ONTARIO COURT OF JUSTICE

CITATION: R. v. Gies, 2019 ONCJ 998

DATE: 2019 03 29

COURT FILE No.: Barrie 3811 998 17 7083, 3811 998 18 4941 and 3811 998 18 6286

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

William Gies

Before Justice E. A. Carlton

Plea Heard on March 28, 2019

Reasons for Judgment released on March 29, 2019

Lynn Shirreffs..................................................................................... counsel for the Crown

John Kaldas.......................................................... counsel for the defendant William Gies

CARLTON J.:

[1] Mr. William Gies pled to two counts before me on March 28, 2019:

• Breach of Long Term Supervision Order by not being in his approved residence between August 14-24, 2017 contrary to section 753.3 of the Code.
• Breach of his Recognizance of Bail by being out of his residence without his surety on September 3, 2018 contrary to section 145 of the Code.

[2] The Long Term Supervision Order or LTSO was made on March 19, 2012. Mr. Gies was convicted of the predicate offence of Assault CBH. He received a sentence of 268 days time served plus an additional 21 days.

[3] The LTSO was made for 5 years following the service of that sentence.

Offences Before the Court

[4] On August 24, 2017 Mr. Gies was living in a halfway house in Barrie at the direction of Correctional Services Canada. It appears he had considerable privileges including weekend passes and was out during the workweek to run his own business.

[5] Mr. Gies was absent from this residence for ten days from August 14 -24, 2017. He was located at a motel in Brampton, Ontario. He had been drinking alcohol prior to his arrest.

[6] In July of 2018 Mr. Gies was released on bail. His bail was that of house arrest unless he was with one of two family members. A police investigation into a driving complaint on September 3, 2018 located Mr. Gies outside of his home and not in the company of either family member.

Background of Mr. Gies

[7] Mr. Gies is now 43 years of age. He has a grade 11 education. He has worked in various building trades and also in the technology field. While in a halfway house he opened his own business selling internet TV subscriptions. I am advised that he has work as a drywaller should he be released.

[8] Mr. Gies is divorced. He has three children between the ages of 14 and 20. He has family support although some of his offences relate to members of his family. His sister was in court to offer support for him.

[9] Mr. Gies spoke to the court at the sentencing hearing. While he describes the LTSO as onerous he credits the order with providing some structure to his life. He believes he now has the support of his family.

Criminal Record

[10] Mr. Gies has a criminal record as an adult from 1996 to the offences in 2012. There are also breaches of the LTSO that I will address in greater detail later on in this judgment.

[11] Leaving aside those breaches, Mr. Gies has been sentenced nine times as an adult. Relevant to the LTSO he was convicted of an assault in 1996 and received a period of probation in addition to 4 days of pretrial custody.

[12] Mr. Gies was convicted again of simple assault in 2007 and received a global sentence of 326 days or almost 11 months. He was convicted of threatening and other criminal code offences in 2009 and received a global sentence of approximately nine months.

[13] Mr. Gies has other convictions for non-violent offences, again resulting in short reformatory sentences.

[14] I would characterize Mr. Gies’ record as significant and primarily for offences of violence. That said, I accept that Mr. Gies’ record is less serious when compared to many offenders subject to a LTSO order.

[15] The LTSO was for a period of 5 years following a short remnant of 21 days imposed on March 19, 2012.

[16] I am advised and accept that for almost the entirety of the seven years since his March 19, 2012 sentencing Mr. Gies has either been in custody or in a halfway house. At the time of the 2012 sentencing Mr. Gies had been in custody for approximately nine months. He has therefore not been living independently in the community for almost eight years but for the short period he was on release on the July 2018 recognizance.

[17] In large part this is due to the pattern of Mr. Gies breaching the LTSO order.

[18] On April 25, 2013 Mr. Gies was found guilty of breaching his LTSO order and received a sentence of time served which amounted to 184 days or approximately six months.

[19] On July 23, 2015 Mr. Gies was found guilty of two counts of breaching his LTSO and received a sentence of time served of 618 days plus an additional 15 months in custody. This amounts to a 35 month sentence.

[20] As set out already Mr. Gies was arrested on this LTSO breach on August 24, 2017. He was in custody on the LTSO until the expiration of the LTSO on July 1, 2018. I note at this point that the Crown understands that the LTSO expired on July 1, 2018. Counsel for Mr. Gies understands that the 10 days for which Mr. Gies was absent without permission were added to his LTSO and it did therefore not expire until July 10, 2018. I will use the July 1, 2018 date as this inures in a modest way to benefit Mr. Gies in the calculation of his pretrial custody.

[21] I note that the 5 year LTSO started in the spring of 2012 and would have expired in the normal course in the spring of 2017. It was extended to July of 2018 as it was suspended while Mr. Gies served his sentence on the breach.

[22] Mr. Gies was in custody on the charge of breaching his LTSO alone from July 2-27, 2018 when he was released on a recognizance.

[23] Mr. Gies was at large until September 3, 2018 on that house arrest recognizance when he was arrested for breaching that recognizance. He has been in custody on both matters since that date.

Calculation of Pretrial Custody

[24] I therefore calculate the available pretrial custody in the following fashion:

[25] August 24, 2017 to July 1, 2018: This is the period of time in which Mr. Gies was in custody as a result of the August 10-24, 2017 breach although he had not been formally brought before the court. Both counsel recommend that I give credit for pretrial custody on a 1:1 basis (see R. v. Bourdon (2012), 2012 ONCA 256, 110 O.R. (3d) 168 (C.A.)). Mr. Gies is not entitled to enhanced credit as he was also receiving credit towards the completion of the LTSO. This amounts to a credit of 312 days.

[26] July 2 – 27, 2018: This is the period in which the LTSO has ended and Mr. Gies is only in custody on the breach of his LTSO. I do give enhanced credit for this 26 days for a total credit of 39 days.

[27] July 28-September 3, 2018: This is the period for which Mr. Gies is on his recognizance of bail. His counsel submits that I give 0.5:1 credit given that he was on a restrictive house arrest term. I have reviewed R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.). Given Mr. Gies’ record, the terms of bail were entirely appropriate. He breached the house arrest term in the first 40 days. I decline to give any credit for this period of time.

[28] September 3, 2018 to March 29, 2019: Mr. Gies has been in custody since his arrest on the breach on September 3, 2018. He has been in custody for 208 days. I give him enhanced credit of 312 days.

[29] The entire pretrial custody, then, is 312 days plus 39 days, plus 312 days equaling 663 days, or just over 22 months.

Position of the Parties

[30] The Crown notes that this is the fourth breach of the LTSO. The first breach resulted in a jail sentence of six months. The second and third breach together resulted in an effective sentence of 35 months.

[31] The Crown seeks a sentence of 36-42 months on the breach of the LTSO and a further sentence of 60 days on the breach of recognizance. Such a sentence leaves a sentence of 16 to 22 months from today.

[32] The Crown submits that such a sentence is necessary to deter Mr. Gies. Mr. Gies has a lengthy history of breaching court orders. The sentence is also necessary to underline the gravity of a LTSO breach and to denounce the conduct.

[33] Counsel for Mr. Gies seeks a sentence of time served. I was advised that the length of the sentence for the second set of LTSO breaches was designed in part to allow Mr. Gies to access programming in the federal system although ultimately that programming did not take place. Counsel submits that Mr. Gies has served the equivalent of a high reformatory sentence for the breach. The LTSO is now complete and there have been no offences for violence or any substantive offences in the seven years since the underlying sentence was made.

Relevant Principles of Sentencing

[34] It is clear from the Supreme Court decision in R. v. Ipeelee; R. v. Ladue, 2012 SCC 13, that the purpose of a LTSO is twofold: “to protect the public and to rehabilitate offenders and reintegrate them into the community” (at para. 50). Accordingly, all of the relevant principles and purposes of sentencing set out in section 718 apply to sentencings involving a breach of a LTSO. It is clear that breaches of a LTSO are to be considered as more serious than the breach of a probation order. At the same time there is no mandatory minimum sentence and each case must be considered on its own merits (at paras. 53-54). The application of Ipeelee was discussed by our Court of Appeal in R. v. Matte (2012), 2012 ONCA 504, 111 O.R. (3d) 791 (C.A.) at paragraphs 34 to 38.

[35] In considering sentencing for a breach the Crown submits, appropriately, that the Court note the exacting test in section 753.1 of the Code before an offender can be subject to a LTSO. By definition an offender subject to a LTSO is one who is a substantial risk to the safety of our community. Mr. Gies was found to have met that exacting test. It is critical to the integrity and viability of the LTSO regime that offenders subject to such an order understand that there are real consequences to a breach of the order. Public confidence in the capacity of our courts to deal with those found to be long term offenders requires that breaches of the order be denounced.

Comparable Cases

[36] I was provided with a number of sentencing cases for this offence, all involving a second or subsequent conviction for breach of a LTSO. Those cases set out a range of 1-3 years. The lower end of the range is seen in the Ladue decision at the Supreme Court where sentence of a year was upheld. The higher end of the range is seen in Bourdon where the Court of Appeal upheld a three year sentence. I note in Bourdon that while it was a second sentencing for a breach of the LTSO there were also three prior suspensions of his release order and that the terms breached included accessing the internet and possessing pornography, which had a more direct and concerning relationship back to the predicate offences involving sexual violence.

[37] Two cases bear some real similarity to the matter before the court.

[38] First, in R. v. MacDonald, [2014] O.J. No. 3751 (S.C.), Justice Molloy of the Superior Court imposed a conditional sentence of two years less a day for a fourth breach of his LTSO by consuming alcohol and drugs. Like Mr. Gies, the predicate offence was an Assault CBH. Also, like Mr. Gies, the LTSO, in that case one of ten years, had been served and no new offences of violence had been committed while serving the LTSO. In reading that case I would assess the record of Mr. MacDonald as more serious than that of Mr. Gies and included a prior federal sentence. That fact is balanced by my reading that Mr. MacDonald had made greater progress in his rehabilitation than has Mr. Gies.

[39] I note that conditional sentences are often longer than an equivalent sentence of real custody. Arguably a conditional sentence of two years less a day is comparable to a mid to high reformatory sentence of actual custody.

[40] Second, I have considered the Court of Appeal decision in R. v. Matte. That case, too, involved a third breach of a LTSO. The total sentence in that case was the equivalent of two years or just two months longer than the pretrial custody in this case.

[41] It is important to note that given the circumstances of the case the Court of Appeal was not simply assessing the reasonableness of that decision but were invited to consider the matter afresh. The Court noted the history of noncompliance and upheld the sentence of two years. The Court was critical of Mr. Matte’s response to rehabilitative programming and noted that rehabilitation “cannot be force fed to the unwilling” (at para. 48).

[42] I find that in broad terms the culpability of Mr. Gies is consistent with that of Mr. Matte. While it is clear that Mr. Gies’ response to the LTSO has been far from ideal I would not characterize his behaviour while on the LTSO as starkly as did the Court of Appeal for Mr. Matte. I do not have a full history of his conduct on the LTSO but I am advised that Mr. Gies was able to start his own business while on release and was open to programming in a federal penitentiary but that this was ultimately not available to him.

Mitigating and Aggravating Factors

[43] This is the third time Mr. Gies has been sentenced on the charge of breaching his LTSO. The breach is a serious one. He left the halfway house and was gone for ten days. When found it was determined that he had been drinking. The underlying offences of violence are related to Mr. Gies’ substance abuse issues.

[44] In mitigation, Mr. Gies points to the fact that there are no new substantive offences since the original sentencing in 2012. He acknowledges the breaches as serious but points out that they do not involve re-offending or go directly to the risk factors underlying the offence as in, for example, contact with the victim.

[45] Counsel points out that the breaches cumulatively have had a significant impact on Mr. Gies’ life. He has spent almost all of the last eight years in custody or on strict conditional release at a halfway house resulting from a conviction for Assault CBH and the subsequent breaches of the LTSO. His record is less serious than seen for many long term offenders. Mr. Gies has family support, has the prospect for employment and is keen on re-establishing his relationship with his children.

Application to Mr. Gies

[46] Given the fact that Mr. Gies received effectively a 35 month sentence on his second breach in 2015 the Crown position is effectively that he receive the same or only a slightly longer sentence on this third breach of the order. As a general rule, specific deterrence may require an increase of the sentence given on a prior occasion for effectively the same conduct as in the matter before the court.

[47] I do not, however, see the 2015 sentencing as a floor or starting point for this sentencing. I was advised that in part that sentencing was a result of trying to find appropriate programming for Mr. Gies in the federal system. At that point Mr. Gies had several years left in the LTSO. That LTSO is now completed.

[48] There is clearly some risk in releasing Mr. Gies back into the community. He has been in custody or on conditional release for almost eight years. This is his third breach of the LTSO. The only period of time in which he was living independently in the community was in the summer of 2018 and there he breached his recognizance in less than seven weeks and was returned to custody.

[49] At the same time Mr. Gies has now completed the LTSO. He has no new offences but for the breaches since 2012. He has family support. The same comment could be made for him as did Justice Molloy for Mr. MacDonald: “he has to start somewhere and sometime and his current circumstances represent the best chance he is ever going to have to succeed”.

[50] Ultimately the sentence must be proportionate to the gravity of the offence and the blameworthiness of the offender. I am assessing a deliberate ten day breach of the LTSO in which no other offences were committed by an offender with a history of breaches but otherwise someone with a moderate record and a reasonable prospect for being reintegrated into our community.

[51] I find that the appropriate sentence for this offence is a high end reformatory sentence. I find that such a sentence adequately denounces and generally deters the conduct. I am also going to place Mr. Gies on probation. Mr. Gies has been in an institution for several years and there is a need for some oversight as he transitions to living independently in the community. I find that an upper reformatory sentence does meet the need for specific deterrence and should underline for Mr. Gies the importance of complying with this probation order or any other order of the Court.

[52] I accept the Crown submission for the offence of breach of recognizance.

[53] I impose the following sentence:

• On the charge of breach of LTSO, the sentence is 20 months, consisting of credit for 600 days of pretrial custody plus one day.
• On the charge of breach of recognizance the sentence is one a credit of 63 days for pretrial custody plus one day concurrent;
• On both charges there will be a 12 month probation order. It is intended to be rehabilitative with terms of reporting and counselling.

Released: March 29, 2019

Signed: Justice E. A. Carlton