Court File No. 17-157
2017 ONSC 6339
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
KELLY POWELL
P R O C E E D I N G S
BEFORE THE HONOURABLE JUSTICE M. FUERST
on September 8, 2017 at Barrie, Ontario
APPEARANCES:
I. Kandola Counsel for the Crown
S. O’Neill Counsel for Kelly Powell
SUPERIOR ONTARIO COURT OF JUSTICE
TABLE OF CONTENTS
Exam.
Cr.-
Re-
WITNESSES:
In-Ch.
exam.
exam.
EXHIBITS
EXHIBIT NUMBER ENTERED ON PAGE
1
Criminal record of Kelly Powell
9
REASONS FOR SENTENCE Page 14
Transcript Ordered: . . . . . . . . . . . . September 20, 2017
Transcript Completed: . . . . . . . . . . . .October 23, 2017
Notified Ordering Party:. . . . . . . . . . .October 23, 2017
FRIDAY, SEPTEMBER 8, 2017
Plea and Arraignment
MR. O’NEILL: Mr. Powell is before the court, Your Honour.
THE COURT: All right.
...COURT ADDRESSES ANOTHER MATTER
THE COURT: All right. So the Powell matter. Mr. O’Neill appears for Mr. Powell, Mr. Kandola for the Crown. You have met with me in chambers and explained to me that this is going to be a plea with a joint submission as to sentence.
MR. O’NEILL: Yes.
MR. KANDOLA: That’s right, Your Honour.
THE COURT: All right. So, Mr. Powell, would you stand up please, sir? I appreciate that you have had a chance to discuss with your lawyer, Mr. O’Neill, the consequences of pleading guilty today but the Criminal Code requires me to ask you some questions personally. Please tell me if you do not understand the questions.
KELLY POWELL: Okay.
THE COURT: Do you understand that you have a right to plead not guilty and to have a trial?
KELLY POWELL: Yes.
THE COURT: Do you understand that by pleading guilty, you are giving up your right to a trial?
KELLY POWELL: Yes.
THE COURT: Are you pleading guilty of your own free will, without pressure from anyone else and with the benefit of legal advice from your lawyer, Mr. O’Neill?
KELLY POWELL: Yes.
THE COURT: Do you understand that you will be entering a guilty plea to a charge that on or about July 29, 2016 in this region you committed mischief by willfully damaging without legal justification or excuse an automated teller machine, the value of which was over $5,000?
KELLY POWELL: Yes, I believe I was a party to the offence or something.
THE COURT: All right. But you understand that that’s the offence you’ll be pleading guilty to as a party?
KELLY POWELL: Yes.
THE COURT: Do you understand that by entering this guilty plea, you are admitting guilt to that offence and you are admitting that the Crown can prove it beyond a reasonable doubt?
KELLY POWELL: Yes.
THE COURT: Do you understand that I have held a judicial pretrial conference or meeting with your lawyer, Mr. O’Neill, and with the prosecutor, Mr. Kandola, at which time your proposed guilty plea was discussed with me, as well as what the lawyers would say to me about the sentence I should give you?
KELLY POWELL: Yes.
THE COURT: And are you content that I am the judge who takes your guilty plea and who sentences you?
KELLY POWELL: Yes.
THE COURT: And then, finally, do you understand I will listen to what your lawyer says to me about the sentence I should give you and to what the prosecutor says to me about that and to anything you want to say to me about that personally, but I must still sentence you as I see fit?
KELLY POWELL: Yes.
THE COURT: Are you content, Mr. O’Neill, that we go head?
MR. O’NEILL: I am.
THE COURT: Mr. Kandola?
MR. KANDOLA: Yes, Your Honour. I should just identify an error on the indictment. It should specify the North Region as the offence occurred in the District of Parry Sound.
THE COURT: So there needs to be an amendment?
MR. KANDOLA: Yes.
THE COURT: So the Township of Henvey in the – what’s the...
MR. KANDOLA: District of Parry Sound.
THE COURT: District of Parry Sound. Is that agreeable that we amend that, Mr. O’Neill?
MR. O’NEILL: I’m sorry, Your Honour?
THE COURT: Is it agreeable that we amend count 7 as it appears in the indictment to read “at the Township of Henvey, in the District of Parry Sound”?
MR. O’NEILL: Yes.
THE COURT: And as a Superior Court judge, we all acknowledge then that I have jurisdiction over a matter that occurred in another part of the province?
MR. O’NEILL: Yes.
MR. KANDOLA: That’s right.
THE COURT: All right. So then I’m not sure if we need a re-election. I’ll let you sort that out, Madam Registrar, but it will be a plea to count 3. Go ahead, I just wasn’t sure if we needed the re-election.
COURT REGISTRAR: Yes, I believe it does. I understand – just a second.
MR. O’NEILL: I apologize. I can waive reading of the re-election. Mr. Powell elects to be tried today before this Honourable Court.
COURT REGISTRAR: Thank you. And is this on consent of the Crown?
MR. KANDOLA: Yes.
COURT REGISTRAR: Thank you.
THE COURT: That’s correct, Mr. Powell?
KELLY POWELL: Yes.
THE COURT: Thank you.
COURT REGISTRAR: Thank you. Is this Mr. Kelly Powell...
MR. O’NEILL: It is.
COURT REGISTRAR: ...standing next to you, Mr. O’Neill? Mr. Kelly Powell, you stand indicted by the following count: You stand charged that on or about the 29th day of July, in the year 2016, at the Township of Henvey, in the District of Parry Sound, he did commit mischief by willfully damaging without legal justification or excuse property, to wit, an automated teller machine, the value of which exceeded $5,000, contrary to the Criminal Code of Canada. How do you plead to this count?
KELLY POWELL: Guilty.
COURT REGISTRAR: Harken to your plea as the court recorded it, you pled guilty to count 3 of this indictment. You may be seated.
THE COURT: Mr. Kandola?
Circumstances of the Offence
MR. KANDOLA: The facts are as follows, Your Honour. On July 29, 2016, several full patch members of the Outlaw Motorcycle Club, and numerous associates and hangers-on were making their way to the Outlaw national run, an annual meeting held on the August last weekend each year at the Outlaw clubhouse located in Alliston. Most of the involved persons were travelling on motorcycles, others were travelling in two vehicles, a Ford Fusion and a van, both of which were rented in Saskatchewan that were accompanying the motorcycles. The members of the group included Mark Hannant, a full patch member and president of the Midlands Saskatchewan chapter; Adam Hannant, also a full patch member of the Midlands Saskatchewan chapter; Celeste Hannant, Mark Hannant’s wife and Adam Hannant’s mother; Matthew Bossenberry, who’s a probationary member of the Saskatchewan Outlaws motorcycle club; Riley Michalicz, who’s a hanger-on and associate but has no membership status and lives in Saskatchewan; and Mr. Powell, Kelly Powell, who is a full patch member of the Midlands Saskatchewan chapter. Ronald Baker, also a full patch member of the Midlands Saskatchewan chapter. Antonio Rinaldi, a full patch member of the Sudbury, Ontario chapter. George Murphy, a full patch member of the Sudbury, Ontario chapter; Thomas Nash, a full patch member of the Sudbury, Ontario chapter; Brianna Fournier, Thomas Nash’s girlfriend and Alecia Eiswerth, who was a friend of Mr. Powell and Mr. Michalicz.
At about 1:00 p.m. on that day, the group stopped at a gas bar in Parry Sound, specifically in Key River. Numerous of the group gassed up and entered in the convenience store that’s attached to the gas bar to pay for their fuel. Those who were full patch members or associate members of the Outlaws motorcycle club were all wearing their colours, which included vests with patches that are fully noticeable.
The store itself is equipped with a security camera within a corner of the store. While in the store, two of the group, Matthew Bossenberry and Riley Michalicz, broke into an automated teller machine, which was located across from the cash with some shelves in between.
As they broke into the automated teller machine, they caused damage to the machine making it ultimately inoperable and had to be replaced, the value of which exceeded $5,000.
Once they broke in, they stole a tray from within the machine which ultimately was known as a reject tray, which – in which rejected bills are emptied into it. So, ultimately, there was no money in that tray that was taken out of the store.
While, Mr. Bossenberry and Michalicz were involved in breaking into the ATM, the other members of the group, which included Mr. Powell, were in attendance at the store. Mr. Powell’s role specifically involved creating a distraction with the clerk by directly communicating with her and also being a visual distraction by blocking sight of what Mr. Michalicz and Mr. Bossenberry were doing.
After several minutes of the conduct of the group, including Mr. Powell, the clerk heard a loud bang coming from the ATM and caught sight of the ATM and went to check on what was going on, and at that point, the group left the gas bar and she noticed something was wrong with the ATM and called her husband who’s the manager of the store. Police were called shortly after and, ultimately, the group were arrested at different times in Simcoe region near Alliston. Those are all the facts, Your Honour.
THE COURT: Well, I want to be clear about this because the facts are a little oblique. Do the facts include that Mr. Powell knew of the activity of the others who were at the ATM machine and that he intentionally or purposefully assisted them by deliberately distracting the clerk?
MR. KANDOLA: Yes, it’s my understanding Mr. Powell was aware of what Mr. Bossenberry was doing and his actions assisted him in carrying out the damage and the theft of the ATM.
MR. O’NEILL: That’s correct, Your Honour. Mr. Powell acknowledges he did know what Mr. Bossenberry was doing. At least some of his conduct in the store was aimed at assisting Mr. Bossenberry in his endeavours.
THE COURT: All right. Mr. Powell, do you agree that that’s what happened, that that’s what you did?
KELLY POWELL: I agree that I knew what Mr. Bossenberry was doing.
THE COURT: Pardon me?
KELLY POWELL: I agree that I knew what Mr. Bossenberry was doing.
THE COURT: Yes. And do you agree that you deliberately distracted the clerk and blocked the clerk’s view in order to assist Mr. Bossenberry?
KELLY POWELL: Yeah, I guess so, yeah.
THE COURT: Well, no, there’s no I guess so...
KELLY POWELL: Yes.
THE COURT: ...Mr. O’Neill.
KELLY POWELL: Yes.
THE COURT: I’m not going to take a plea...
KELLY POWELL: Yes.
THE COURT: ...with someone who gives me a half-hearted “I guess so”.
KELLY POWELL: Yes. Yes, Your Honour.
THE COURT: Do you agree with that?
KELLY POWELL: Yes.
THE COURT: Mr. O’Neill?
MR. O’NEILL: That’s my understanding, Your Honour.
THE COURT: All right. Then based on the guilty plea and the facts that have been acknowledged as being correct, there is a finding of guilt and a conviction is recorded.
MR. O’NEILL: The record’s acknowledged, Your Honour.
MR. KANDOLA: I’ll provide it to Madam Clerk. The record’s incomplete, Your Honour. There ...
COURT REGISTRAR: Exhibit 1.
---EXHIBIT NUMBER 1: Criminal record of Kelly Powell - produced and marked.
MR. KANDOLA: ...there was an additional set of convictions for failing to comply with his recognizance in relation to these charges out of Saskatchewan and...
THE COURT: And when was that?
MR. KANDOLA: That was this summer, Your Honour, I believe in June or July.
THE COURT: Well, do you not know?
MR. KANDOLA: I don’t have the specific date, Your Honour.
THE COURT: Well, I expect when Crown counsel comes before me and tells me there’s something additional to a criminal record that Crown counsel can provide me with all of the specifics...
MR. KANDOLA: I understand.
THE COURT: ...not just I understand there’s a conviction from sometime within this timeframe and so on. Otherwise, I’m not going to have any regard to it.
MR. KANDOLA: That’s a fair comment, Your Honour. I understand.
THE COURT: I don’t know who wants to go first. I understand it’s a joint submission.
Submissions on Sentence
MR. KANDOLA: It is a joint submission, Your Honour. It’s my understanding that Mr. Powell has accumulated 108 days of pretrial custody. On a 1 1/2 to 1 basis, that comes to 162 days of pretrial custody. We’re asking that Your Honour note that time served and then suspend the passing of sentence and place him on probation for a period of 12 months and as part of probation, we’re asking that he report once to a probation officer and thereafter as directed by his probation officer, and that he notify his probation officer of any change in his address. Furthermore, that he notify Detective Dale Smith of the Ontario Provincial Police by email of any change in his address, and I should add, Your Honour, that we ask that he do that within 24 hours of any change in his address. Also, that he not communicate or associate, directly or indirectly, and remain at least 500 metres away from any known place of residence, employment or education of the following listed individuals, Your Honour, and I’ll provide spelling to Madam Clerk – Madam Registrar after the proceeding: Abdul Chaffar, Anjum Khand, Sean Locke, Ronald Baker, Matthew Bossenberry, Riley Michalicz, Antonio Rinaldi, Celeste Hannant, Mark Hannant, Adam Hannant, Matthew – sorry, Thomas Nash, George Murphy, Brianna Fournier. As well, we’d ask that he not possess any weapons as defined by the Criminal Code of Canada and that he not possess any Outlaw motorcycle club paraphernalia. And also, that he attend court as required by law.
Just so Your Honour is aware, some of those terms obviously aimed at the mischief that Mr. Powell was involved in with his associates wearing his – being a member of the Outlaws motorcycle club and committing criminal activity, but also there is a separate proceeding still underway involving all the other members that were involved in this enterprise and that it’s the Crown’s intention to have Mr. Powell be made available for court should their matters go to trial, specifically the matter of Mark Hannant. And there’s obviously a concern that we may face some difficulty having Mr. Powell’s attendance secured and so as part of probation we’re attempting to do our best to ensure that we meet our obligations to know where Mr. Powell is and have him readily available to be subpoenaed and communicate with him to attend court. So I’m stating that for the benefit of the court and for Mr. Powell. Those are the Crown’s submissions, Your Honour.
THE COURT: Any ancillary orders?
MR. KANDOLA: No, Your Honour.
THE COURT: Thank you. Mr. O’Neill.
MR. O’NEILL: Thank you, Your Honour. It is a joint submission. By way of brief background, Mr. Powell is now 30 years old, 29 at the time of the offence. He has a grade 12 education. He was born and raised in Regina. Out there he has an eight year-old son, of whom he has shared custody. He has the boy 50 percent of the time. He hasn’t been able to see him since early July, something Mr. Powell communicates to me has weighed heavily upon him while in custody. He is trained as a tattoo artist and he also while in Regina prior to going into custody was running a used car business. He rented a lot out there. He’s lost that business, obviously, as one might expect as a result of his time in custody, but in terms of his plans upon release, he intends to return home and restart that business. That’s how he intends to support himself and his family.
He has entered a plea of guilty. I would submit that that’s mitigating. It’s a plea following a preliminary hearing. The preliminary hearing involved a number of weapons charges on which, ultimately, Mr. Powell was discharged and so this is not – this is not a situation of malingering or delay but a situation in which that preliminary hearing had to be conducted before these matters could be resolved.
Subject to any questions, Your Honour, I’d simply invite the court to accede to the joint submission.
THE COURT: Anything in reply, Mr. Kandola?
MR. KANDOLA: No, thank you, Your Honour.
THE COURT: Mr. Powell, is there anything you want to say before I sentence you?
KELLY POWELL: I think everything’s been said.
THE COURT: Thank you. All right. You can have a seat for a moment.
KELLY POWELL: Actually, Your Honour, there is something I would like to say. I just want to say that like I just – I hope to turn my life around after release of this and, you know, I have been in custody since last year in November and I haven’t been able to see my son since and it’s – it’s really been a heartache on me and I want to do that for my son and for myself, turn my life around.
THE COURT: I hope you do.
KELLY POWELL: And I will, that’s for sure.
The little guy doesn’t deserve that, so...
THE COURT: No, he doesn’t and you’re not going to be much of a father to him if you spend your life and his sitting in jail.
KELLY POWELL: Yeah, that’s correct, and it’s not something I want to do.
R E A S O N S F O R S E N T E N C E
FUERST, J. (Orally)
Reasons for Sentence
Mr. Powell, the kind of behaviour that you engaged in on this occasion might be described as juvenile and immature, if it were done by a younger person accompanied by some friends. But when it’s done by a member of a so-called outlaw motorcycle club with a group of club members wearing the club paraphernalia and insignia, it’s closer to a form of domestic terrorism. It is not the kind of behaviour that can be tolerated, and I hope you understand that. You are not a first offender, but you did plead guilty, which is a sign of remorse and willingness to accept responsibility for your offence. You have told me that you hope to turn your life around for the sake of your son, and I do hope that you are sincere about that.
In all of the circumstances, I accept the joint submission that has been put to me by the prosecutor and your lawyer. I note, for the purpose of your criminal record, that you have spent 108 actual days in custody which I credit at 1 1/2 to 1 as 162 days. In all of the circumstances, I suspend the passing of sentence and place you on probation for 12 months. The conditions will be the statutory conditions and, in addition, the following and, Madam Registrar, you may have to amend the wording on the form so that it tracks what I’m about to impose.
You will report immediately on your release from custody and thereafter as required to a probation officer. You will notify the probation officer in writing of your current address and also in writing of any change of address within 24 hours of the change. You will notify Detective Dale Smith of the OPP in writing by email at dale.smith@opp.ca of any change of address within 24 hours of the change. You will have no communication or association, direct or indirect, with the persons Mr. Kandola named in court. You will remain 500 metres away from all of those persons and their known places of residence, employment, education and any other place you know them to be except for attendance at court. You will not possess any weapons as defined by the Criminal Code. You will not possess any Outlaw Motorcycle Club paraphernalia. You will attend court as required by law. Do you understand all of those conditions, sir?
KELLY POWELL: Yes, I do.
THE COURT: And I want to underscore and emphasize the importance of you complying with the conditions that require you to notify persons of your change of address in writing within 24 hours. Do you understand that?
KELLY POWELL: Yes, I do.
THE COURT: All right. Is there anything else, Mr. Kandola and Mr. O’Neill?
MR. KANDOLA: No, thank you, Your Honour.
MR. O’NEILL: Not from my perspective, no.
THE COURT: The other charges?
MR. KANDOLA: Can be noted withdrawn.
THE COURT: They will be noted as withdrawn at the request of the Crown.
form 2
Certificate of Transcript
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)
Evidence Act
I
Phyllis Torrance
(Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of
R. v. KELLY POWELL
in the
SUPERIOR COURT OF JUSTICE
(Name of Case)
(Name of Court)
held at
75 Mulcaster Street, Barrie, Ontario
(Court Address)
taken from Recording
3811_02_201700908-091323-10_FUERSTJ
, which has been certified in Form 1 by P. Torrance.
October 23, 2017
PHYLLIS TORRANCE, ACT ID 4026163594