Ontario Court of Justice
Between:
HER MAJESTY THE QUEEN
— AND —
GUY LAVERGNE
Before: Justice Boxall
Sentencing Decision released on December 19, 2018
Counsel:
- Mr. Robert Thomson, Counsel for the Provincial Crown
- Mr. Cedric Nahum, Counsel for the Accused
BOXALL, J:
Offences and Guilty Plea
1On February 21, 2018 Mr. Lavergne pled guilty to the following offences committed on the indicated dates:
- 15 January 2016 Drive prohibited contrary to section 259
- 15 January 2016 Possession Under s. 354(b) – licence plate
- 11 April 2016 Drive prohibited contrary to section 259
- 11 April 2016 breach of recognizance s. 145 – operate a motor vehicle
- 12 April 2016 Drive prohibited contrary to section 259
- 12 April 2016 breach of recognizance s. 145 – operate a motor vehicle
- 21 April 2016 Drive prohibited contrary to section 259
- 21 April 2016 breach of recognizance s. 145 – operate a motor vehicle
- 21 April 2016 obstruct peace officer s. 129
- 21 April 2016 s. 4(1) CDSA – possession of marijuana
FACTS
2On January 15, 2016 Mr. Lavergne was driving 120 km/hr in an 80 km/hr zone and he passed on the right. He was signalled by a police officer to stop and did not immediately stop but did stop for the officer. The plates affixed to the vehicle were stolen. Following this arrest he was released on consent on a recognizance that amongst other terms had a condition not to operate a motor vehicle.
3On April 11, 2016 he was seen driving. On April 12, 2016 he was seen driving.
4On April 21 surveillance was conducted on a vehicle and Mr. Lavergne was blocked in and stopped by the police. The licence plate was for a different vehicle. He was in possession of an amount of marijuana. A passenger with a valid driver's licence who had rented the vehicle was present in the vehicle. Mr. Lavergne obstructed the peace officer by instructing the passenger to dispose of some marijuana which she attempted to do.
CHRONOLOGY
5The Crown supplied the following timeline for Mr. Lavergne's offences since his release from the penitentiary on January 15, 2016.
| Date | Event |
|---|---|
| 2013, Oct 23 | Sentenced in Gatineau to 34 months jail, given credit for 8 months of pre-sentence custody credited. Sentenced to 26 month sentence going forward |
| 2015, April 2 | Released on parole after serving 2/3 of 793 day sentence |
| 2016, Jan 15 | Arrested, driving (Ct 1, 9 on Info: 16-R1977) |
| 2016, Jan 19 | Released on consent |
| 2016, April 11 | Driving (Ct 16 & 17 on Info: 16-R1977) |
| 2016, April 12 | Driving (Ct 21 & 22 on Info: 16-R1977) |
| 2016, April 21 | Arrested, caught driving, tries to get away (Ct 23, 24, 26, 27 on Info: 16-R1977) |
| 2016, May 16 | Bail hearing. Detained. J.P. Gireault |
| 2016, June 20 | Bail review. Detained. SCJ – J. McLean. LAVERGNE informed Court after his detention: "So your Honour, you'll see me again, 'cause I'm going to get out there and do the same thing do over and over again, 'cause you won't give me a chance" |
| 2016, June 27 | ABH assault by LAVERGNE while in OCDC (Conviction after trial before J. Dumel.) Sentence=7 months (140 real days PSC) |
| 2016, Sep 12 | Released after second bail review. SCJ. J. Kane |
| 2017, Jan 7 | Arrested for a driving offence that allegedly occurred on Jan 2, 2017. Acquitted at trial |
| 2017, Jan 11 | Bail hearing. Detained. J.P. Mackey |
| 2017, Mar 14 | Released after bail review. SCJ – J. Valin. |
| 2017, June 12 | Driving, fleeing out of truck (Conviction after trial before J. Clifford. Info: 17-A12414, F/G May 15, 2018) Sentenced to 11 months (220 real days of PSC used up. Note of the 11 months 8 months was allocated to the drive disqualified count.) |
| 2017, June 19 | Fail to Appear for trial (Conviction registered Sep 22, 2017) |
| 2017, July 9 | Driving (Conviction after trial before J. Berg. Info: 17-A11836, F/G: Mar 5, 2018) |
| 2017, July 14-15 | Offences committed in the jurisdiction of Cornwall, ON Convictions registered Oct. 2, 2017. Convictions include drive disqualified, threats, and assault. Sentence 75 real days of PSC + 80 more real days |
| 2017, July 18 | Arrested at 3780 Champlain St in Bourget, ON by OPP |
| 2017, Dec 29 | Bail hearing. Detained. OCJ – J. Boxall |
6Mr. Lavergne has been continuously in custody since his arrest on July 18, 2017.
7Of this period of time he has been under sentence for 555 days and he has 180 days of pre-sentence custody eligible for consideration on these offences. Credited at 1.5:1 he has 270 days available to be considered on the offences before me.
8Following his plea of guilty sentencing was adjourned for the preparation of a Gladue report.
9Following receipt of the Gladue report sentencing was further adjourned to allow for a sentencing circle that took place on December 4, 2018.
10Legal submissions were made on December 11, 2018.
11Mr. Lavergne has an extensive criminal record.
12Prior to the commission of these offences he had been convicted six times for driving prohibited. Since the commission of these offences he has been convicted three more times. Thus the four offences of driving prohibited before me will be his 10th, 11th, 12th, and 13th convictions.
13In addition he has been convicted four times for flight from police. There are four convictions for dangerous driving.
14There are some twenty-two convictions for breach of probation or release conditions.
15There are a number of other convictions including convictions for personal violence.
16On October 23, 2013 in Gatineau he was sentenced to 26 months in addition to being credited for 8 months of pre-trial custody. On those Gatineau convictions he was sentenced to terms of imprisonment ranging from four to eight months on the individual charges of driving while disqualified.
17While in custody awaiting this matter he has been sentenced a number of times. Mr. Lavergne pleaded guilty on October 2, 2017 to a common assault, a theft under $5,000.00, and a breach of recognizance. He received a four month sentence and three year probation order. On May 10, 2018, after he was found guilty of assault causing bodily harm, the trial judge noted seven months of pre-sentence custody and placed him on probation for three years. On August 22, 2018, after having been found guilty after trial of one count of drive disqualified, as well as one count of obstruct peace officer and three counts of breach of recognizance (all with the offence date of June 12, 2017), the trial judge noted eleven months of pre-sentence custody and placed him on probation for two years.
18He is to be sentenced by me on four counts of drive disqualified and three counts of breach of recognizance as well as possession of stolen property, obstruction and possession of marijuana.
19He has been continuously in custody now for 17 months however there is only 180 days of pre-sentence custody available to be applied. If given credit at 1.5 to 1 this allows for a credit of 270 days.
20To say that Mr. Lavergne has a horrendous record for related offences is an understatement. Despite being sentenced to the penitentiary in 2013 and his release in 2015, including the four before me there have been seven more convictions for driving disqualified.
21Previous sentences have not deterred Mr. Lavergne.
THE GLADUE REPORT
22Mr. Lavergne, who was 28 years old at the time of the preparation of the Gladue Report, is an aboriginal person. Specifically, the Report indicates, he is eligible for registration as a "Status Indian" under the Indian Act, with the Mohawk of Kanesatake, located on the north shore of the Ottawa River, 53 kilometres west of Montreal.
23Guy's grandfather grew up without connection to culture or language, after his own mother's experience at the Shingwauk Residential School. Shingwauk residential School operated from 1873 to 1970 in Sault Ste. Marie, Ontario. The legacy of the residential school experience has been well documented and is clearly linked to symptoms of post-traumatic stress disorder, as well as a wide range of social problems, including addiction and physical and sexual abuse.
24The Report quotes Mr. Lavergne's mother as referring to her upbringing and her life situation after Mr. Lavergne was born. It describes a context where poverty, abuse, drugs, alcohol, and criminality were the norm. When Mr. Lavergne was a child, his mother was fighting her own addictions and her effectiveness as a parent was minimal at best. Mr. Lavergne was conceived during a conjugal visit to the penitentiary. His father was absent from Mr. Lavergne's life during his childhood. The Report notes that he has begun to form a relationship with his father, however, the latter is dying from cancer and lung failure.
25The Gladue Report refers to a 2014 paper published by the Ontario Centre for Excellence in Children and Youth wherein the authors cite the 1998 Adverse Childhood Experiences study. That study identified eight childhood risk factors that were identified as leading to mental health problems in adulthood. Those factors are exposure to psychological abuse, physical abuse, sexual abuse, or violence against mother, living with household members who were substance abusers, mentally ill, suicidal, or ever imprisoned. The author of the Gladue report notes that Mr. Lavergne "has experienced seven out of eight of these identified childhood exposures to harm or disadvantage during his childhood."
26Mr. Lavergne's mother advised the writer of the Report that she has been clean and sober for almost 16 years.
27In regards to Mr. Lavergne, the Report states that:
Guy didn't learn about his culture growing up and didn't identify as an Indigenous person for most of his life. He knew of his family roots but was too caught up in the day-to-day survival that is elemental to cyclical poverty.
28Yet, it seems that he has used this current stint in jail to "explore Indigenous teachings by meeting with the Cultural Advisor or Elder when either are attending [the jail]." Moreover, I note that he has participated fully in this Gladue-process.
29Mr. Lavergne did not self-identify in the past as an Indigenous person. This was not raised by the Crown and in any event this issue was dealt with by the Ontario Court of Appeal in R v. Kreko, 2016 ONCA 367 at paras. 21:
[21] The jurisprudence makes it clear that no causal link is required. In R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 S.C.R. 433, the Supreme Court held that it was an error to require an Aboriginal offender to establish a causal link between his or her background factors and the commission of the offence(s) in question before he or she is entitled to have those factors considered by the sentencing judge. The court suggested, at para. 82, that requiring a causal connection demonstrated "an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples", and also imposed an evidentiary burden on the offender that was not intended by Gladue.
[22] The court continued, at para. 83:
[I]t would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue, at p. 86:
Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government's treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated.
Furthermore, the operation of s. 718.2(e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence.
[23] The court explained that what is required is that the factors must be tied to the particular offender and offence(s) in that they must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing. Finally, the court in Ipeelee also made it clear that s. 718.2(e) applies to serious offences: see paras. 84-86.
[24] In the present case, the appellant's dislocation and loss of identity can be traced to systemic disadvantage and impoverishment extending back to his great-grandparents. This was relevant to his moral blameworthiness for the offences. The intervener has referred to some studies suggesting that adoptions of Aboriginal children by non-Aboriginal parents have a significantly higher failure rate than other adoptions. The appellant's Aboriginal heritage was unquestionably part of the context underlying the offences. The sentencing judge erred by failing to consider the intergenerational, systemic factors that were part of the appellant's background, and which bore on his moral blameworthiness, and by seeking instead to establish a causal link between his Aboriginal heritage and the offences.
See, too, R v. Fraser, 2016 ONCA 745, R v. Elliott, 2015 BCCA 295.
THE REQUEST FOR A SENTENCING CIRCLE
30In this case the Defence requested I conduct a sentencing circle. Initially the Crown opposed a sentencing circle being held in this case and a date was set for argument. In the course of argument I set out some terms and both Crown and Defence agreed to a sentencing circle being held on these terms. It should be noted that Mr. Lavergne was in custody and the respective agreement by Crown and defence was in part the practicality of having his matter concluded expeditiously and not delayed by argument. Although not fully argued nor decided by myself I wish to set out some general principles with respect to sentencing circles.
JURISDICTION TO ORDER A SENTENCING CIRCLE
31The jurisdiction to order a sentencing circle is derived from section 718.2 (e) of the Criminal Code. Ordering a sentencing circle has been interpreted as being within the sentencing judge's broad discretion to control the manner in which sentencing hearings are conducted (R v Joseyounen, 1995 CanLII 10830 (SK PC) at para. 2).
32As ordering a sentencing circle is a function of judicial discretion, a sentencing circle may not be ordered for practical reasons, even if the case is otherwise appropriate. This may be the case where a sentencing circle cannot be held in a timely manner (See e.g. R v Armitage, 2015 ONCJ 64 at para. 63).
PREREQUISITES TO ORDER SENTENCING CIRCLES
33The factual circumstances of each case must be considered before deciding whether a sentencing circle is appropriate. The decision to hold a sentencing circle is evaluated on a case-by-case basis, however, the decision must not be made arbitrarily. Ultimately, the question that must be answered is: Is a fit sentence for this offender who has committed this offence better arrived at by using the restorative approach or the ordinary approach? (R v Morin [1995] SJ No 457 at p. 20 ("Morin")). A court must be satisfied that the restorative approach is the right approach in the circumstances.
34An offender need not plead guilty to be eligible for a sentencing circle. Although a guilty plea is an important indicator that an offender has accepted responsibility for his or her actions, it is not determinative. What is relevant is that the offender wishes to change his or her lifestyle and that there is a community willing to help him or her do so. The offender may demonstrate his or her remorse, sincerity and acceptance of responsibility in ways other than by pleading guilty. However, failing such a demonstration of sincere remorse and acceptance of responsibility, a court is justified in refusing a request for a sentencing circle (R v Taylor [WBT], 1997 CanLII 9813 (SK CA) at para. 50 ("Taylor")).
35Sentencing circles are not only about the rehabilitation of the offender, but they are also about seeking justice for the victim. At the centre of the restorative justice approach is the notion of healing – both for the offender and for the victim (Taylor at para. 70). Consultation with the victim prior to ordering a sentencing circle is therefore imperative, especially if the case deals with violent offences.
NON-EXHAUSTIVE FACTORS FOR ORDERING SENTENCING CIRCLES
36In Morin, the majority of the Saskatchewan Court of Appeal discussed seven non-exhaustive factors to consider when ordering a sentencing circle, affirming the approach first articulated in R v Joseyounen, 1995 CanLII 10830 (SK PC) ("Joseyounen"). Ultimately, the following factors should be applied flexibly, with attention to the individual circumstances of each case.
1. The Offender Must Agree to be Referred to the Sentencing Circle
37When an offender pleads guilty and requests a sentencing circle, this first requirement will be met most of the time. A court must be satisfied that the offender is truly remorseful and is seeking the help of his or her community to assist in changing his or her lifestyle. Although it would be difficult to find remorse in an individual who has pled "not guilty" and takes a case to trial, this should not preclude any findings of genuine remorse. Ultimately, a court must look for indicia that the accused is genuinely interested in reformation and not simply looking for an easy way out (Joseyounen at para. 17).
2. The Offender Must Have Deep Roots in the Community in Which the Circle is Held and From Which the Participants are Drawn
38An offender who has deep roots in a community benefits from a sentencing circle because the participants will have knowledge of his or her background. Intimate knowledge of the offender allows a community to reach out and provide support. Participants who have no knowledge of the offender may be of little use and may be easily "conned" (Joseyounen at para. 17).
39However, in urban settings, an Aboriginal offender may not have deep connections to a community, even though he or she could benefit from community support. Dislocation from cultural communities is a by-product of colonialism and should not be a barrier to Aboriginal offenders seeking sentencing circles (Jonathan Rudin, Indigenous People and the Criminal Justice System: A Practitioner's Handbook (Toronto: Emond Publishing) at 217) ("Rudin")). The second factor should be approached flexibly, by examining what community means to each individual offender.
3. There are Elders or Respected Non-Political Community Leaders Willing to Participate
40Traditionally, many sentencing circles have been held with the input of Elders or respected non-political community leaders (Joseyounen at para. 26). However, the modern view is that it is not essential that Elders or respected non-political community leaders are present. What matters is that participants from the circle are drawn from the community and have a sense of what they need (Rudin at 230).
4. The Victim is Willing to Participate and has been Subjected to No Coercion or Pressure
41Proceeding without the willingness of the victim alienates him or her from the criminal justice system by effectively silencing his or her opinions (Joseyounen at para. 28; see also Emma Cunliffe & Angela Cameron, "Writing the Circle: Judicially Convened Sentencing Circles and the Textual Organization of Criminal Justice" (2008) 19:1 Canadian Journal of Women and the Law 1 at 35). This relates to the fifth factor, discussed below.
5. Courts Should Try to Determine if the Victim is Subject to Battered Spouse Syndrome
42Special care should be taken in offences involving sexual or domestic violence. Using the best available information, courts should determine beforehand whether a victim is a battered spouse. In such cases, it may not be appropriate to hold a sentencing circle. If the sentencing circle proceeds, the victim should have counselling available and have her support system present (Morin at pg. 4).
6. Disputed Facts Have Been Resolved in Advance
43The sentencing is not a trial – all facts should be determined during the trial process or through the agreed statement of facts if the offender pleads guilty. To do otherwise would be to leave the circle struggling with issues that the participants may not be able to resolve themselves (Joseyounen at para 34). However, should disputed facts arise, court can be resumed to resolve issues through cross-examination.
7. The Case is One in which a Court would be Willing to Take a Calculated Risk and Depart from the Usual Range of Sentencing
44Departing from the usual range of sentencing carries the risk that public confidence in the administration of justice will be compromised (Joseyounen, para. 36). This factor requires examining the nature and seriousness of the offence. However, as with the other factors above, this factor should not be applied rigidly. In some cases, despite the seriousness of the offence, the court may decide that the needs of both the offender and the victim are better met through the use of a sentencing circle (Taylor at paras. 45-46).
45The Morin/ Joseyounen factors discussed above are non-exhaustive factors. A court has discretion to consider any other case-specific information that is helpful in determining whether or not to order a sentencing circle. The factors should not be applied rigidly – the common theme among the criteria is that the accused must be genuinely remorseful and there is some community willing to invest in, and support the accused in his or her rehabilitation.
SENTENCING CIRCLES IN AN URBAN ENVIRONMENT
46In urban environments, Aboriginal offenders may not have an obvious connection to a distinct community. However, an offender may express a desire to acquire a positive connection with his or her Aboriginal identity. In such cases, a nearby community may be an appropriate substitute, where a small or close-knit community may be difficult to define (See e.g. R v SEH (9 September 1993) BCJ No 2697 (BC Prov Ct) Stromberg-Sterin, J. [unreported] (discussed in Luke McNamara, "The Locus of Decision of Decision-Making Authority in Circle Sentencing: The Significance of Criteria and Guidelines" (2000) 18 Windsor Yearbook of Access to Justice 60 at 83 ("McNamara"))).
47Determining what an appropriate community is in an urban setting requires a broad and liberal construction of what "community" means. The term is capable of different interpretations depending on the residence of the offender (R v Cheekinew (1993), 1993 CanLII 8895 (SK KB), 80 CCC (3d) 143 at para. 150). An appropriate community in an urban setting is one in which there is a capacity, willingness, and preparedness to participate in the criminal justice system and to oversee the progress of the offender's rehabilitation (McNamara at 84). A contextual examination of what resources are available in an urban setting that is appropriate to each individual offender is necessary to determining what his or her needs are.
48Of some guidance are the criteria for community enumerated by the minority opinion in Morin at pp. 18-19 by Bayda, CJS:
The community is reasonably well defined by reason of racial origin of its members, religion or culture, or geography or some other distinguishing feature;
The community recognizes the accused not only as a member but as one who has the kind of relationship with the community that ought to make him or her feel accountable to it for any wrongdoing;
The community supports the accused in his or her difficulty with the law and is prepared to accept the accused as a person who has the capacity, inclination, need and sincerity to be restored (healed) in his or her relationship with the community and in his or her relationship with the victims of the wrongdoing; and
The community has sufficient healing or restorative resources to help the accused in that restoration or healing.
49Further, Bayda, CJS set out the following attributes for the offender in relation to his or her community (Morin, Bayda CJS at pp. 18-19):
The offender considers himself or herself a member of the community and as one who has the kind of relationship with it that makes him or her feel accountable to it;
The offender has the capacity, inclination, need and sincerity to be restored (or healed) in his or her relationship with the community and with the victims of the wrongdoing;
The offender has taken full responsibility for the wrongdoing;
The offender has pleaded guilty or in some other acceptable way has demonstrated that he or she is sincere and has taken full responsibility;
The offender is prepared to accept and carry out the decision of the community acting through its representatives at the sentencing circle respecting the measures the community deems appropriate for the restoration or healing.
50The criteria above should not be applied rigidly. In urban settings, a community may not have a well-defined racial origin, but may be a resource group that can provide rehabilitative services to the offender. On the contrary, small, isolated communities may not have the necessary financial and human resources to provide rehabilitative services to an offender, but may be well-defined by reason of racial origin or geographic location. Ultimately, the definition of "community" will vary depending on each individual offender. The common theme that emerges from the factors listed above is that there exists some community or group willing to support the accused and the accused must feel accountable and responsible to that community or group.
THE SENTENCING CIRCLE IN THIS CASE
51As noted earlier, initially the Crown opposed the sentencing circle taking place. A date was set to argue if it was even appropriate to hold a sentencing circle. Furthermore even if a sentencing circle was to be held the location and procedure to be used in the sentencing circle in this case was in dispute.
52Mr. Lavergne was in custody on the matters before me and also in custody in the matter before Justice Berg. The defence was seeking Mr. Lavergne's release on bail for the purpose of conducting a sentencing circle and the sentencing circle to be conducted out of the courtroom.
53In the course of argument I indicated that in this particular case, absent the Crown's consent to proceed in a different fashion, I was of the view that it would be appropriate to hold a sentencing circle on the following conditions. The sentencing circle would be held in the courthouse with the court reporter present and on the record. As Mr. Lavergne was in custody appropriate security would have to be present. Although the matter was to be held in the courthouse I was open to doing the matter not in a formal courtroom and in the room that allowed for the matter to proceed in a circle.
54Although the defence was not in agreement, ultimately for reasons of efficiency and to move this matter along there was agreement that the sentencing circle proceed in court 14.
55Court 14 is not set up in the traditional format of the other courtrooms in the courthouse and space allowed for us to all sit in a circle.
56On the date set for the sentencing circle an issue arose with respect to security as there is no regular secure hallway to this court room, nor prisoner dock nor is it normally used for persons in custody.
57The issue of security should have been and in future cases needs to be addressed in advance. In this particular case the Ottawa police expressed security concerns and also concerns that they were not advised of the proceeding in advance. Once again, although not ideal, agreement was reached that in order to have the circle proceed it would take place in court 14 with everyone seated in a circle and a security officer seated on each side of Mr. Lavergne.
58Security is always case-by-case to a certain extent, however for the purposes of persons involved in any future sentencing circle for persons in custody these issues should be addressed in advance.
59During the sentencing circle all participants sat in a circle. The circle was facilitated by Mr. Brandt an experienced Indigenous facilitator. Others present in the circle included myself, the Crown Attorney, a police officer involved in one of the cases and who had lengthy knowledge and experience of Mr. Lavergne and his family, defence counsel, the two special constables present for security, Mr. Lavergne, Mr. Lavergne's mother, Mr. Lavergne's partner and mother of his child, and two court clerks. There were a number of persons present in the circle from the Indigenous community that had been involved with Mr. Lavergne throughout the preceding months and assisted Mr. Lavergne in preparing a draft plan. There included an Indigenous Wellness Counselor, an employee of ODAWA who runs the "I am a Kind Man Program", Gladue caseworkers and Mr. Meekis who is actively involved in the Indigenous Peoples Court here in Ottawa. Ms. Valliquette an Indigenous Court Worker also participated.
60Each person in the circle had two opportunities to speak in order when the feather was passed to them in a clockwise fashion beginning with the Elder.
61The process was informative to the court. The Crown had the opportunity to provide the circle with the synopsis of the offences and expressed concerns about Mr. Lavergne's history and noncompliance with court orders. Sergeant Heffler had considerable knowledge of Mr. Lavergne and expressed his concerns about Mr. Lavergne's honesty and commitment to reform and the danger he has presented to the public. Mr. Dugay presented resources and a draft plan that he had worked on with Mr. Lavergne.
Resources & Draft Plan for Guy Lavergne
62As he gets settled in to being at home with his young daughter and partner, we will work together to start filling up his schedule with the following things.
Work & Training – Guy's own contacts for work (snow removal etc). Kagita Mikam employment & training services offers a lot of opportunities for people, such as Ontario's pre-apprenticeship training program, heavy machinery training, etc.
Parenting Courses – Just for Dads… the nuts and bolts of parenting, Family Services Ottawa, other parenting courses offered every quarter.
Men's Healing – Kizhaay Anishinaabe Niin (I Am a Kind Man – 12 week program addressing violence against women, cultural values & improving men to become better versions of themselves). Also have men's group & Wellbriety at Centre 510 amongst other programs.
Anger Management – Parenting through high conflict separation and divorce, Family Services Ottawa (subsidies available)
Adult Education – Ottawa Carleton District School Board (Night School, Co-operative Education, Prior Learning Assessment & Recognition (PLAR), Mature Student Evaluation (MSE), Independent Study)
Giving Back to the Community – Volunteer hours at a suitable location if possible.
Physical Fitness – Odawa has a weight room/fitness centre, a multi-purpose room and a full size gymnasium. We have a personal trainer, free weights, stationary bikes, treadmills, workout machines and other equipment. We host various workouts such as: kettle bells, yoga, jiu jitsu, Olympic weightlifting, volleyball league play, open gym nights etc.
Cultural Activities – Our Cultural Resource Coordinator hosts different cultural ceremonies and practices, such as sweat lodge ceremonies, pipe ceremonies, sharing circles, various teachings.
63As Guy wanted the first couple of months to get accustomed to home life and being a new father, the idea is not overload him with trying to do everything right away. He wants to be able to help his partner raise their daughter and then we will add things to his schedule as time goes on.
64Mr. Lavergne's mother provided the court with poignant and heartfelt information about her life. Mr. Meekis provided important material about the consequences to Indigenous persons raised as Mr. Lavergne was. He did pinpoint that change can happen but that it will be difficult. Ms. Valliquette expressed support of the draft plan and encouraged participation in an additional men's group so that Mr. Lavergne can interact with men to set up a pro-social example for him. Ms. Henderson, Mr. Lavergne's partner, expressed her support for Mr. Lavergne and what she has observed of him in the past 17 months.
65Of course, the main participant in the circle was Mr. Lavergne himself. He described to the court his life as a young boy and that he was taught not to go to school and to become involved in crime. He related that as he grew up he did not care and that each sentence in jail just taught him how to do more crime.
66He claims his life changed when Samantha became pregnant and that he has now spent the last 17 months in jail. He said he is committed to change and he described life in jail during the past 17 months including the suicide attempts he has observed and helped prevent. He expressed an apology for the crimes he has committed and his commitment to reform and become a husband and father. He discussed his commitment to the draft program plan and how he believes it will help him.
67It was quite clear how Mr. Lavergne got to where he is, and also clear that the real defining change he attributes in his life was the involvement of Ms. Henderson, her pregnancy, the birth of their child and Ms. Henderson's support in him. Prior to this point in time, Mr. Lavergne did not care and this is exhibited in his behaviour and criminal record which demonstrated a lifelong path of criminality.
68Much of the information supplied at the sentencing circle could have been supplied in a traditional manner in court. In many cases for many reasons including resource limitations, it should be done in that fashion.
69However, in this particular case, the sentencing circle format allowed the court to better understand Mr. Lavergne, his antecedents and his intentions then the court normally is able to do through reports, submissions and brief evidence.
70It was not only the time allotted, but the format of proceeding in the circle as facilitated, that allowed for an in-depth view of Mr. Lavergne and his life that provided the court with additional insight and understanding beyond what one would get from reading the Gladue report, presentence report or listening to submissions. In that sense, the court found the sentencing circle helpful, although clearly, this format is impractical to be used in every case. It nevertheless can play an important role informing the court in appropriate cases.
Sentencing Principles
71The fundamental purpose of sentencing is to protect members of society, contribute to respect for the law, and maintain a just, peaceful, and safe society. Just sanctions on criminal offenders are imposed with respect to the following objectives: denunciation of unlawful conduct, deterrence, separating offenders from society where necessary, rehabilitation, reparation to victims or the community, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community (Criminal Code, RSC 1985, c C-46, s 718). These objectives are all considered in the sentencing process, however, in some cases, one or more of these objectives may be more important than the others.
72Sentencing is a highly individualized process (R v Lacasse, 2015 SCC 64 at para. 64). Each case must be evaluated on the facts presented, the nature and seriousness of the offence, and individual mitigating or aggravating circumstances. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (Criminal Code, RSC 1985, c C-46, s 718.1).
Protection of the Public, Denunciation & Deterrence
73In evaluating an appropriate sentence, an important consideration is the protection of the public from further harm by repeat offenders. The protection of the public is not served by short sentences for persistent offenders. A just sanction requires balancing the goal of protecting the public with the appropriateness of the sanction in relation to that offence (R v Moore, 1991 CanLII 1258 (BC CA) at para. 9).
74An appropriate sentence must also consider the statutory objectives of denunciation and deterrence. Society has an interest in publicly denouncing unlawful conduct and deterring the offender and other persons from committing offences. Specifically, general and specific deterrence should be given due consideration. General deterrence aims to discourage potential offenders from committing the same offence, while specific deterrence is directed at deterring the offender before the court from repeating the same offence (R v BWP; R v BVN, 2006 SCC 27 at para. 2).
75The nature of the offences committed by Mr. Lavergne, the number of offences committed and his past record is such that the primary consideration in this sentence must be denunciation and deterrence.
GUILTY PLEA
76A plea of guilt is an indication of the prospect of rehabilitation on the part of the offender. As such, a guilty plea can be a significant mitigating factor in sentencing. However, the degree of weight put to a guilty plea will vary on a case-by-case basis. In some cases, the guilty plea may be a genuine expression of remorse, and in others, it may simply be a "recognition of the inevitable" and thus should be given little mitigating value (R v Rashid, 2018 ONCJ 723 at para. 13). Regardless of the degree of remorse, a guilty plea is still significant in saving judicial resources and giving victims of crime a sense of finality. The guilty plea should be taken in consideration in assessing an appropriate sentence (R v Faulds, 1994 CanLII 770 (ON CA), [1994] OJ No 2145 at para. 14).
Jump/Step Principle & the Totality Principle
77Where an offender persists in committing the same offences, each sentence imposed should be of greater duration than the last. The increase in duration should not be unduly harsh – the increase should proceed in "steps" from the last sentence. The "jump" principle only applies where the offender has a prospect of rehabilitation. The "jump" principle is summarized in R v Borde, 2003 CanLII 4187 (ON CA), 63 OR (3d) 714 at para. 39:
[The jump] principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past. It has little application where the severity of the offender's crimes shows a dramatic increase in violence and seriousness.
Totality
78Where an offender commits several offences, and consecutive sentences are imposed, the combined sentence should not be unduly harsh or long (Criminal Code, RSC 1985, c C-46, s 718.2(c)). The court must always keep in mind that the total time imposed must not exceed the moral culpability of the offender. Chief Justice Lamer, as he then was, explained the rationale between the totality principle in R v M (CA), 1996 CanLII 230 (SCC), [1996] 1 SCR 500 at para. 42:
In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:
The effect of the totality principle is to require a sentence who has passed a series of sentences, each properly calculated in relation to the offence to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".
Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, [4th ed. (Toronto: Butterworths, 1994)], at pp. 44-45:
The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.
79In sum, the overall sentence must reflect the fundamental statutory objectives of sentencing enumerated in Section 718 of the Criminal Code. A just sanction must consider these statutory goals along with the individual circumstances of each offender, including the nature and circumstances behind repeat offences.
Role of Gladue Factors
80Particular attention must be paid to the circumstances of Aboriginal offenders in all cases (Criminal Code, RSC 1985, c C-46, s 718.2(e)). Aboriginal offenders continue to be over-represented in the justice system and it is within the realm of the sentencing judge to remedy, even in a limited way, the systemic injustice that Aboriginal peoples experience (R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688 at para 65 ("Gladue")). When sentencing an Aboriginal offender, courts must consider: (1) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection (R v (N)J, 2013 ONCA 251 at para 41; Gladue at para. 66).
81The Supreme Court summarized the sentencing principles applicable to Aboriginal offenders as follows (Gladue at para. 93):
Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence.
Section 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.
Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision's remedial purpose real force.
Section 718.2(e) must be read and considered in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. All principles and factors set out in Part XXIII must be taken into consideration in determining the fit sentence. Attention should be paid to the fact that Part XXIII, through ss. 718, 718.2 (e), and 742.1, among other provisions, has placed a new emphasis upon decreasing the use of incarceration.
Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. However, the effect of s. 718.2 (e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.
Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider:
(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and
(B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.
In order to undertake these considerations the trial judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. In the usual course of events, additional case specific information will come from counsel and from a pre-sentence report which takes into account the factors set out in #6, which in turn may come from representations of the relevant aboriginal community which will usually be that of the offender. The offender may waive the gathering of that information.
If there is no alternative to incarceration the length of the term must be carefully considered.
Section 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed.
The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved.
Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term "community" must be defined broadly so as to include any network of support and interaction that might be available, including in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.
Based on the foregoing, the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non-aboriginal offender for the same offence.
It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal.
82To determine whether an offender's Aboriginal background will influence the ultimate sentencing decision, the systemic and background factors affecting his or her life must (1) bear on the offender's moral blameworthiness; and (2) indicate which type of sentencing objectives should be prioritized in the offender's case (R v FHL, 2018 ONCA 83 at para. 40). There is no rule requiring that Aboriginal offenders must be sentenced in a way that gives the most weight to restorative justice – what Section 718.2 (e) of the Criminal Code requires is simply a "different method of analysis", which may not lead to a different result (R v Ipeelee, 2012 SCC 13 at para. 73; R v Kakekagamick, 2006 CanLII 28549 (ON CA), 81 OR (3d) 664 at para. 42).
83Recently the Ontario Court of Appeal in R v. Martin, 2018 ONCA 1029 said:
[15] Further, consideration of Gladue principles is not equivalent to a race-based discount, but rather recognizes the reduced moral blameworthiness resulting from the effects of intergenerational dislocation and trauma, and recognizes that aboriginal persons are disproportionately represented in the prison population. As the court stated at para. 75 of Ipeelee,
Section 718.2(e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has been, and continues to be, the fundamental duty of a sentencing judge. Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2 (e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process.
84Clearly I must give tangible weight to the systemic and background factors present. In this case those factors played a substantial part in bringing Mr. Lavergne to court and which attenuate his moral blameworthiness.
RANGE OF SENTENCE FOR DRIVING WHILE DISQUALIFIED
85As is the case for many offences the range of sentences imposed for driving while disqualified is very wide. On a first offence it frequently attracts a short period in custody although sometimes a non-custodial sentence is imposed. The case law presented before me included instances when penitentiary terms with sentences of as much as four years for a single count of driving while disqualified being upheld by the Court of Appeal. The maximum penalty at the time of the occurrence of these offences was five years. Parliament has recently amended the maximum penalty and in fact as of yesterday the maximum penalty is now 10 years.
86The seriousness of driving while disqualified is clear. The carnage on our highways remains the number one criminal cause of injury and death. Driving prohibitions are an important part of the sentencing regime for driving offences. A breach of the driving prohibition is not only a breach of a court order but when a person is driving disqualified, especially a person who has been prohibited on multiple occasions, they are presenting a risk to public safety. For repeat offenders, deterrence and denunciation are the primary considerations in determining the appropriate sentence.
RANGE IMPOSED FOR MR. LAVERGNE PREVIOUSLY
87In the past Mr. Lavergne has received sentences ranging from 90 days concurrent up to and including eight months in custody for a single count of driving while disqualified. The most frequent sentence imposed on him has been four months. Clearly the sentences have been insufficient to deter him. The step principle would indicate that it is necessary to impose a longer sentence than he has previously received.
88My brother Justice Clifford, sentenced Mr. Lavergne on August 22, 2018 to term of eight months on a charge of driving while disqualified. I note that offence was committed on June 12, 2017, a date after the offences before me and at such time as he was on judicial interim release for the charges before me. I know little of the facts about that offence however given that it occurred after these matters and while he was on release it appears that for purposes of determining sentence it is as serious as the offences before me.
89Furthermore, at the time Clifford, J. imposed sentence although, I had not imposed sentence on these matters, Mr. Lavergne had already pled guilty and been found guilty of the offences before me. Given that the offence that Clifford, J. sentenced him to occurred after the offences before me it cannot be said that the step principle must apply to increase the sentence to a level higher than that imposed by Clifford, J. It is of course unknown determinatively if the sentence and period of time in custody Mr. Lavergne has spent since his arrest in July 2017 including Clifford J.'s sentence will specifically deter him as he remains in custody.
THE APPROPRIATE SENTENCE FOR MR. LAVERGNE
90I am clearly not bound by the range of sentence imposed by Clifford J. It is however, a factor I can take into account. On the information before me, that offence of driving while disqualified appears as serious as those before me. I also note also that the matter before Clifford J. proceeded as a trial whereas the matters before me were pleas of guilty and Mr. Lavergne has accepted responsibility and expressed remorse.
91Furthermore, I have the benefit of additional information about Mr. Lavergne that I acquired at the sentencing circle. In addition, when a court applies the step principle the corollary principle known as the jump principle dictates that the increase should not be excessive if the prospect of rehabilitation remains.
92In my opinion, although there remain concerns at this point in time, given all of the information I have before me I cannot say that there is no prospect of rehabilitation and rather in my opinion on the balance of probabilities rehabilitation is possible.
93Counsel for the Crown has suggested to me a global position of 30 months incarceration less pre-sentence custody.
94A global sentence is important to reflect totality. However, in my opinion when imposing sentence the court normally should not start with the global position but rather look at the offences individually. It is only when it is clear that the individual sentences combined would be excessive that the court should start from a global sentence and apportion sentences to the individual offences. If the individual sentences total less than the global position then the global position is excessive and the sentence should not be done globally.
95Thus in this case I have considered what sentence I would impose for each offence and then if necessary apply the totality principle to come to a global sentence.
96Dealing first with the drive while disqualified offence from January 15, 2016. In my opinion, given Mr. Lavergne's record, the sentences he had previously received, the facts and timing of this offence and considering that it was a plea of guilty and that at the time of sentence I am now possessed with significant Gladue information that suggests a reasonable prospect of rehabilitation if this offence stood alone I would impose a sentence of six months in custody.
97I must then consider the offences of April 11 to April 12 and April 21.
98These three offences occurred in a relatively short period of time. It is not the case that he was arrested and released on each but rather when arrested on April 21 he was also charged with the offences of April 11 and April 12. The offences are of the same type, that being drive while disqualified. As discussed with counsel in argument these three sentences are best dealt with by each of them being concurrent, although they properly should be consecutive to the offence of January 15. Furthermore, although they are to be concurrent the fact that there are three offences is a factor to consider. The total sentence for these is not simply choosing what would have been the appropriate sentence for one and making the other two concurrent. It is an aggravating factor that there are three.
99It is also aggravating that these matters occurred while he was on release from the January occurrence. In my opinion while acknowledging the plea, the Gladue factors and the prospect of rehabilitation at this time, the sentence to be imposed for these three offences should be in excess of the six months I've determined is the appropriate sentence for the January occurrence.
100Considering the step principle as well as the jump principle and all the other factors and information in this case, my opinion is that a total sentence of nine months on each of these three charges concurrent to one another, while being consecutive to the six months for the January offence is appropriate. Thus doing the arithmetic this way I come to a total sentence for the driving offences of 15 months which in my opinion is not excessive nor crushing and does not require any adjustment for the totality principle even considering that he has been in custody for 17 real months, 6 months of real days is available for consideration on sentence.
101There are some other offences. The breach of recognizance offences for April 11, 12 and 21 for operating a motor vehicle would normally attract a consecutive sentence. However, the offence for which Mr. Lavergne is being sentenced is also an offence involving a breach of a court order to operate a motor vehicle and importantly I have considered it an aggravating circumstance that he did these offences while on release. For these reasons and including consideration of totality the sentences for breach of recognizance in this case can be concurrent.
102The offence of possession of the licence plate on January 15 and the possession of marijuana on April 21 can also be concurrent on the basis of totality considering the nature of these offences.
103The offence of obstructing a peace officer includes additional consideration. Although the obstruction was brief, it did involve another person. In my view, this calls for a consecutive sentence of 1 month.
104Thus the total sentence for the offences before me I have determined to be appropriate is 16 months. Mr. Lavergne should be given credit for his pre-sentence custody which is now 180 days. When the usual factor of 1.5 is applied this gives Mr. Lavergne credit for a total of 270 days or 9 months.
105Thus Mr. Lavergne has 7 months to serve to serve. The sentence to be imposed is less than two years and there is no statutory minimum. I must consider if it is appropriate for Mr. Lavergne to serve this sentence in the community.
Conditional Sentencing Principles
106Section 742.1 sets out the statutory criteria for eligibility for a conditional sentence:
Imposing of conditional sentence
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, 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 conditions imposed under section 742.3, if
(a) the court 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;
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;
(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;
(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that
- (i) resulted in bodily harm,
- (ii) involved the import, export, trafficking or production of drugs, or
- (iii) involved the use of a weapon; and
(f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:
- (i) section 144 (prison breach),
- (ii) section 264 (criminal harassment),
- (iii) section 271 (sexual assault),
- (iv) section 279 (kidnapping),
- (v) section 279.02 (trafficking in persons — material benefit),
- (vi) section 281 (abduction of person under fourteen),
- (vii) section 333.1 (motor vehicle theft),
- (viii) paragraph 334(a) (theft over $5000),
- (ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),
- (x) section 349 (being unlawfully in a dwelling-house), and
- (xi) section 435 (arson for fraudulent purpose).
CONDITIONAL SENTENCE CONSIDERATIONS IN THIS CASE
107The sentence to be imposed is less than 2 years.
108The offence of drive disqualified has a maximum penalty of 5 years and there is no statutory minimum.
109The more difficult considerations in this case are:
- (a) the court 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.
110In considering the safety of the community the main although not only, risk that Mr. Lavergne presents is that he would operate a motor vehicle and the potential consequences that could result. Fortunately to date Mr. Lavergne's driving offences have not resulted in personal injury or death although that is always the risk in driving offences. If his record and past history were the only considerations a court could not be satisfied that a sentence served in the community would not endanger the community.
111Mr. Lavergne professes that he has changed and will not drive or re-offend. The combination of his recent incarceration for 17 months, his relationship with Ms. Henderson for that period and her support for him, the birth of his first child and the insight he has gained participating in the Gladue process generally along with the plan on his release are the reasons given to believe this time will be different for Mr. Lavergne.
112Although deterrence and denunciation remain the primary considerations in this case conditional sentences can achieve restorative measures of rehabilitation and reparation, as well as punitive measures of denunciation and deterrence (R v Proulx, 2000 SCC 5 at para. 22 ("Proulx")).
113Before a court can order a conditional sentence, the sentencing judge must be satisfied that by serving his or her term of imprisonment in the community, the offender does not pose a danger to the community (Proulx at para. 63). A sentencing judge must assess the danger to the community posed by the offender by taking two factors into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence (Proulx at para 69). The risk of re-offence should be assessed in light of the conditions attached to the sentence (Proulx at para. 72).
114In considering the length of sentence if the court is to impose a conditional sentence it can be longer than a traditional jail sentence.
Thus the choice for the court is between a traditional jail sentence of 7 months or a conditional sentence of 18 months.
115I have considered all of the information and legal principles. Given Mr. Lavergne's situation has changed and that for the first time in his life, he does care about himself, he has others he cares about and who care about him, a conditional sentence is a viable consideration.
116The Gladue factors and the rehabilitation plan presented, further support a conditional sentence. Importantly, Mr. Lavergne has been in custody for the last 17 months including 6 months of real jail credited at 9 months. At this point in time, considering all of the material before me and the deterrent and protective conditions that can be imposed, in my opinion the community is best protected by a lengthy conditional sentence with restrictive conditions.
117If Mr. Lavergne follows the terms of the conditional sentence then it protects the community best in the short and long term. In the event that my assessment is incorrect Mr. Lavergne will have to serve the conditional sentence in custody which will be longer than the sentence he would receive if it was not conditional. Furthermore, if he was to re-offend, the relevant principles of sentence would call for a lengthy sentence of imprisonment well in excess of what I am imposing today for even a single offence of driving while disqualified.
118Thus I sentence Mr. Lavergne as follows:
15 January 2016 Drive prohibited contrary to section 259: 6 Months Jail (credit for 4 months PSC credited at 1.5:1 or 6 Months) plus 1 day Conditional sentence concurrent
15 January 2016 Possession Under s. 354(b) – licence plate: 30 Days Concurrent Conditional sentence
11 April 2016 Drive prohibited contrary to section 259: 18 Months Conditional Sentence
11 April 2016 breach of recognizance s. 145 – operate a motor vehicle: 60 days Concurrent Conditional sentence
12 April 2016 Drive prohibited contrary to section 259: 18 Months Conditional Sentence concurrent
12 April 2016 breach of recognizance s. 145 – operate a motor vehicle: 60 days Concurrent Conditional sentence
21 April 2016 Drive prohibited contrary to section 259: 18 Months Conditional Sentence concurrent
21 April 2016 breach of recognizance s. 145 – operate a motor vehicle: 60 days Concurrent Conditional sentence
21 April 2016 obstruct peace officer s. 129: 1 Month Jail (Credit for 20 days PSC at 1.5:1 equal 1 month) plus 1 day Conditional sentence concurrent
21 April 2016 s. 4(1) CDSA – possession of marijuana: 15 days Concurrent Conditional sentence
119The Custodial Sentence will be for 18 months.
Statutory Conditions:
Keep the peace and be of good behaviour.
Appear before the court when required to do so.
Report as the court directs in person to a supervisor and thereafter report when required by the supervisor and in a manner directed by the supervisor.
Remain in Ontario unless you have 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
Reporting
Report in person to a supervisor within 2 working days of your release from custody and after that, at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision
Co-operate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your supervisor on request.
Residence
- Live at … or a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance.
Travel Restriction
- Remain in Ontario unless you have prior written permission from the court or supervisor to leave the province.
House Arrest
- This home confinement condition will be in effect for the first 12 months of the sentence.
Except:
I. Between ___________ in order to acquire the necessities of life
II. For any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling) or your spouse's immediate family (child, parent, sibling).
III. For going directly to or from and being at assessment, treatment or counselling sessions.
IV. You will confirm your schedule in advance with the supervisor setting out the times for these activities.
V. With the prior written approval of the supervisor. The written approval is to be carried with you during these times.
VI. For carrying out any legal obligations regarding compliance with this Conditional Sentence Order.
During your period of home confinement:
a) Do not change your place of residence without first obtaining the written permission of your supervisor.
b) You must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.
Weapons and Permits
- Do not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
Counselling and Treatment
- Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor
For – As set out in the Draft Plan or any other assessment, counselling or rehabilitative program as directed by the supervisor.
You shall sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
Released: December 19, 2018
Signed: Justice Norman D. Boxall
