COURT FILE Nos.: 3711-998-13-1343-01

3711-998-13-1165

DATE: 2014-05-28

Citation: R. v. Tysick, 2014 ONCJ 268

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DANIEL TYSICK

Before Justice Robert G. Selkirk

Reasons for Judgment on Sentencing

Released on May 28th, 2014

Brian Holowka ............................................................................................................ for the Crown

Jason Gilbert ...................................................................................... for the accused Daniel Tysick

SELKIRK J.:

[1] Mr. Tysick plead guilty to four counts of Break and Enter with Intent, all occurring on September 22, 2013. He also plead to one count of possession of stolen property under $5,000.00 from September 23rd, 2013.

Circumstances of the Offences:

[2] On September 22nd, 2013 Mr. Tysick and a co-accused, Roseanne Sylvester, attended at a residence. Ms. Sylvester went to the door while holding a clip board. She knocked. There was no answer. Both accused enter the house only to discover that it was occupied. They leave.

[3] Later in the day, they are at another residence. They knock and there is no answer. They then try to enter by using a screwdriver. They learn that someone is home and they leave.

[4] The third break and enter is discovered when the property owners return to their residence and see that items have been moved. They are missing a safe with five to ten thousand dollars in it, some jewellery and some ammunition.

[5] The fourth is similar in that the owners return to discover their residence had been entered and that jewellery and coins had been taken.

[6] The police learn of Roseanne Sylvester’s involvement. They arrest and interview her. As a result of that, the accused is arrested and he is found to have some of the stolen property on him. Further stolen property is found at his residence.

[7] Also found is some of the property taken earlier from eight different break and enters in North Bay. Mr. Tysick plead to possession of these items but not to the break and enters.

Circumstances of the Offender:

[8] Mr. Tysick is thirty-three years old. He is single. He grew up in Pembroke.

[9] He has had a fifteen year history of substance abuse including cocaine and prescription opiates. He is an addict.

[10] He has a criminal record. It starts in Youth Court in 1997. Between 1997 and 2001 he has a number of property offences and breach type offences. There is a gap then until 2007 where there is a conviction for theft under and possession of tools. He received a six month conditional sentence and one year probation. There is then another gap until 2012 for trafficking and obstruction which he received a nine month conditional sentence and two years of probation. In 2013 he re-offends and his conditional sentence is converted to house arrest for mischief. He then breaches again and the remainder of his conditional sentence is collapsed.

[11] He is arrested for these offences on September 23rd, 2013. He spends twenty-five days in custody before being released to a residential treatment centre. He continues to reside there for a period of seven and a half months.

[12] As part of his treatment, he is drug screened. His screens were consistently negative until April 12th, 2014 when he relapsed. He has produced three negative screens since then.

[13] He has taken and passed a number of high school credits while there. He had a Grade 9 education upon his arrest.

[14] While not strong in academics he is noted to be motivated and enthusiastic and demonstrates a strong work ethic when working with his hands doing woodworking, mechanics and general house maintenance.

[15] He obeys all house rules, attends all classes and has completed an Anger Management Program.

[16] He has spent 26.5 hours speaking to students at High Schools who are at risk of abusing drugs.

[17] He is described as being “very well suited for long-term treatment” and that, “His chances for rehabilitation are promising”. He is said to be sincere in his desire to stop his drug use.

[18] As one would expect after fifteen years of addiction he needs further help and counselling.

[19] The Crown suggests a jail sentence of twelve to fifteen months less any pre-trial credit.

[20] The defence submits that because a conditional sentence is not available for break and enter of a private residence that I should consider 90 days intermittent for the break and enters and a conditional sentence of 6 months on the possession charge. This would allow Mr. Tysick to finish the first one year phase at Harvest House and transition him into the second phase where he would live in the community with other graduates. Another alternative would be to keep him in the main residence for the full time period.

[21] I should note that the co-accused plead guilty to only one count of possession and received a period of probation. She had no prior record. The Crown advises that there were issues with her case.

[22] One issue that arose was what credit should Mr. Tysick receive for his time at Harvest House where he was essentially under full house arrest unless escorted into the community by a staff member.

[23] In R. v. Cody Kinistino, February 14th, 2014, Perkins-McVey J. of the Ontario Court of Justice granted a credit of four months for an eight and a half months stay at Harvest House or just under one-half a day for every day in treatment. Justice Perkins-McVey cites the Ontario Court of Appeal case law which holds that while some credit should be forthcoming that there is no mathematical formula or set figure and that each case must be determined on its own facts.

[24] An example of that is the case of R. v. Christopher Poulson, December 10th, 2013, Ratushny J. of the Superior Court of Justice, granted credit of one fifth of the 780 days the offender spent at Harvest House.

[25] Not surprisingly the defence suggests I adopt the .5 standard while the Crown agrees with the .2 standard. The difference this would make is the difference between 38 days (25 x 1.5- See Summers) and either 41 days for a total of 79 days if I agree with the Crown or 38 days plus 105 or 143 days if I agree with the defence.

[26] I find the difference of 143 to 79 or 64 days is not significant in the over-all picture which is to design a sentence best suited to protecting the public. I prefer not to set out a formula resulting in a credit for x number of days. I think it is better to give credit by recognizing that 7 ½ months is a considerable time during which the accused’s liberty was restricted but more importantly that the accused used in a positive and productive way. It is significant because it demonstrates that the accused can stay sober, can follow rules and that he is genuine in his desire to rehabilitate himself.

[27] On that note, I do not ignore the accused’s relapse but I do recognize that it was once only, that he is back on track and that he has learned a valuable lesson in how easy it is to relapse. Relapses for recovering addicts are not unusual. What is important is how they react to it. Do they give up or do they give their heads a shake and continue the struggle. A relapse can be a teaching moment. The report seems to indicate that this is what occurred with Mr. Tysick.

[28] In justification of the Crown’s submission for a twelve to fifteen months jail sentence it is pointed out that residential break and enters are very serious offences. The violation of one’s home by intruders is not only traumatic but has a long term effect. One can feel unsafe in their own home for a long time. I agree completely.

[29] The Crown also points out that these were planned and premeditated. On two occasions the owners suffered considerable loss.

[30] The Crown opposes any conditional sentence because the accused has been on two conditional sentences in the past and that he breached the one in 2012.

[31] The principles of sentencing have been codified in s.718 to s.718.2 of the Criminal Code. Denunciation and deterrence are important considerations and I believe that is especially so when dealing with serious offences committed by a person who has been repeatedly before the Courts.

[32] Rehabilitation is always important because that leads to the best possible protection for the community.

[33] These are property offences and none of the aggravating factors listed in s.718.2 are present.

[34] If I agree with the Crown’s submission, once I reduced the suggested sentence by the 79 days as suggested by the Crown, I would be down to 10 to 13 months. With earned remission or early parole that could be reduced to 6 to 8 months. This is neither an inappropriate punishment nor an insignificant one. It would speak to deterrence and denunciation of Mr. Tysick’s conduct.

[35] It would also place Mr. Tysick back into a criminal milieu where anti-social behaviour is not only the norm but also the expected. It would bring an end to counselling programs and the positive reinforcement of the progress Mr. Tysick has made. I cannot order Mr. Tysick into a residential treatment program at the end of such a sentence pursuant to a probation order. The best I could do is order counselling on an out- patient basis which I do not believe is sufficient to serve Mr. Tysick’s needs.

[36] It is my intention to apply what has been described in the case law as the “take a chance” principle. This may be done, resulting in what could be seen as a lenient sentence, even one outside of the usual range, but only where there is something the sentencing Judge has to “hang his/her hat on”.

[37] The case law is supportive of such an approach. In R. v. Morrow, 1982 CLB 1765, 10 W.C.B. 295, Justice Nadelle, Ontario Court of Justice wrote,

“But I also ask myself what good it would do to return Mr. Morrow to the Ontario Reformatory. The element of specific deterrence has been met by the accused’s own change in attitude and progress in combatting his problems. Rehabilitation is also well on its way to being effected without the benefits offered by our jail system. General deterrence is highly over-rated as a sentencing factor, because those committing crimes rarely, if ever: (a), think they will be caught; or (b), think of the consequences of being caught. A judge shouldn’t hesitate to take a calculated risk when satisfied that, by so doing, there is a reasonable possibility that the offender may change his way of life. There should be no hesitation to do so even though in the particular case it seems that traditional practices and yardsticks are being overlooked.”(my emphasis)

[38] In R. v. Quesnel, 1984 O.J. No. 133 the Ontario Court of Appeal wrote,

“There can, of course, be no quarrel with the proposition that from time to time a judge sentencing a convicted person, particularly a youthful one as in this case, should indeed “take a chance on such person by exercising leniency in circumstances where leniency might not otherwise appear to be called for. In our opinion, however, there must be some factor present in the case before the sentencing judge that is sufficient to warrant a reasonable belief on his part, going beyond a mere hope, that the leniency proposed to be extended holds some prospect of succeeding where other dispositions available to him may fail.

Whether the factor present is an indication of remorse, a glimpsed change in attitude on the part of the convicted person, or some other sign or signal that the convicted person may have learned something beneficial from his or her past and present encounters with the criminal justice system, there must be something positive weighing in his or her favour which can be looked to to support the judge’s chosen course of action.”

[39] The Ontario Court of Appeal went on to find that no such positive factors were present on the facts of that case and granted the Crown appeal. But the principle is certainly recognized as being open to use where there are positive factors on the facts of a particular case.

[40] Quesnel was followed in R. v. O’Neill, 2010 O.J. 5975 by Sheppard J. (See para. 11). It has also been followed in British Columbia, see R. v. Nakamura, 2012 BCSC 327, 2012 BCJ 437 at para 76; in Nova Scotia, see R. v. Scott 2012 NSJ 80, para 89; in Alberta, see R. v. Nerling 2011 A.J. 1482, para 45; in Manitoba, see R. v. South, 2009 MJ 66, para 36. These are all relatively recent cases which suggest this principle is alive and well.

[41] The evidence that I have to “hang my hat on” is that Mr. Tysick has been at Harvest House for seven and a half months. He is prepared to continue on there for whatever period of time the Court orders. He has done well there. He is completing courses. He is volunteering in the community which I find is a pro-social activity and to his credit. It is one thing to admit to a drug problem and it is entirely a different thing to admit so in front of a group of students. I find he is paying back his debt to society by doing so.

[42] His progress is good at Harvest House.

[43] Harvest House can keep him there indefinitely. It can then transition him into the community while still monitoring his behaviour. It will monitor his compliance with a conditional sentence.

[44] I find the continued rehabilitation of Mr. Tysick is the best protection the community can receive. I recognize this could be seen as lenient but I think we are all, including Mr. Tysick, best served by such an approach.

[45] I cannot order a conditional sentence for residential break and enters. I will therefore order that he serve 90 days on the weekends, concurrent on each count of break and enter. During the week Mr. Tysick will continue to live at Harvest House and be subject to their rules.

[46] I will then impose a 9 month conditional sentence on the possession charge to be served consecutively to the jail sentence. For the first six months he will reside at Harvest House and be subject to their rules. For the last three months he may live in the community if this is recommended by Harvest House. He will continue to be subject to their monitoring.

[47] This will be followed by two years of probation.

[48] I will hear suggestions from counsel as to the precise terms of those Orders as well as any ancillary Orders.

Released: May 28th, 2014

The Honourable Mr. Justice Robert G. Selkirk