R. v. Rodgers

Citation

Citation: R. v. Rodgers, 2012 ONCJ 808

Court Information

Court: Ontario Court of Justice

Location: Chatham, Ontario

Date: November 8, 2012

Parties

Crown: Her Majesty the Queen

Accused: Kiel Arris S. Rodgers

Counsel

For the Crown: H. McIntyre

For the Accused: G. Mueller-Wilm

Judge

The Honourable Justice P. Kowalyshyn

Hearing

Heard: In Writing (November 8, 2012)

Reasons for Sentence

Kowalyshyn, J. (Orally):

Facts

[1] I first want to start with a review of the facts in this matter. On September 1st, 2012 and sometime after three o'clock in the morning, Kiel Rodgers had been drinking and was involved in a disturbance inside his apartment with his girlfriend, Desiree Gordon.

[2] He became increasingly enraged and through his actions, he picked up his newly acquired small puppy and threw it out the door and down the stairs, leading to the driveway. This puppy was a German Shepherd mixed breed, female pup, 12 weeks of age.

[3] Mr. Rodgers then exited the apartment to retrieve the puppy. Ms. Gordon came out to confront him and Mr. Rodgers, in response, pushed her to the ground. This was done in the presence of several onlookers. Mr. Rodgers then chased the puppy, (the puppy that was trying to flee) and picked it back up. He then slammed the puppy to the ground where it remained motionless.

[4] Desiree Gordon was, not surprisingly, frantic and came running toward Mr. Rodgers and he pushed her to the ground a second time. The police were called and Mr. Rodgers was arrested when they arrived.

[5] The puppy died. The puppy was examined by the University of Guelph Animal Health Laboratory. There were multiple skull fractures, fractures of the fifth and sixth ribs and left thorax. The cause of death was brain injury.

Background of the Accused

[6] Now, in relation to Mr. Rodgers, he is 25 years of age. He comes from a single family home. He is attempting to better himself by engaging in correspondence school in an attempt to obtain his secondary school diploma.

[7] He has plans to move out of this jurisdiction and has future plans as it relates to cementing the relationship that he has with Ms. Gordon.

[8] He has a criminal record, which includes two counts of assault and one of uttering threats. He has seven convictions for breach of court orders and one for failing to attend court. He is no stranger to the criminal justice system. He has spent 68 days in pre-sentence custody, not including today.

Sentencing Principles

[9] Section 718 of the Criminal Code sets out the principles of sentencing. It states that:

The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

[10] And that section goes on to say that this is to be achieved by imposing sentences which have, among other objectives, the objectives of separating offenders from society where necessary, of denouncing unlawful conduct, of general deterrence, of rehabilitation, and of promoting:

a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

[11] Section 718.2 (b) of the Criminal Code states that,

a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[12] This provision requires an analysis of what is commonly referred to as the range of sentence for a specific offence.

[13] Section 718.1 of the Criminal Code states that any sentence imposed,

must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[14] This is the fundamental principle of sentencing in Canada.

[15] The Court is required to consider aggravating and mitigating circumstances. In short, the Court is to determine a just and appropriate sentence, taking into account the aforenoted principles.

Aggravating and Mitigating Circumstances

[16] My examination of the aggravating and mitigating circumstances is as follows: The mitigating circumstances are that Mr. Rodgers has entered an early guilty plea and that he has expressed remorse for his actions. I accept and believe that his expressions of remorse are indeed and in fact sincere.

[17] The aggravating circumstances, however, include the extreme viciousness and brutality of the offence; the callous disregard he showed for the health and wellbeing of this young, 12 week old female puppy; and the fact that Mr. Rodgers continued his attack on the puppy after first having thrown it down some stairs and after Ms. Gordon confronted him in an attempt to intervene and in response to which he pushed her to the ground.

[18] Further, Mr. Rodgers chased the puppy as it attempted to flee and then picked it up and slammed it to the ground in the presence of Ms. Gordon and others.

[19] There is also the fact that Mr. Rodgers was in the early stages of a two year probation order for an assault and breach charge, which specifically included the statutory term that he keep the peace and be of good behaviour.

Case Law Analysis

[20] I will now consider the case law in fixing the appropriate sentence. Counsel for the Crown has provided the Court with a brief of authorities in support of the joint position on the length of the custodial sentence to be imposed, which as I have already indicated, is proposed to be a duration of four months.

[21] One of the cases, R. v. Connors [2011] B.C.J. (B.C. Prov. Ct.) at Tab 6, also provides assistance to the Court in relation to the Crown's request for a ten year animal owning prohibition order under Section 447.1 of the Code.

[22] The first three decisions in the Crown's brief of authorities, R. v. Jones [1997] O.J. No. 1288 (Ont. Prov. Ct.), R. v. Zeller [1998] A.J. No. 351 (Alta. Prov. Ct.) and R. v. Wicker [2007] A.J. No. 566 (Alta. Prov. Ct.) all relate back to the predecessor version of this section of the Criminal Code.

[23] As a result of the change made by Parliament in April 2008, the section has changed from one in which this was a straight summary conviction offence with a maximum sentence of six months for even the worst case, to a hybrid offence with a maximum of five years imprisonment if proceeded with by way of indictment or a maximum of 18 months if proceeded by way of summary conviction. The Crown in this matter has proceeded by way of summary conviction.

[24] Clearly Parliament saw fit to signal a dramatic and some might argue significant, while others might argue insignificant, shift in the manner in which offenders under this section, that being those who kill or harm animals, are to be sentenced.

[25] A movement from a six month maximum to an 18 month or five year maximum is quite extraordinary, even in the current political times.

[26] Justice Quantz of the B.C. Provincial Court at paragraphs 49 and 51 of the R. v. Connors decision found at Tab 6 of the Crown's brief of authorities, stated that in considering the increased penalties prescribed by Parliament for violations of Section 445(1) of the Criminal Code indicated that:

In increasing the penalties Parliament did conclude that the previous maximums were wholly inadequate and failed to represent the prevailing view in society as to the seriousness of these offences.

To fulfill Parliament's intention in making these more serious offences requires in this case that a longer period of incarceration be imposed than in the majority of cases decided prior to the amendments.

[27] In R. v. White [2012] N.J. No. 263 (Nfld. & Labrador Prov. Ct.) found at Tab 5 of the brief, Justice Gorman of the Newfoundland and Labrador Provincial Court stated, at paragraph 15,

It has been held that an increase in a statutory maximum is a "clear indication to sentencing courts of the seriousness with which the criminal conduct addressed by the changes is viewed by contemporary society" (see R. v. Richardson [2006] EWCA Crim 3186, at paragraph 4).

[28] She went on to say,

However, it is important not to overemphasize legislative changes in imposing sentence.

[29] I have no intention of overemphasizing the legislative changes in imposing sentence on Mr. Rodgers. However, those cases which predate the April 2008 amendments to the Criminal Code are of only minimal assistance.

[30] Without getting into any significant detail, I wish to address the cases offered by the Crown and defence in support of this four month custody position with some reference to the facts and the decision.

R. v. Jones

[31] In the Ontario Provincial Court Decision of R. v. Jones at Tab 1 of the Crown's brief, the Ontario Court of Justice dealt with a matter in which the offence occurred prior to March 1997.

[32] The youthful offender, who had no criminal record, choked, kicked, dragged, punched and threw the dog, causing it to suffer a broken leg which remained in a cast for several weeks. He did not kill the dog. The offender did not accept responsibility and received a 45 day sentence of imprisonment followed by 12 months probation.

[33] The significant differences in this case are that it's pre-2008, this was a youthful first time offender, that the dog didn't die, and of course that the accused did not accept responsibility.

R. v. Zeller

[34] In R. v. Zeller at Tab 2, a decision of the Alberta Provincial Court, the offence occurred in August 1997.

[35] The adult offender was engaged in an argument with his wife. And when he went to put the 16 week old puppy inside, it urinated on the floor. This led to an argument regarding the dog and its lack of discipline, with the offender then damaging property.

[36] When in the process of leaving the premises, he threatened to kill the dog. He subsequently killed the puppy by striking it numerous times in the head with a shovel.

[37] The offender had a prior criminal record and entered an early guilty plea. The Court imposed a 60 day sentence followed by two year probation, but at the time of the sentencing, it should be noted that the accused had received a pardon for these offences. Effectively the consideration of the criminal record would have been addressed or considered in effect as if he had no prior record.

R. v. Wicker

[38] The R. v. Wicker decision at Tab 3 was also a pre-2008 amendment decision, where the Alberta Provincial Court sentenced the accused for having put a cat into a scalding hot tub of water, resulting in it having to be euthanized. In that case, the Court considered the accused's early guilty plea, his remorse and acceptance of responsibility, and sentenced him to 90 days.

[39] In that case, however, the Court was provided with a detailed psychiatric report setting out a number of underlying problems which included the accused having been mentally, physically, and sexually abused as a child. Also, there is no indication in that case of the accused coming before the Court with a criminal record.

R. v. Abeywickrema and R. v. White (Post-2008 Amendments)

[40] The next two cases, R. v. Abeywickrema [2010] O.J. No. 5142 at Tab 4 and R. v. White at Tab 5, are cases which were decided after the April 2008 amendments. However, there are significant distinguishing points in these cases as well.

[41] In R. v. Abeywickrema at Tab 4, Justice Dean of this court was dealing with a case of animal cruelty and not death per se. The accused, at the time of the offence, was on parole for manslaughter.

[42] This was the situation where the accused had placed a condom on the dog's penis and secured it with a piece of black bicycle tire inner tube, thereby preventing the dog from being able to urinate.

[43] The accused had done this, not as a deliberate attempt to cause injury to the dog, but rather to stop him from effectively "humping" and ejaculating on his furniture and other objects in his apartment.

[44] When he saw that this did not work, the accused attempted to remove the condom when taking the dog out for a walk. In his attempt to remove the condom, the dog bit his hand.

[45] As a result, the condom ripped and the accused was unable to remove all of it. The dog then escaped from its owner after he had let it off its leash. He searched for the dog, but was unable to find it.

[46] The dog was later found and apprehended by an employee of the Humane Society. The owner, the accused, was not around at the time, as he had apparently suffered a heart attack after experiencing chest pains while looking for the dog, and was ultimately taken to a hospital in Detroit, Michigan.

[47] Because the owner of the dog wasn't known at the time, a decision was made to euthanize it. Had the owner been known, the option of penile amputation and surgery could've been considered and explored with the accused. There were no other signs of injury to the animal.

[48] So the facts in this case are very different from the one involving Mr. Rodgers. Justice Dean also had before him the benefit of a pre-sentence report. It provided details about the accused's history of depression, attempts at suicide in the past and the fact that he had previously been under the care of a psychiatrist.

[49] After considering the case law provided to him, Justice Dean imposed a sentence of four months custody, two years probation and a five year animal owning prohibition. He cited the mitigating factor of the accused attempting to remove the condom before the dog could suffer any physical injury in imposing the four month sentence.

[50] Therefore, again, the facts in that case are remarkably different from this case in which Mr. Rodgers intentionally and deliberately caused harm and then the death of this 12 week old puppy.

[51] In the R. v. White decision at Tab 5, a decision of the Newfoundland and Labrador Provincial Court, Justice Gorman imposed a global sentence of six months imprisonment and 12 months probation on an individual who uttered a threat, failed to attend court, and who killed one cat and injured the other in what started as a domestic incident. The Court also imposed a ten year animal owning prohibition.

[52] In this case, the accused had a noteworthy criminal record and he had 20 prior convictions, primarily for violence and noncompliance. In that case Justice Gorman had the benefit of a pre-sentence report which was only minimally referred to in the decision.

[53] This is the one case put forward by the Crown which bears some semblance to the case at bar. I acknowledge, however, that this was a case in which the Court was dealing with two animals and two separate occurrences.

[54] It is, however, simply one case where some assistance might be found in determining an appropriate range of sentence. I will have some further comments about this case shortly.

R. v. Connors (Animal Ownership Prohibition)

[55] The R. v. Connors decision at Tab 6 has been put forward by the Crown to support its position that a ten year prohibition under Section 447.1 is warranted.

[56] Ms. Mueller-Wilm also relies on the R. v. Connors decision and, specifically paragraphs 22 to 33, therein, to highlight to the Court that the B.C. Provincial Court in that decision reviewed a number of cases involving animal abuse and found the range of sentences ran, and I'm quoting Ms. Mueller-Wilm here,

the entire gamut, all the way from a conditional discharge to a lengthy period of incarceration.

[57] I agree. I do not, however, agree with the submission that the average, if one calls it that, is a sentence from two to four months for circumstances such as those that we have in this case involving Mr. Rodgers.

[58] Also, only four of the cases referred to by Justice Gorman in the above referenced paragraphs in the R. v. White decision relate to animal abuse cases. And all four of those were decided prior to the April 2008 Criminal Code amendments.

[59] Accordingly, that case is only of limited assistance on the range of sentence issue. It is helpful, of course, in relation to the prohibition under Section 447.1.

[60] I would also add that Justice Gorman, in the R. v. White decision, did not have the benefit of considering the Ontario Court of Justice decision of R. v. Monroe [2010] O.J. No. 2579 and the appeal of that decision in the Ontario Superior Court of Justice [2012] O.J. No. 4405.

[61] Justice Gorman also did not have the benefit of considering R. v. Ainsworth, a 2010 Alberta Provincial Court decision [2010] A.J. No. 810. These last cases, of course, were cases that were not cited by counsel, but which I have reviewed as part of my consideration of the appropriate sentence for Mr. Rodgers.

R. v. Ainsworth

[62] In the Ainsworth decision, this was a situation where the accused admitted to violently striking his dog while intoxicated, then failing to get the dog medical treatment for two days, causing the dog to lose an eye.

[63] He was sentenced to nine months conditional sentence and a five year prohibition order under Section 447.1. He also received 50 hours of community service as part of a probation order.

[64] In that case, the Court said that a term of imprisonment was necessary for Mr. Ainsworth to address the applicable sentencing principles of denunciation, deterrence, rehabilitation, the promotion of a sense of responsibility in Ainsworth, and his separation from society.

[65] In that case, the Court considered and imposed a conditional sentence, given his lack of a criminal record. It went on to say that a condition prohibiting Mr. Ainsworth from having the custody or control of animals would address his potential risk to community safety.

[66] Although the case did not result in the death of an animal, a significant period of custody was imposed by the Court, notwithstanding the accused's lack of a record, his early guilty plea, his demonstration of remorse, and his intoxication at the time of the offence.

R. v. Monroe

[67] In the R. v. Monroe decision, and that is at the trial level in the Ontario Court of Justice, Justice Fergus O'Donnell sentenced the accused to 12 months in jail, three months probation, including 150 hours of community service work, $12,964.00 in restitution to a former girlfriend who owned the animals, and a 25 year prohibition order.

[68] In that case, the facts were that the accused moved in with his girlfriend who had three dogs. Over the period of many months, the accused tortured two of the dogs inflicting fractures, lesions, puncture burns and detached retinas.

[69] The accused continued inflicting torture while his girlfriend made frequent veterinary visits, unaware of what he was doing to her dogs when she was not home. One of the dogs died, but the others survived.

[70] I appreciate the obvious differences in that case from the case involving Mr. Rodgers. However, in that case, the accused was a relatively young, first time offender with a good work record, a positive pre-sentence report and a strong supportive family.

[71] In that case also, there was a trial, however the only issue was identity. The appeal matter came before Justice Code of the Ontario Superior Court of Justice. He dismissed the appeal from conviction but allowed the sentence appeal. He concluded that:

The trial judge erred in determining the length of the custodial sentence by overemphasizing denunciation and deterrence.

[72] He said that, although a 12 month sentence "was an entirely appropriate starting point," and that is not insignificant, he went on to say that:

the trial judge failed to consider that the length of the custodial sentence, in the case of a first offender with the appellant's strong antecedents, should be as short as possible and should be determined only after consideration [is] given to the rehabilitation of the offender. A sentence of six months' imprisonment achieved the proper balance of denunciation, deterrence and rehabilitation.

[73] The Court made other orders, however, the three years probation was maintained, 150 hours of community service was maintained and the 25 year animal ownership ban was upheld.

[74] The significance of that decision is that Justice Code found that a 12 month sentence was an appropriate starting point, but not in cases of relatively first time young offenders with strong or positive antecedents, a good pre-sentence report, and strong family support.

[75] It should be noted that, although the accused in that case had his sentence reduced to six months, Justice Code effectively sentenced Mr. Monroe to seven months. And he noted this in his decision because, as he put it, the six months was in addition to the 13 days of pre-trial detention.

[76] Lastly, and if nothing else, Justice Code also noted in paragraph 96 of his decision that there were few precedents to guide the Court in determining the appropriate range of sentence in cases such as this, given the legislative changes of 2008.

[77] After citing the Ontario Court of Appeal decision in R. v. Power, [2003] 176 C.C.C. (3d) 209, where the Court upheld a 90 day sentence under the old legislation for torturing and killing a cat and the B.C. Provincial Court decision of R. v. Connors, which is found in the Crown's brief and which I have already referred to, he found, as I have indicated, that the seven month sentence for a first time offender with the accused's otherwise impeccable antecedents, recognized the change in the appropriate range of sentence brought about by the April 17, 2008 legislative reforms.

Summary of Case Law

[78] In summary then, the April 2008 changes made by Parliament have signalled a new era in sentencing for animal abuse and death cases. We are already observing, from the limited number of cases available, that it is likely that a new range of sentences will be imposed that result in longer periods of incarceration.

[79] The wording of the amendments alone permit this, as the maximum period of incarceration, when a matter is proceeding with by way of summary conviction, has moved from six months all the way to 18 months.

Address to the Accused

[80] Now, Mr. Rodgers, I'm going to address you directly. You are not a first time offender. You have what has been described, and which the record discloses, is a moderately lengthy criminal record. You do not come before the Court with the benefit of much in the way of mitigating circumstances.

[81] I do acknowledge and recognize that, since you've been in custody, following the occurrence of this offence on September 1, that you have taken steps to improve your education and we've already talked about your future plans with your partner.

[82] However, in this matter, you killed a helpless, defenceless young animal. You grabbed this 12 week old puppy in the course of a domestic dispute with your partner, now your fiancée, and threw it out the door and down some stairs leading to a driveway.

[83] At that point, the puppy was still alive, although quite likely traumatized and severely injured. Then, instead of remaining where you were and causing no further harm or stress or trauma to this animal, you went downstairs, chased it, picked it up and slammed it to the ground where it laid lifeless.

[84] This was a serious and violent offence. I have already indicated that the injuries to this puppy included blunt force injury to the head and body and, specifically, that this puppy sustained multiple skull fractures and fractures of the fifth and sixth ribs and left thorax. The cause of death was brain injury, secondary to multiple skull fractures.

[85] It is difficult to imagine a worse set of facts. This was not a fleeting few seconds of rage. You deliberately went out of your way to kill this animal and in the presence of others. You engaged in a series of violent acts resulting in a horrendous death.

[86] As a pet owner, there was a trust imposed upon you not to cause injury, pain or death to any animal in your custodianship. The cases which have been cited by the Crown and your lawyer confirm this in the case and situations of pet owners. Rather, there was an expectation that you would properly care for this young animal.

[87] You breached this trust in the worst possible way.

[88] You took from this animal something that was not yours to take - its life. As Justice Quantz said, at paragraph 40 of the R. v. Connors decision:

The Criminal Code makes it clear, that the wilful infliction of unnecessary pain and suffering on animals violates one of the basic [tenets] of our society and is deserving of punishment. It is also conduct which most members of our society find repugnant and morally reprehensible.

[89] You and others like you must realize that this behaviour is not, will not, and cannot be tolerated. Animals...pets, have become an increasingly important part of modern society and that is likely why, in large part, Parliament saw fit to make the amendments to this section of the Criminal Code in April of 2008 which I outlined earlier.

Sentence Imposed

[90] In my view, in balancing all of the factors which I have referred to and set out in these, my reasons for sentence, I impose the following sentence: Eight months incarceration, less credit for the time already served. Hence, the sentence is 240 days, less 68 days pre-sentence custody, leaving 172 days remaining.

[91] Furthermore, a ten year prohibition will be imposed pursuant to Section 447.1 of the Criminal Code preventing you from owning, having the custody or control of, or residing in the same premises as an animal or bird.

Probation Order

[92] With respect to the issue of probation, neither defence nor Crown suggested probation as a part of the disposition with both indicating that you will be on probation until 2014 as a result of the sentence that you had received, I believe, in April of this year.

[93] The Crown suggested that the existing terms would address any issue the Court might otherwise be concerned with. I do not agree. I questioned counsel whether or not the probation order which you had just been placed on recently included terms relating to drug and alcohol use. I was told that there was no such prohibition and the only term that would have addressed this was that you were to take such counselling as directed.

[94] Ms. Mueller-Wilm informed the Court that it was in part because of your use of alcohol and non-prescription drugs that you behaved in the manner in which you did. She also said that if you stayed away from alcohol and drugs, that we would not likely find you before the Court. She said that you are now clean and I believe that you confirmed that to me today.

[95] I'm going to give you some assistance in that regard because I'm going to include, unless I hear some strong reservations from your lawyer, terms that prohibit you from using alcohol and drugs, except in accordance with a medical prescription.

[96] I am aware that this case has been publicized to some extent, as that representation was made by your lawyer when we all attended on October 30th.

[97] I can only imagine what is effectively and likely the shock, outrage, disbelief, disgust, and sadness which the community is undoubtedly experiencing as a result of learning and reading your actions.

[98] In other words, the entire community, Mr. Rodgers, has been affected by your actions. And I do believe that it is appropriate that in some way, you give something back to the community and, to some extent, that can be addressed by the imposition of a community service order.

[99] So, what I'm going to do sir, is place you on probation for a period of two years. The statutory terms are that you keep the peace and be of good behaviour, appear before the Court when required to do so, and you are to notify the Court or the probation officer in advance of any change of name or address or place of employment or occupation.

[100] You are to report upon your release from custody in person to a probation officer as directed and thereafter and be under the supervision of a probation officer or person authorized by the probation officer to assist in your supervision and report at such times and places as that person may require.

[101] You're to abstain from the purchase, possession and consumption of alcohol or other intoxicating substances. You're to abstain from the purchase, possession and consumption of drugs except in accordance with a medical prescription.

[102] You are to complete 80 hours of community service work within the first year, at a rate of not less than seven hours per month. Actually, we'll make that, given that you're going to be in custody for a period of time, I'm going to indicate that that should be completed within the first 18 months, and at a rate of not less than 6 hours per month.

[103] You are to attend for assessment and actively participate in and complete such counselling or rehabilitative program as recommended by your probation officer, which may include counselling for alcohol abuse, substance abuse and anger management.

[104] You are to reside where directed by your probation officer and not change that address without the prior written permission of your probation officer or further order of this Court.

[105] As it relates to the terms of the probation order that I have just imposed, do you understand those terms?

KIEL RODGERS: Yes.

[106] THE COURT: Okay. You must realize and appreciate that if you breach any of those terms, you'll likely find yourself back before the Court facing additional charges.

[107] I take it that I'm not hearing any strong objections from counsel in relation to the drug and alcohol terms, Ms. Mueller-Wilm?

MS. MUELLER-WILM: Well, you've already imposed them, Your Honour, I guess at this point it's rather fruitless.

[108] THE COURT: Well, I imposed them with the caveat that unless I heard something from you. You had indicated, as I had stated earlier, in your submissions that: He's clean, it's not going to be a problem, this is what caused him to do this.

[109] I would like to ensure, if at all possible, that Mr. Rodgers stays away from those substances which may contribute to him acting out in a violent manner.

[110] So, is this a situation where if those terms, because I'm not yet functus, if those terms are included that it's going to necessarily result in an automatic probation violation. Would you like a moment with him?

MS. MUELLER-WILM: Well actually, my submission had been that he's clean from – from drugs, Your Honour. And that had been my submission. So, I – I would ask Your Honour not to impose the alcohol prohibition because, at this point, he has not had any rehabilitation in terms of Brentwood or any institution like that.

[111] So, the alcohol might – would – would be difficult for him, I would think.

[112] THE COURT: So, in relation to that, and thank you for those submissions, I am going to modify the probation order and I am not going to include the term with respect to alcohol. It's not because I do not think that that isn't an important term.

[113] But, again, the Court always has to be mindful of, for lack of a better term and phrase, putting addicts or possible addicts in a situation where they're likely and undoubtedly going to breach.

[114] You still have the term included, the statutory term, that you are to, as I've indicated, keep the peace and be of good behaviour. And that, together with the drug prohibition, should prevent and hopefully will prevent any further outbursts of this type.

[115] Ms. McIntyre, any submissions?

MS. MCINTYRE: Yes, Your Honour, I wonder if you would consider, if you're – you're imposing probation, if you would consider a condition that he not associate or communicate with anyone directed in writing by the probation officer?

[116] I haven't had any communication with the individuals who observed this. I know one of them, in accordance with the facts, has known Mr. Rodgers since he was a child. So, I don't know whether she wishes to have continued communication.

[117] This would at least allow those witnesses, if they anticipate any difficulties, to speak to probation and ask that he be directed not to associate or communicate with them.

[118] As well, I don't know whether his fiancée is still residing at that address, but many of the witnesses resided around the area of 18 Louella Crescent. And that's spelled L-O-U-E-L-L-A. And perhaps he could be prohibited from attending at that address? And that's in Chatham.

[119] THE COURT: Ms. Mueller-Wilm, your comments with respect to those requests?

MS. MUELLER-WILM: In terms of leaving it up to the probation officer, my concern is that he is engaged to Ms. Gordon. Ms. Gordon is here. She wants to be able to associate with him and I would ask that the probation officer not be allowed to make an order with respect to Ms. Gordon.

[120] She can certainly – Your Honour can satisfy yourself that she is here. She is engaged to Mr. Rodgers. She wants to see him. And to leave a broad condition like that, leaves the probation officer with that authority.

[121] I have no objection if the Crown wants to name the other witnesses and – and leave it with their revocable consent or words to that effect. I have no difficulty.

[122] One is an aunt, I believe, of Mr. Rodgers. So, I don't believe her position is that – my understanding is that she does want to see him. But, certainly, if the Crown wants to have it with a revocable consent, that's fine.

[123] THE COURT: What about the request to include the prohibition from remaining away from 18 Louella Crescent?

MS. MUELLER-WILM: Let me just check with Ms. Gordon. I – it's my understanding they're planning to move in any event. But, I'll just check that with her. That will be fine, Your Honour.

[124] THE COURT: Okay. So, at the request of the Crown and given that there is no opposition from your counsel, there will be an additional term imposed that you are not to attend at 18 Louella Crescent in the City of Chatham.

[125] And Ms. Mueller-Wilm had indicated that if you wanted to specifically name other individuals with a revocable consent provision, then there would be no opposition to that. Do you have the names of the other individuals that you are proposing?

MS. MCINTYRE: Yes I do: Debbie, D-E-B-B-I-E, Dinga, D-I-N-G-A; Justin Allen Dinga, Justin, J-U-S-T-I-N, Allan, A-L-L-A-N, and it's Dinga; Jake Paul Eddletson, E-D-D-L-E-S-T-O-N. And those are the other – those are all of the witnesses.

[126] THE COURT: Ms. Mueller-Wilm...

MS. MUELLER-WILM: Yes.

[127] THE COURT: ...in relation to those names?

MS. MUELLER-WILM: That's fine, Your Honour.

[128] THE COURT: As long as there is the revocable consent...

MS. MUELLER-WILM: Yes, thank you.

[129] THE COURT: ...requirement? Okay. Additionally, you are not to associate, contact or hold any communication directly or indirectly, with Debbie Dinga, Justin Allan Dinga or Jake Paul Eddleston, except with their written, revocable consent. Do you understand these additional terms?

KIEL RODGERS: Yes, sir.

[130] THE COURT: Okay. Counsel, anything further? The victim fine surcharge is waived. There are some additional counts, I'm not sure if we've dealt with those.

MS. MCINTYRE: If we haven't, requesting they be withdrawn. I believe we did, but we may not have.

[131] THE COURT: Yes, they were withdrawn back on October 30th. Ms. Mueller-Wilm, any other issues that...

MS. MUELLER-WILM: Nothing further.

[132] THE COURT: ...we need to address or deal with?

MS. MUELLER-WILM: Thank you.

[133] THE COURT: Okay.

MS. MCINTYRE: No.

[134] THE COURT: Okay. So, Mr. Rodgers, this concludes your matter. Let's hope that we don't see you here again and that you have learned from your misdeeds. Good luck to you, sir.

KIEL RODGERS: Thank you.

THE COURT: Thank you.

Certification of Transcript

FORM 2

CERTIFICATION OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Melissa Volland, certify that this document is a true and accurate transcript of the recording of R. v. Kiel Arris S. RODGERS in the Ontario Court of Justice held at 425 Grand Avenue West, Chatham, Ontario, N7M 6M8 taken from Recording No. 1611-CR301-20121108-093055-6, which has been certified in Form 1.

*This copy was provided electronically, therefore it is not a certified copy of the transcript.

Date: ___________________

Court Reporter: ________________________________

*This certification does not apply to the Reasons for Sentence which were judicially edited.

Transcript Ordered: November 8, 2012

Transcript Completed: January 4, 2013

Ordering Party Notified: January 4, 2013