MONDAY, MARCH 14, 2016
CLERK REGISTRAR: The Matter of Her Majesty the Queen against Shawn Harold McManus. Mr. McManus can be brought in.
THE COURT: Yes, good morning Mr. Rooke.
MR. ROOKE: Good morning sir.
REPORTER’S NOTE: Unrelated matter spoken of.
THE COURT: And thank you, I have received the ancillary order sheet.
MS. BERTHOLET: You’re welcome, Your Honour.
THE COURT: You’ve both reviewed this?
MR. ROOKE: That’s fine, thank you. Here comes Mr. McManus, sir.
THE COURT: Okay.
CLERK REGISTRAR: Is this Shawn McManus before the court?
MR. ROOKE: It is.
CLERK REGISTRAR: Thank you.
THE COURT: Good morning Mr. McManus.
MR. MCMANUS: Good morning.
THE COURT: And good morning everyone else who is here for this matter.
R E A S O N S F O R S E N T E N C E
Carey J. (Orally):
Mr. McManus, I am sentencing you and you may have a seat. As you know, you pled guilty to three of the four counts on an indictment that was sworn in February of 2014 and as you know the three counts relate to the 7th and 8th of September and the first count is a sexual assault on A.B., the second count is an assault simpliciter on A.B. and the final count is an unlawful confinement. The facts relating to the third count which I take it will be marked withdrawn at the request of the Crown at the end of this proceeding, Ms. Bertholet?
MS. BERTHOLET: The break and enter?
THE COURT: No, the, yes, the break and enter.
MS. BERTHOLET: Yes, thank you.
THE COURT: Yes, I am entitled to rely on the facts of that, the facts underlining that event. The...
MS. BERTHOLET: There’s also count five, Your Honour, the threatening charge and the facts were read in on that charge as well, but it will be withdrawn as well.
THE COURT: Yes, thank you and as well as the Crown points out, the threatening to cause death, I am entitled to rely on those facts.
The facts here are very serious. The position of the Crown is that you should be imprisoned for a range of sentence starting at seven years in a penitentiary, seven to eight. Your position is that you complete your sentence in the current Windsor-Essex, or Southwest Detention Centre, SWDC, and for a number of reasons I am going to review in this sentencing I have been persuaded by your behaviour and all of the information in the pre-sentence report that the overriding principle here should be protection of the public, including A.B., and in considering that I must consider rehabilitation both as a separate consideration and as a goal in and of itself, but as a tool which ultimately results in the protection of the public.
The Crown and the defence both point to the principles in section 718 of the Criminal Code which guide any sentencing court in matters of sentencing. They are principles that have to be considered in every sentencing case. There are other principles that are set out in both the Criminal Code and in sentencing cases that have been set out by various courts from the Ontario Court of Appeal up to the Supreme Court of Canada.
There are principles that are applicable here such as the ‘gap principle’. I look at your criminal record and there are gaps in your criminal record. There is the ‘jump principle’ that typically suggests that there, when looking at sentences for ‘like conduct’ there should be a jump up from previous sentences. You have not ever served more than 90 days in prison.
The Crown has urged me to find the principles set out in section 348.1 of the Criminal Code are applicable here and it is useful to those in the court who have not been sitting with a Criminal Code in front of them to read that section. Section 348.1 is headlined ‘Aggravating Circumstance-Home Invasion’. To summarize it says if a person is convicted under a number of sections in relation to a dwelling house, the court imposing the sentence on the person shall consider as an aggravating circumstance or factor the fact that the dwelling house was occupied at the time of the commission of the offence and that the person in committing the offence knew or was reckless as to whether there was someone in the house and used violence to a person in the house. It applies to the break and enter offence which was read in here and in my view the circumstances are such that the 348.1 applies. I agree that it fits under the definition of a home invasion in section 348.1.
The Crown has provided a number of cases, specifically at tab 7 through 10 of the brief and asked me to consider those cases -
R. v. Wright, (2006) 2006 40975 (ON CA), 83 O.R. (3d) 427( C.A.),
R. v. J.S., 2006 22101 (ON CA), [2006] O.J. No. 2654 (C.A.),
R. v. Soares, [1996] O.J. No. 5488 (Gen. Div.),
R. v. Hill, [2013] O.J. No. 1409 (O.C.J.).
And it’s also provided at tab five, a case from the Manitoba Court of Appeal, R. v. L.L.G., 2012 MBCA 106, [2012] M.J. No. 359 (C.A.), para 40, Without getting into the facts of that case in too much detail it did involve a sexual assault by a young person, which you are not, you are an adult; a stranger, or at least someone who had not been her partner. The victim’s boyfriend was an acquaintance of the accused; and there was a sexual assault in front of children and it was a serious situation. The trial judge found it was serious enough to, and the facts were such that, it fell under the 348.1 definition. The Manitoba Court of Appeal found the judge made an error, and
‘Without in any way attempting to belittle the seriousness of the incident...the judge erred when he found the circumstances of the offence to be analogous to a home invasion robbery.’
I agree with the Manitoba Court of Appeal.
The cases relied upon by the Crown in this case at tab 7 to 10 (Crown Book of Authorities) are all what I would term as ‘home invasion-robbery’ cases. In the circumstances I do not find their reasoning persuasive for the facts here. But that is not to in any way, echoing the words in L.L.G., belittle or downplay the aggravating features here.
I am just going to quickly highlight the aggravating features of the event. I believe A.B. is in the court, and good morning. I begin by saying that as an overview this must have been an extremely frightening, horrific incident for A.B. You and her had been in a relationship that had ended about a month before and some unwanted communication began that she did not respond to, communication by text that eventually she stopped responding to. She barricaded herself in her house. She turned off the television. She contacted her cell phone provider and changed her cell number, which, with that comfort, at about, by about 6:00 in the afternoon on Saturday the 13th she was asleep on her couch and in horror woke up to find herself being watched by, by you, sir. You could only have gotten in by scaling up to her second floor balcony and coming in through the unlocked patio door. That second floor should have provided her with some protection, some sense of security and that was breached. You never had a key and you didn’t ever reside there.
If that was not horrific enough she was met with threatening language from you where you said, ‘Bitch, you changed your number, prepare to meet your maker.’ You then started to choke her until she blacked out and pulled her by the hair to the bedroom indicating, saying to her, ‘You’re not dead yet.’ She was punched, she was kicked, she was forced to take her clothes off, forced to have full intercourse despite her pleas and despite her telling you that she was on her period that eventually resulted in heavy bleeding from her. You made her perform oral sex while it was videotaped with your cell phone. You told her that she wouldn’t be the first bitch that he killed. She was frightened, huddling on the floor begging you to leave. She was choked again and again threatened that she was going to die. For the second time she blacked out. So she was choked twice by you to the stage of blacking out, losing consciousness. You disabled her cell phone, treated her like a prisoner. You dragged her to the bathroom when you had to go, you dragged her by her hair.
She was able to finally bring an end to this nightmare by telling you that her mother would be suspicious if she didn’t go to her mother’s building. She convinced you that she would not contact the police. She had tried earlier to escape by asking to go to Macs Milk to get some cigarettes, but you took her there, so that did not work.
Despite the horrific behaviour that she had been subjected to she did not contact the police when she got to her mother’s. She had hoped you would leave on your own accord. You did not. Eventually her sister got involved and spoke to you and the police were called and over 24 hours after you had surreptitiously entered the apartment, you were still there and to your credit you surrendered without incident.
The facts that I have read out include a myriad of aggravating features. A sexual assault can be anything from an unwanted touch to sexual intercourse. This was full sexual intercourse that was forced through threats and assault.
The assaults and sexual assault were demeaning and humiliating and A.B. was left with a number of what appeared, (given the nature of the charge being an assault simpliciter) transient injuries in that they were not long-lasting. But they were numerous and serious enough they clearly would have brought pain and hurt to A.B. There was bruising on her arms, her jaw, her face, her lip and scratches. (But none were observed by the police on her neck.) As well, elbow abrasions and knee cap abrasions from being dragged across the rug, bruising on the inside left and right knees, scratches all over her arm and a possible ankle sprain.
It is the Crown’s submission that this is an extremely serious offence and requires a sentence in its totality, including taking into the fact the time that you have spent in custody; in the penitentiary range. There is an agreement that the time you have spent in custody to date is already, if it had not been served pre-trial, in the penitentiary range. You have served three and a half years (with pre-trial credit).
The pre-sentence report, is always a helpful tool and in this particular case a somewhat remarkable pre-sentence report. This, given your record, given the brutality of this attack and given the fact that pre-custody jail time is usually not useful for most prisoners - I have had cases involving people whose behaviour reported to the court included multiple fights, infractions of the rules and dealing drugs in jail. This report labels you, Mr. McManus, as a ‘model prisoner’. It says that you have, and I have been provided with the certificates, completed numerous courses. I did not count every page, but Mr. Rooke tells me that there are 45 different successful completion certificates here. As indicated in the report there are anger management sessions; there are managing stress sessions; substance use education; problem solving; understanding your feelings; changing your habits.
Certainly on the basis of your history and the diagnosis and the behaviour as outlined in the report, you could use all of those courses. The fact is, you took advantage of the opportunities. In addition your behaviour was found by the Southwest Detention Centre to be commendable and a model to other prisoners. Your criminal record and your recidivist record would not have predicted that you would be so successful in custody. You did not have a track record in any long-term custody. It is clear that you were supported and helped by your family here in Windsor who have come to court and clearly while at times in your life they have bemoaned your behaviour, they have continued to love you and support you. That is an important factor in considering your prospects of rehabilitation. Those prospects of rehabilitation ultimately are the predictor to the extent that anyone can predict future behaviour, of your behaviour. Your future good behaviour is the best assurance for A. B. and for this community that you will not continue to break the law.
You see, the general belief is that past behaviour is the best predictor of future behaviour. We hear that constantly in the courts and with a record that goes back about 15 years, as yours does, it is not surprising that that is the Crown’s position here, as well as really emphasizing denunciation and protection of the public.
We have principles of denunciation and deterrence. There is a belief that is long held, that like-minded people hearing about the sentence for this type of offence will be deterred from committing the offence. There is certainly some support that strict, severe jail sentences deter some cool-minded, sober individuals who plan to rob banks or to commit violence. Most criminals do not really ever think they are going to get caught. The general deterrence principle, while it is a principle in courts, is not particularly based on empirical evidence; nor is specific deterrence. But those are principles that have to be taken into the balance along with other principles set out in section 718.
What is significant here about your past and is not contested is that you have been diagnosed with a bipolar disorder. Unfortunately, and this is not uncommon, with people suffering from mental illness - schizophrenia, depression, bipolar - many of the patients who are prescribed medication to keep these disorders in check, find the cure worse than the disease. They don’t like the way the medication makes them feel, they feel they can handle the disease on their own and they choose to self-medicate with drugs other than those that have been prescribed for them, and alcohol.
The pre-sentence report indicates that you would drink, at the peak of your alcohol abuse, a twenty-sixer of rum and 15 beers in a day and that you started binge drinking on the weekends. If you had enough money you’d be drunk every day. It’s a tale of self-destruction which is, unfortunately, common in our courts.
The position that I mentioned earlier of you and your able counsel, Mr. Rooke, is that if I sentence you to a sentence that is roughly equivalent to five to five and a half years, the remainder of your sentence will be less than two years. As a result you will be able to continue your sentence in the Southwest Detention Centre. Mr. Rooke points out that you would likely spend more time of any sentence in custody in the sense that you would not likely be released after, until at least two-thirds of your sentence is complete. If you are sentenced to a sentence not exceeding two-years less a day I can impose a probation order on you. It is true that there is available a similar post-release regime in a federal sentence and that is called parole and it is true that consideration is given for parole at an earlier time, as early as one-third, but that is one of the reasons that you have been given credit at 1.5 days for every day that you have served, because you were not able to take advantage of early parole or probation. The courts have said that parole and probation prospects really are not something that trial courts and sentencing courts should be taking into account in any real way. Suffice it to say I do take into account your behaviour at the Southwest Detention Centre and I take into account that there is a new regime in Southwest Ontario in this region with the Southwest Detention Centre. I have had the opportunity as I have indicated during the sentencing hearing to see the new jail, the new facilities. It is in stark contrast to the antiquated Windsor Jail that has thankfully been closed. If it has any future, in the form that it is in, perhaps it will be a museum to the now abandoned practices of locking up prisoners and providing them with only the basics in order for them to reform, be isolated from society and think about their sins. There was no programming available at the Windsor Jail.
Ontario, over the last decade or so, has brought in new facilities and a new philosophy of detention for both pre-trial and after sentencing. It really is a progressive type of approach that attempts to give ownership of the treatment to the prisoner by rewarding prisoners for good behaviour, giving them a chance to take programming, involving them in some aspects of the prison like cleaning up and maybe being involved in the kitchen. I am not an expert about the principles that are being applied there, but I understand that they have been applied in other places in North America and have resulted in lower acts of violence in places where it has been brought in and more safety for the prisoners and for those who work there, an atmosphere more conducive to actual rehabilitation.
In the same period of time, for various reasons, the federal system has seen a reduction in funding, a rather stark change from a period of time 20-25 years ago. Then there were opportunities for university courses to be taken, for all sorts of courses. Then a view that was perhaps promoted by some public opinion that prisoners were getting a better situation than the average person who had not violated the law, resulted in a lot of those programmes being cut back or ended completely. I have not been convinced that the current state of the Canadian penitentiary system is all that safe for the people who work there or the people who are incarcerated there. There are many, many voices that have sounded the alarm about the state of our federal penitentiary systems and the philosophies that have brought us to where we are there. It may be that some reforms are around the corner given some of what has been said by the new Justice Minister. In any event, the contrast between the two paths that you can be sent down in my view is a fairly stark one currently.
The other difficulty with sending you to a penitentiary is that you would be relocated from your current community and the supports that you have here. You would, after being in custody since September, 2013 in the Southwest Detention Centre, clearly earning the respect of, and the commendation of, the people at that detention centre, be sent initially for a assessment and then classified and sent somewhere in the federal penitentiary system. There is really no guarantee that you would even be in Ontario. While that would not be a great prospect from your point of view, that is not my biggest concern. My biggest concern is how it would affect your rehabilitation and subsequently the safety of the community in the future.
A.B. is here - we have not heard from her. I can only imagine that she remains concerned about your future behaviour. I do not have a victim impact statement and she was not interviewed by the probation office, but her presence tells me she is concerned. She and the rest of the community deserve to be protected from your future behaviour and given some sense that you will not repeat the behaviour that led to this.
Were it not for the diagnosis, (that has not been disputed) that you have a bipolar disorder, this would be a different situation. I also note that although you have a fairly bad track record with your treatment; you have gaps in your criminal record. You did attend for a residential treatment programme at Brentwood and you maintained sobriety for a while before the relapse that led to this event. You apparently relapsed after graduating from the programme in June, 2013. You relapsed and ended up in custody in September of 2013 after this terrifying 24 hours for A.B.
The pre-sentence report really paints a picture, Mr. McManus, of somebody who is not ‘evil’ by any sense of the definition who has the capability and has been seen as, described as, certainly self-described as ‘shy’. You have had friends, you have had a significant relationship with A.B. and you have been described as having a positive personality when not abusing. Your parents say you’re unselfish. But because of your decision to self-treat your bipolar disorder with alcohol you have created in yourself what we might describe as a Jekyll and Hyde personality. Somebody who is, when well and sober a nice person, a good person, somebody people want to be friends with, a good employee. But when the disorder is raging and goes untreated and is exacerbated by alcohol, you are clearly someone who acts like a monster.
This offence occurred, (and this is also an aggravating feature) while you were under community supervision for another earlier domestic violence offence. Apparently there was a warrant out at the time for failure to comply. And there is a concern indicated from the probation office that you have little insight into why you have maintained this pattern of what they call ‘inflicting violence upon romantic partners’. It is true, you have multiple domestic violence offences.
But you are indicating now a willingness to seek psychiatric treatment, notwithstanding that your history of treatment has been described as sporadic. Not only do you have a supportive family, but you have employable skills and you have been employed from time to time. That is always a positive indicator of rehabilitation prospects. People who are working steady, taking responsibility for their own life, paying their bills - they are usually in a position to have a better chance of success. Unemployment and mental illness can be a recurring cycle that is hard to break.
I am going to give you the benefit of the doubt that you have had time in custody to think about the effect of your illness and your substance abuse on other people. People who should be getting love from you - partners, your family - and that if you are given an opportunity to continue with rehabilitative programming as part of a probation order and continue to learn from the type of courses you have been taking in custody, (including courses and programming that target your substance abuse, your partner abuse patterns, your sexual offence, your anger management and your thinking like a criminal) you may have a good chance of breaking that cycle.
Many, perhaps some in court today, would be skeptical that at your age, (you are not a kid, you are not a young offender, you are 41) that it may be just really too late. But it seems to me that if we do not hold out hope and that people can change their patterns with the right support and encouragement as long as they have the needed resolution; if we give up thinking that that is possible, then really we have given up a certain amount of faith in the human spirit. Then there really is not much point in providing these programmes and moving into the Southwest Detention Centre, away from the ‘lock the door and throw away the key’ approach that has been favoured in the past. Certainly in the last decade or so we have seen a higher emphasis on punitive sentencing, rather than rehabilitative sentencing. But I am not prepared to say that there is no hope for you and for your rehabilitation and for the safety of those around you as a result of your rehabilitation.
So as a result, there will be a further sentence in addition to your time in custody, which will be credited at three and a half years. There will be a further sentence of this court of two years less one day, to give a cumulative sentence of five and a half years. While it is a lenient sentence, I believe it is in the low range of sentencing for this type of serious, frightening behaviour, but not outside of the range. Sentencing is an individual process. Ranges are helpful, but each sentencing that a court does must reflect the individual circumstances of the offender, of the victim, of the community. This community, in my view, has the resources to help you on the road to rehabilitation. You have made some linkages while in custody. For a period of custody which is unusual in this type of case - two and a half years. I cannot be blind to the fact that you have made these linkages.
Now, it is true the other side of the coin is that this was not an early guilty plea, but I accept as plausible Mr. Rooke’s submissions that you simply could not get your mind around making a decision given your mental illness, as well as, no doubt, where your judgment has been addled by alcohol abuse.
You were given an opportunity to speak to me before your sentencing, as every accused person has. Your lawyer indicated that you were very shy about speaking in court and your statement was read. I have it in front of me and you indicate you find it difficult to speak in front of groups of people. (Apparently 40 percent of the people would rather appear naked than speak in public, they are that terrified.) Clearly your lawyer and the Crown and myself have had to get over any shyness we have about speaking and we speak for a living. But I do accept how difficult it is and I am close to people who are very successful in life, but get very, very upset about speaking in public.
You have written this statement in your own handwriting. It is articulate. It reflects a current insight. You reflect on the toll that your behaviour has taken on loved ones, your family and finally yourself. You thought you had it under control; possibly you were self-deluding. But I appreciate that you understand that your illness will never go away and you are taking steps that you need to take to, as you say, cope with the ‘temptation of this illness’. I accept that you have taken every available programme at the Southwest Detention Centre and re-taken them. You articulate that you know it is going to be a life-long process. I accept that. You indicate legitimate concern for A.B. (who you refer to as your ‘ex-wife’). You indicate she did not deserve any of this. That is an understatement. You have indicated how sorry you are that you hurt her. That there is not a bigger regret in your life. You have told me that there has not been a day where you did not wish that this had never happened. You say that your addiction did not let you see just how wonderful and amazing A.B. was and for that blindness you say you will always be sorry. You say you wish you could somehow make things better, ‘but I can’t.’
Well, you can make things better and make her feel more secure, if it is possible, by not just ‘talking the talk’, but ‘walking the walk’. It is a cliché, but you are going to have an opportunity to ‘walk the walk’ and show the world, this community, A.B. and your parents that you just did not do these programmes to get a lower sentence. That you did not just say what you said to the judge because you knew that is what he wanted to hear - that you are sincerely sorry. That you are not a sociopathic personality who does not feel remorse. That you are not someone who hurts people for the joy of it: you are somebody who has allowed his life to get out of control by failing to follow medical advice and by stupidly self-medicating.
You will not have an opportunity to fail without repercussions once you are released from custody, because you are going to be on a three year probation order following your release. The probation office has set out terms for your probation that your lawyer has told me that you agree with.
Madam Crown, are you content that we go through the probation order terms first and we’ll deal with the ancillary orders at the completion?
MS. BERTHOLET: Yes, Your Honour.
THE COURT: All right. So once you have completed your sentence you will report to a probation officer, within 48 hours of release.
You are to have no association or communication directly or indirectly with A.B. If she wants communication for any reason with you there will have to be an attendance to change the probation order. Your lawyer would be able to give you assistance with that.
You are not to attend within 100 metres of any residence, workplace or place of employment of A.B.
You will attend for assessment and if suitable attend the Partner Assault Response Programme, PAR, or any similar programme approved of by your probation officer as directed and thereafter attend as directed by the PAR service provider and actively participate in, pay all applicable fees, complete and sign any consent forms or questionnaires as required by the PAR service provider or by a probation officer and complete one full cycle of the programme to the satisfaction of the PAR service provider. Provide proof of completion of the PAR programme to your probation officer upon request.
As well, you will attend for an assessment and if found suitable attend for counselling with the Windsor Addiction Assessment and Outpatient Service at Windsor Regional Hospital and provide proof of your attendance to your probation officer upon request.
Further, you will attend for any assessment and counselling as recommended by your probation officer for sexual offending.
Further, you will attend for any other assessment and counselling as recommended by your probation officer.
You are to abstain from the possession, consumption or purchase of alcohol. Your lawyer has told me that you can do that. You are requesting that order. I am not in the habit of setting up people for failure. You have been sober, I am told, in custody and perhaps that period of time has been lengthy enough at two and a half years to have rid your system of any addiction to alcohol or at least reliance, but you have to make this a daily struggle.
You are to abstain from the purchase, possession and consumption of all non-medically prescribed drugs.
You will have to reside at an address approved in writing by your probation officer and not change that address without prior written approval of your probation officer.
And of course you are to abstain from owning, possessing or carrying any weapon as defined by the Criminal Code of Canada for the duration of your probation. Of course, you will have an order that I will make momentarily, prohibiting you from having a weapon for 10 years.
Are there any other probation terms that either counsel is seeking?
MS. BERTHOLET: Not that I can think of at the moment, Your Honour, thank you.
MR. ROOKE: No, Your Honour, no.
THE COURT: Now, in addition to the jail term and the probationary term there are some ancillary orders that I am required to make; that your convictions make mandatory.
Pursuant to section 109 of the Criminal Code there will be a 10 year prohibition from owning and possessing any weapons or ammunition.
As these offences of sexual assault and forcible confinement are primary compulsory section for the purpose of the DNA order, you will be required to provide a DNA sample and there will be an order that I will sign setting that out for you.
Because of this sexual assault on A.B. you are now branded as a sexual offender and you will be on the Sexual Offender Registry, SOIRA, for 20 years. That will have an impact on jobs, volunteering and, in some cases, where you can go.
Finally, there will be a forfeiture order of the cell phone and I will sign that. I believe there is a draft order. This is in relation to the cell phone that you forfeit as a result of you using it in perpetrating a sexual assault on A.B. by further humiliating her, by forcing her to, commit fellatio - and you filmed it - degrading and humiliating.
Those are all of the orders and the sentencing is complete.
MS. BERTHOLET: Your Honour, just, sorry, before you complete the sentencing...
THE COURT: Sorry.
MS. BERTHOLET: ...I wonder if you would consider also an order under section 743.21 for non-communication while in custody.
THE COURT: Okay.
MS. BERTHOLET: And also, if you could address the DNA on the assault count where the DNA is discretionary.
THE COURT: Okay. You’re asking for an order under, on the assault?
MS. BERTHOLET: For the DNA?
THE COURT: Yes.
MS. BERTHOLET: Yes, Your Honour.
THE COURT: All right and he’s not given his DNA previously?
MS. BERTHOLET: Well, he’s, you’ve ordered it because it’s mandatory on the sexual assault and forcible confinement. So I doubt they will take three samples.
THE COURT: All right. I will order DNA on the assault charge. It was a serious assault and the seriousness of the offence given all of the circumstances, given that also giving DNA on other grounds, any privacy issues that you may have are outweighed by the seriousness of the offence.
MR. ROOKE: And sir, prior to you concluding sentence, I would ask that you make the recommendation in as strong as language as you are comfortable that the remainder be served at Southwest Detention. I know bureaucratically and I contacted the clerk of records there, that can assist them in having an inmate remain within their walls if they are directed otherwise.
THE COURT: I do make the recommendation and it is reflected in my reasons which I believe will be sent to the Ministry: that you continue at the Southwest Detention Centre because of the progress that you have made there, because of the programming that they are offering, because of the positive atmosphere that is being offered there now. Certainly it is in contrast to the old Windsor Jail and as I have said, it is my belief, in contrast to my understanding of what the current state of the federal penitentiary system is. And because of all of the other reasons that I have given in my sentence.
There will be an order, and it may be a continuation of an order, pursuant to section 743, is it .1?
MS. BERTHOLET: Point two one, Your Honour.
THE COURT: Point two one, that while incarcerated you have no communication with A.B. Are you asking for any conditions except with her prior written permission? Are you...
MS. BERTHOLET: No, she has no interest in having communication with him.
THE COURT: Okay, so there will be no conditions specified. You must have absolutely no contact directly or indirectly.
MS. BERTHOLET: Thank you, Your Honour.
THE COURT: Whenever we say ‘directly or indirectly’ I hope you understand sir, you can’t send a message through somebody, you cannot say to somebody who is getting out ahead of you, ‘Oh, if you run into A.B., say hi for me.’ That is indirect communication, it would put you in breach. All right? So I wish you good luck and I wish your parents good luck in supporting you and I wish A.B. the best of luck in recovering from this offence and in getting on with her life and certainly being safe from you. Thank you.
MS. BERTHOLET: Your Honour, Madam Clerk is asking about counts three and five and we discussed earlier that those are to be marked withdrawn please.
THE COURT: Those will be...
MS. BERTHOLET: Thank you.
THE COURT: ...marked as withdrawn...
MR. ROOKE: Thank you.
THE COURT: ...at the request of the Crown.
REPORTER’S NOTE: Discussion between the court and clerk.
THE COURT: I’ve just asked the clerk, I didn’t, it didn’t break down the sentencing. So it’s the, is the Crown asking for a specific breakdown or are you content that the further sentence be two years less a day on count one and then concurrent on count two and count four?
MS. BERTHOLET: Yes, I think that’s fine, Your Honour.
MR. ROOKE: No issue.
FORM 2
Evidence Act
subsection 5(2)
Certificate of Transcript
I, Lora Thompson, certify that this document is a true and accurate transcript of the recording of HMQ. v. Shawn McManus, in the Superior Court of Justice held at 245 Windsor Avenue, Windsor, Ontario, taken from Recording No. 0899-245-CRTRM5-20160314-084555-10-CAREYT which has been certified in Form 1.
“original signed”
March 16, 2016 ________________________
Lora Thompson
*This certification does not apply to the Reasons for Sentence which was judicially edited.
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
SHAWN MCMANUS
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE T. CAREY
on March 14, 2016, at Windsor, Ontario
ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT
OR A WITNESS SHALL NOT BE PUBLISHED IN ANY DOCUMENT
OR BROADCAST OR TRANSMITTED IN ANY WAY PURSUANT TO
SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
APPEARANCES:
K. Bertholet Counsel for the Crown
N. Rooke Counsel for the Accused
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
W I T N E S S E S
Examination Cr. Re.
WITNESSES In-Chief Exam. Exam.
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
L E G E N D
[sic] - Indicates preceding word has been reproduced verbatim
and is not a transcription error.
(ph) - Indicates preceding word has been spelled phonetically.
Transcript Ordered: March 14, 2016
Transcript Completed: March 16, 2016
Ordering Party Notified: ---------------