Court File and Parties

Date: March 25, 2021 Information No.: 0811-998-20-5164-00 Ontario Court of Justice

Her Majesty the Queen v. Tyler Veres

Ruling

Before the Honourable Justice S. Pratt On March 25, 2021, at Windsor, Ontario

Appearances: C. Houle, Counsel for the Crown R. DiPietro, Counsel for T. Veres

Ruling

Pratt, J. (Orally):

On the 12th of March 2021, Tyler Veres, hereinafter the offender, pleaded guilty to the offences of assault causing bodily harm as against Tiffany Field and assault against Jacob Labadie.

We began the sentencing proceeding on that day but I adjourned it to today to consider an issue that arose during submissions.

Briefly, the facts agreed to are that the offender and Ms. Field had been in a relationship. They share a young son from that relationship.

In the early morning hours the 21st of February 2020, the offender entered Ms. Field’s residence and assaulted her new partner, Mr. Labadie. This assault began in the bedroom but spilled into the living room. In an attempt to get the offender to stop Ms. Field struck him in the head with a glass bowl. It had no effect.

She attempted to intervene a second time, and the offender punched her in the face breaking her nose.

The offender got Mr. Labadie on the ground and was choking him. Ms. Field called 911.

Police attended and ultimately located and arrested the offender. The young son of the offender and Ms. Field was in the residence asleep for the duration of the incident.

This matter was pre-tried before me on two occasions. The first was on 12th of March 2020. At that time the Crown advised that its position was four to six months jail followed by probation. Defence counsel advised that the offender was employed and supported his three children. He suggested a 90-day sentence served intermittently and in addition to approximately 20 days of pre-sentence custody was appropriate.

I told counsel that if a letter confirming the offender’s employment was provided, I would impose the sentence he sought.

A second pre-trial was held on 4th February 2021, nearly a year later. At that meeting defence counsel advised that intermittent sentences imposed in Windsor are served in Elgin Middlesex Detention Centre or EMDC in London.

At the time of the second pre-trial EMDC was in the midst of a COVID-19 outbreak. In lieu of sending the offender to EMDC counsel suggested a conditional sentence of a longer duration. Crown counsel advised that the Crown Attorney was considering the suggestion. For my part I agreed to impose a six-month conditional sentence if it was sought. That brings us to the day of the plea.

In submissions the idea of a conditional sentence was not mentioned. Defence counsel argued for a 90-day intermittent sentence and the Crown argued for its original position of four to six months custody. I asked about the issue and was told that the Crown did not believe it was an appropriate case for a conditional sentence so it was not being sought by either party.

It is important to note the timing of the first judicial pre-trial when I agreed to impose an intermittent sentence if proof of employment was provided. That meeting was on the 12th of March 2020. That was a Thursday. The following Monday the Canadian government closed the country’s borders to non-residents. The next day the province of Ontario declared a state of emergency. Both steps were in response to the emerging COVID-19 pandemic. It is hard to understate the effect COVID-19 has had on Canada and the world in the year since. Over 120 million people worldwide have been infected, and over 2.7 million have died. This includes over 900,000 cases and over 22,000 deaths in Canada.

The virus has hit congregate living situations particularly hard. One of the main ways to prevent its spread is keeping one’s distance from other people. That is simply not possible in places like custodial facilities. Outbreaks in jails have occurred around the country. Impressively, Windsor’s Southwest Detention Centre had largely been able to avoid the virus through the implementation of strict isolation and contact controls, but the Windsor-Essex County Health Unit recently declared an outbreak there as well. Since January of 2021 EMDC has been dealing with its own outbreak.

This is an issue in the present case because all Windsor offenders sentenced to intermittent terms of custody must serve those sentences at EMDC. Despite the Southwest Detention Centre being a new sprawling facility that opened with much fanfare in 2014 it has never been able to accommodate intermittent sentences, at least for male offenders. It is beyond the scope of this decision to question why that continues to be the case. Though I do note that if Windsor intermittent sentences were actually served in Windsor my primary concern with the current state of those sentences outlined below may not exist.

My understanding, confirmed by Crown counsel, is that intermittent prisoners are not currently being accepted at EMDC. Once they report they are told to return home and are credited with that week’s custody despite that actually going – that weekend’s custody, despite not actually going into the facility.

I wish to be clear that I do not fault the authorities at EMDC for taking this step. It is not hard to understand why they would not want a large number of people from all over Southwestern Ontario entering their facility each weekend. I have no difficulty with them taking what is likely a reasonable and considered step to protect inmates and staff. But that does not change the fact that intermittent sentences are effectively frustrated at the moment.

I expressed my concern to counsel and advised I would reserve my sentencing decision. In my view, the case centers on two main issues. One, the confidence all parties must have on sentences agreed to in judicial pre-trials; and two, how, if at all, a sentencing judge should consider the actions of correctional authorities in arriving at a fit sentence.

Pre-trial Discussions and Agreements

Judicial pre-trials, JPTs, are an essential feature of our justice system. They allow the parties with the assistance of a judge to discuss the issues of a particular case, determine time estimates, and what would be disputed if the matter proceeded to trial. It also allows the parties to obtain the input of a judicial officer regarding resolution. A great many cases resolve at the judicial pre-trial stage. Were that not the case our system would likely be overwhelmed. As I said, JPTs are essential to the functioning of our court system.

One of the biggest benefits of JPTs is that the parties commit to certain positions. Counsel will make admissions or undertake to call certain witnesses. If the matter resolves counsel frequently, although not always, commit to sentencing positions. Resiling from pre-trial positions, whether related to trial issues or resolution, should be avoided. Indeed, courts can and do enforce the positions taken at JPTs. As stated by Justice Nordheimer, then of the Superior Court of Justice, in Regina v. J.S.R., 2008, OJ No.5626 at paragraph 19:

“At this point, I offer as a general proposition that a party to a proceeding who states a specific factual position, knowing that the opposing side will rely on that stated position at trial, ought not to be permitted to resile from that position absent some compelling explanation for the change. If, for example, new evidence is discovered that compels a party to reverse its position, then the party may be allowed to do so. However, even that situation requires that the party give immediate notice to the other side of its intention to change its position.”

Just as the parties should be able to rely on what each other says in the course of a JPT they must also be able to rely on what the presiding judge says. If the judge agrees to impose a particular sentence and on that basis the parties agree that he or she should preside over the subsequent plea the judge should, absent extraordinary circumstances, abide by that agreement. As important as that point is it is not absolute. Justice Nordheimer admonishes counsel not to resile from a position taken at pre-trial “absent some compelling explanation for the change”. His Honour leaves open the possibility that pre-trial positions can change if circumstances require it. In those rare circumstances the party changing its position is expected to advise the other side immediately.

I would apply the same standard to a judge who takes a different position at the plea hearing then he or she did at the JPT. There must be compelling circumstances to explain the change, and the parties must be told immediately. Anything less would impair the legitimacy of the pre-trial process and potentially affect the defendant’s right to a fair trial.

To be clear, the bar for a judge changing his or her position after a JPT is a high one. In my view, it should be higher than the bar for counsel being permitted to change their position as opposing counsel have a host of remedies at their disposal when that happens. They can seek an adjournment of the proceedings to digest the news. They can seek the court’s intervention to enforce the pre-trial position, or they can seek a further JPT to determine the full extent of the change. When a judge changes position there is little a party can do. Aside from an appeal or an application for an extraordinary remedy the parties will be at the mercy of the court. A late change in the court’s position can have significant and long-lasting effects on the parties. This is especially true when the change is made after a plea of guilt is entered. In usual course those changes should simply not happen.

But what of cases that do not develop in the usual course? Judicial independence requires that a presiding judge retain the ability to do what he or she feels is necessary in the pursuit of the interests of justice. If there is a significant change in the legal or factual landscape between the JPT and the plea the judge must have the ability to respond accordingly. Changes that rise to this level will likely be few. Their relative rarity may underscore their importance when they do emerge.

In summary, a judge must be able to change his or her sentencing position as expressed in the JPT. That should only happen, however, in exceptional circumstances. When it does, the judge must advise the parties as soon as the change is contemplated and must take whatever steps are necessary to safeguard the fair trial rights of the defendant.

The Actions of Other Authorities when Determining a Fit Sentence

The specific issue in this case is the current status of intermittent sentences at EMDC. As I’ve stated, the sentences are not currently being served. Intermittent inmates are not taken into custody. They serve their sentences at their residence. The punitive goal of an intermittent sentence, the deprivation of an offender’s liberty is frustrated.

Can a sentencing court take into account the actions of correctional facilities in determining a fit sentence?

The offender’s counsel argues I should not consider how the sentence is implemented. By his reckoning, it is my role to impose the sentence and another authority’s role to carry it out. I should not overstep my role by changing what I do to accommodate or compensate for the other.

In my view, both case law and other aspects of the sentencing process contradict this position. In Regina v. Wilmott, [1966] 2 O.R 654-669 in the Court of Appeal, Justice McLennan considered how or if a sentencing judge should take the potential actions of a parole board into account when fashioning a fit sentence. His Honour said the following:

“In my opinion, a Court in determining an appropriate sentence of imprisonment may, quite properly, take into consideration the provisions of the Parole Act and the duties of the Parole Board under the Act and Regulations.”

“The availability of parole was considered in Regina v. Mabee”, other sites omitted, “and in many other cases in this Court where the reasons for judgment have not been reported.”

I would equate the operation of a parole board with the decisions made by a correctional facility for the purpose of the present case. I take Justice McLennan’s words as support for the proposition that I can consider how intermittent sentences are currently being implemented when fashioning a fit sentence. Further, I would note that in advocating for their clients, counsel frequently site the decisions of correctional staff as reasons to accept their sentencing positions. Lockdowns, cell assignments, and cancellation of programming are just three examples of decisions made by another authority that courts are routinely asked to compensate for in imposing sentences.

It could be argued that the examples I’ve cited are all pre-plea custody issues rather than post sentencing issues. Perhaps it could be distinguished on that basis. I’m not sure I see it a distinction but regardless the experience of custody as affected by correctional decisions on a prospective basis has also been recognized by sentencing courts. The rapidly growing body of case law that deals with sentencing in a pandemic is the most obvious example.

In R. v. Hearns, 2020 ONSC 2365, [2020] OJ No 1648 from the Superior Court, of Justice Pomerance, recognized the greater difficulties in custody owing to the pandemic.

In R. v. Zamora-Doxtator, 2020 ONSC 6000 [2020] OJ No 4440 from the Superior Court. Regional Senior Justice Thomas reduced the sentence he would otherwise have imposed for primarily the same reason.

Likewise, I have taken the increased isolation and stress that custody now brings into account in fashioning sentences in other cases.

As the pandemic continues it has become a common and appropriate consideration of custodial sentences. This is a current example of courts taking into account how sentences are implemented. I see no principled reason why I cannot do the same with regard to how intermittent sentences are implemented. It is a reasonable and appropriate consideration that recognizes yet another impact the pandemic is having on the justice system and society in general.

The court cannot close its eyes to the realities of incarceration at this moment in history. That can mean in some cases shorter sentences. In other cases, like this one, it can impact the type of sentence imposed.

In my view, intermittent sentences do not currently function as intended by Parliament. They are essentially toothless. I cannot ignore that fact.

Conclusion

Change in implementation of intermittent sentences qualifies as an exceptional circumstance that allows me to revisit the sentencing position, I agreed to at the JPT. I advised counsel of my concern on a prior date and sought submissions. I adjourned to consider my decision.

I do not believe an intermittent sentence meets the objectives of sentencing set out in Section 718 and onward of the Criminal Code. Crimes of intimate partner violence and in particular crimes that target vulnerable female victims should be treated with great seriousness by a sentencing court. A sentence that imposes weekends of ill-defined house arrest does not reflect that seriousness.

Prior to him entering his guilty pleas, I asked the offender if he understood the ultimate sentence was up to me regardless of any negotiations that had taken place. He told me he understood and wanted to continue with his pleas.

The pre-plea inquiry must be seen to be a meaningful step that confirms the accused person’s understanding and knowledge of the plea procedure. That being said, the court should also show flexibility when faced with exceptional circumstances like these. And so I offer the offender a choice. I can sentence him to 90 days jail not on an intermittent basis starting today or I can adjourn his sentencing to the end of April when the offender’s counsel advises he understands EMDC may begin accepting intermittent prisoners again. If they are, I will sentence him to 90 days to be served intermittently at that time.

If the matter is still unsettled at that point, I will entertain an application for a further adjournment, while recognizing the need to bring this matter to a conclusion. It will not be adjourned into perpetuity.

Either sentence will be followed by the probation and ancillary orders requested by the Crown. The sentence of consecutive non-intermittent – non-intermittent jail would be served at the Southwest Detention Centre. As I said earlier, they are currently in a state of outbreak. Like many other judges in both this court and the Superior Court I am reluctant to send someone intentionally into an outbreak, but I leave the choice to the offender.