REASONS FOR JUDGMENT
HARRIS, J.
THURSDAY, JANUARY 7, 2016
RICHARD STOREY - APPEAL
Richard Storey was charged with a number of offences contrary to the Consumer Protection Act. A trial was held in his absence. He was found guilty of 20 offences. Five of these charges were conditionally stayed. He was sentenced with respect to the remaining 15 charges.
With respect to five counts, the presiding Justice of the Peace sentenced Mr. Storey to imprisonment for 30 days on each count. With respect to five other counts, he sentenced Mr. Storey to imprisonment for 15 days on each count. He directed that these sentences were to be served consecutively. The remaining five counts resulted in a suspended sentence.
Mr. Storey appealed against his convictions and against the sentences. This appeal has been the subject of a judicial pretrial, involving counsel for the Ministry of Consumer Services and counsel for Mr. Storey. Counsel have proposed a resolution with respect to this appeal and I am satisfied that the resolution is eminently reasonable in the circumstances.
Decision on Appeal
With respect to all counts, the appeal against a finding of guilt and in the appropriate cases, conviction, is dismissed.
With respect to the appeals against sentence, the sentence of imprisonment for 30 days of jail with respect to counts 1, 6, 11, 16 and 21, are to be varied to direct that they be served concurrently and on an intermittent basis.
The sentences of imprisonment for 15 days, with respect to counts 3, 8, 13, 18 and 23, shall be amended to direct that they be served concurrently to each other, but consecutively to the 30 days mentioned above.
In addition, Mr. Storey will be bound by the two year probation order that continues in existence, but it will commence today.
Custody and Release Terms
With respect to the intermittent portion of the sentence, Mr. Storey will be taken into custody today and held in custody until January 24, 2016 at 12:00 noon, whereupon he shall be released from custody. He will return to the jail on February 2, 2016, at 6:00 a.m., and he will remain there until the sentence is completed.
Restitution Orders
There will be standalone restitution orders made in the amounts of:
- $2,500 in favour of Bruce Barnes
- $1,253.50 in favour of Moussa Faddoul
- $12,366.25 to Lorne Garlough
- $2,246.53 to Ann Tekatch
With respect to the probation order, I will note that the restitution or payment term in that order shall be varied, to require that Richard Storey pay no less than $500 in restitution each month in consecutive months, commencing on the first day of the month, following his release from custody and continuing on the first day of each month, for the duration of the probation order or until a total restitution of $18,366.28 is paid, whichever should occur first.
Restitution payments made by him are in satisfaction of the terms of probation or otherwise, shall be prorated and credited against the standalone restitution orders.
I am not certain if, under the Provincial Offences Act, I have to specifically direct that none of these sentences should operate so as to collapse the others. Out of an abundance of caution, if this is similar to the Criminal Code, I am directing that this is to be served on an intermittent basis, that is not to be collapsed by the fact that there are multiple counts.
Judicial Commentary
I should include in these reasons the following comments.
In this particular case, the findings of guilt and the sentencing took place on an ex parte basis. Nobody was present for Mr. Storey. No information was put forward with respect to his circumstances.
Further, counsel for the Ministry, at that time, requested that sentences be imposed on a basis similar to that which has been directed in the appeal. In other words, counsel for the Ministry requested imprisonment for a total of 45 days.
The sentences that were actually imposed totalled some five times that amount. There was nothing put before the presiding Justice of the Peace to justify such a departure from the submission made by the Ministry.
The sentence that was imposed was, in fact, unreasonable and would have brought the administration of justice into disrepute. This was essentially acknowledged by the respondent in this matter as evidenced by their position on the appeal.
PETER CORDEIRO - APPEAL
Peter Cordeiro was originally charged along with Richard Storey, with a number of offences contrary to the Consumer Protection Act. He was tried in absentia and found guilty of five charges. He was also not present when submissions were made with respect to sentence and sentence was imposed. He was sentenced to imprisonment for 15 days with respect to each of the five counts. Those sentences were to be served consecutively.
He was also placed on probation for a period of two years.
Mr. Cordeiro has appealed against both the convictions and the sentences. This matter has been the subject of judicial pretrial. The appeal against conviction will be dismissed on consent. The appeals against sentence will be allowed on consent.
Decision on Appeal
With respect to the period of imprisonment, I note that counsel for the Ministry asked for imprisonment for 15 days per count, to be served on a concurrent basis. The presiding Justice of the Peace, for some reason, imposed sentences on a consecutive basis.
There is no apparent justification for this departure from the position that was taken by counsel for the Ministry. It is agreed that the sentence originally imposed was unreasonable and to allow it to stand would bring the administration of justice into disrepute.
Mr. Cordeiro did, in fact, serve some 11 days in custody. With credit for remission to which he was entitled, this would have been the equivalent of at least the 15 day sentence.
Accordingly, on consent, the sentence with respect to each of the counts will be varied to time served, 11 days presentence custody credited as 15 days.
Probation and Restitution Orders
The probation for two years will continue. There will be standalone restitution orders in the amount of:
- $2,500 in favour of Bruce Barnes
- $1,253.50 in favour of Moussa Faddoul
- $12,366.25 to Lorne Garlough
- $2,246.53 to Ann Tekatch
The probation order will be varied to the extent that the restitution/payment term will be varied to require that Peter Cordeiro pay no less than $430 per month, restitution, each month in consecutive months commencing on the 1st day of February, 2016 and continuing on the first day of each month following for the duration of the probation order or until total restitution of $18,366.28 is paid, whichever occurs first.
Restitution payments made by him are in satisfaction of the terms of probation or otherwise, shall be prorated and credited against the standalone restitution orders.
Closing Remarks
THE COURT: Thank you, counsel. I want to commend counsel on both sides for the approach taken. This could have led to a somewhat complicated appeal and I anticipate a somewhat complicated re-trial. So, thank you for your assistance in allowing for things to flow on a more rational and, I think, more appropriate fashion. Thank you.
...PROCEEDINGS CONCLUDED
Certification
FORM 2 - Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Joyce Tuyp, certify that this document is a true and accurate transcript of the recording of R. v. Richard Storey, Peter Cordeiro in the Ontario Court of Justice, held at 2021 Plains Rd. E., Burlington, Ontario, to the best of my skill and ability, taken from Recording Number 1213_13_20160106_103727__6_HARRISDAV.dcr, which has been certified in Form 1.
Information No.: 13-9086
ONTARIO COURT OF JUSTICE
RICHARD STOREY and PETER CORDEIRO v. HER MAJESTY THE QUEEN
BEFORE THE HONOURABLE JUSTICE D. A. HARRIS
On January 7, 2016, at BURLINGTON, Ontario
Appearances
- J. Ludlow – Counsel for the Crown
- J. Glick – Counsel for Richard Storey
- M. Gourlay – Counsel for Peter Cordeiro
Transcript Ordered: January 8, 2016 Order Received: February 1, 2016 Transcript Completed: February 1, 2016 Ordering Party Notified: February 1, 2016