COURT FILE NO.: 94/09
DATE: 2012-04-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
H. Apel, Counsel for the Crown
- and -
WALTER GARRICK
R. Tomovski, Counsel for the Defendant
Defendant
HEARD: April 25, 2012
REASONS FOR SENTENCE
Ricchetti, J.
Overview
[1] After a trial by judge alone, Mr. Garrick was convicted of the following offences:
Count #1: That between the 11th day of January, in the year 2007, and the 16th day of February, in the year 2007, both dates inclusive, at the City of Burlington, in the said Region, and/or elsewhere in the Province of Ontario, he did by deceit, falsehood or other fraudulent means, defraud Scott JACKSON of a sum of money exceeding five thousand dollars, contrary to Section 380(1) (a) of the Criminal Code of Canada.
Count #2: That between the 30th day of January, in the year 2007, and the 8th day of May, in the year 2007, both dates inclusive, at the Town of Oakville, in the said Region, and/or elsewhere in the Province of Ontario, he did by deceit, falsehood or other fraudulent means, defraud Achille DIMASCIO of a sum of money exceeding five thousand dollars, contrary to Section 380(1) (a) of the Criminal Code of Canada.
Count #3: That between the 6th day of March, in the year 2007, and the 14th day of March, in the year 2007, both dates inclusive, at the City of Hamilton, in the said Region, and/or elsewhere in the Province of Ontario, he did by deceit, falsehood or other fraudulent means, defraud Kenneth CRIGHTON of a sum of money exceeding five thousand dollars, contrary to Section 380(1) (a) of the Criminal Code of Canada.
[2] As set out in my reasons, Mr. Garrick used deceit and other fraudulent means to defraud the above three individuals of approximately $139,000 in total.
The Facts
Mr. Scott Jackson
[3] Mr. Jackson was a Defasco employee. He was a volunteer coach for a local children's football team. One of his children played on the team. Mr. Garrick was one of the parents of another football player.
[4] Mr. Garrick told Mr. Jackson he could invest Mr. Jackson’s money into an IPO (Initial Public Offering) of Interactive Brokers which would make him a lot of money.
[5] On January 11, 2007, Mr. Jackson gave Mr. Garrick $5,000. On February 16, 2007, Mr. Jackson gave Mr. Garrick $4,000.
[6] When no profits materialized as Mr. Garrick did not have any shares of Interactive Brokers, Mr. Jackson asked for his money back. Mr. Garrick became hard to get a hold of. When Mr. Jackson was able to reach Mr. Garrick, Mr. Garrick made promises of repayment but all Mr. Jackson got were excuses and broken promises.
Achille Dimascio
[7] Mr. Dimascio was an employee of Knoll, North America. He had a son who also played on the football team. Mr. Garrick told Mr. Dimascio that he was an “insider” and had shares at $1 per share in Interactive Brokers, a company about to go public. Mr. Dimascio could buy some of Mr. Garrick's shares at $1 per share. Mr. Dimascio agreed and on January 30, 2007 gave Mr. Garrick $7,000.
[8] In early 2007, Mr. Garrick told Mr. Dimascio that he had bought or was in the process of buying a “dome” facility in Oakville for $7,000,000. He offered to allow Mr. Dimascio to buy a 1% interest for $30,000. Mr. Dimascio agreed and gave Mr. Garrick $30,000. On approximately May 1, 2007, Mr. Garrick came to Mr. Dimascio and said he needed $3,000 either to purchase or store equipment for the football team. Mr. Dimascio agreed and provided Mr. Garrick with $3,000.
[9] On May 5, 2007, Mr. Dimascio gave Mr. Garrick the further $10,000 for the purchase of more Interactive Broker's shares.
[10] Mr. Garrick again approached Mr. Dimascio and offered Mr. Dimascio the option to buy further shares in the Interactive Brokers for $50,000. Mr. Dimascio agreed and provided Mr. Garrick $50,000 on May 8, 2007.
[11] By written agreement, all of Mr. Dimascio's money he gave to Mr. Garrick ($100,000) became the purchase of shares in the Interactive Broker's IPO at the $1 per share.
[12] No monies were forthcoming from Interactive Broker's IPO. Despite repeated requests for the return of his money, no money arrived on May 31, 2007. Mr. Dimascio followed up with many requests for repayment. There were many promises and excuses by Mr. Garrick but no repayment.
Kenneth Crichton
[13] Mr. Crichton was approached by Mr. Garrick to coach the football team.
[14] Mr. Garrick told Mr. Crighton that he wanted coaches to focus on coaching and Mr. Garrick could offer him financial opportunities that only the wealthy and elite got involved in. Mr. Crighton agreed to buy $30,000 in Interactive Brokers shares through Mr. Garrick at $1 per share. Mr. Crighton gave Mr. Garrick $30,000.
[15] No monies were forthcoming from Interactive Brokers. Despite promises of repayment by Mr. Garrick, failed attendances at meetings, inability to get Mr. Garrick on the phone, Mr. Garrick did not repay Mr. Crighton’s money.
[16] I have not set out the acts of deceit and fraud which led the above individuals to provide the monies to Mr. Garrick as they are set out in my reasons. Simply, Mr. Garrick had no shares of Interactive Brokers, let alone shares at $1 per share which he could sell or transfer to the three individuals. All of his statements that he could provide the above individuals with shares in Interactive Brokers were false. This coupled with other false statements and deceitful conduct was the fraud.
[17] None of the above individuals have recovered any of their money.
Circumstances of the Offender
[18] A pre-sentence report (PSR) was requested by this court. While the PSR describes the support by Mr. Garrick’s family and friend, Mr. Garrick maintains his denial of, responsibility for and minimization of the offences for which he has been convicted. I agree with Dr. Krause's description that Mr. Garrick sees the charges and conviction as a "misunderstanding" rather than criminal conduct on his part. Mr. Garrick denies any responsibility for the losses suffered by the three individuals. There is no remorse for his actions or the consequences of his actions.
[19] Equally troubling from the PSR is Mr. Garrick's attempt to persuade the Probation Officer that he was expecting to be given a very large sum of money (in excess of $4 million) with which he intended to repay his victims by March 5, 2012. At his first scheduled sentencing hearing on March 12, 2012, Mr. Garrick told the court he had received "money" and was using the money to hire a lawyer and would make restitution. Now, almost two months later at the end of April 2012, no restitution has been made.
[20] Also during the PSR interview, Mr. Garrick was vague regarding a number of details regarding his previous "investment" employment or details of his means of income or employment. There is really no information regarding Mr. Garrick's employment history or how he made or earned a living prior to the events involving the above three individuals.
[21] Mr. Garrick is 42 years old.
[22] Mr. Garrick has no prior criminal record.
[23] Mr. Garrick has post secondary education. He is an educated man.
[24] Mr. Garrick has one child and a step-child from a long term relationship which ended around 2008.
[25] Letters of support were filed by members of his family and some friends (exhibit #3). The letters clearly show that Mr. Garrick continues to have the support of his family and some friends.
Impact on the Victim and/or Community
[26] The victims provided Victim Impact Statements (exhibit #2). There is little doubt that the three individuals were not wealthy individuals and the amount of money they lost was significant to them and their families resulting in, not only financial loss, but also affected the individuals behaviour and psyche.
Legal Parameters
[27] There is no minimum sentence under s. 380(1) (a) of the Criminal Code. The maximum sentence is a term of imprisonment of not more than 14 years.
Positions of Crown and Defence
[28] The Crown submits that a sentence of between 21 to 36 months imprisonment is a fit sentence. However, the Crown candidly admitted that a conditional sentence would not be an unfit sentence in these circumstances.
[29] The Crown submits that Mr. Garrick should get credit of 234 days (which is 117 days x 2 for 1 credit) for pre-sentence custody on these charges and other charges laid against Mr. Garrick in this jurisdiction but which were subsequently dismissed or withdrawn.
[30] The Crown submits that very little credit should be given for Mr. Garrick's bail conditions in this jurisdiction as the bail terms were not strict and much of the delay in the lengthy bail term is attributed to Mr. Garrick.
[31] The Crown submits no credit should be given for jail or bail conditions on outstanding charges in Toronto.
[32] The Defence submits that a conditional sentence of 18 months is the appropriate sentence in these circumstances.
[33] The Defence submits that the credit Mr. Garrick should receive is:
a) 163 days x 2 (for 1 credit) which includes 46 days which Mr. Garrick spent in pre-sentence custody on the Toronto charges. As a result, the Defence submitted that Mr. Garrick receive approximately 11 months credit; and
b) strict bail conditions for 1,079 days which includes 509 days of bail on the Toronto charges. The Defence seeks a further 6 months credit for the "strict bail conditions".
[34] As a result, the Defence submits that a fit sentence in these circumstances is no more than 4 months.
Case Law
Length of Sentence
[35] In R. v. Gasparetto, [2008] O.J. No. 3840 (Sup. Ct.), Justice Spies, having reviewed the law, concluded that the Court of Appeal had not established a particular range of sentence for a less than "large scale fraud". (See para 21). The facts before Justice Spies were that the accused had defrauded two complainants of approximately $190,500 on the basis the monies were to be invested in a proposed fitness club. The accused had pleaded guilty. The accused was 47 years old and a first time offender who had mental health issues and was receiving counselling. Justice Spies imposed a conditional sentence of 18 months followed by 3 years probation.
[36] In R. v. Corner, 2005 O.J. 3590 (Sup. Ct.), Justice Durno imposed an 18 month conditional sentence for a fraud conviction of $150,000. One significant factor referred to by Justice Durno was that the accused had come forward and told her employer she had defrauded the employer. Another factor was that the accused came from an abusive and dysfunctional family.
Credit for Bail Conditions
[37] In R. v. Ijam, 2007 ONCA 597, the Court of Appeal dealt with the issue of credit for strict pre-trial bail conditions. The Court of Appeal stated at para 63:
In my view, the appellant failed to establish that he was entitled to credit for pre-sentence bail conditions. In Downes, supra, this court provided the following summary of how a trial judge should approach the question of credit for pre-sentence bail conditions (para. 37):
• Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.
• As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.
• The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.
• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
• The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity.
• Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
Credit for time on other charges
[38] Section 719 (3) and (3.1) of the Criminal Code provide:
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
[39] In R. v. Wilson, 2008 ONCA 510, the Court of Appeal dealt with the issue of credit for other charges at paragraphs 24 to 25:
I agree with Crown counsel that on a plain reading of s. 719(3) the phrase “convicted of an offence” and the phrase “as a result of the offence” must refer to the same offence or offences. Section 719(3) is directed to situations in which a person has spent time in custody prior to sentencing in respect of the offence or offences for which the person is being sentenced. It was common ground for the trial judge that part of the time the appellant spent in custody prior to sentencing was attributable to the robbery charges, but that 494 days were attributable to an entirely separate offence, the importing cocaine charge. The subsequent quashing of the cocaine conviction, and the still later stay of proceedings in respect of that charge, cannot retroactively change the reason for the appellant’s custody during the 494 days between February 23, 2004 and July 2, 2005. He was not in jail at that time as a result of the robbery charges; rather, he was serving a sentence on his conviction for importing cocaine.
The inapplicability of s. 719(3) does not, however, end the matter. Courts were giving credit on sentencing for pre-sentence incarceration before the Criminal Code was amended to specifically authorize doing so: e.g. see R. v. Patterson (1946), 87 C.C.C. 86 (Ont. C.A.); and R. v. Sloan (1947), 87 C.C.C. 198 (Ont. C.A.).[1] Courts have also from time to time given credit on sentencing for pre-sentencing custody relating to other charges where, as of the date of sentencing or the hearing of the sentence appeal, those other charges had been withdrawn or quashed: see R. v. Tsai (2005), 198 C.C.C. (3d) 533 at paras. 19-22 (Ont. C.A.); and R. v. Lapare, [1970] 1 C.C.C. 320 at 322 (Man. C.A.).
Mitigating and Aggravating Factors
[40] The following are the aggravating factors in this case:
i. The amount defrauded by Mr. Garrick is significant - $139,000;
ii. There were multiple victims of the fraud;
iii. There was significant planning by Mr. Garrick to give him the opportunity to perpetrate the fraud on the victims;
iv. The impact on the victims is very significant;
v. The motivation was greed; and
vi. Despite promises of restitution, no restitution has been made.
[41] The following are the mitigating factors in this case:
i. Mr. Garrick is a first time offender;
ii. There is no evidence that Mr. Garrick breached his bail conditions; and
iii. Mr. Garrick has the support of his family and friends.
[42] I am not persuaded this court should consider the fact Mr. Garrick has spent considerable time in jail and on bail conditions as a mitigating factor. These facts are properly dealt with when considering what credit, if any, Mr. Garrick should received for pre-sentence custody and bail.
[43] I am also not persuaded by the Defence submission that Mr. Garrick’s “willingness to pay restitution” is a mitigating factor. Given Mr. Garrick’s statements of impending restitution made to the Probation Officer and to this court, it is unlikely restitution would be forthcoming willingly form Mr. Garrick. A mere gesture of “willingness” does not amount to much in the circumstances of this case and given the history of Mr. Garrick’s actions to date.
Principles of Sentencing
[44] The Criminal Code sets out the purpose and principles of sentencing:
- The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders
Analysis
[45] The issue is whether a conditional sentence is appropriate.
[46] S. 742.1 of the Code provides:
742.1 If a person is convicted of an offence,… , and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under section 742.3.
[47] In R. v. Wells, 2000 SCC 10, [2000] S.C.J. No. 11, the court set out the approach to determining whether a conditional sentence is appropriate:
27 Lamer C.J., in Proulx, supra, held that a purposive interpretation of s. 742.1 required the sentencing judge to proceed in stages in determining the appropriateness of a conditional sentence. At the preliminary stage, the judge simply has to exclude two possibilities: (a) probationary measures; and (b) a penitentiary term. The duration and venue of the sentence are not determined at this preliminary stage. In addition, the judge is required to consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 only to the extent necessary to narrow the range of sentence for the offender. If, at this point, either a penitentiary or a [page222] suspended sentence is appropriate, then a conditional sentence should not be imposed (Proulx, at paras. 58-59).
28 Before moving to the next stage of the analysis, the sentencing judge must also establish whether the statutory prerequisites set out in s. 742.1 have been satisfied. These prerequisites include: (i) the absence of a minimum term of imprisonment; (ii) a sentence of imprisonment of less than two years (i.e., the elimination of a penitentiary term per step one); and (iii) that the safety of the community would not be endangered by the offender serving the sentence in the community. Two factors must be taken into account in assessing the danger to a community posed by an offender: (i) the risk of the offender re-offending; and (ii) the gravity of the damage that could ensue in the event of re-offence. In Proulx, the Chief Justice provided helpful guidance for this risk assessment at paras. 69-76.
29 Pursuant to s. 742.1(b), the second and most substantial stage of the analysis involves the determination of whether a conditional sentence would be consistent with the fundamental purpose and principles set out in ss. 718 to 718.2. Unlike the more cursory review of the purpose and principles of sentencing at the preliminary stage, this second stage requires a comprehensive consideration of these principles and objectives. It is this comprehensive consideration which guides the sentencing judge in determining (i) whether the offender should serve the sentence in the community or in jail, (ii) the duration of the sentence, and, if a conditional sentence, (iii) the nature of the conditions to be imposed.
Is Probation or a penitentiary term appropriate in this case?
[48] There is no minimum sentence for this offence. The Crown admits that a conditional sentence would be a fit sentence in these circumstances.
[49] I agree with counsel that a penitentiary term is not appropriate or warranted in these circumstances. While the Crown's range included a penitentiary term, the admission that a conditional sentence is appropriate ,and given the sentences in similar cases, a sentence of less than 2 years is appropriate.
Is the safety of the community at risk?
[50] Neither counsel suggested that Mr. Garrick is a risk to the safety of the community if the sentence is served in the community. I agree.
[51] As a result, I am obliged to consider the imposition of a conditional sentence since the statutory prerequisites are satisfied. S. 718.2(d) and S. 718.2(e). See Proulx, paragraph 95.
Would a conditional sentence would be consistent with the purpose and principles of sentencing?
[52] This requires a more comprehensive consideration of the principles and objectives of sentencing as they apply to this case.
[53] Clearly, specific deterrence and denunciation are relevant factors to be considered.
[54] There is no evidence one way or the other as to whether rehabilitation is likely since Mr. Garrick takes no responsibility and doesn’t even accept that he has committed a wrong.
[55] General deterrence is also a relevant factor. Building confidences and friendships during children’s athletic programs with other parents and then using deceit and fraudulent means to defraud individuals should be discouraged.
[56] However, given that a sentence of less than two years is appropriate, there is no reason for Mr. Garrick being separated from society.
[57] The Supreme Court in Proulx recognized the important objective of restraint in the use of incarceration and that a conditional sentence may nevertheless promote both deterrence and denunciation. As set out in Proulx, supra, a conditional sentence can also provide significant deterrence if sufficiently punitive conditions are imposed. See Proulx paragraph 107.
[58] Having reviewed the cases, there is no doubt that a significant conditional sentence is consistent with similar sentences imposed on similar offences in similar circumstances. A lengthy conditional sentence with stringent conditions would clearly send a message to Mr. Garrick his responsibility for his actions and the harm he has caused to the above individuals.
[59] Section 742.3 of the Criminal Code provides:
742.3 (1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:
(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervisor
(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and
(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
Optional conditions of conditional sentence order
(2) The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:
(a) abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical prescription;
(b) abstain from owning, possessing or carrying a weapon;
(c) provide for the support or care of dependants;
(d) perform up to 240 hours of community service over a period not exceeding eighteen months;
(e) attend a treatment program approved by the province; and
(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.
What is the appropriate length of sentence?
[60] In both Gasparetto and Corner, there were significant mitigating factors regarding the accused’s personal circumstances which are not present here.
[61] In addition, the lack of appreciation that Mr. Garrick has committed a wrong or is responsible makes the need for specific deterrence greater in these circumstances than in the authorities referred to.
[62] As a result, a sentence greater than 18 months is an appropriate and fit sentence in these circumstances. I conclude that a sentence of 23 months is appropriate in these circumstances.
What is the appropriate credit to be given for pre-sentence custody and bail?
[63] On the principles set out in Tsai and Reid (ante), the Crown concedes that any pre-sentence custody or bail on these charges, and the other charges in this jurisdiction which have been withdrawn or dismissed, should be considered by this court in determining a fit sentence. On this basis, the Crown concedes pre-trial custody of 117 days for which a 2 for 1 credit should be given and acknowledges the bail periods alleged by the Defence but does not agreed that any credit should be given for the bail.
The Toronto Charges
[64] At issue between the Crown and Defence are 46 days of custody served by Mr. Garrick between January 2, 2008 and January 1, 2008 when he was arrested in Toronto on 12 fraud over charges, 12 theft over charges, 4 additional fraud over charges, 4 theft under charges, 2 fail to comply and one attempt fraud.
[65] The Defence initially suggested that the charges in Toronto included the charges in Central West (those before this court and those which have been previously dismissed or withdrawn). However, when the Crown objected and demonstrated that the bail in the Toronto charges and the Central West charges have been dealt with independently, Defence retreated from this position and no evidence was called to suggest that the charges in Toronto include any of the charges which have or had been laid in this jurisdiction. I am satisfied that the custody and bail on the Central West charges and the Toronto charges have been running concurrently.
[66] The charges in Toronto remain outstanding.
[67] This is not a situation as in R. v. Tsai, [2005] 199 O.A.C. 244 or R. v. Reid, 2005 (Ont. C.A.), where the second set of charges had been withdrawn prior to the sentencing on the conviction. No authority has been provided to this court where an accused has been given credit for pre-sentence custody where the second set of charges remain outstanding.
[68] The credit, if any, for this pre-sentence custody in the Toronto charges is best dealt with in the Toronto proceedings where all of the facts and circumstances may be properly considered by the court in determining whether credit should be given for pre-sentence custody and, if so, what amount. Credit for pre-sentence custody is not automatic and is based on a consideration of all of the circumstances. The circumstances of the proceedings in Toronto are not in evidence before me. To deal with that in this sentencing hearing without any evidence on the issues involving those outstanding charges would be mere speculation by this court and not a disciplined basis upon which to consider or grant credit in this sentencing.
[69] The same applies to the bail conditions imposed in the Toronto proceedings between February 17, 2008 and July 2009 covering a period of 509 days.
Central West Charges
[70] Let me now turn to the bail conditions in the charges in Central West which includes the charges tried by this court and the other Central West charges which were withdrawn or dismissed.
[71] As I stated above, the time in custody on the Central West charges is not an issue. The Crown concedes a 2 for 1 credit for those periods of pre-sentence custody.
[72] On November 6, 2007, Mr. Garrick was released on bail without any house arrest. It cannot be suggested and is not suggested by the Defence this constitutes “strict bail conditions”. The condition simply required that he reside at a specified address. This bail was vacated on July 15, 2009 when Mr. Garrick was arrested on the new charges in Central West.
[73] On July 16, 2009 Mr. Garrick was released on bail which bail required Mr. Garrick to reside at his home and remain in the residence except when in the presence of his sureties or court purposes or medical issues. Clearly, this significantly curtailed Mr. Garrick’s freedom. However, there is no evidence as to the impact or effect this had on Mr. Garrick. This bail continued for a period of 270 days. However, I should add there was evidence that the Crown was prepared to vary the bail provided Mr. Garrick provided some proof of employment. This position was set out in a letter from A. Goodman, Ass’t Crown Attorney dated October 30, 2009 and was repeated to Mr. Garrick by Justice Durno when the matter came before him on December 7, 2009. Mr. Garrick did not pursue the matter or sought to vary bail.
[74] On April 12, 2010 Mr. Garrick was again arrested during which time he remained in custody for 110 days – for which he is, as the Crown concedes, entitled to credit.
[75] On July 31, 2010 Mr. Garrick was released on bail again but with the same type of bail conditions during the July 16, 2009 to April 11, 2010 period. This bail was for a period of 300 days.
[76] Mr. Garrick’s bail was varied on May 27, 2011 to remove the “house arrest”.
[77] As a result, the total period of “strict bail conditions” (namely, the house arrest) for all the Central West charges is for a total period of 570 days.
[78] However, there is an important consideration in determining whether and the amount of credit to be given to Mr. Garrick for this period. How much of this was attributed to delay by Mr. Garrick?
[79] Let me go over some facts recorded in the Indictment which demonstrate that Mr. Garrick was primarily responsible for the extended period during which he was subject to the bail conditions on the Central West charges:
• July 6, 2009 – Mr. Garrick failed to attend court and a warrant for his arrest was issued;
• October 23, 2009 – Mr. Garrick failed to attend court.
• October 26, 2009 – Mr. Garrick’s counsel advised that he had NOT been retained. The Trial was set for May 10, 2010.
• February 12, 2010 – Mr. Garrick’s new counsel was not available for the scheduled trial date. New trial date was set for March 21, 2011.
• October 4, 2010 – Mr. Garrick’s counsel was no longer acting for him. Mr. Garrick is retaining a new counsel. Trial date remained for March 21, 2011.
• At various to be spoken to dates it was made clear to Mr. Garrick the trial would proceed with or without counsel.
• January 7, 2011 - Mr. Garrick advises the court he has retained new counsel
• At several to be spoken to dates the counsel identified by Mr. Garrick advised he has not been retained. Numerous court attendances were required.
• March 16, 2011 - Mr. Garrick had still not retained counsel but sought and was granted an adjournment of the trial date to March 25, 2011 so that new counsel might be retained and prepared;
• The matter was further adjourned while Mr. Garrick continued to deal with retaining counsel.
• April 21, 2011 – a new trial date was set for June 6, 2011, the first available trial date. However, understandably, the Crown could not proceed on that date given the extensive delays from the scheduled date in March 2011;
• May 3, 2011 – a new trial date set for January 9, 2011.
• Prior to the trial date, Mr. Garrick commenced an action against the presiding judge because the presiding judge had heard a bail review application. This necessitated an adjournment and a new trial judge being arranged to re-commence the trial.
[80] As can be seen from the very brief synopsis above, much of the delay was caused by Mr. Garrick getting, changing counsel, failing to attend and so on. The extensive period of the bail is entirely attributable to Mr. Garrick.
[81] Equally important, Mr. Garrick has not demonstrated the impact of the “house arrest”. The onus is on him on the balance of probabilities. He has not met this onus as there is no evidence of any impact of the bail on his employment (if he had any) or any other aspect of his life.
[82] In these circumstances, and only because of the extensive time period where his freedom to go as he please was restricted, I will give Mr. Garrick 2 months credit for the period of time of 570 days during which he was under “house arrest”.
Conclusion on Credit
[83] In conclusion, Mr. Garrick will be given credit of 234 days for pre-sentence custody and 60 days for pre-sentence “strict bail conditions” on the Central West charges.
[84] This equates to a total of 10 months credit to the 23 month conditional sentence.
[85] As a result, the sentence shall be for a period of 13 months, to be served in the community.
The Terms of the Conditional Sentence, Probation and Restitution
[86] The following terms shall apply to the conditional sentence period:
Keep the peace and be of good behaviour;
Appear before the Court when required to do so by the Court;
Report within 2 working days of today, in person, to a supervisor and, thereafter, report to the supervisor when required by the supervisor and in the manner directed by the supervisor. You shall provide the supervisor with the address to your current residence;
Remain within the Province of Ontario unless written permission to leave the Province is obtained from your supervisor, or approval is given by the Court;
Notify your supervisor in advance of any change of name or address and promptly notify the supervisor of any change of employment or occupation;
For the first 6 months of this order, you shall be confined to your residence under house arrest for 24 hours per day, 7 days per week. The only times you may be absent from your residence are as follows:
a) being at work;
b) attending scheduled medical appointments or dealing with a medical emergency;
c) court attendances, meeting with counsel on outstanding legal proceedings, and reporting to your supervisor;
d) attending for counselling or treatment directed by the Court or by the supervisor;
e) attending to shopping for essentials and banking on Sundays between 11 a.m.7:30 p.m.;
f) travel directly to or from any of these activities; and
g) at any other time with the prior written permission of the supervisor.
For the balance of the conditional sentence, you shall be confined to your residence between the hours of 11 pm and 7 am;
You shall abstain from owning, possession or carrying a weapon;
To make reasonable efforts to find and maintain suitable full time employment;
Allow law enforcement officials, including the supervisor or designate, to knock at the door of your residence at any time between 6 a.m. and 12 a.m. midnight of any day for the purpose of ensuring your compliance with the house arrest conditions of this order. Failure to present yourself at the door to the supervisor or designate within 5 minutes will be a breach of this condition;
To not have any contact with Scott Jackson, Achilles Dimascio, Kenneth Crighton or any members of their immediate families, except through counsel for the purpose of making restitution.
[87] Mr. Garrick shall also be on probation for a period of three years following the completion of his conditional sentence on the same terms as paragraphs 1, 2, 3, 4, 5, 8, 9 and 11 above.
[88] I agree with Defence counsel submissions that a restitution order should be made. There will also be a restitution order in the amount of $9,000 in favour of Mr. Scott Jackson, $100,000 in favour of Mr. Achilles Dimascio and $30,000 in favour of Mr. Kenneth Crighton, pursuant to section 738 of the Criminal Code. I ask that the Crown ensure that notice of this restitution order is given to both complainants as required by the Criminal Code.
Final Decision
[89] Mr. Garrick is sentenced as follows:
I. to a conditional sentence of 13 months (after having been given credit for pre-sentence custody and bail), to be served in the community on the following conditions:
Keep the peace and be of good behaviour;
Appear before the Court when required to do so by the Court;
Report within 2 working days of today, in person, to a supervisor and, thereafter, report to the supervisor when required by the supervisor and in the manner directed by the supervisor. You shall provide the supervisor with the address to your current residence;
Remain within the Province of Ontario unless written permission to leave the Province is obtained from your supervisor, or approval is given by the Court;
Notify your supervisor in advance of any change of name or address and promptly notify the supervisor of any change of employment or occupation;
For the first 6 months of this order, you shall be confined to your residence under house arrest for 24 hours per day, 7 days per week. The only times you may be absent from your residence are as follows:
a) being at work;
b) attending scheduled medical appointments or dealing with a medical emergency;
c) court attendances, meeting with counsel on outstanding legal proceedings, and reporting to your supervisor;
d) attending for counselling or treatment directed by the Court or by the supervisor;
e) attending to shopping for essentials and banking on Sundays between 11 a.m.7:30 p.m.;
f) travel directly to or from any of these activities; and
g) at any other time with the prior written permission of the supervisor.
For the balance of the conditional sentence, you shall be confined to your residence between the hours of 11 pm and 7 am;
You shall abstain from owning, possession or carrying a weapon;
To make reasonable efforts to find and maintain suitable full time employment;
Allow law enforcement officials, including the supervisor or designate, to knock at the door of your residence at any time between 6 a.m. and 12 a.m. midnight of any day for the purpose of ensuring your compliance with the house arrest conditions of this order. Failure to present yourself at the door to the supervisor or designate within 5 minutes will be a breach of this condition;
To not have any contact with Scott Jackson, Achilles Dimascio, Kenneth Crighton or any members of their immediate families, except through counsel for the purpose of making restitution.
II. after completion of the conditional sentence of 15 months, a period of probation for three years on the terms set out in paragraphs 1, 2, 3, 4, 5, 8, 9 and 11 above; and
III. a restitution order in the amount of $9,000 in favour of Mr. Scott Jackson, $100,000 in favour of Mr. Achilles Dimascio and $30,000 in favour of Mr. Kenneth Crighton, pursuant to section 738 of the Criminal Code.
L. Ricchetti J.
Released: April 26, 2012
COURT FILE NO.: 94/09
DATE: 2012-04-26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
Walter Garrick
Defendant
REASONS FOR SENTENCE
L. Ricchetti J.
Released: April 26, 2012