COURT FILE NO.: 16/30000613-000

DATE: 2018/03/09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JERMAINE WILLOCK

Defendant

C. Moore, for the Crown

C. Hanson, for the Defendant

HEARD: January 12, 2018

Justice McArthur:

Introduction

[1] On June 4, 2015, Mr. Jermaine Willock robbed two convenience stores. The police quickly apprehended him. About a month later, Mr. Willock was rendered a quadriplegic due to a genetic disorder that led to the rapid growth of tumours on his spine.

[2] Mr. Willock has now pleaded guilty before me to two counts of robbery and two counts of failing to comply with his probation for failing to keep the peace. The Crown argues that the appropriate sentence is two years less one day, and three years’ probation. The defence counters that given Mr. Willock’s rare and tragic circumstances, a suspended sentence is a fit and proportionate sentence.

[3] For the reasons set out below, I have determined that the appropriate sentence for each robbery is a suspended sentence, plus three years’ probation, concurrent. I am also going to impose an 18-month conditional sentence, plus three years’ probation for the each of the two counts of failing to comply with probation. These will be concurrent to each other, and concurrent to the robbery sentence.

Circumstances of the Offences

[4] At 7:27 a.m., on June 4, 2015, Mr. Willock went into a Daisy Mart convenience store. He demanded cash from the victim, Mr. Chintan Patel, saying that he was armed with a gun. Mr. Willock told the victim to hand over everything he had or he would shoot him. Mr. Willock left with about $150. He got into a car and drove away. The victim watched him leave and wrote down the licence plate of the car.

[5] Approximately three and a half hours later, Mr. Willock went into a Five and Dime convenience store. He approached the victim, Mr. Ramesh Patel, saying “I have a gun. Give me all your money”. A customer walked in and Mr. Willock left the store empty handed. As in the earlier robbery, the victim managed to record the licence plate of the car in which Mr. Willock drove away.

[6] Mr. Willock was arrested later that day. At the time, Mr. Willock was bound by a probation order which required him to keep the peace and be of good behaviour.

Effect on the Victims

[7] Both victims filed impact statements. Mr. Chintan Patel explained that he found the experience frightening, but that he would get over it. He lost around $200 because he had to spend two days at court and his employer would not pay for that time.

[8] The impact on Mr. Ramesh Patel was more severe. He found it hard to forget the incident and gave up his business because of his fears of being robbed again. He estimates that he lost about $45,000 because of closing the store.

Circumstances of the Offender

[9] Mr. Willock is 39 years old. Mr. Willock suffers from mental health issues and has been diagnosed with schizoaffective disorder. He also suffers from schwannomatosis, a hereditary genetic disorder, that places him at risk of rapid development of benign tumours of the nervous system. Mr. Willock is specifically predisposed to develop tumours within his spinal canal. In 2012, he had surgery to remove tumours from his spine. In April 2013, he had emergency surgery after he was afflicted with a quick growing tumour in the lumbar spine. He initially recovered well. Unfortunately, he decompensated and became acutely paraplegic because of the tumour growth. After further emergency surgery in June 2013, he again recovered well.

[10] Tragically, Mr. Willock’s condition became much worse. In July 2015 (while in custody on the offences before the court) he became acutely quadriplegic. He had emergency surgery but unfortunately this time he did not make a quick recovery. Far from it. At this point in time, while Mr. Willock has limited movement of his left arm, he remains severely disabled from acute spinal cord injury associated with rapid tumor growth. Doctor Sunit Das, a neurosurgeon treating Mr. Willock, does not expect him to make any significant improvement: Mr. Willock will remain functionally quadriplegic.

[11] Tumours are also continuing to grow in Mr. Willock’s spinal canal. He has a presumed schwannoma growing on the right side of his spine on the C3 and C4 vertebrae. He has been referred to Radiation Oncology for consideration of treatment. According to his mother, they have been told that if the radiation is not successful in shrinking the tumour, he will not survive.

[12] Mr. Willock requires full time care. Mr. Daryle Gibson is a personal support worker who has been assisting Mr. Willock in the mornings for a number of years. Mr. Willock has another personal support worker who comes by in the afternoons. Every morning, Mr. Gibson assists Mr. Willock with personal care, such as brushing his teeth and washing his private parts. He feeds Mr. Willock, who is unable to eat on his own.

[13] Mr. Gibson gives Mr. Willock a bath every second day. To accomplish this, Mr. Gibson has to use a hydraulic lift. The shower takes about two hours on a “nice day”. On other days, it takes much longer, as Mr. Willock will have an involuntary bowel movement, and then the whole procedure will have to be repeated.

[14] Mr. Willock has no control over his bowels. Every second day, Mr. Gibson assists Mr. Willock with his bowel movements by inserting a suppository and digitally stimulating his bowels. He then places him on the toilet and waits for him to finish. This process usually takes at least two hours to complete. It is essential that this procedure be conducted regularly and properly. If Mr. Willock does not have a bowel movement, his bowels could rupture, or he could develop a septic infection. Either outcome could be fatal.

[15] Mr. Willock cannot feel when he has a bowel movement. The only way he becomes aware that he has defecated is by the smell. If Mr. Willock has an involuntary bowel movement, it is important that he be cleaned quickly. If he is left to sit in his feces, a serious and potentially fatal infection could develop very quickly.

[16] Mr. Willock also requires assistance with urination. He must wear a “leg bag”. Every morning, Mr. Gibson drains the bag, and washes Mr. Willock’s penis. Mr. Gibson monitors the bag to ensure that Mr. Willock’s urine is flowing properly. If Mr. Gibson thinks that there is a problem with urine flow, he will insert a catheter to drain Mr. Willock’s urine. It is essential that this be properly monitored. If the urine becomes trapped, Mr. Willock can develop dysreflexia, a condition that can lead to fatal high blood pressure.

[17] Mr. Gibson explained that quadriplegics are especially prone to infection, as they have fragile immune systems. It is important that Mr. Willock not be exposed to germs; if Mr. Gibson has a cold, he will arrange for someone else to assist. Mr. Willock also requires help coughing. Mr. Gibson will help him cough by pushing on his stomach. This is necessary to avoid pneumonia.

[18] Mr. Gibson testified that if Mr. Willock stays in one position too long, he can develop pressure sores. Such sores can develop in as little as one night. If the sores are not treated properly, Mr. Willock is at risk of developing a fatal septic infection. Mr. Willock has a special mattress and wheelchair to help minimize the risk of sores. Mr. Gibson regularly examines Mr. Willock to monitor whether pressure sores are developing. In the night, Mr. Willock must be turned every three to four hours to avoid bed sores. Mr. Gibson also explained that if Mr. Willock sits in one position for too long, his body will cramp up. He explained how at times he has found Mr. Willock crying in pain because of this condition.

[19] Ms. Heather Willock, Mr. Willock’s mother, also testified about the care she provides to her son. She takes him for physiotherapy at Variety Village three times a week. She takes him to another facility twice a week, so that he can be placed on special equipment to stretch his arms and legs. She takes him to have his fingernails and toenails cut. She ensures that she turns him every three to four hours to ensure that he does not develop pressure sores.

[20] Ms. Mary Dwyer, the Health Care Services Manager at the Toronto South Detention Center testified about the care that Mr. Willock would receive if he were sentenced to custody in a provincial institution. I will have more to say about her evidence in my analysis, but she candidly admitted that they have never had a patient who requires the same level of care as Mr. Willock.

[21] Before becoming a quadriplegic, Mr. Willock had accumulated a fairly lengthy and related record. In 1999, he was convicted of two counts of robbery, and received a sentence of two years less a day on top of nine months’ presentence custody, plus three years’ probation. In 2003, he was again convicted of two counts of robbery and one count of armed robbery. He received a sentence of four years on top of seven months’ pre- sentence custody. Mr. Willock has a number of other convictions on his record, for offences including mischief, theft under, attempt fraud, assault, assault with a weapon and uttering threats. His last convictions were on March 19, 2013 for threatening death and weapons dangerous. Of note, there is an approximately nine-year gap between the March 2013 convictions and his previous conviction, for assault a peace office, in August 2004.

[22] Mr. Willock spent 90 days in pre-trial custody on the offences before the court. Both counsel agree that should be calculated on a 1.5:1 basis, for the equivalent of 135 days. Mr. Willock has been on a strict house arrest bail since September 15, 2015. There is no suggestion that he has breached his bail in any way over the last two and a half years.

Sentencing Principles and Objectives

[23] Before turning to my analysis regarding what I view as the appropriate sentence in this case, I propose to briefly address the relevant sentencing principles and objectives.

[24] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by imposing “just sanctions” that reflect one or more of the traditional sentencing objectives: denunciation, general or specific deterrence, separation of offenders from society where necessary, rehabilitation, reparations for harm done to victims or to the community and promoting a sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community.

[25] How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the offender. As noted by the court of appeal in R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 at para. 87, sentencing is a very human process. The fixing of a fit sentence is the product of the combined effects of the circumstances of the offence with the unique attributes of the specific offender.

[26] The fundamental principle of sentencing is the proportionality requirement, which is set out in s. 718.1 of the Criminal Code: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As Lebel J. explained in R. v. Ipeelee, 2012 SCC 13, at para. 37, the principle of proportionality is intimately tied to the fundamental purpose of sentencing for two reasons:

First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[27] In addition to proportionality, the Criminal Code lists a number of other principles to guide sentencing judges. The parity principle is set out in s. 718.2(b), which provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. As noted in R. v. Mann, 2010 ONCA 342, at para. 17, however, the parity principle is not to be applied in an absolute fashion; given the highly individualised sentencing process, sentences imposed for offences of the same type will not always be identical. The totality principle is addressed by s. 718.2(c). The restraint principle is reflected in both ss. 718.2(d) and (e). As the court explained in Hamilton, at para. 95, the restraint principle is of paramount importance where incarceration is a potential disposition.

[28] Pursuant to s. 718.2(a) of the Criminal Code a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I turn now to the aggravating and mitigating factors in the present case.

Aggravating Factors

[29] Mr. Willock has a fairly lengthy and related record. This is highly aggravating. That said, I keep in mind the almost nine-year gap in his record between August 2004 and March 2013. This period, during which Mr. Willock had no involvement in the criminal justice system, shows that he has the capacity to stay out of trouble.

[30] This was not an isolated incident. While I would not characterize it as a spree, Mr. Willock committed both robberies over the course of about three and a half hours.

[31] Mr. Willock robbed two convenience stores. Individuals who work in such places are vulnerable, and our courts have repeatedly stressed the aggravating nature of such crimes. (See R. v. Lewis, 2009 ONCA 792, at para. 3; R. v. Boyle, [1985] O.J. No 33 (Ont.C.A.))

[32] Mr. Willock told both victims that he had a gun. There is no doubt that would instill fear in the victims, and it is an aggravating fact. That said, there is no suggestion Mr. Willock was armed, or that he used any actual violence in the robbery. This must be taken into consideration when assessing the aggravating nature of these offences. (See R. v. Lee, [1998] O.J. No. 2881 (Ont.C.A.), at para. 4)

Mitigating Factors

[33] Mr. Willock entered a plea of guilt. He has saved the court time and resources, and the victims the trauma of testifying. The plea is also indicative of remorse. Mr. Willock is entitled to mitigation in sentence as a result.

[34] Mr. Willock has the strong support of his mother. This will assist him in his rehabilitative efforts.

[35] Mr. Willock has been on a strict house arrest bail since September 15, 2015, without incident.

[36] Mr. Willock is a quadriplegic. Given his exceptional circumstances, and the difficulties in managing his condition, incarceration would have a disproportionate impact on him. This impact must be taken into account when determining a fit and proportionate sentence. (See R. v. Allen, 2017 ONCA 170 at para. 16; R. v. C.D, 2012 ONCA 696 at paras. 19-22)

Analysis

[37] Given Mr. Willock’s medical issues, which leave him imprisoned within his own body, specific deterrence is not a significant sentencing objective. Mr. Willock has been out on bail for two and a half years without any difficulty, which supports the conclusion that specific deterrence does not need to be given great weight in this case. For the same reason, separation from society is not an important sentencing factor in this case.

[38] Rehabilitation, however, is a relevant sentencing objective in this matter. Mr. Willock has shown he has the capacity to stay out of trouble. The nine-year gap between 2004 and 2013 speaks directly to that. His time out on bail since September 2015, without incident, also supports that, despite his record, Mr. Willock has good prospects for rehabilitation.

[39] That said, Mr. Willock robbed two convenience stores. Given the nature of the offences, general deterrence and denunciation must be the paramount sentencing considerations. In most cases, significant jail sentences will be warranted for such offences. In my view, if Mr. Willock did not face the health challenges that he does, he would be looking at a sentence of three to five years. The reality is, however, that Mr. Willock does face extraordinary and unique health challenges.

[40] There have been a number of cases where the significant health issues of an offender have led courts to impose sentences that would otherwise have been unfit. In R. v. Zabor, [1982] O.J. No 186 (Ont.C.A.), the appellant had been convicted of uttering a forged document (a will) and perjury (by swearing a false affidavit in a judicial proceeding). Following the offences, Mr. Zabor suffered a stroke that left him confined to a wheelchair and totally dependent on others for his physical needs. He also developed cancer, with his chance of surviving beyond five year being only 10%. Despite these health issues, the trial judge imposed a sentence of two years. The Court of Appeal noted that, but for the appellant’s health issues, this was a fit sentence. Given the highly unusual circumstances, however, the court found that the factors of general deterrence, societal denunciation and the protection of the public were no longer served by incarcerating the appellant. Martin J. explained at para. 8, that the court felt entitled in the exercise of their discretion, and “for reasons of compassion”, to intervene to vary the sentence to one of a suspended sentence.

[41] In R. v. Lai, [1988] N.J. No. 118 (Nfld.C.A.) the appellant was a 34-year-old man charged with eight counts of sexual assault against young female patients. In a fit of depression, he tried to kill himself and his young son. The boy recovered, but the appellant was rendered a paraplegic because of his injuries. At trial, the judge imposed 10 years for the attempt murder, concurrent to a six-month sentence for the sexual assaults. Noting that the appellant was virtually a prisoner within his own body, the Newfoundland Court of Appeal substituted a suspended sentence.

[42] In R. v. Lysack, [1988] O.J. 287 (Ont.C.A.) the appellant had been sentenced to six months in custody for sexually assaulting young girls he had been teaching. He suffered from extremely poor health that required constant medication and monitoring. There were questions as to whether he would survive incarceration. The Ontario Court of Appeal set aside his prison term and instead imposed a suspended sentence.

[43] In R. v. A.R., 1994 4524 (MB CA), [1994] M.J. No. 89 (Man.C.A) the appellant had been sentenced to 30 months for the sexual assault of his 13-year-old daughter. The appellant suffered from muscular dystrophy, was wheelchair bound, and required round-the-clock attention. On appeal, the court noted that ordinarily jail would be required for this type of case. The court, however, found that given his health issues, prison would be a far worse punishment for the appellant than for others. As result, the court allowed the appeal and substituted a suspended sentence. In reaching the conclusion that a suspended sentence would be appropriate, Twaddle J.A. for the court said the following at para. 45:

There is an old Chinese proverb: “In making law, severity. In administering laws, clemency.” (William Scarborough, Chinese Proverbs, 1875). Justice without clemency, in appropriate circumstances, is injustice.

[44] In R. v. Scott, 2014 SKQB 225, the offender pleaded guilty to two counts of armed robbery. He had a related record. The Crown sought a sentence of five years in the penitentiary. The sentencing judge accepted that the offences would ordinary warrant a significant period of incarceration. The offender, however, had multiple, extremely serious health issues. The sentencing judge expressed concerns over whether the institutions could properly care for the complex health needs of the offender. In light of those concerns, the court imposed a suspended sentence.

[45] More recently, in R. v. S.K. 2015 ONSC 7649, Sosna J. considered the appropriate sentence for a young offender convicted of first-degree murder of a police officer. The young man had been joyriding in his family van and was stopped by an officer. He attempted to speed away and wound up crashing the car, killing the officer and injuring himself so severely that he was rendered a quadriplegic. In careful and compassionate reasons, Sosna J. outlined numerous authorities that consider the impact of significant health issues on determining the appropriate sentence. He noted that in cases in which offenders were sent to jail despite significant health issues, there was evidence that the health conditions could be properly accommodated in custody. In the case of S.K., however, he found that the evidence before him was uncertain as to whether S.K.’s significant medical needs would be met in a custodial setting. Noting that the offender was already serving a life sentence, as he was a prisoner in his own body, Sosna J. declined to impose a custodial sentence. Instead, he imposed a conditional supervision order for nine years.

[46] I have similar concerns about the ability of the custodial institutions to care for Mr. Willock. Ms. Dwyer testified about the efforts that the institutions would make to ensure that Mr. Willock received the appropriate care. Most of her evidence addressed conditions at the Toronto South Detention Center. Ms. Dwyer testified that the medical staff at the Toronto South are extremely busy. There are 12 nurses on staff during the day, eight in the evening and six overnight. The nurses can see up to 100 patients a day. Ms. Dwyer said that she would have a nurse dedicated to Mr. Willock. But she also said that the institution gets sick calls from staff every day; if a nurse calls in sick, there is no guarantee that someone will fill in for them. That causes me concern for two reasons. First, as noted above, Mr. Willock suffers from a fragile immune system and it is important that he not be unduly exposed to germs. Second, in the event that ill nursing staff could not be replaced, Mr. Willock’s care could be at risk. The potential consequences for Mr. Willock if he does not receive appropriate care could be fatal.

[47] I had other concerns about Ms. Dwyer’s evidence. Although I have no doubt that she means well, she was unable to answer a number of questions about how various issues would be addressed. It is clear that meeting Mr. Willock’s needs will be expensive. Ms. Dwyer, however, could not guarantee that budgetary issues would not arise, and said only that she “would hope” that based on Mr. Willock’s level of need, expenses would be justified. In the event that the costs associated with Mr. Willock’s care increased, Ms. Dwyer said that she would have to bring that to the attention of “corporate health care”.

[48] Moreover, most of Ms. Dwyer’s evidence was directed at the level of care Mr. Willock would receive while housed at the Toronto South. But Ms. Dwyer could not say that Mr. Willock would be kept at that institution, and said he may go to the Maplehurst Correctional Center or the Central North Correctional Center. Ms. Dwyer could not provide detailed information about the level of care that he would receive at these other institutions. All she could say was that she had a conference call with those institutions and they discussed care in general.

[49] Ms. Dwyer took the position that Mr. Willock’s health care needs would be met, because the institutions are obligated to meet those needs. But given the many questions raised when she was testifying, this strikes me as an empty guarantee. I had some concerns that Ms. Dwyer was too quick to say that Mr. Willock’s needs would be met, despite those questions. For example, she told the Crown that the institution would be prepared to house Mr. Willock on the date she testified. In cross-examination, however, she said that she was concerned about some of the evidence she had heard about Mr. Willock’s medical needs, as the institution did not yet have the procedures and equipment required to duplicate the care he currently receives. I found it troubling that she would initially say that they were prepared to house Ms. Willock immediately, without acknowledging the concerns she had.

[50] Moreover, despite the obligation to provide appropriate medical care, there have been cases in the recent past where inmates in provincial institutions did not receive proper medical care. (See for example, R. v. Nguyen, 2017 ONCJ 442, at paras. 18-20,42; R. v. Allen, 2017 ONCA 170 at para 15; R. v. Doyle, 2015 ONCJ 492, at paras. 17-23; 53; R. v. Allen, [2013] O.J. No. 6233, at para. 3) The offenders in those cases suffered pain, discomfort or impeded rehabilitation as a result of the institution’s failure to properly meet their medical needs. The risks to Mr. Willock, however, if there is a failure in providing proper medical care are far more severe and potentially fatal.

[51] In light of my concerns with respect to whether Mr. Willock’s medical needs will be properly accommodated while in jail, and the potential consequences if his needs are not met, I find that it would be inappropriate to impose a custodial sentence.

[52] That said, even if I were satisfied that Mr. Willock’s complex medical needs would be appropriately addressed in custody, in my view a jail sentence is not required in the unique circumstances of this case. Given Mr. Willock’s extraordinary health issues, any time in custody will have a disproportionate impact on him. He has done the equivalent of 135 days in custody. He has also been on a strict house arrest bail for two and half years. As the Court of Appeal explained in R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No 555 (Ont.C.A.), at para. 37, stringent bail conditions especially house arrest, represent an infringement on liberty and are a relevant mitigating factor. Thus, any time spent on bail under house arrest must be taken into consideration when determining the length of the sentence. (See also R. v. E.B., 2013 ONCA 429, at para. 10; R. v. Dragos, 2012 ONCA 538, at para. 84; R. v. R.O., 2015 ONCA 814, at para. 58) In my view, in light of the exceptional circumstances of this case, the pre-sentence custody and time spent on bail under house arrest are sufficient to give voice to the sentencing principles of denunciation and deterrence. No further time in custody is required. I have concluded that for the each of the two robbery offences, a suspended sentence and three years’ probation, concurrent, is a fit and proportionate sentence. I will address the terms of the probation in my conclusion on sentence.

[53] Mr. Willock must also be sentenced on two counts of breach of probation. As Schrek J. (as he then was) noted in R. v. Gabbidon, 2017 ONCJ 55, at para. 23, “…a lenient sentence on one count can be balanced by a concurrent sentence imposed on another count, provided both are within the range and provided that the overall sentence properly reflects the gravamen of the conduct giving rise to all of the charges.” (See also Code J.’s analysis in R. v. Lo, [2012] O.J. No. 6001 (S.C.J), at para. 31) Given the exceptional circumstances of this case, a suspended sentence for the robberies is not outside of the range. It is, however, clearly lenient. Given that, I have determined that a fit and proportionate sentence for the breach of probation charges is an 18-month conditional sentence, followed by three years’ probation, concurrent to each other, and concurrent to the robbery sentence. This will add to the overall denunciatory and deterrent effect of the sentence considered in totality. (See R. v. Proulx, 2000 SCC 3, at paras. 41,44,102,107; R. v. Howell, 2013 NSCA 67, at para 18; R. v. Beauchamp, 2015 ONCA 260, at paras. 377-380; R. v. Owen, 2015 ONCA 462, at para 64) I will address the terms in my conclusion on sentence, to which I now turn.

Conclusion on Sentence

Sentence for the Two Robbery Offences

[54] Mr. Willock has served 90 days of pre-sentence custody, which should be calculated on the enhanced rate of 1.5:1, for the equivalent of 135 days of pre-sentence custody. That should be noted on the robbery counts. Mr. Willock was also on a house arrest bail for approximately two and a half years. While I am not assigning a specific quantum to be noted, I have taken the time under house arrest into consideration as a mitigating factor in fashioning what I view to be a fit and proportionate sentence.

[55] Mr. Willock will received a suspended sentence and three years’ probation on each of the two robbery counts, concurrent.

[56] The terms of probation are as follows:

• Keep the peace and be of good behaviour.

• Appear before the court when required to do so.

• Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.

• Report in person to a probation officer within four business days from today, and after that at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

• Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means with Chintan Patel, Ramesh Patel or David Wheeler.

• Do not be within 250 meters of any place you know Chintan Patel, Ramesh Patel or David Wheeler to live, work, go to school, or frequent, or any place you know them to be, except for required court appearances.

• Do not be within 250 meters of 9 Progress Avenue or 1269 Danforth Road.

• Do not possess any weapons as defined by the Criminal Code.

Sentence for the Two Breach of Probation Offences

[57] On each of the two counts of breach probation, Mr. Willock will receive an 18-month conditional sentence, followed by three years’ probation, concurrent to each other, and concurrent to the robbery counts.

[58] The terms of the conditional sentence are as follows:

• Keep the peace and be of good behavior.

• Appear before the court when required to do so.

• Report in person to a conditional sentence supervisor within four business days from today, and thereafter report when required by the supervisor and in a manner directed by the supervisor.

• Remain in Ontario unless you have the prior written permission from the court or the supervisor to leave the province.

• Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.

• Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means with Chintan Patel, Ramesh Patel or David Wheeler.

• Do not be within 250 meters of any place you know Chintan Patel, Ramesh Patel or David Wheeler to live, work, go to school, frequent or any place you know them to be except for required court appearances.

• Do not be within 250 meters of 9 Progress Avenue or 1269 Danforth Road.

• Do not possess any weapons as defined by the Criminal Code.

• For the first six months of your conditional sentence, remain in your residence or on the property of your residence at all times.

Except:

▪ For any medical emergencies involving you or any member of your immediate family.

▪ For going directly to and from or being at any medical, legal, physiotherapy, rehabilitative, counselling, dental or nail-care appointments.

▪ For going directly to and from or being at meetings with your conditional sentence supervisor or probation officer.

▪ With the prior written approval of the supervisor. The written approval is to be carried with you during these times.

• For the next six months of your conditional sentence order, remain in your residence or on the property of your residence between the hours of 11:00 p.m. and 6:00 a.m.

Except:

▪ For any medical emergencies involving you or any member of your immediate family.

▪ With the prior written approval of the supervisor. The written approval is to be carried with you during these times.

[59] Following his conditional sentence, Mr. Willock will be on probation for three years. The terms are as follows:

• Keep the peace and be of good behaviour.

• Appear before the court when required to do so.

• Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.

• Report in person to a probation officer within four working days of the end of your conditional sentence, and after that at all time and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

• Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means with Chintan Patel, Ramesh Patel or David Wheeler.

• Do not be within 250 meters of any place you know Chintan Patel, Ramesh Patel or David Wheeler to live, work, go to school, or frequent, or any place you know them to be, except for required court appearances.

• Do not be within 250 meters of 9 Progress Avenue or 1269 Danforth Road.

• Do not possess any weapons as defined by the Criminal Code.

Ancillary Orders

[60] Robbery is a primary designated offence. Pursuant to s. 487.051(1) of the Criminal Code, I am making an order requiring Mr. Willock to provide a sample of his DNA for the purpose of DNA analysis.

[61] A weapons prohibition pursuant to s. 109 of the Criminal Code applies. Pursuant to s. 109, Mr. Willock is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life and any firearm (other than one that is prohibited or restricted), cross-bow, restricted weapon, ammunition and explosive substance for life.

[62] Finally, the victim surcharge is mandatory, and will be $800. Pursuant to Order in Council 2173-99, Mr. Willock would ordinarily have 60 days to pay. I am prepared to hear submissions from counsel in the event that the 60 days to pay poses a difficulty for Mr. Willock. (See R. v. Tinker, 2017 ONCA 552, at para. 58)

Justice Heather McArthur

Released: March 9, 2018

R. v. Willock, 2018 ONSC 1595

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JERMAINE WILLOCK

REASONS FOR sentence

Justice Heather McArthur

Released: March 9, 2018