Obstruct justice, contrary to s. 139(2) of the Criminal Code, between February 9, 2009 and August 19, 2009;

2. Assault on Jessica McKenzie, contrary to s. 266 of the Criminal Code, February 9, 2009;

3. Assault causing bodily harm to Jessica McKenzie, contrary to s. 267(a) of the Criminal Code, December 8, 2009;

4. Assault on Jessica McKenzie, contrary to s. 266 of the Criminal Code, between June 1, 2010 and July 6, 2010;

5. Assault on Jessica McKenzie, contrary to s. 266 of the Criminal Code, between July 6, 2010 and July 9, 2010;

6. Assault on Jessica McKenzie, contrary to s. 266 of the Criminal Code, between July 6, 2010 and July 9, 2010;

7. Unlawful confinement of Jessica McKenzie, contrary to s. 279(2) of the Criminal Code, between July 6, 2010 and July 8, 2010;

8. Utter threat to cause bodily harm to Karen McKenzie, contrary to s. 264.1(1) of the Criminal Code, July 8, 2010;

9. Extortion, contrary to s. 346(1) of the Criminal Code, in relation to D.S., between July 6, 2010 and July 8, 2010;

10. Obstruct peace officer, contrary to s. 129(a) of the Criminal Code, between February 9, 2009 and February 10, 2009;

11. Fail to appear in court, contrary to s. 145(2) of the Criminal Code, on July 27, 2010; and

12. Breach of Probation, contrary to s. 733.1 of the Criminal Code, on October 20, 2009, by breaching the term not to have any contact, directly or indirectly, with Niki Boglis.

The Crown filed, and it was accepted as accurate by Ms. Shemesh, the criminal record of Mr. Edwards as Exhibit 2.

A pre-sentence report was prepared by Ms. Julie McLean, Probation and Parole Officer, dated June 20, 2012, and it was filed as Exhibit 3 on sentence. Ms. Shemesh filed a brief of sentencing materials, which included character letters from family and friends, an offer of employment and a letter from Mr. Edwards himself. These materials were bound and filed collectively as Exhibit 4.

The Crown also provided three victim impact statements from Jessica McKenzie, D.S. and Karen McKenzie, which were filed as Exhibits 5, 6 and 7 respectively. Finally, Ms. Shemesh provided two letters from Central East Correctional Center, dated June 27, 2012 and September 29, 2011, describing periods of lockdown and the programs available at the custodial facility. These letters were filed as Exhibits 8a and 8b on sentence.

Factual Background

The complainant, Jessica McKenzie, testified during the preliminary inquiry and it is reflected in the agreed statement of fact that she had been in a romantic relationship with Trevor Edwards commencing on June 9, 2008. I do not intend to set out all of the details of Ms. McKenzie’s relationship with Mr. Edwards, which she portrayed as being an abusive one involving assaultive and threatening conduct by Mr. Edwards. He began assaulting her within a few months of their becoming involved in an intimate relationship. Mr. Edwards would push her, kick her and poke her in the throat.

Ms. McKenzie described an incident, approximately four months after they began seeing each other, when they were arguing in the car. Ms. McKenzie was driving and Mr. Edwards grabbed her by the back of her neck, squeezed very hard and told her that he could put her “fucking face through this fucking steering wheel.”

In late 2008 or early 2009 Ms. McKenzie went to the police and complained that Mr. Edwards had stolen her car, a Mercedes that she leased, and that he had assaulted her. It was her understanding that charges were laid but Mr. Edwards was not arrested as he did not turn himself in. Ms. McKenzie located her car and arranged with the police to have it towed. At some point she and Mr. Edwards resumed their relationship. He was unaware that she had complained to the police.

On another occasion, on February 8 or 9, 2009, Ms. McKenzie described being punched by Mr. Edwards in the head and being knocked out. The next day Trevor came to Ms. McKenzie’s apartment and asked her to drive him to the east end of Toronto. Mr. Edwards was involved in some sort of transaction that Ms. McKenzie believed to be drug related. On the way back to downtown Toronto they were stopped by the police. Mr. Edwards was arrested on an earlier complaint made by Ms. McKenzie. Under the seat where Mr. Edwards was sitting was 78 grams of heroin. Mr. Edwards was taken by the police to the police station and Ms. McKenzie was permitted to leave. Ms. McKenzie realized that she did not have her keys to her apartment as Mr. Edwards had them, so she went back to the police station. While at the police station she was permitted to see Mr. Edwards and it was agreed between them that Ms. McKenzie would tell the police that the heroin was hers. Ms. McKenzie was released on bail but Mr. Edwards was held on the earlier charges of assault against Ms. McKenzie. While Mr. Edwards was in jail in February, March and April 2009, he would speak to Ms. McKenzie by telephone and he convinced her to lie and tell the police that her earlier allegations of assault were not true so that the charges would be dropped. Mr. Edwards also enlisted his cousin, Jerome Weeks, to convince Ms. McKenzie to lie. Mr. Weeks pleaded guilty to dissuading Ms. McKenzie from giving truthful testimony. Ms. McKenzie lied to the court, recanting her earlier statement about Mr. Edwards assaulting her.

Mr. Edwards was released on a peace bond with a condition that he was not to have any contact with Ms. McKenzie; however, he continued to have an on-again, off-again relationship with her.

Before she was romantically involved with Trevor Edwards, Ms. McKenzie testified that there were men that she had met when she was working as an exotic dancer who she would have sex with and who would give her money. D.S. was a lawyer from Guelph that she had this relationship with, as well as Tom Barz, who lived in California. Even after she became romantically involved with Trevor, she continued to receive money and have sex with these two men. Trevor was not aware that she was having sexual relations with these men. While she was with Trevor she was working on Friday and Saturday evenings at Circa Lounge as a bottle server. Any money that Ms. McKenzie earned was given to Mr. Edwards. If she received money from Mr. D.S. or Mr. Barz she would give it to Trevor. He would give her money to pay for her condo, her car and other expenses.

There were occasions that Mr. Edwards told Ms. McKenzie she had to get money from these two men and she did get it. He told her once that if she did not get $10,000 from Mr. D.S. as he had requested he was going to break her father’s arm.

Ms. McKenzie described that she would often get into arguments with Mr. Edwards over other girls he was seeing. She would find calls and messages from these girls on his cell phone and would confront him about them. She would accuse him of having sex with them, which he denied, and he told her that he just used them. Trevor told Ms. McKenzie that he used Kim Wake for money and holding drugs for him and he used Mickey for holding his drugs and guns. Trevor told her that the girls in his life gave him money; it was her understanding that, between the girls and the drugs, this was how he survived.

On December 8, 2009, they were driving somewhere and got into an argument. Mr. Edwards punched her in the face after stopping the car. She fell out of the car unconscious and when she came to there was blood all over the road and he had left in her car. A young couple stopped and called 911. The police were called and, knowing that she was not supposed to talk to the police, she tried to leave. (Ms. McKenzie had testified during the preliminary hearing that Mr. Edwards had trained her not to have any contact with the police. He told her that if she did, “his people would harm her and her family.”) An ambulance took her to the hospital and she told the police when they came that she could not remember anything about what happened. Ms. McKenzie testified that she was told her nose was broken and her face was swollen and both eyes had bruises. She was uncooperative with the police and her friend, D.S., came to pick her up.

In mid-June 2010, at his parents’ house, Mr. Edwards punched Ms. McKenzie twice, once knocking her to the ground. Mr. Edwards left in Ms. McKenzie’s car. He returned later that evening and left again in another car. Ms. McKenzie had made a second key to her Mercedes and she left in it with the intention of never returning. This was the final straw and she drove to her friend, Lindsay Wesson’s house in Niagara Falls.

Ms. McKenzie received a phone call from Mr. Edwards the next morning and he told her that there was $50,000 in a shoe box in the trunk of her car which belonged to him and he wanted her to return immediately. Ms. McKenzie told Mr. Edwards that she needed some time away from him and would return the money the next day. Ms. McKenzie then turned off her cell phone and did not answer any of Mr. Edwards’ further calls.

She stayed at Lindsay’s house and then later registered at a hotel in St. Catharines. She decided to use the money to make some money for herself so she could get a place of her own where Mr. Edwards could not find her. She was aware that a neighbour of Lindsay’s, a man called Turbo, was a drug dealer and a pimp. Turbo’s real name was Jason Turbine. She started to hang out with Turbo as she knew that he liked her. Eventually, she asked him if she gave him $40,000 to sell drugs, how quickly she could get her money back with some profit. He told her she would get it back in a week and she would make about $10,000 profit.

Ms. McKenzie opened a safety deposit box at a TD Bank in St. Catharines on June 18, 2010. She had arranged with D.S. to pay for a hotel room and she was staying there with Turbo. Turbo was arranging for drug deals, selling cocaine from the hotel room. Apparently he was giving Ms. McKenzie the money as it was coming in.

On July 1, 2010, Ms. McKenzie got an apartment in Niagara Falls. She used some of Trevor’s money to rent the apartment. She did not tell Lindsay about the apartment as she did not trust her 100 percent. She would visit Lindsay at her house in Niagara Falls and would put her Mercedes in the garage so that no one would be able see it in the driveway. Ms. McKenzie was spending a lot of the money to purchase furniture and clothes and admitted that she was being careless with the money. She was not answering Mr. Edwards’ phone calls.

On one occasion when she was visiting with Lindsay, likely July 6, 2010, she had to leave her car in the driveway because of some other cars that were blocking the garage. It was around 10 p.m. and she was sitting in the backyard with Lindsay when Tyrone Edwards, Trevor’s brother, came into the backyard. Ms. McKenzie described that initially she was panicked and hysterical; however, she calmed down and they all sat in the backyard and discussed the money. Tyrone told her the money was his and that Trevor was just holding onto it for him. Ms. McKenzie told Tyrone she would get him the money the next day. Tyrone remained in the backyard for about 2 hours. Ms. McKenzie never told Tyrone that she had given the money to Turbo to purchase and sell drugs.

When Tyrone left, Ms. McKenzie got into her car to move it into Ms. Wesson’s garage. As she was sitting in the car Trevor Edwards arrived and was banging on the window. This was around 1:30 a.m. Ms. Wesson felt threatened and said she was going to call the police. Ms. Wesson saw two vehicles across the street; Tyrone was in one and a woman was in the other car. She heard the woman yell for Trevor to get back in the car after Ms. Wesson said she was going to call the police. Ms. Wesson did not recognize who the woman was.

Ms. McKenzie rolled down her window to speak with Trevor and she eventually let him into the passenger side of the car and they talked. Lindsay Wesson testified that she observed Ms. McKenzie and Trevor Edwards kissing when they were both in Jessica’s car. Ms. Wesson stayed outside while Jessica and Trevor were talking in her Mercedes. Ms. McKenzie agreed to provide Trevor the money the next day and Trevor left around 3:30 or 4:00 a.m.

Ms. McKenzie testified that she was panicking and was hoping that Turbo would be able to provide her with the money she had given him. She called Turbo as soon as Trevor left. The next morning Trevor came back and talked to her about the return of the money. Ms. McKenzie told him the money was in a safety deposit box. On July 7, 2010, she went to St. Catharines and took out the remaining money, approximately $5,000 from the safety deposit box. She had made arrangements with Turbo to get the rest of the money she had given him. Turbo had arranged for one of his girls to bring her the money. Ms. McKenzie went with Lindsay to Niagara Falls to get this money. She testified that she thought Turbo’s girl gave her $20,000. She also went to her apartment in Niagara Falls and got some money she had there.

Ms. McKenzie had arranged to meet Trevor Edwards at a restaurant in Niagara Falls. When Ms. McKenzie met with Trevor, she gave him all of the money she had collected, $30,000. She advised him that she had spent the rest of the money. Trevor was upset and threatened her. He told Jessica to call a cab as she was coming with him. They went to the Howard Johnson’s Hotel in Niagara Falls. Trevor had already registered at this hotel and she followed him to room 145. Trevor told her that she had to get the rest of the money.

There was no one else at the Howard Johnson Hotel during the time that Ms. McKenzie stayed there, other than Trevor Edwards. Trevor was with her the entire time she was at the Howard Johnson Hotel.

Ms. McKenzie contacted D.S., a lawyer who was a friend of hers and with whom she would give sexual favours in exchange for money. She told him the predicament that she was in and how she needed to pay back some money to Trevor that she owed. Initially she was speaking to D.S. and then Trevor began to speak to D.S. directly about providing the money that Jessica owed him.

Ms. McKenzie ultimately told Trevor about her giving the money to Turbo to use in buying drugs to sell and make a profit. She also admitted to sleeping with Turbo and Mr. Edwards became enraged. He threatened to kill Ms. McKenzie and her mother, Karen, if the outstanding money was not paid or the police became involved.

It was Ms. McKenzie’s position that she was not being held against her will on the first day she was at the hotel with Trevor. She was hoping that she and Trevor would get past this and reconcile. In fact, she and Trevor had sex the first night they stayed in the hotel room. She also went on her own to a Tim Horton’s to get a sandwich the first day she stayed at the hotel.

It was after she told Trevor about Turbo that things got bad. Ms. McKenzie testified that this was when she felt she could not leave the hotel room. There was a lot of screaming and yelling and, when she tried to leave, Trevor would pull her back into the room. At one point he grabbed her by the hair. On another occasion she was telling him to let her leave and Trevor was standing by the door blocking her. She tried to get some pepper spray from her purse and there was a struggle where they ended up on the floor and Mr. Edwards bit Jessica’s wrist. There were other occasions when they were staying at the hotel that Trevor assaulted her. On one occasion he gave her a backhanded slap to her face. Trevor put a chair against the door to the hotel room and slept in front of the door to prevent her from leaving while he slept. Mr. Edwards told her that if she left the room he would kill her. At one point Mr. Edwards grabbed her by the neck and choked her.

Trevor was putting pressure on her to get him the money she owed. He kept telling her to call D.S. and get the money from him. There were calls made to D.S. where he was on a speaker phone talking to Jessica and Trevor and they were asking him to pay the money that was outstanding. Trevor told Mr. D.S. that he would not let Ms. McKenzie leave until he had been paid the money that he was owed. The amount kept increasing, with Mr. Edwards finally telling Mr. D.S. he had to pay $50,000 to Mr. Edwards before he would let Jessica leave. Ms. McKenzie was held in this hotel for two nights: July 7 and 8.

D.S. told Mr. Edwards that he would not consider paying any amount of money until he knew Jessica was safe. It was then arranged that D.S. would get a hotel room for Ms. McKenzie in Guelph. Once he knew she was safe in that room he would negotiate with Trevor the amount he would pay.

On July 9, 2010, D.S. came to the hotel and met with Jessica, who begged him to just pay the $50,000 to Trevor, because that was what the amount had gone up to D.S. did not want to pay anything because the amount just kept going up. Mr. D.S. suggested to Jessica that they just leave and go to the police. Jessica left her bag in the room and her car in the parking lot. She used her car key to open the doors of her Mercedes so that Trevor could get the money that was in the trunk. She left with D.S. and they contacted Det. Thi Truong of York Regional Police. Ms. McKenzie made a statement to the police and a warrant was issued for the arrest of Mr. Edwards. Mr. Edwards failed to attend court on another assault charge that he was facing on July 27, 2010. He eventually surrendered himself to the police several weeks later, on August 10, 2010, and has been in custody ever since.

Mr. Edwards also contacted his former girlfriend, Niki Boglis, on October 20, 2009, in contravention of a probation order he was on in relation to a criminal harassment charge involving Ms. Boglis.

Analysis

This matter was extensively pre-tried before me by counsel at an exit pre-trial at the conclusion of the preliminary hearing. I also had the benefit of hearing viva voce evidence during an application for judicial interim release pursuant to s. 515(10) of the Criminal Code. Mr. Edwards then appeared in the Superior Court and at some point I was approached by Mr. Demczur and Ms. Shemesh, who was now representing Mr. Edwards, and they requested a judicial pre-trial to discuss resolution of Mr. Edwards’ charges.

Several judicial pre-trials were held with counsel, during which a joint submission was discussed with me wherein Mr. Edwards would enter guilty pleas to 12 of the charges he faced and an agreed statement of fact would be filed. The joint submission was that Mr. Edwards would be sentenced to three years in the penitentiary; however, because Mr. Edwards had been in pre-trial custody for two years as of August 10, 2012, he would be credited, on agreement of both Crown and defence, on the basis of 1.5 to 1.0 and, consequently, the sentence to be imposed was a suspended sentence and probation for three years. I advised counsel that the joint recommendation was certainly within the appropriate range of sentence to be imposed for the conduct engaged in by Mr. Edwards towards Ms. McKenzie.

Just prior to Mr. Edwards entering his guilty pleas, Ms. Shemesh requested a further judicial pre-trial where she advised that Mr. Edwards wanted to enter pleas of guilty to the 12 charges on May 14, 2012 and then be sentenced, on June 28, 2012, to time served. Mr. Demczur’s position was that if Mr. Edwards wanted to reduce the joint submission by 43 days, the Crown would increase its position and argue that Mr. Edwards should receive a total sentence of three and a half years. Mr. Edwards entered his guilty pleas on May 14, 2012 with that understanding.

On June 28, 2012, Mr. Demczur, in the course of his submissions, submitted that the appropriate sentence was a penitentiary sentence of four and a half to five years. This came as a complete surprise to Ms. Shemesh and was not in accordance with my recollection of Mr. Demczur’s position, both at the judicial pre-trial and on the day that Mr. Edwards entered his guilty pleas and agreed to the agreed statement of fact. After some discussion in the courtroom with Mr. Demczur, concerning the Crown’s position, he agreed with Ms. Shemesh’s and my recollection of our final judicial pre-trial being the basis upon which Mr. Edwards entered his guilty pleas.

After hearing sentencing submissions from both counsel, I reserved my judgment until August 7, 2012.

(A) Background of the Offender

Mr. Edwards is 42 years of age. He is single; however, I am advised in the pre-sentence report that he is of the opinion that he is currently involved in a relationship with Kimberly Wake. Ms. Wake expressed to the probation officer that she is not presently in a relationship with Mr. Edwards but there is potential for the resumption of their relationship. Mr. Edwards has a child, a boy, who was born to a woman that he had a relationship with from 2009 into 2010. The child was born while Mr. Edwards was in custody and, other than one visit while he was in custody when she advised him that she was pregnant, he has not seen his child or kept in contact with the woman.

Mr. Edwards has a very lengthy criminal record starting in 1994 and continuing until May 2, 2009. It contains similar offences to the charges before the court. It was filed as Exhibit 2 on sentence. At the time of the commission of the offences before the court Mr. Edwards was on probation for domestic violence related offences and had been charged with breaching that probation order. These are both aggravating circumstances which I take into account in imposing an appropriate sentence.

Mr. Edwards’ criminal record is reproduced below:

1994-09-26 (Toronto)

Assault

30 days + probation 1 year & time served

1995-08-30 (Toronto)

1. Assault
2. Fail to Comply Recognizance

(1-2)1 day + probation 1 year & 14 days PTC (Concurrent on both charges)

1995-12-22 (Toronto)

1. Assault
2. Theft under $1000
3. Fail to Comply with Recognizance

(1) 5 months + probation 2 years (2) 30 days consecutive + probation 2 years concurrent (3) 4 months consecutive + probation 2 years concurrent (Sentence appealed) Firearms Prohibition 5 years

1996-01-19 (Toronto)

1. Escape Lawful Custody
2. Assault with Intent to Resist Arrest
3. Mischief

(1-3) 3 months and 2 weeks jail concurrent and concurrent with sentence serving

1996-02-14 (Toronto)

1. Assault
2. Fail to Comply with Probation Order

(1) 90 day jail consecutive to sentence serving (2) 7 day jail consecutive

1996-05-07

Sentence dated 1995-12-22 for charge #3 varied on appeal to 1 month jail consecutive

1997-07-04 (Toronto)

1. Assault
2. Fail to Comply with Recognizance

(1-2) 30 days jail + 1 year probation on each charge concurrent + time served 2 months Prohibited Firearms 5 years

1998-03-26 (Toronto)

Attempt Obstruct Justice

3 months jail +18 months probation

2000-04-25 (Toronto)

1. Criminal Harassment
2. Fail to Comply with Probation
3. Assault (5 counts)

(1-3) 6 months + 3 years probation on each charge concurrent + (Time served 10 months) Mandatory s. 109 firearms prohibition order for life

2001-03-02 (Toronto)

Assault

SS + 2 years probation + time served 30 days

2002-08-14 (Barrie)

Obstruct Peace Officer

1 month jail (+75 days time served) +Mandatory Prohibition order s. 109

2003-04-02 (Barrie)

1. Fail to Comply Probation
2. Possession of Schedule 1 Substance, s. 4(1) CDSA

(1-2) Time served 74 days jail + 3 years probation on each charge concurrent

2008-06-20 (Toronto)

Fail to Comply with Recognizance

15 days intermittent jail (+ 3 days time served) + 12 probation

2008-08-15 (Toronto)

Fail to Comply with Recognizance

12 months probation

2009-05-21 (Toronto)

1. Criminal Harassment
2. Fail to Comply Recognizance

(1-2) 1 day jail (109 days Time served) + 2 years probation

The PSR also reflects a conviction for Drive under Suspension on March 22, 2012 for which Mr. Edwards received 21 days in jail. I do not know if this is accurate given that Mr. Edwards has been in custody from August 10, 2010 until the present time.

There is a five year gap in Mr. Edwards’ criminal record from 2003 until 2008. The longest sentence, which he received in 2000, was a six-month jail sentence on top of ten months served in pre-trial custody for which he likely received credit on a 2 for 1 basis. This sentence, therefore, is equivalent to a 26 month penitentiary term. It was for similar offences.

Mr. Edwards has one younger brother; his parents separated and divorced when he was six years of age and his mother remarried. The PSR provided a great deal of background information concerning Mr. Edwards’ relationships with his mother and stepfather, his biological father and his brother and half siblings from his father’s subsequent marriages. Mr. Edwards’ has a very close relationship with his mother and stepfather and they continue to be very supportive of him. Upon his release from custody, he plans to reside with his mother and stepfather.

Mr. Edward’s description of his relationship with Ms. McKenzie is fairly different from that described by Ms. McKenzie during her evidence and from the agreed statement of fact. The fact that Mr. Edwards has resolved the charges by entering a guilty plea is a mitigating factor that I take into account on sentence. It demonstrates his acceptance of responsibility for his assaultive behaviour towards Ms. McKenzie.

It is somewhat concerning, however, that in his letter to the court (Exhibit 4) Mr. Edwards does not offer any apology directly to Ms. McKenzie for the injuries he caused her and further, in his discussions with the probation officer, he “appeared to try to paint himself in a particularly good light” and “did not appear to accept responsibility for his actions.” At one point he asserted that he “felt the victim’s perception of their relationship was ‘tainted’ due to her drug and alcohol use”, yet he then added that he “felt terrible and was really apologetic for causing her any type of pain.” Mr. Edwards admits that he has had difficulties with relationships in the past, which is reflected by the number of domestic violence related offences he has been previously convicted of. Mr. Edwards advised that he is trying to address his relationship issues; however, he has failed to follow through with recommendations and referrals made by previous probation officers in terms of counselling programs.

Mr. Edwards’ mother advised the probation officer that she had only met Ms. McKenzie on a couple of occasions and has never witnessed her son express anger around her. One of the assaults, which occurred in June 2010, took place at Mr. Edwards’ parents’ home, during which he struck Ms. McKenzie twice in their presence. The concern I have is that those close to Mr. Edwards do not recognize his need for counselling to address his anger management issues and his tendency to resort to violence and assaultive behaviour towards individuals he is in an intimate relationship with. These issues must be addressed by Mr. Edwards in order for him to be successful in not re-offending in the future, which he indicates is his sincere intention.

Mr. Edwards’ plea of guilty also saved considerable expense to the administration of justice as the trial of the charges he was facing would have taken several weeks to complete. Further, his guilty plea meant that Ms. McKenzie did not have to testify again and I take both circumstances into consideration as mitigating factors on sentence.

Mr. Edwards did surrender himself to police on August 10, 2010 and I take this into account as mitigation on sentence.

There are a number of aggravating circumstances that I must take into account.

1. The assaultive behaviour by Mr. Edwards took place during a domestic relationship, boyfriend/girlfriend, between Mr. Edwards and Ms. McKenzie.

2. Within a very short time period after first meeting Ms. McKenzie and beginning to date her, Mr. Edwards began to exercise control over her and instill fear within her, by repeatedly assaulting her over an extended period of time.

3. Mr. Edwards has an extensive criminal record, which has a number of entries that reflect similar assaultive conduct in domestic relationships. The pre-sentence report reflects that although Mr. Edwards completed the PARS program, he did not follow through with referrals and recommendations by his probation officers to attend anger management counselling. The fact that he continues to engage in domestic violence with his partners is aggravating and troubling.

4. The assaultive behaviour resulted in bruising to Ms. McKenzie’s face, a broken nose, Ms. McKenzie being knocked unconscious and Mr. Edwards biting her arm. Although all of the physical injuries have healed and Ms. McKenzie does not suffer from any lasting disability, her emotional well-being has continued to be detrimentally affected. According to Ms. McKenzie, she still suffers from periods of depression, nightmares and fear for her personal safety.

5. The assaultive behaviour continued over an extended period of time. There was no indication that his behaviour would have stopped had Ms. McKenzie not gone to the police on July 9, 2010 and filed a complainant. In fact, on July 8, 2010, it is clear from the hotel video that Ms. McKenzie is visibly upset and crying and has been injured. Ms. McKenzie can be observed running at the front of the hotel with Mr. Edwards following her within a few seconds.

Mr. Edwards told Mr. D.S. that if Mr. D.S. did not provide payment of $50,000 to him, Ms. McKenzie would come to harm and would not be permitted to leave. Mr. Edwards also threatened to cause harm to Ms. McKenzie’s parents if she did not comply with his demands for money.

I have read the Victim Impact Statements written by Jessica McKenzie, Karen McKenzie and D.S.. All three victims comment on their continued concern for their personal safety and their continuing fear of Mr. Edwards that has caused them to look over their shoulders, install double locks on doors and refuse to disclose where Ms. McKenzie is currently residing. I have no doubt that these concerns are very real for each of the victims.

I should note however, that Ms. McKenzie decided to use the $50,000 that was inside the trunk of her Mercedes as if it was her money. She enlisted the assistance of an individual that she knew to be a pimp and drug dealer to sell cocaine, in an attempt to increase the $50,000 so that she would make a profit for herself. She used some of the money as well to rent an apartment and purchase furniture. This in no way justifies or diminishes the seriousness of the assaultive behaviour or threats or extortion committed by Mr. Edwards. It does provide some background and context however, to assessing Ms. McKenzie’s fear of Mr. Edwards at the time she was involved in an intimate relationship with him.

Sentence Imposed

Mr. Edwards engaged in numerous instances of assaultive behaviour, over an extended period of time, toward Ms. McKenzie when he was in a boyfriend/girlfriend relationship with her. I have outlined the mitigating and aggravating factors that I have taken into account in imposing an appropriate sentence. Taking into account all of the personal circumstances of Mr. Edwards, and the circumstances surrounding the commission of the offences, it is my view that the original joint submission, of three years, is an appropriate sentence.

Both the Crown and defence took the position that, pursuant to s. 719(3.1) of the Criminal Code, I should credit Mr. Edwards on a 1.5 to 1.0 basis for the pre-trial custody he has served.

Sections 719(3) and 719(3.1) of the Criminal Code provide:

719. (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

720. (3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

Mr. Edwards will have served two years in pre-trial custody as of August 10, 2012. Ms. Shemesh filed two letters (Exhibit 8a and 8b) from the Central East Correctional Centre, which set out the number of days the custodial facility was subject to “lockdowns” during the period of time that Mr. Edwards was detained.

In R. v. R.H., [2010] O.J. No. 735 (Ont. C.J.) at para. 10, affirmed in R. v. R.H., 2011 ONCA 396, [2011] O.J. No. 2234 (Ont. C.A.), my colleague, Justice P. Bourque, held:

I take the view that I am going to give Mr. R.H. credit for one to one point five and I am going to do it on the following basis:

1. First of all, I am not precluded from considering 1.5 as there is no specific endorsement made by any Justice of the Peace in any bail hearing which would preclude me from considering 1.5;

2. I do take judicial notice of what is more severe conditions in holding facilities, in contrast to the conditions in a provincial reformatory;

3. I do take judicial notice that in a holding facility there are no significant programs available to assist in the rehabilitation of any defendant; and

4. I take judicial notice of the fact that parole provisions for this offence do not give credit for the time served before sentence and thus, the statutory remission does not apply to the pretrial custody.

I adopt his comments as they clearly apply to the case at bar.

Further, in R. v. Monje, 2011 ONCA 1, [2011] O.J. No. 1 (Ont. C.A.), LaForme J.A., for the Court, made the following comments, (at paras. 16-18):

16 As a general rule, trial courts gave 2:1 credit for pre-sentence custody and occasionally enhanced credit where the circumstances under which the offender spent his or her time had been particularly onerous. I would also note however, that in some cases less than 2:1 credit was given.

17 Giving extra credit for pre-sentence custody was the practice in order to take into account certain circumstances. These generally included lack of programming or activities, overcrowding, and the fact that, unlike time spent in post-sentence custody, pre-sentence custody does not count towards a prisoner's eligibility for full parole or statutory release. As Laskin J.A. observed at p. 721 of Rezaie, this is the reason that pre-sentence custody is commonly referred to as "dead time".

18 I would note parenthetically that, to the extent that the recently legislated "new rules" concerning credit for pre-sentence custody limit an offender's entitlement to credit on a 2:1 basis (sic), the reality of what "dead time" is remains. That is, pre-sentence custody continues to be "dead time" for the same reasons Laskin J.A. noted in Rezaie and remains as one of the most punitive forms of imprisonment in Canada. (Emphasis added)

I am in agreement with the position taken by the Crown and the defence that Mr. Edwards be credited on a 1.5 to 1.0 basis for his pre-trial custody. Taking into consideration the caselaw I have referred to, I am prepared to exercise my discretion under s. 719(3.1) and give 1.5 to 1.0 credit for any pre-trial custody served by Mr. Edwards.

Consequently, I am imposing a global sentence of three years for all charges, to be served concurrently, with credit being given of three years for the two years of pre-trial custody served by Mr. Edwards on a 1.5 to 1.0 basis. The information will therefore reflect the three years of pre-trial custody assessed and I am suspending the passing of sentence and placing Mr. Edwards on probation for three years. The terms of this probation will be the statutory terms, including keep the peace and be of good behaviour and the following additional terms:

1. Report forthwith to a probation officer and thereafter as required;

2. Reside at an address approved of by your probation officer;

3. Not to communicate or associate, directly or indirectly, with Jessica McKenzie, Karen McKenzie, or any other member of Jessica McKenzie’s immediate family, and D.S.;

4. Not to attend within 500 metres of the known place of residence, employment or education for Jessica McKenzie, Karen McKenzie, or any other member of Jessica McKenzie’s immediate family, and D.S.;

5. Attend for such assessment, treatment and/or counselling for anger management, relationship issues or any other issue deemed appropriate by the probation officer and not stop that counselling without the written permission of your probation officer;

6. Sign any releases or waivers of medical, psychiatric or other confidential information to your doctor/counsellor in favour of your probation officer so that they can discuss your progress;

7. Not possess any weapons as defined by the Criminal Code;

8. Not to possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, according to law.

In addition, there will be a s. 109 order for life and a D.N.A. order.

Released: August 7, 2012

Signed: “Justice Peter C. West”