Information No. 14-346

ONTARIO COURT OF JUSTICE

Her Majesty the Queen

v.

Danny Frail

Reasons for Ruling/Sentence

Before the Honourable Justice G.J. Brophy

on November 24, 2014, at Goderich, Ontario

Appearances

T. Donnelly – Counsel for the Crown

S. Cowan – Counsel for Danny Frail

Monday, November 24, 2014

Reasons for Ruling/Sentencing

BROPHY, J. (Orally):

I will rule on this matter now. This involves Danny Frail who has plead guilty to three offences. He pleads guilty to committing an assault on Sharleen Mabey, contrary to Section 266 of the Criminal Code. At that same time he was found to be in possession of marijuana and that is an offence contrary to Section 4(1) of the Controlled Drugs and Substances Act and at that same time he was found to be in breach of a probation order made May the 17th, 2013, in that he failed to keep the peace and be of good behaviour. These offences occurred on the 12th of June, 2014.

Mr. Frail has been in custody since that date. I have discussed this with Mr. Cowan today, my record tells me that that would be 164 days from June the 12th and counsel assure me that there is no prohibition on my assigning 1.5 to one ratio to that 164 days and that then becomes 246 days and I will weave that into this sentence in due course.

Facts of the Case

The facts of this case are that Mr. Frail, who had a long standing familial connection with the victim, Sharleen Mabey, was in her company on the 12th of June, 2014. An argument developed, what that argument was about is difficult to understand completely. Mr. Frail offers an explanation saying that he was arguing with Ms Mabey about Ms Mabey leaving and participating in some things that would be unhealthy for her and he was, in his mind, trying to prevent that from happening.

Unfortunately, Mr. Frail was drinking at the time. The level of intoxication is uncertain, but clearly he had been imbibing. This dispute became physical. The information I have received suggests that at the outset it might have been somewhat mutual in that they were both pushing and shoving at each other, but once it spilled outside Mr. Frail became the aggressor and he beat up Ms Mabey. There is no other kind way to say it and that was what happened.

This was observed by neighbours, or other people outside and they called the police. The police attended and Mr. Frail was arrested. As a function of that arrest, he was searched, or his residence was searched, I am uncertain about that, and 74 grams of marijuana were discovered that he was responsible for. Hence the two charges and then of course it was found that he was on probation and he was charged with a breach of probation. So those are the essential facts.

Criminal History

The other aspect of this matter that is of great moment today is, of course, Mr. Frail's criminal record. Mr. Frail has served approximately 11 years behind bars. He is, I think, born in 1971, so he is 43 years old approximately. He has served 11 years in custody. Most recently from about 2000 forward he spent extensive times in the Federal Penitentiary.

There is information before me that tells me that those periods of time in the Penitentiary were a result of domestic violence incidents. Looking at his record there was at least one assault, but there was also a variety of uttering threats and matters of that nature including a criminal harassment in 2003.

Remarkably in 2003, he was convicted of that criminal harassment and given seven years and six months consecutive to the sentence currently being served. That is a large penalty for a criminal harassment matter. I do not have the facts in front of me, but one would assume that it was a serious and dynamic event.

Mr. Frail served his time in custody and he was released in and around 2012, 2013. He was placed on a form of recognizance and he was found guilty of a breach of that recognizance in 2013 and after serving 88 days of presentence custody he was given one day in jail and placed on probation for three years.

It is noteworthy, as well, in looking at this record that Mr. Frail has in total, it would appear from the Crown's count when submissions were made, approximately 44 prior convictions. And when I scan through those convictions, early on they were property offences, but in 1992 they became threatening behaviours on his part and some assaults and a series of further threats and then the assaultive behaviour in 2000 that brought him back in conflict with the law. So violence, unfortunately, has been a feature of Mr. Frail's behaviours over a long period of time and hence the concerns that the Crown expresses in this case today and the nature of the submissions I have received.

Crown's Position

In this case, the Crown elected to proceed by way of indictment, which the Crown is entitled to do and it, of course, signals the seriousness of the event that is being dealt with and the nature of Mr. Frail's previous involvement with the criminal justice system and it also brings in to play certain enhanced penalties that fall from, or availability of penalties that follow from the election to proceed by way of indictment.

Mr. Frail decided to enter guilty pleas and accept responsibility for his actions and I give him appropriate credit for that in terms of mitigation. I also note that Mr. Frail, the last day we were here, as he has echoed again today, apologizes to Ms Mabey and to her family. I note that he says that he had known her for about 20 years. He considered her sort of a family member by acquaintanceship and that he fears now that she may have never talk to him again. He says that he cares for her deeply, but of course that does not explain, then, why he would commit this unlawful assault upon her. Be that as it may, I take that into account that he is remorseful with reference to what happened.

Now, the Crown's position on sentencing is that Mr. Frail is an individual who has repeatedly committed violent acts, or been engaged in threatening behaviour and that the sentence today should be reflective of that. My note from the last day is the Crown identified that the maximum penalty of imprisonment with reference to an assault proceeded by way of indictment, albeit under Section 266 of the Criminal Code, is five years. The Crown did not explicitly say this, but asked for the maximum penalty which I then take to be a five year term of imprisonment.

Defence Position

The defence argues that that is not appropriate to this particular case. The defence position, I take it, is that it is acknowledged and recognized that there would be a significant period of incarceration after allowing, taking into consideration, of course, the pre-sentence custody, but the defence position is that the Court might, and it is argued by the defence, think that one year in jail would be appropriate given the record and that should be reduced by the pre-sentence custody. When we first argued this back in September, the sentence of seven months in jail was suggested by the defence.

The defence also pointed out that if there was a reformatory period of custody that that would leave available to the Court the ability to impose a probation order and that that probation order might be of some benefit. The Crown had already addressed that and said that Mr. Frail was not an individual who abided by court orders and it was foolish to think that he would abide by this court order and that a probationary disposition was not of great consequence in this matter.

So, those are the positions taken by counsel with reference to the particular penalty that should be imposed upon Mr. Frail and that is the first point of contention.

Victim Fine Surcharge Constitutional Challenge

The second point of contention which has caused this matter to be extended over several months is that the defence has brought an application to ask this Court to find that the victim fine surcharges that would flow out of these three convictions unconstitutional as they are cruel and unusual punishment and would be contrary to Section 12 of the Charter of Rights and Freedom.

The application has been made and it has been argued and I thank counsel for their submissions. I harken back to Mr. Cowan several courts ago when he essentially said the heavy lifting has been done by Justice Paciocco and also by Justice Wadden and also, I suppose, in part by Justice Healy in the Quebec decision that we have spoken about, the R. v. Cloud (February 3), 2014 QCCQ 464, [2014] Q.J. No. 513 (C.Q.), P. Healy J. decision. And other decisions, one notably by Justice Schnall in London where there had been different conclusions reached with reference to the constitutionality of the victim fine surcharges.

In this particular case, if no attention was paid to the nature of the victim fine surcharges, the surcharges would be $200 on each count which would be a total of $600. There is some evidence before me that Mr. Frail's financial situation is that his income was produced by the Ontario Disability Support Plan, or ODSP and that he received a monthly income prior to his incarceration of about $1100 per month. Clearly, that is going to be suspended while he is in custody, but one would think in an ordinary world it would be renewed in some fashion once he is released and if he qualified for ODSP in the first instance, one would think that the qualifications would still exist.

So, having said that, the defence says that if Mr. Frail is required to pay a $600 victim surcharge amount, that that would be cruel and unusual punishment given the fact he will have no income for an extended period of time and then when he is returned to society at large his income would be limited to something in $1000 to $1200 range.

The evidentiary basis for that is challenged by the Crown saying that, number one, the information we have received, or has been put before the Court is limited at best and is very thin in terms of detail. Secondly, the Crown would point out that Mr. Frail, his circumstances from a financial perspective are vastly different than the circumstances of Mr. Michael in the R. v. Michael (July 31), 2014 ONCJ 360 (Ont. C.J., D.M. Paciocco J. decision and in the R. v. Cloud decision which is from Quebec and those cases, without detailing all of the circumstances, involved essentially people who are living on the street who had extremely limited incomes, who had profound alcohol and substance abuse problems were virtually unemployable and had no resources at all. Indeed it is noted that in the R. v. Michael decision that man's income was $250 a month at best and that is even assuming he could muster the wherewithal to collect the money. He had no address, he had no permanent place of residence and it is difficult to understand how he would even put that money in his hands. Aside from the addiction issues which would quickly strip him of those funds and make it even more impossible for him to address his responsibilities.

The Crown points this out to simply say that this case we are dealing with, Mr. Frail's case, is distinctly different than the R. v. Michael case and the R. v. Cloud case. And indeed a great deal of the discussion in R. v. Michael, which is the single decision that the Crown, that the defence, rather, would point me to deals with the nature of this kind of crime which is populated with breaches of recognizance, failures to attend court, petty crimes and matters of that nature. Having said that, the reality is that the R. v. Michael scenario and the R. v. Cloud scenario, which is a similar scenario coming from Montreal, is such that it is vastly different than what we are dealing with with Mr. Frail.

Having said that, this is not for a moment to say that Mr. Frail being required to pay $600 by way of victim fine surcharges is not of some moment to him, $1100 to $1200 a month in income is not a lot of money and no doubt having to, in theory anyway, being required to pay $600 is a heavy call on his purse.

Analysis of Victim Fine Surcharge Constitutionality

So, having said that, that is the background of this matter and now I will be able to rule on firstly the victim fine surcharges so that we can move forward with that and then revert to the issue about the proper penalty.

But before I do that, it is important to reflect upon the language of Justice Paciocco in the R. v. Michael decision with reference to the object of the exercise and that is that there is an effort to find a proper penalty taking into account all of the various factors that are appropriate to the sentencing decision. And I am looking for my copy of R. v. Javier 2014 ONCJ 361, [2014] O.J. No. 3725, which the Crown very carefully, or kindly provided to me about three minutes ago. Here it is here. Yes.

So, what is important to recognize is that in sentencing matters, the end of the exercise is what is important. There are sentencing principles set out in the Criminal Code which are to be reflected upon. They include the standard provisions related to deterrence; specific and general, rehabilitation, proper denunciation, all of those matters. There is also the principles related to restraint and imposing the least onerous, or long, or shortest period of time in custody as is appropriate to the case and also proportionality.

Those sentencing principles are the cornerstone of what it is we try to do and what is recognized in both the R. v. Michael decision and in the R. v. Javier decision of Justice Wadden is that it is the net result that is important and that as long as the sentence is one which is reflective of all of those sentencing considerations that how it is allocated, which is the language that is used by Justice Wadden particularly in paragraph 15 of his decision and which is reflected, I think, in the extensive commentary by Justice Paciocco in the R. v. Michael decision, as long as the allocation results in a conclusion which is a responsive to the sentencing principles at large, the Court is entitled, then, to structure the sentence in such a way that it is appropriate.

I note as well, in paragraph 10 of the R. v. Javier decision and Ms Donnelly has commented upon this, in the last sentence that Justice Wadden says he is of the view that there is sufficient flexibility available to a sentencing judge to avoid undue harshness in the application of this section. This section being the section dealing with the victim fine surcharges, which I think is Section 737.

That comment by Justice Wadden in the decision is, I suppose, echoing in a sense what Justice Paciocco said in his R. v. Michael decision when he talked about the same concerns with reference to how one was to allocate penalties. Paragraphs 101 through to paragraph 112 literally say that in the nine counts that Mr. Michael was facing, which would have imposed a $900 victim fine surcharge at face value, which would have been 40 percent I think of his income, or each, any one of them would be 40 percent of his monthly income, that it is reasonable and proper to look to the various sentencing tools that are available for the purpose of fashioning the appropriate sentence.

Paragraph 109 is responsive in that regard where he says in the, I think the fourth sentence, there is a difference in my mind between structuring a sentence to evade a binding rule as these judge's admitted to, referring back to R. v. Saint Amand, [1982] O.J. No. 73 (C.A.) and R. v. Big Crow 2007 ABCA 401, [2007] A.J. No. 1370 (Alta. C.A.), which is clearly and impermissible and structuring a sentence to ensure that when the minimum sentence imposed by law is applied other binding rules of sentencing are respected to the extent possible. And then he says in the last sentence at paragraph 109 using nominal fines to protect sentencing principles, then applying the victim surcharge according to the statutory formula in place is in my view entirely appropriate. And then he concludes in paragraph 112, notwithstanding the straightened circumstances of Mr. Michael and the limited income and the massive amount $900 is in relation to that income that, and I quote, "My ability to have used nominal fines in his case drives me to the following conclusion with respect to the particularized inquiry. Simply put I cannot find Mr. Michael's sentence to be grossly disproportionate, but because I could have used nominal fines to alleviate the burden of the victim fine surcharge that I have just described and I believe I still can since I am still seized with his sentence. It is therefore not the law that caused grossly disproportionate sentence in this case that I have described, it is the fact that I have not yet exercised my discretion to have done so."

The last sentence is one which leaves me puzzled. But be that as it may, Justice Paciocco then goes on to say that there has to be, at the second inquiry, which is the reasonable hypothetical. He finds that the reasonable hypothetical does make the imposition of the victim fine surcharges a cruel and unusual punishment. This is contrary to Justice Wadden's conclusion in the R. v. Javier decision in that he is not of the view, that is to say Justice Wadden, that the hypothetical is one which holds up. I was troubled by this in the sense that there are actually other circumstances. Mr. Cowan describes another situation which in the instance of the $10 fine for an impaired driving causing death example and would that not be seen as something which is inappropriate to limit the victim fine surcharge. And yet it seems to me that a $200 victim fine surcharge in that case can hardly be called something which is grossly disproportionate to the nature of the case.

I actually am more troubled by the absolute discharge where there has to be $100 victim fine surcharge applied to it. It seems to me that that is an odd bit of business and yet I doubt there is anybody who ever got an absolute discharge who walked out of the courtroom complaining that they had a $100 victim fine surcharge.

The other one which is, I think, notable which has not been discussed is the minimum fine of $1000 on impaired over 80 cases. By implementation of this victim fine surcharge at 30 percent of the fine, that effectively raised the minimum fine to $1300, which is a massive increase in the amount of the fine. Again, given the context of those cases where the fine at the end of the day tends to be the least troublesome aspect of the financial implication of an impaired or over 80 conviction when you take into consideration the getting your licence back, the Back on Track fees, the extra insurance you have to pay over a long and extended period of time, that it is hard to see how the $300 fine then becomes a cruel, the $300 addition becomes a cruel and unusual punishment. It seems to me that that could be more characterized as a cost of doing business. The fellow who can not pay the $300 victim fine surcharge in that case already can not pay the $1000 fine.

It seems to me that when I look at all of this it is hard to conjure up the reasonable hypothetical which makes the victim fine surcharge, as it is currently implemented in Section 737, a cruel and unusual punishment.

It may be something that in a different climate would not have been created. It may be something which is not the wisest course of action in some cases, but as expressed by Justice Wadden in the R. v. Javier decision, there are enough tools that in the vast majority of cases where it is demonstrated that the imposition of the ordinary victim fine surcharges, as we now understand them, would be something that was oppressive there are enough alternatives available to a sentencing judge to structure the penalty such that the implication, or the imposing of those victim fine surcharges would be minimized to an extent that makes them something that is, I would not say affordable, but something that is not certainly cruel and unusual.

So, for those reasons I have to go back to what Mr. Cowan said to me a month ago, I have looked at the two decisions, I have read them very carefully, that is to say R. v. Michael and R. v. Javier, and although I am by nature sympathetic to the argument made by Justice Paciocco in the R. v. Michael decision and I am impressed by the quality of the argumentation by Justice Paciocco and the quality of the writing, at the end of the day I am of the view that Justice Wadden is correct and that there are sufficient tools to lessen the unfortunate aspects of the victim fine surcharge regime as we now know it and I will leave it to the summary conviction appeal court in Ottawa to tell me otherwise in due course.

So, that aspect of the matter is dealt with and then we return to the sentencing decision itself.

Sentencing Decision

As I may have signaled already, I have looked at the sentencing principles involved in this matter, recognizing that the moral blameworthiness of Mr. Frail is significant given his record, his relationship with this individual. It is a double edged sword; he can express sorrow at having offended against this individual, but it becomes a form, perhaps not in a defined sense, but it becomes a form of breach of trust in that he physically assaults this young woman ostensibly to protect her from something she is about to do, but in the course of doing that he treats her harshly and physically and it simply cannot stand.

The record is unfortunately instructive and cannot be ignored. Mr. Frail knows that and the Court is compelled to impose a significant period of custody. I propose to do that on the following basis and I will give you the bottom line in just one moment, but I am going to impose a period of custody on the assault matter and I am going to impose, because I recognize there is a financial implication to Mr. Frail which is real, even though it is not to the extent of the R. v. Michael and R. v. Cloud decision, nevertheless, it is of some significance. So, I propose to impose a nominal fine on the assault matter and to impose a period of custody. Then my plan is to on the other two counts; the possession of the marijuana, the breach of probation, I am going to impose nominal fines and a probation order. So I will have complied with the basic requirements. I am going to on the period of time in custody, going to give Mr. Frail a credit for the pre-sentence custody as we have discussed.

With reference to the net result, then, the net result will be a jail term and a probationary disposition and there will be a Section 110 firearms prohibition order on the assault charge for ten years and there will be a secondary DNA order on the assault conviction as well.

So, to cut to the chase with reference to the period of custody, I thought about this at length and I am of the view that globally I should be thinking in terms of two years less a day as being the appropriate time for the custodial disposition. I then take into account the 164 days of pre-sentence custody and I have grossed that up by a 1.5 to 1 margin which makes a total of 246 days. What this means, then, is if 365 times two is 730 days, less 246 days, the net penalty is 484 days going forward and I am of the view that that should result in, when I round those numbers off, to a further period of time in custody of 15 months. Fifteen months jail is the appropriate time in custody from today's date forward.

Sentencing Terms

So, Madam Clerk, I will give you the terms of the probation order in just one minute, but on count number one, a $10 fine plus 15 months jail. One hundred and sixty four days pre-sentence custody, grossed up to 246 days.

Count number two, $10 fine, probationary disposition for three years following the serving of the sentence.

Count number three, $10 fine, concurrent probation order for three years following the serving of the sentence.

On the warrant of committal under count number one, the provision, I can never remember the section reference, but no communication with Ms Mabey while he is in custody.

With reference to the terms of the probation order, statutory terms and conditions will apply. He will report immediately upon his release from custody in person to a probation officer and thereafter report at such times, or places as that person may require. That is paragraph two.

He will reside at a place approved of by his probation officer and not change that address without obtaining the consent of the probation officer in advance. That is 3(1).

Then we can move to paragraph 6(1), he is not to contact or communicate in anyway, either directly or indirectly, by any physical, electronic, or other means with Sharleen Mabey, except with the prior written consent of the above named person filed in advance by that person with the probation intake officer or the assigned probation officer, this may be cancelled by the person in any manner at anytime. But the precedent here does not allow me to do this, what I want to do is to say it would be with her consent and with the consent of the probation officer. If you can adjust the language for that, Madam Clerk, I think we have got a precedent for that.

Paragraph nine, I believe. Weapons and permits. Paragraph 9(1) would apply. He will have no weapons.

Paragraph ten would apply, that is to say he is not to buy, possess, or consume alcohol, or he is not to possess any drugs. So that will be 10(1) and 10(4).

Paragraph 11; counselling. Paragraph one for anger management, substance abuse, alcohol abuse, domestic violence, psychiatric or psychological issues, stress management, all of those.

And those are the terms of the probation order that I think are appropriate. I invite counsel to remind me of anything I have overlooked and I think I have dealt with everything, but there may be other things.

Discussion Regarding No-Contact Order

MR. COWAN: Is the order about communication from custody? It's, there's no way to amend that, to to....

THE COURT: Well, I do not...

MR. COWAN: I....

THE COURT: ...think there is, but...

MR. COWAN: I didn't hear...

THE COURT: ...I can be....

MR. COWAN: ...any victim impact requesting that.

THE COURT: Well,...

MS DONNELLY: Sorry, I...

THE COURT: ...I have not....

MS DONNELLY: ...missed what we're talking about, sorry.

THE COURT: Oh, it is the non-communication while in custody. I think Mr. Cowan's responding to this idea, the probation order says that if Ms Mabey wants communication and the probation officer says it is okay, that would work. But while he is in custody, I have indicated, as we often times do in domestic matters, he is not to have any communication with the victim. Mr. Cowan asks is there a qualifier to that, in other words can it be approved by anybody.

MS DONNELLY: He won't have a – it's, just so you know, it's Section 743.21.

THE COURT: Let us take a look.

MS DONNELLY: It says except in accordance with any condition specified in the order that the sentencing judge considers necessary. 743.21 is the order that Your Honour made.

THE COURT: Well, if I can put some conditions in, I am prepared to do that.

MR. COWAN: I just mention it because Mr. Frail expressed how important she was to him and...

THE COURT: I heard that.

MR. COWAN: ...there was nothing in the facts about ongoing harassment, or bedevilment, or threatening conduct where the use of the phone...

THE COURT: Well let me ask...

MR. COWAN: ...would be a problem.

THE COURT: ...the Crown through Mr., or, and you can speak to Mr. Frayne about this. So, Mr. Frail's on probation and he is on probation now I think, pretty sure he is.

MS DONNELLY: It will be at the end, probation order will start....

THE COURT: Oh no, but there is a preexisting probation order,...

MS DONNELLY: Oh he is,...

THE COURT: ...right?

MS DONNELLY: ...he is on there, yes.

THE COURT: So....

MS DONNELLY: Well he's on, it was a 12 month. Did we do three month order - ...

THE COURT: Here, I have got it here.

MS DONNELLY: ...just have a moment.

MR. DANNY FRAIL: I have about 18 months left on it.

MR. COWAN: Eighteen months from when?

MR. DANNY FRAIL: May of last year.

MS DONNELLY: Three year,...

THE COURT: It is three year.

MS DONNELLY: ...it was 3 years probation.

THE COURT: Three year probation order, so it is going to overlap everything we are doing. And it does not go away, it remains in place. So then the question is does Mr. Frayne have effectively a watching brief. Mr. Frail will be released at some point. Presumably there is an open file. I have another answer, Mr. Frayne obviously is reluctant to get involved and I do not blame him. The other answer is this, is that while he is in custody that Section 743 order will apply, save and except with the written revocable consent of Sharleen Mabey, a true copy of which is to be filed with the Ontario Provincial Police highway detachment.

MR. COWAN: Okay.

MS DONNELLY: I - she suffers from psychiatric issues, we know that from the facts that were read in and now we're putting it on her to make a decision about what's in her best interests. I just think that's fraught with difficulty, especially with a man like Mr. Frail. So, as much as Mr. Frayne might not like this, replicate the same term that you have in the probation order. He has a probation officer with her prior written permission and the written permission of the probation officer.

THE COURT: That is my preferred option.

MS DONNELLY: It's just,...

THE COURT: And if the probation...

MS DONNELLY: ...otherwise we're.....

THE COURT: ...officer has an open file and can speak to Ms Mabey, then I do not disagree. And that leaves an opening.

MR. COWAN: Just, yeah.

THE COURT: Okay.

MS DONNELLY: And the other issue, then, is we would seek a term that he not be within a certain radius of any known place of residence, or employment,...

THE COURT: I did not put that...

MS DONNELLY: of Sharleen Mabey.

THE COURT: ...in, but I will put that in, 100 metres I think is appropriate. That will go in as well, Madam Clerk.

COURT CLERK: Thank you.

THE COURT: Madam Clerk, to then be sure about this, the Section 743 warrant of committal,...

COURT CLERK: Yes.

THE COURT: ...prohibition, save and except with the written revocable consent of Sharleen Mabey, a true copy of which is to be filed with the probation officer in Goderich and with the written revocable consent of that probation officer.

COURT CLERK: Thank you.

THE COURT: Okay. The time to pay on those nominal amounts, I am going to say that they would be paid within two years of today's date. He will be out by then and he can look after them.

MR. COWAN: He's nodding.

THE COURT: Okay. Anything else?

MR. COWAN: No, thank you, sir.

MS DONNELLY: No, Your Honour, thank you.

THE COURT: Okay, good. Thank you very much everybody.

COURT CONCLUDES

Certificate of Transcript

I, Lindsay Gionet, certify that this document is a true and accurate transcription of the recording of R. v. Danny Frail, in the Ontario Court of Justice, held at Goderich, Ontario, on November 24, 2014, taken from Recording Number 1411_CrtRm2_20141124_084733__6_BROPHYG.

Transcript Ordered: February 23, 2015

Transcript Completed: March 6, 2015

Ordering Party Notified: March 6, 2015