Court Information

Court: Ontario Court of Justice

Date: January 31, 2020

Court File No.: Guelph #19/1141, 19/2123, 19/2198, 19/2456, 19/2580

Parties

Between:

Her Majesty the Queen

— And —

Joseph Evans

Judicial Officer and Counsel

Before: Justice M.K. Wendl

Heard: January 17, 2020

Reasons for Judgment Released: January 31, 2020

Counsel:

• J. Dixon, for the Crown
• R. Hintsa, for the defendant Joseph Evans

Reasons for Judgment

Guilty Pleas

[1] Joseph Evans pleaded guilty to the following charges on January 17th, 2020:

1. July 17th, 2018, unlawfully in a dwelling house;
2. August 22nd, 2018, fail to remain at the scene of an accident;
3. August 22nd, 2018, possession of stolen property (motor vehicle) under $5000;
4. September 6th, 2018, occupying motor vehicle without consent;
5. July 2nd, 2019, operate a motor vehicle while disqualified;
6. July 2nd, 2019, possession of stolen property (motor vehicle) over $5000;
7. July 12th, 2019, possession of stolen property (motor vehicle) over $5000;
8. July 12th, 2019, failure to comply with a recognizance – not to operate a motor vehicle;
9. July 13th, 2019, occupying a motor vehicle without consent;
10. August 14th, 2019, failure to comply with a recognizance – remain in residence.

[2] This Court is tasked with determining the appropriate sentence. The defence position is one of 8½ months of incarceration, while the Crown position is one of 14 to 15 months of incarceration. Mr. Evans has currently served 179 days of pre-sentence custody, enhanced to 269 days, or, roughly, 9 months.

Facts

July 17th, 2018

[3] The complainant contacted the Guelph Police Service to report that a male and female had just broken into his residence at 88 Crawley Road in the City of Guelph. This location is situated on a gravel road with no other residences nearby. The residence is a large older home in where the complainant lives by himself. It is hidden from the road and the driveway. The landscaping on the property is not maintained.

[4] The accused and his accomplice pried open a sliding door at the side of the residence, then cut the screen door that allowed access into the indoor pool area. They then used a pry bar to force open a wooden door that leads into the main residence. After entering the residence, they searched each room, making their way to the kitchen. In the kitchen, several drawers were left open and the two had gathered various items of value and placed them into a plastic bucket. The pry bar was left in a plastic bucket in the kitchen and was later seized by police.

[5] The pair continued to check rooms as they made their way to the upstairs of the residence. While upstairs, they checked each room, however, they focused on the childhood bedroom of the complainant. They retrieved a large nylon bag from the closet and filled it with coins, dollar bills, and various jewelry.

[6] The complainant was asleep in his bed at the opposite end of the hall. He woke up when he heard a male and a female talking, walking around, and turning on lights. He then started to yell from his bedroom, made his way toward the sound of the voices that he heard and observed a male and a female run out of his childhood bedroom towards him, then ran down the stairs and out the residence. The accused stated, "Sorry, we thought the house was abandoned," as he was making his way down the stairs. The complainant noted that neither party appeared to be wearing gloves and were empty-handed when they left the residence.

August 22nd, 2018

[7] The Guelph police attended at 68 Balmoral Drive regarding a motor vehicle collision. A Jeep Cherokee had struck a parked vehicle. Witnesses observed a male running from the vehicle through Waverly Park. The area was checked for this person with negative results. Both vehicles involved were severely damaged. Queries into the license plate and vehicle identification number revealed that both had been reported stolen. Evidence was retrieved from the vehicles, including a sample of DNA, from the airbag of the Jeep Cherokee. The DNA on the airbag belonged to that of the accused, Joseph Evans. A fingerprint was also retrieved on the exterior of the vehicle which is also associated to Mr. Evans.

September 6th, 2018

[8] Officers attended at Mr. Evans' driveway at 22 Algonquin Road in Guelph. The license plate on the vehicle parked in front of his address revealed that the license plate was stolen. The vehicle was also stolen.

July 2nd, 2019

[9] Mr. Evans was observed at the Petro Canada gas station located at 7017 Wellington Road, 124, in Guelph/Eramosa Township. He was caught on surveillance video driving a grey 2008 Toyota Highlander, bearing an Ontario license plate CCPT 317, reported stolen on Canada Day of last year. He was observed to pump $67.04 worth of fuel. He returned to the driver's seat, made no attempt to pay, and then drove southbound on Wellington Road 32. He was a disqualified driver at the time.

July 12th, 2019

[10] At 6:32 a.m., a white U-Haul van was captured on video surveillance entering the McDonald's parking lot located at 870 Tower Street South in Fergus. The U-Haul was observed circling the McDonald's and being operated by a white male wearing a t-shirt. A short time later, a male party wearing a white t-shirt with silver basketball shorts is seen entering the McDonald's accompanied by a second male party wearing a burgundy t-shirt and blue jeans. Police were able to identify the male parties through local records of their faces and tattoo markings. The males were identified as Mr. Evans and Leslie Gagnon.

[11] It was eventually determined that the U-Haul was stolen, and the driver was Mr. Evans.

July 13th, 2019

[12] A Ford F-150 was stolen. On July 16th police entered into an investigation, as part of that investigation, paperwork in the name of Matthew Hanson for Self-Store, located at 595 Elmira Road North, was located in the vehicle.

[13] On July 17th police attended this store in order to review video from the complex in relation to the stolen motor vehicle. In viewing the video for the date of July 13, Matthew Hanson is observed entering the secure storage area with a passenger inside a stolen white Ford F-150, license AR 73006. At 6:45 p.m. on the video, Joseph Evans is observed exiting the passenger side of the stolen motor vehicle.

August 14th, 2019

[14] Mr. Evans was out of his residence breaching this condition of his recognizance.

Circumstances of the Accused

[15] Mr. Evans is 26 years of age. He has a grade eight education. Defence counsel advises that he is functionally illiterate. His family has a history of substance abuse and social marginalization. Both the maternal and paternal sides of his family have been involved with the criminal justice system for multiple generations.

[16] Mr. Evans has children. Both Mr. Evans and the mother of his children have struggled with substance abuse issues over the last few years. As a result, the children have been taken into care. He has been diagnosed with depression but has not followed up with seeking any treatment or counselling. As part of his pre-sentence custody he was locked down for 22 of his 179 days.

Analysis

[17] Over a year ago, in January of 2019, Mr. Evans pleaded guilty to the following charges:

1. April 26th, 2018, uttering threats;
2. May 21st, 2018, dangerous operation of a motor vehicle;
3. May 21st, 2018, drive without a license (HTA offence);
4. May 21st, 2018, drive a motor cycle without a helmet (HTA offence);
5. June 30th, 2018, breach of recognizance;
6. July 21st, 2018, simple possession of Methamphetamine (CDSA offence);
7. July 21st, 2018, possession of property obtained by crime under $5000;
8. August 26th, 2018, theft under $5000;
9. August 26th, 2018, possession of property over $5000;
10. September 25th, 2018, possession of a stolen motor vehicle over $5000;
11. October 9th, 2018, possession of stolen property over $5000;
12. October 9th, 2018, possession of a weapon for a dangerous purpose.

[18] We can note two things from the dates of the offences and the date of plea: first, the January 2019 plea took place after the 2018 offences to which Mr. Evans is now pleading guilty; second, the offences in 2018, for which Mr. Evans is now pleading guilty, took place at the same time as the offences he plead guilty to in January 2019.

[19] In determining an appropriate sentence, the Court is always guided by the sentencing principles enunciated in section 718 of the Criminal Code. However, in this case, given the overlap of the dates of the previous plea and the 2018 offences, the principle of totality and Lord Coke's principle are of significant relevance in the analysis.

[20] The Court of Appeal recently summarized Lord Coke's principle in R v. Wilson:

"Lord Coke's principle" "is a common law rule applicable to sentencing proceedings unless ousted by a clear statutory provision or by necessary implication": R. v. Hexamer, 2019 BCCA 285, at para. 171, leave to appeal requested, [2019] S.C.C.A. No. 343, citing Skolnick, at p. 58. It holds that subsequent convictions cannot be relied upon to aggravate the sentence imposed for a prior offence.

"Lord Coke's principle" makes sense. A repeat offender who has already been sentenced for offending may require increased punishment to achieve specific deterrence since they have not learned from their earlier sentence. Their degree of responsibility is heightened by the contempt their subsequent conduct may show for the sentencing process: R. v. Cheetham (1980), 53 C.C.C. (2d) 109 (Ont. C.A.), at p. 114. These considerations do not operate where the offender committed the offence being sentenced before being punished for subsequent offences.

[21] The impact of Lord Coke's principle in the instant case is significant. Prior to the offender's convictions in January 2019, Mr. Evans had a four-year gap in his record. In addition to that, his record prior to the January 2019 convictions had no related convictions for possession of stolen motor vehicles or motor vehicle related offences. Finally, the convictions of January 2019 represent a significant jump in the time the offender had spent in custody. Prior to the 10-months Mr. Evans received in January 2019, the high-water mark for custody was 30 days.

[22] Also, the 2018 offences for which Mr. Evans pleaded guilty in 2020 engage the totality principle in two respects. First, the totality principle is engaged because Mr. Evans has pleaded guilty to a series of charges at the same time. Second, the relevant authorities were aware of two of the sets of charges while Mr. Evans was in pre-sentence custody in 2018 for January 2019 convictions and one of the offences became known to police while he was serving his sentence after the January guilty plea.

[23] However, I am mindful of Huscroft J.'s directive on this point in R v. Stuckless:

The question then arises: is it appropriate to adjust the sentence in this case because the respondent committed the offences during a period in which he committed other offences for which he has already been punished?

The answer is plainly no.

The proportionality principle operates having regard to the circumstances of the offences for which an accused person is being sentenced. It is inappropriate to speculate as to the sentence the respondent would have received if all of his crimes committed during the relevant period had been before this court when he was sentenced in 1998: R. v. James, 2013 MBCA 14, 288 Man. R. (2d) 269, at para. 56.

The respondent avoided detection for much of his offending committed during the relevant period and so escaped punishment for that offending. He cannot now invoke his prior sentence, already served, in order to limit the sentence he receives for having committed the offences presently before the court, simply because these offences were committed during the same time frame: James, at para. 58.

Nor is respondent's 1998 sentence to be treated as a mitigating factor in this case: R. v. Leroux, 2015 SKCA 48, 460 Sask. R. 1, at para. 60. As the sentencing judge acknowledged, the prior sentence may be considered as part of the respondent's background and may be factually relevant to his prospects for rehabilitation, but the focus must remain on the offences currently before the court. The 1998 sentence is not to be considered as forming a part of, or mitigating, the sentence to be imposed.

[24] What distinguishes the instant case from Stuckless is that the police were aware of Mr. Evans' current 2018 charges at the time he was in pre-sentence custody in 2018, for the January 2019 convictions, or when he was serving that sentence.

[25] In relation to the break and enter charge, to which Mr. Evans pleaded guilty to the lesser included offence of being unlawfully in a dwelling house, the Centre for Forensic Sciences (CFS) returned a hit for Mr. Evans from a flashlight, on November 20th, 2018. Mr. Evans was then in pre-sentence custody in relation to the January 2019 convictions.

[26] Also, on November 20th, 2018, the CFS returned a hit for Mr. Evans from an airbag in a 2009 Jeep Cherokee, in relation to two charges of possession stolen property and failing to remain at the scene of an accident, dated August 22, 2018. Again, Mr. Evans was in pre-sentence custody in relation to the January 2019 convictions.

[27] Finally, on March 28, 2019, the CFS returned a hit for Mr. Evans from a bottle of root beer located in a black Ford F-150, in relation to the two charges of possession of stolen property, dated September 6, 2018. Mr. Evans was in custody at this time serving his sentence.

[28] Even though the police were aware of charges relating to Mr. Evans well before his plea and release date in 2019, they did not arrest Mr. Evans for those charges until April 19, 2019, the day of his release for the January 2019 plea offences.

[29] This Court was not provided with an explanation for the delay in arresting Mr. Evans on the outstanding 2018 charges and, therefore, will not speculate on the reasons for that delay. However, I will point out that my colleague, Hilliard J., in a thoughtful decision, ordered a stay of proceedings, in relatively similar factual circumstances, in R v. Miller.

[30] Furthermore, not considering the totality principle, in these circumstances, encourages delay in my view. All parties in the criminal justice system are entitled to timely justice, the victims, the accused and the public. For the victims it allows for closure. For the accused it allows them to have a timely trial or if they chose to accept responsibility, move towards rehabilitation as quickly as possible. For the public it builds confidence and trust in the system. As the Supreme Court stated, "timely justice is one of the hallmarks of a free and democratic society."

[31] Consequently, considering the principle of totality and Lord Coke's principle in relation to the 2018 charges and the totality principle in relation to the 2019 charges, the sentence for Mr. Evans will be nine months.

[32] On the 2018 unlawfully in a dwelling house, I impose two months of pre-sentence custody. Although the accused believed no one would be present in the home at the time, there was someone there. That is a terrible invasion of a sacred place. Any person whose home is entered in that fashion must be left feeling vulnerable. As a standalone offence, I may have imposed a greater period of custody, but I am bound to consider the 10-months Mr Evans served and the gap in his record prior to the 2019 convictions.

[33] On the August 22nd and September 6th, 2018 offences, I impose 30 days of pre-sentence custody consecutive to the July 17th, 2018 offence, but concurrent to each other.

[34] The 2019 offences do not have the benefit of Lord Coke's principle. Quite frankly, the 2019 offences are aggravating in the sense that they come so quickly after the ten-month sentence and the charges are similar. However, they do benefit from the principle of totality. On the July 2nd, 2019 offences, I impose 60 days of pre-sentence custody consecutive to the August 22nd and September 6th offences, but concurrent to each other. On the July 12th offences, I impose 60 days of pre-sentence custody consecutive to the July 2nd offences, but concurrent to each other. On the July 13th offence, I impose 30 days of pre-sentence custody consecutive to the July 12th offences. Finally, on the August 14th offence, I impose 29 days of pre-sentence custody consecutive to the July 13th offence, plus 1 day.

[35] Again, the total sentence will be 9 months of pre-sentence custody. This considers the seriousness of the offences, the principle of totality, Lord Coke's principle, the aggravating features of the 2019 offences, insofar as they came so quickly after his release on the January 2019 convictions, and Mr. Evans' personal circumstances, including the 22 of his pre-sentence days custody served under lockdown at Maplehurst.

[36] In addition to this, I impose two years of probation to assist Mr. Evans with rehabilitation, a DNA order and a 3-year driving prohibition.

Released: January 31st, 2020

Signed: Justice M.K. Wendl