ONTARIO COURT OF JUSTICE

DATE: 2021·08·06

BETWEEN:

Her Majesty the Queen

— and —

Gregory Walton

Sentencing Judgment

Counsel: V. Minkowski, Counsel for the Crown J. Christie, Counsel for the Defendant

Before: Felix J.

I. Introduction

A. Introduction

1This is the sentencing of Gregory Walton, after trial, for the indictable offence of failing to comply with his Long Term Supervision Order (LTSO) pursuant to s.753.3(1) of the Criminal Code.

2I will not repeat the detailed analysis provided in my trial judgment reported at R. v. Walton, 2021 ONCJ 209. In sum, pursuant to a condition of his LTSO the defendant was subjected to a urinalysis test by his parole officer. The results showed exposure to cocaine. The Defence position was that the result was caused by consumption of coca leaf tea. I found that the prosecution proved beyond a reasonable doubt that the defendant, without reasonable excuse, failed or refused to comply with this LTSO condition.

3The sentencing occurred in the midst of a world-wide health pandemic. The pandemic has caused restricted court time and availability. As a result, I received oral submissions on July 26, 2021 and adjourned one week to sentence the defendant. I indicated to the parties that I would impose sentence and then provide written reasons for the sentence. On August 6th, 2021 I sentenced the defendant and released these written reasons on the same day.

B. Positions of Counsel

4Prosecuted by indictment, the defendant is liable to imprisonment for up to ten years: s.753.3(1)(a) of the Criminal Code. The Crown Attorney submits that denunciation and deterrence are the key sentencing considerations for breach of a LTSO. The Crown seeks a sentence of two years jail on top of pre-trial custody (effectively a two and a half-year sentence) and a DNA order given s.753.3(1) of the Criminal Code is a secondary designated offence.

5Defence counsel submits that rehabilitation is the key sentencing consideration. Defence counsel notes the generally positive and pro-social behaviour exhibited by the defendant while residing at the Keele Centre. He submits that a conditional sentence is appropriate, and that rehabilitation should be the paramount focus of sentencing.

C. Sentence

6Having balanced all of the considerations explained in this judgment I arrive at a fit and proportionate sentence of twenty months incarceration (600 days jail). In arriving at this sentence, I have given the defendant the greatest benefit of the doubt I can justify concerning the mitigating circumstance of substance abuse and his commitment to rehabilitation as expressed by him in his statement to me prior to sentence.

7I sentence the defendant to the following:

1. 600 days jail;
2. I credit him for one day for each day of pre-trial custody totalling 100 days;
3. There will be no “Downes Credit”;
4. There will be no “Duncan Credit”;
5. I take judicial notice of the impact of the COVID-19 pandemic on persons who are incarcerated and credit the defendant with 50 additional days;
6. Leaving an incarceral sentence to serve of 450 days;
7. The DNA application is granted;
8. The Victim Surcharge is waived; and,
9. This sentence is to run consecutive to any other sentence being served.

II. Reasons for Sentence

A. Evidentiary Record on Sentence

8The Crown Attorney filed the following materials on sentence:

1. Criminal Record;
2. Long Term Supervision Certificate - June 16, 2020;
3. Section 752.1 Assessment Report - October 7, 2015;
4. Psychological/Psychiatric Assessment Report - September 1, 2016;
5. Assessment for Decision - April 14, 2020;
6. Parole Board Decision - April 20, 2020;
7. Correctional Plan Update - July 3, 2020;
8. Program Performance Report – November 18, 2020;
9. Correctional Plan Update – November 27, 2020; and,
10. Sentence Summary – October 6, 2020.

9These materials were admitted without objection. While I have reviewed all of the material, and much of it was covered during the sentencing, I will only refer to information relevant to understanding my approach to sentencing.

10The defendant’s parole officer was called as a witness by the Crown Attorney. This witness was thoroughly examined and cross-examined about her supervision of the defendant, the documentary material listed above, and other relevant sentencing issues.

B. Background of the Defendant

1. Section 752.1 Assessment Report – October 7, 2015

11A key source of information about the defendant is the s.752.1 Assessment Report prepared by forensic psychiatrist Dr. Jeff McMaster, dated October 7, 2015. This comprehensive report is 78 pages long and contains impressive detail concerning a variety of subjects relevant to the sentencing hearing addressed in 2015. It is still sufficiently current for this sentencing in 2021.

a) Family History

12The defendant was born in North York and experienced his father being verbally and physically abusive to his mother. His parents separated when he was 12 years old. His father was strict with him but also got him involved in football soccer hockey and cadets. He delivered newspapers at a young age and began working at a Pizza Hut at age 13. Excellent grades were encouraged.

13The defendant enjoys a good relationship with his siblings and half-siblings. The defendant described his family history as generally positive. No one else in the family has had an issue with criminal behaviour or legal difficulties. The defendant attributed his circumstances to poor decision-making, poor choice in friend, and his involvement in money collection and drugs.

b) Educational History

14The report outlines the defendant’s difficulties in school including truancy and conflict. The defendant did not complete high school. The report also notes that the defendant was of average intellect, had a learning disability, and required special education programming.

15While incarcerated, the defendant completed a computer course. He has also attended chef school for seven months but did not complete the course when he was rearrested for violating his parole. The educational background material also documents a history of disruptive behaviour, fighting, and poor impulse control.

c) Employment History

16The report outlines the defendant’s employment history. The defendant has worked in a wide variety of jobs. The report cites the fact that he has had somewhere in the order of fifteen jobs and has had difficulty maintaining employment. Notable is his excellent performance at BevCan Properties. The defendant told the author of the report that he had always tried to work and that he did not support himself through criminal endeavours.

d) Substance Abuse

17The report sets out the defendant’s history of substance abuse. The defendant reports that he first used illicit substances during his involvement in the nightclub industry. It appears that the drugs of choice are connected to his nightclub experience (e.g. MDMA and GHB). I note as well that he was forthright with his parole officer about using ecstasy and his parole was revoked as a result.

18In 2011, around the time of the beginning of his relationship with his partner A.D., the defendant spiralled back into drug use. Of note, A.D. was suffering from a large cocaine habit and the defendant started supporting her habit financially. The report explains how the defendant’s use of cocaine was connected to his relationship with A.D. She always wanted to use cocaine and did not want to use it alone which drew the defendant into the use of cocaine. The defendant explained that he did not really enjoy using cocaine as it made him lazy and not want to work. He felt pressure from his partner to use cocaine. In addition, he endured financial problems to support the use of cocaine.

19The defendant completed a substance abuse program during his first federal sentence. On page 28 of the report the defendant self-reports that he was never under the influence of cocaine during any of his offensive history.

e) Psychiatric History

20Prior to the writing of the assessment report the defendant had no psychiatric history.

f) Conclusion

21In 2015, Dr. McMaster concluded that the defendant likely had a personality disorder with antisocial traits, narcissistic traits, and a moderate degree of psychopathy. Dr. McMaster also diagnosed a Poly Substance Abuse Disorder involving GHB, Ecstasy, and cocaine (in remission). The opinion was that the risk of violence flowing from these factors would potentially be reduced by the passage of time or by treatment. The report notes the following conclusion:

In Mr. Walton’s case, while he has repeated his offence cycle, it appears to take a considerable amount of time to culminate in a violent offence. He has never been subject to a LTSO which could provide further intervention along the pathway towards a violent event. It appears likely that Mr. Walton’s violence flows significantly from his association with nightclubs, antisocial organizations / peers, and substance use. Therefore, it seems reasonable to think that there would be time to intervene on the pathway towards a violent act, by means of very tight supervision, and a low threshold of breaching Mr. Walton. For example, it appears reasonable to think that violence could be prevented by breaching him for having any contact with a nightclub, with a breach potentially leading to an extended period of further incarceration. I would deter to probation and parole, about the resources and capabilities in terms of adequately supervising this risk factor (by allowing an early breach to prevent an act of violence).

22Dr. McMaster also noted:

In summary, Mr. Walton appears to be an individual at high risk of violence, in the long term, absent conditions, supervision, and treatment. There appears to be a substantial risk that this violence may be of a serious nature. From a psychiatric perspective, there appears to be the possibility of eventual control of Mr. Walton’s risk in the community on an LTSO.

2. Psychological Report August 30th, 2016

23Psychologist Diane Nicholson conducted an intake and treatment needs assessment upon the defendant’s conviction for aggravated assault and assault causing bodily harm and his attendance at the Joyceville Assessment Unit.

24The report cites the defendant’s self-report that drugs were not a significant issue for him. The defendant also indicated that substance abuse was not a factor in his crimes, physical ailments, or employment. The main significant factor involved the financial pressure associated with his financial support of his partner’s substance abuse.

25The author of this report used several measures to rank the defendant at the 44th percentile with a moderate risk with a 48% chance of recidivism within one year of release from custody on the SIR/R. With respect to the LSI-R, the defendant could mitigate risk by improving leisure activities, avoiding his negative peer group, and remaining drug-free. With respect to the VRAG the defendant fell into the 6th highest of nine categories indicating a 34% risk of violent recidivism at 5 years and 60% risk of violent recidivism at 12 years after release from custody.

26The author recommended that defendant go to Alcoholics Anonymous and Narcotics Anonymous meetings even though the defendant claimed that drug use was not directly involved in his offending behaviour.

3. Criminal Record

27The defendant’s prior criminal record is well-documented in the sentencing materials. It provides foundation and context to the imposition of the LTSO. The prior criminal record is serious and concerning. It demonstrates the defendant’s ability to commit violent offences.

4. Evidence of the Defendant’s Parole Officer

28The defendant’s parole officer testified at sentencing. I found her evidence to be clear, balanced, objective, and insightful. This witness is an experienced parole officer. She has been working in this area since 1999. She has supervised the defendant since December, 2019.

a) Substance Abuse and Offence Cycle

29The defendant’s parole officer read the psychiatric report as providing broad context to the contributing factors and triggers to the defendant’s criminal behaviour. She endorsed several conclusions of the report.

30For example, as it pertained to substance abuse she agreed with the following conclusion:

Substance Misuse: Relapse prevention; monitoring, including random urinalyses; residential treatment

Substance use may contribute to Mr. Walton’s risk of violence through the following pathways, via intoxication, or withdrawal; of lifestyle effects (e.g. association with certain individuals, financial strain):

1. Impairment in judgement
2. Intensification of anger
3. Association with antisocial and criminal associates
4. Risk of escalation in behaviour
5. Decreased coping skills and lifestyle instability

Despite his participation in National Substance Abuse Programming, Mr. Walton subsequently continued to use psycho-stimulants, and associated with a substance using girlfriend. His commission of the predicate offences had a financial motivation, which played part of his offence cycle. Mr. Walton’s offence cycle could be derailed by not using substances, or associating with substance using individuals. In this regard, I note that he has never before had residential or pharmacological management of his addictions, or ongoing treatment.

31She also agreed with Dr. McMaster’s characterization of the defendant’s offence cycle:

Mr. Walton appears to have an offence cycle in which he does not have the sense, and responsibility to avoid high risk situations, despite past difficulty in same. He appears to gravitate to positions in which he makes use of his physical size and strength, which gives him a sense of importance, and which provides monetarily. It appears that any prosocial gains accrued from programming, supervision, and personal and professional support, gradually erode over time, while he places more emphasis on activities which place him at elevated risk. In his cycle, he gravitates to organizations which may be associated with activities of limited or questionable stability, morality or legality. For example, in his work as a bouncer, he appears to encounter prostitutes / strippers, substance abusers, and the opportunity to be involved in criminal activities.

This cycle most recently culminated in his predicate offences.

32Finally, the defendant’s parole officer also endorsed the following conclusion:

[T]he use of cocaine is an important indicator of a return to Mr. Walton’s offence cycle. He acknowledges that whenever he is associating with negative peers and back in the nightclub scene he has also historically been using cocaine regularly.

b) Response to Supervision

33The defendant’s parole officer testified that the defendant has incurred five violations of his LTSO terms and four suspensions of his LTSO during her supervision. The circumstances of these matters are described in the materials and will be addressed further below.

34The defendant’s parole officer testified that there has been an escalation of his risk given the recent urinalysis result in October 2020 (the subject matter of this trial). She is not encouraged by the defendant’s approach to the issue. Her pessimism appears to be inspired by the defendant’s failure to honestly acknowledge that he used cocaine. She clearly does not accept his speculative explanation that a co-worker gave him a hydroxycut supplement or caffeine pills and perhaps there was cocaine within those pills. She is also generally aware of the defendant’s reliance on the “Coca Tea Defence” at trial. This stance adds to her pessimism.

35The defendant’s parole officer is entitled to evaluate the defendant’s failure to accept responsibility for his failed urinalysis test. The defendant’s parole officer is experienced. I do not discount her skeptical evaluation of the defendant’s explanations for the failed urinalysis test that he presented to correctional authorities. In considering the defendants’ explanations, she has resort to all of the information about him including his psychological assessment. There is foundation for the defendant’s parole officer’s subjective view that the defendant’s stance on this issue contributes to his risk.

36On the more positive side, the defendant’s parole officer had a number of positive observations: For example:

1. The defendant engaged in counselling to address his alcohol and deal with stressors;
2. The defendant was meeting with her weekly and on his own initiative requested for the frequency of their meetings to be increased rather than decreased;
3. The defendant agreed to intensive programming and counselling support but was waitlisted due to the COVID-19 pandemic until September 2020;
4. The defendant is a reliable worker at a construction site and is trusted to go to and from work;
5. There has been no circumstance of violence or aggression during her supervision;
6. There have been no negative peer groups or associations during her supervision; and,
7. During her supervision, the defendant provided approximately 4 or 5 other urinalysis tests without any concerning result.

37The evidence of the defendant’s parole officer was balanced. She acknowledged a concern about the defendant re-offending, but also endorsed several positive steps taken by the defendant. She noted that there was nothing about the defendant’s behaviour or conduct in the fall of 2020 that suggested to her that he was abusing substances. Nothing in the defendant’s behaviour caused her concern prior to the failed test.

C. Aggravating and Mitigating Factors

38Section 718.2 of the Criminal Code recognizes that sentences should be increased or reduced having regard to relevant aggravating or mitigating factors relating to the offence or the offender.

1. Aggravating Factors

a) Status at the Time of the Offence

39The defendant was subject to parole and LTSO conditions at the time of the offence which is obviously aggravating: s. 718.2(a)(vi) of the Criminal Code.

b) Criminal Record

40The defendant’s prior criminal record is an aggravating factor.

c) Admissibility of Prior Circumstances of Non-Compliance with LTSO

41The prosecution submits that the defendant’s record of previous non-compliance with conditions of statutory release and conditions of his LTSO is an aggravating factor on sentence. The Crown Attorney cites portions of the sentencing material wherein the record of non-compliance is summarized and relies upon viva voce evidence provided by the defendant’s parole officer. The Crown Attorney submits that this background material is aggravating, informs the current breach, and provides necessary context to sentencing.

42Defence counsel submits that while the evidence documenting the prior record of alleged non-compliance is admissible, the use of the prior conduct as an aggravating factor on sentence is unfair to the defendant for several reasons.

43First of all, the response by the correctional authorities to the alleged circumstance of non-compliance did not involve formally charging the defendant with a breach of his LTSO. The defendant had no opportunity to challenge the allegations. The Crown Attorney should be estopped from relying upon such circumstances in aggravation. Second, the defendant received administrative punishments and increased restrictions on his freedoms as a result of the alleged circumstances of prior non-compliance. He has already been punished. Third, at times the outcome of the prior conduct was for the correctional staff to recognize that the conditions required fine-tuning (e.g., alcohol establishment-related terms or consider the defendant’s statements about the confusion involving Jack Astor’s and other restaurants).

44I find that the Court may consider the prior circumstances of alleged non-compliance for many reasons. First of all, the evaluation of a fit and proportionate sentence contemplates consideration of all relevant information on sentencing. As explained by the Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13, at paragraph 52 (Ipeelee):

52 It would be imprudent to attempt to determine in the abstract the gravity of the offence of breaching a condition of an LTSO. The severity of a given breach will ultimately depend on all of the circumstances, including the nature of the condition breached, how that condition is tied to managing the particular offender's risk of re-offence, and the circumstances of the breach. . . .

45Second, this sentencing concerns the appropriate sentence for a breach of LTSO conditions. The nature of the condition, how it relates to the defendant’s behaviour on the LTSO, and management of risk, are central considerations on sentence.

46Third, I concede that this sentencing Court has no jurisdiction to punish the defendant for prior untried offences: s.725 of the Criminal Code. However, I observe that the prosecution is permitted to lead relevant evidence of prior incidents including incidents which have not been the subject of any prior adjudication on a dangerous offender application: R. v. Lewis, [1984] O.J. No. 3203 (C.A.); R. v. C.L.S., 1999 ONCA 2984, at paras. 26-28; R. v. Corbiere, 1996 ONCA 2867. It would be an odd result if such information was inadmissible at a sentencing hearing.

47Further, s.725.1(c.) of the Criminal Code permits a Court to consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. These circumstances need not form part of the same transaction as the breach before the Court: R. v. Larche, 2006 SCC 56 (Larche). In order to rely upon the prior misconduct, it must be proven beyond a reasonable doubt, there must be a nexus between the conduct and the offence before the court, and the misconduct incidents should be assessed and given “appropriate weight to their proximity in time and to their probative worth as evidence of a system or of an unbroken pattern of criminal conduct”: Larche, at para. 55.

48Finally, it is also clear that a sentencing court may consider background character evidence concerning the defendant: (See the authorities and discussion in R. v. Angelillo, 2006 SCC 55, at paras. 22-33; R. v. Edwards, 2001 ONCA 24105 at paras. 39-43, 45-65.) I note that in Matte, the Court of Appeal referred to the fact that the defendant violated the terms of statutory release and had a “robust record of institutional offences” without any concern: Matte, at para 44. I also note that the Court of Appeal in Bourdon referred to the offender’s history of non-compliance: R. v. Bourdon, 2012 ONCA 256, at paras. 8-15 (Bourdon).

49I find that would it is contrary to the rationale of the LTSO regime itself to hold that a sentencing court could only consider prior breach incidents where formal criminal charges had been laid and proven. This might lead correctional authorities to recommend criminal charges more often. The rationale for the LTSO regime has built in flexibility to permit a parole officer to consider a range of responses to a breach incident prior to a criminal allegation of breach. Correctional authorities should be free to have resort to less drastic approaches when dealing with LTSO breach behaviour consistent with the rationale behind the management of such offenders in society. In my view, courts should not send a message to correctional authorities encouraging formal criminal proceedings in every circumstance for fear that the circumstance will be unavailable to a sentencing court.

50Defence counsel submits that it would be “unfair” to rely on the record of alleged non-compliance. I do not agree.

51First, as outlined above under heading “Evidentiary Record on Sentence”, the materials were admitted at sentencing without objection. The defendant’s parole officer was called as a witness and subjected to cross-examination. The defendant was permitted to challenge the circumstances surrounding the prior violations of conditions and provide necessary context to those circumstances. The parties have been permitted to make submissions on this issue: s.723(1) of the Criminal Code.

52Second, Defence counsel elects to rely on some of the records for the positive information detailing the defendant’s general good performance as a “model” client at the Keele Centre.

53Finally, as the defendant contests the prior misconduct in this case, the Crown must proof the prior misconduct beyond a reasonable doubt if it is to be available as an aggravating factor on sentence: (See s.724(3)(e.) of the Criminal Code; Angelillo, at para. 32; R. v. Ladue, 2011 BCCA 101, at paras. 30-33, appeal dismissed R. v. Ipeelee, 2012 SCC 13). The Crown always has the burden of proving contested aggravating factors beyond a reasonable doubt at sentencing: R. v. Gardiner, 1982 SCC 30.

54I find that the procedure was fair to the defendant. I find that the background record of compliance is admissible, and it is not unfair to utilize this information on sentencing.

d) Findings: Prior Aggravating Circumstances

55The Crown Attorney has established the following circumstances beyond a reasonable doubt based on the written documentation placed before the court and the viva voce evidence of the defendant’s parole officer:

• The defendant received a federal sentence of 5 years for Robbery from 1996 to 2001. He was released on day parole in August 1998 and received full parole in January 1999. Thirteen days later, the defendant was charged with Aggravated Assault and Robbery. The defendant pled guilty.
• The defendant served a sentence from 2006 to 2009 for Extortion and Forcible Confinement. He received statutory release in June 2008. Two months later his community supervision was suspended after the defendant disclosed illicit drug use. A urinalysis result confirmed the consumption.
• In December 2008, the defendant presented as being under the influence of narcotics. His urinalysis tested positive for MDMA and Amphetamines. His case management team supported continued supervision despite this occurrence and issued a “local cancellation”.
• In March and April 2018, the defendant violated a special condition for failing to avoid drinking establishments.
• In April 2018, the defendant violated a special condition by having contact with another offender under community supervision.
• In July 2018, the defendant the defendant violated a standard condition of release by forgetting to report to the police.
• In July 2018, the defendant violated a special condition by purchasing alcohol at the LCBO.
• In January 2019, sixteen days after commencing the LTSO the defendant was late returning to his residence and was impaired by the consumption of alcohol.
• In September 2019, a second violation of the LTSO conditions occurred when the defendant failed to disclose large sums of money received. The defendant noted that he had concealed this money because if his parole officer knew the source, he would not be permitted to keep it.
• In September 2019, the defendant’s parole officer became aware that he had purchased alcohol at the Beer Store in July 2019. The LTSO was suspended and the Parole Board recommended criminal charges. The Toronto Police Service did not pursue criminal charges.

56The prosecution has established the following circumstances generally but has failed to satisfy me that they should be consider aggravating factors on sentence:

• In January 2019, the defendant consumed alcohol and was 4 minutes late for curfew. The defendant was not subject to a condition prohibiting the consumption of alcohol. Being four minutes late for curfew is not aggravating in my view.
• In June 2020, the defendant failed to call into his residence and was found to be intoxicated by alcohol. A parole officer supervisor went to the defendant’s location and found him to be intoxicated. The defendant explained that his continued unemployment due to COVID-19 and world events contributed to his decision to consume alcohol. The defendant’s parole supervisor found the circumstances to be mitigating and noted the defendant’s positive motivation and willingness to change. The defendant ultimately took full responsibility for his actions. I do not find this circumstance to be aggravating given the explanation provided by the defendant.

2. Mitigating Factors

a) Credit for Stringent Judicial Interim Release Conditions

57The defendant did not seek credit for stringent judicial interim release terms pursuant to R. v. Downes (2006), 2006 ONCA 3957, 79 O.R. (3d) 321 (Downes). Judicial interim release conditions always infringe on a defendant’s liberty interests. A sentencing judge must consider the mitigating circumstance of time spent under stringent bail conditions: Downes, at paras. 26-33; R. v. Bullens, 2021 ONCA 421. There is no mathematical formula. The sentencing judge must consider the case-specific circumstances and explain the exercise of discretion: Downes, at para. 33; R. v. Phronimadis, [2006] O.J. No 3993 (C.A.).

58In this case the judicial interim release terms were entirely appropriate having regard to the defendant’s antecedents. There is no justification for Downes credit.

b) Addiction as a Mitigating Factor

59During the trial, the Defence position articulated by counsel focused on alternative explanations for the defendant’s failed urinalysis test. On the date of sentencing, Defence counsel submitted generally that the defendant recognized a need for rehabilitation. Indeed, the Defence position on sentence was focused on rehabilitation – a conditional sentence with terms addressing substance abuse treatment. On the date of sentencing the defendant addressed the court and acknowledged a need for intensive substance abuse treatment including perhaps residential treatment.

60There are some circumstances where drug addiction is a mitigating factor on sentence. There are other cases where drug addiction is not a mitigating factor.

61The defendant has not yet been able to act upon his wish to obtain treatment given the circumstances of his detention. The defendant’s stance at trial and now at sentencing leaves me with no reliable independent information about the defendant’s use of cocaine. Regardless of the approach at trial, for the purpose of sentencing, it would have been helpful to know if the cocaine use was simply a “one-off” or a slip-up. I would want to give him the benefit of the doubt in this regard – even after trial. Even if the use was more than a “slip-up”, I would have been interested to see the defendant’s approach to counselling and treatment. I view his historical approach to counselling and treatment to be positive. I note that even at the time of his arrest in October 2020 he was engaged in counselling. The material filed by the Crown demonstrates that the defendant is cooperative and positive about obtaining assistance and is not shy about initiating the process.

62Neither the defendant nor Defence counsel tied the defendant’s recognition that he has a substance abuse problem with the criminal allegation at trial. Notwithstanding this fact, and notwithstanding the lack of formal commitment or progress in substance abuse treatment, I view the defendant’s statements as a positive step toward rehabilitation and recognition of the risk associated with an addiction to drugs. Based on this limited record I recognize substance abuse as a modest mitigating factor on sentence.

c) Conduct Under Supervision

63I agree with Defence counsel’s submissions and the evidence of the defendant’s parole officer supporting a finding that the defendant is a very positive and compliant client under supervision at the Keele Centre. I find this general behaviour to be supportive of the defendant’s stated commitment to intensive substance abuse treatment.

3. Factors – Neither Mitigating nor Aggravating

a) Credit for Pre-sentence Custody

64I find that the defendant has been in pre-trial custody from October 5, 2020 to February 8th, 2021 totalling 100 days.

65Normally a sentencing court considers the maximum statutory enhanced credit for pre-trial detention pursuant to s. 719(3.1) of the Criminal Code. See R. v Summers, 2014 SCC 26, at paras. 7, 34, 68-80, affirming, 2013 ONCA 147. In this case I credit the defendant with one day for each day of pre-trial custody given the LTSO continued to run while he was in pre-trial custody and I find it would be inappropriate to allow both credit toward the sentencing being served on an LTSO and pre-trial custody: R. v. Bourdon, 2012 ONCA 256, at paras. 17-19. Further, given the record adduced at this sentencing, it is unlikely that the defendant would receive consideration for early release: R. v. Ipeelee, 2009 ONCA 892, at para. 10.

66While I acknowledge that other courts have exercised discretion to allow enhanced credit, I decline to follow those decisions: (See the authorities cited in R. v. Hoshal, 2020 ONCJ 345, at paras. 38-47 (Hoshal))

b) Credit for Harsh Custodial Conditions (“Duncan Credit”)

67A sentencing court should provide enhanced credit for “particularly harsh presentence incarceration conditions” based on the impact on the defendant: R. v. Duncan, 2016 ONCA 754, at para. 6. Further, where lockdown conditions have had an "adverse effect" on the defendant, credit is available: R. v. Rajmoolie, 2020 ONCA 791, at paras. 14-16; R. v. Omoragbon, 2020 ONCA 336, at para. 32; R. v. Henry, 2016 ONCA 873, at para. 9. There is no mathematical formula. The appropriate credit is left to the discretion of the sentencing judge.

68The defendant has not adduced any evidentiary record toward the conditions in custody. I decline to grant credit for harsh custodial conditions.

c) The “Coca Leaf Tea” Defence

69The defendant advanced a defence at trial premised upon the viva voce evidence of his girlfriend in aid of the suggestion that his positive test was caused by the consumption of coca leaf tea. In addition, the sentencing materials disclose that the defendant told his parole supervisor that he believed the positive test may have come from taking supplements or caffeine pills.

70Earlier in this judgment I addressed the subjective views of the defendant’s parole officer. She perceived his reliance on speculative explanations for his urinalysis result as indicative of a poor response increasing his risk. Clearly, she perceived these responses as indicative of the defendant’s lack of insight and accountability. Consequently, in her view, the defendant’s approach to his urinalysis result contributes to his increased risk to the public.

71Notwithstanding these circumstances, I find the defendant’s use of speculative excuses with correctional authorities to be a neutral factor on sentence. I must carefully distinguish between that which his parole officer views as aggravating risk, and that which are properly aggravating factors relevant to sentencing.

72The fact that the defendant challenged the prosecution case at trial is not an aggravating factor on sentence even if the defendant’s parole officer believes such conduct contributes to his risk. The defendant’s speculative excuses presented in the sentencing material may not be used to aggravate the sentence. As explained in my reasons at trial, the defendant relied upon the consumption of coca leaf tea as a reasonable excuse or explanation for his urinalysis result. Once again, the fact that the coca leaf tea defence was conceptualized and materialized before me on the eve of trial is not an aggravating factor on sentence.

d) Collateral Consequences

73A proportionate sentence may require an examination of the collateral consequences including those consequences that arise from the commission of the offence, the conviction for the offence, or the sentence imposed: R. v. Suter, 2018 SCC 34, at para. 47 (Suter). A collateral consequence is not necessarily aggravating or mitigating per s. 718.2(a) of the Criminal Code as these consequences are not related to the gravity of the offence or the level of responsibility of the offender: Suter, at para. 48. Collateral consequences are integrally connected to the goal of an individualized proportionate sentence as the focus concerns whether the impact of the sentence would have a more significant impact on the offender because of the offender’s circumstances: Suter, at para. 48

74In determining the weight of this factor there is no rigid formula or test involved but it is important not to overemphasize this factor thereby leading to a disproportionate sentence: Suter, at para. 56.

(1) Impact on Employment

75I know that the defendant works in construction and is a reliable and hardworking individual who never misses a day of work. I know that the defendant has suffered from unemployment due to COVID-19 and this has contributed to his stressful circumstances. I take into account the impact of this sentence on the defendant’s return to employment.

(2) COVID-19

76I take judicial notice of the health pandemic and the guidance of other courts. I find the recent approach of my colleague, Pringle J. in R. v Marsan, 2020 ONCJ 638, at paragraphs 39 to 42 to be persuasive on this issue. I also accept the guidance provided by R. v. Hearns, 2020 ONSC 2365 and R. v. Morgan, 2020 ONCA 279.

D. Purpose and Principles of Sentencing

1. Purpose of Sentencing

77Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to protect society, prevent crime, promote respect for the law, and support a just, peaceful, and safe society. These aims are achieved by promoting sanctions that have certain objectives. In this case, the sentence should: (1) denounce unlawful conduct; (2) deter the defendant; (3) separate the defendant from society; and (4) promote a sense of responsibility in the defendant.

2. The Fundamental Principles of Sentencing

78Section 718.1 of the Criminal Code mandates that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 of the Criminal Code provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

79Sentencing is highly individualized. A sentencing court must tailor sentences to the circumstances of the offence and the offender: Suter, at para. 46. The defendant should not be unduly deprived of liberty if appropriate less restrictive sanctions could achieve the aims of sentence. All reasonable sanctions, other than imprisonment, should be considered.

E. The Sentencing

1. Statutory Guidance

80Section 753.3(1) of the Criminal Code (Breach of LTSO) is a hybrid offence. When prosecuted by indictment it is punishable by a maximum of ten years in prison.

2. Case Law

81Sentence ranges are important when considering the parity principle. That being said, sentence ranges are simply collected summaries of minimum and maximum sentences: R. v. Lacasse, 2015 SCC 64, at para. 57. Sentencing is an individualized process. Every defendant is owed a customized sentence. A bespoke proportionate sentence is the central aim of criminal law sentencing. The challenge for a sentencing judge is to impose a fit and proportionate sentence having properly evaluated the relevant factors: R. v. M. (C.A.), 1996 SCC 230, at para. 90.

82The Crown Attorney filed cases to assist the Court with sentencing. I have also considered a number of other cases.

83In R. v. H.P.W., 2003 ABCA 131, the Court overturned a four-month jail sentence because the sentencing court failed to properly assess whether a condition to abstain from alcohol was an integral condition of the LTSO connected to the mitigation of risk. The Court substituted a sentence of one year.

84In Matte, the Ontario Court of Appeal did not disturb the functional equivalent of a two-year sentence (380 days pre-sentence custody plus 350 days imprisonment).

85In Hoshal, a decision rendered by my colleague H. F. Pringle J. I found the analysis in that case helpful as an example of an offender where consumption of alcohol or drugs was strongly linked to violent recidivism.

86I endorse the analysis provided by my colleague M. Greene J. in R. v. Middleton, 2019 ONCJ 280, in arriving at a range of sentence between nine months and five years for breach of LTSO: R. v. Middleton, 2019 ONCJ 280, at paras. 37-42 (Middleton). In particular, I endorse the finding that where an offender has been doing well and engaging in meaningful rehabilitation, a breach might be viewed as a “blip” deserving a shorter sentence. Where the offender demonstrates consistent non-compliance, lengthier jail sentences are required: Middleton, at para. 42.

87In R. v. P.W., 2017 ONCJ 43 the defendant was sentenced to nine months jail for breaching his LTSO by consuming cocaine. The Court found that cocaine was a trigger for the defendant’s violent behaviour. The Court found that the condition was an integral part of managing the defendant’s risk of re-offence. In mitigation, the aboriginal defendant pled guilty.

88In R. v. Pelletier, 2016 ONCJ 628, the court once emphasized Gladue factors in sentencing the defendant, after a guilty plea, to 161 days of pre-sentence custody assessed at a 1:1 ratio.

89In R. v. MacDonald, 2014 ONSC 4671, the court recognized significant progress achieved by the defendant and the fact that he had completed his LTSO in sentencing the defendant to a conditional sentence of two years less one day. I have not found any other case where a conditional sentence was imposed for breaching an LTSO. I find it significant that the defendant had 15 months of pre-trial custody credited at the time of sentence.

90There does not exist a large body of reported sentencing cases for breach of a LTSO. The caselaw generally demonstrates that breaching an LTSO condition is viewed as a serious criminal offence. While all of the sentencing tools are available, Courts tend to impose exemplary sentences in recognition of the fact that a dangerous offender has breached conditions designed to address protection of the public, rehabilitation, and re-integration into society: Ipeelee, at para. 47.

3. The Approach to Sentencing

91The Supreme Court of Canada recently re-stated the important considerations in sentencing an offender for breach of a LTSO in R. v. Bird, 2019 SCC 7, at paragraph 37:

37 In Ipeelee, this Court recognized two specific objectives of long-term supervision: (1) to protect the public from the risk of re-offence by long-term and dangerous offenders; and (2) to rehabilitate these offenders and reintegrate them into the community (para. 48). An LTSO controls the risk to public safety posed by long-term and dangerous offenders in the community, which is why the breach of an LTSO is deemed to be a more serious offence than the breach of a probation order (Ipeelee, at paras. 53-54). As G. R. Clewley, P. G. McDermott and R. E. Young note in Sentencing: The Practitioner's Guide (loose-leaf): "[t]he breach of a long-term supervision order is taken very seriously, because by definition the offenders on these orders have committed violent and/or sexual offences and pose some risk to the community" (p. 13-57). Under s. 753.3(1) of the Criminal Code, the breach of a condition of an [page433] LTSO is an indictable offence punishable by a term of imprisonment of up to 10 years.

92The focus of this sentencing is aided by the guidance in Ipeelee. While lengthy quotations from cases are seldom welcome, at times, the guidance is so important that a clear statement is necessary. In paragraph 36 of Ipeelee the Court noted the overarching applicability of the sentencing principles contained in the Criminal Code. In paragraph 37 the Court noted the fundamental principle of sentencing – proportionality – and how this ties into the purpose of sentencing. The Court then addressed the objectives of long-term supervision in paragraph 48:

48 Reading the Criminal Code, the CCRA and the applicable jurisprudence together, we can therefore identify two specific objectives of long-term supervision as a form of conditional release: (1) protecting the public from the risk of re offence, and (2) rehabilitating the offender and reintegrating him or her into the community. The latter objective may properly be described as the ultimate purpose of an LTSO, as indicated by s. 100 of the CCRA, though it is inextricably entwined with the former. Unfortunately, provincial and appellate courts have tended to emphasize the protection of the public at the expense of the rehabilitation of offenders. This, in turn, has affected their determinations of what is a fit sentence for breaching a condition of an LTSO.

93The Court then explained the purpose of the LTSO in paragraph 50:

50 The foregoing characterization of the long-term offender regime is incorrect. The purpose of an LTSO is two-fold: to protect the public and to rehabilitate offenders and reintegrate them into the community. In fact, s. 100 of the CCRA singles out rehabilitation and reintegration as the purpose of community supervision including LTSOs. As this Court indicated in L.M., rehabilitation is the key feature of the long-term offender regime that distinguishes it from the dangerous offender regime. To suggest, therefore, that rehabilitation has been determined to be impossible to achieve in the long-term offender context is simply wrong. Given this context, it would be contrary to reason to conclude that rehabilitation is not an appropriate sentencing objective and should therefore play "little or no role" (as stated in W. (H.P.)), in the sentencing process.

94The Court explained that a sentencing judge is to consider all of the sentencing principles when sentencing for a breach of an LTSO, including rehabilitation: (See Ipeelee, at para. 51; See also R. v. Matte, 2012 ONCA 504, at paras. 28, 34-38). At paragraphs 52 to 55 of Ipeelee, the Court addressed the central considerations on sentence:

52 It would be imprudent to attempt to determine in the abstract the gravity of the offence of breaching a condition of an LTSO. The severity of a given breach will ultimately depend on all of the circumstances, including the nature of the condition breached, how that condition is tied to managing the particular offender's risk of re-offence, and the circumstances of the breach. However, a few comments may be instructive.

53 Breach of an LTSO is an indictable offence punishable by up to ten years' imprisonment. This can be contrasted with breach of probation which is a hybrid offence with a maximum sentence of either 18 months or two years' imprisonment. In each of the present appeals, the Crown places significant emphasis on this distinction, suggesting that the high maximum penalty indicates that breach of an LTSO is a particularly serious offence warranting a significant sentence. My colleague, Rothstein J., reiterates this point at para. 123 of his reasons, concluding that the "necessary implication is that Parliament viewed breaches of LTSOs as posing such risk to the protection of society that long-term offenders may have to be separated from society for a significant period of time".

54 The lengthy maximum penalty certainly indicates that Parliament views the breach of an LTSO differently (and more seriously) than the breach of a probation order. However, it would be too much to suggest that the mere existence of a high statutory maximum penalty dictates that a significant period of imprisonment should be imposed for any breach of an LTSO. Breaches can occur in an infinite variety of circumstances. Parliament did not see fit to impose a mandatory minimum sentence. Where no minimum sentence is mandated by the Criminal Code, the entire range of sentencing options is open to a sentencing judge, including non-carceral sentences where appropriate. In its recommendations, the Task Force specifically stated that a key factor to the success of a long-term offender regime is "a speedy and flexible mechanism for enforcing the orders which does not result in lengthy re-incarceration in the absence of the commission of a new crime" (p. 19 (emphasis added)).

55 It is the sentencing judge's duty to determine, within this open range of sentencing options, which sentence will be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The severity of a particular breach of an LTSO will depend, in large part, on the circumstances of the breach, the nature of the condition breached, and the role that condition plays in managing the offender's risk of reoffence in the community. This requires a contextual analysis. As Smith J.A. states in R. v. Deacon, 2004 BCCA 78, 193 B.C.A.C. 228, at para. 51"the gravity of an offence under s. 753.3 must be measured with reference not only to the conduct that gave rise to the offence, but also with regard to what it portends in light of the offender's entire history of criminal conduct". Breach of an LTSO is not subject to a distinct sentencing regime or system. In any given case, the best guides for determining a fit sentence are the well-established principles and objectives of sentencing set out in the Criminal Code.

95The Supreme Court of Canada directed the sentencing judge to assess a proportionate sentence based on a contextual analysis of the circumstances including the conduct involved in the offence, and what the conduct foreshadows, given the defendant’s history of criminal conduct.

96In providing this guidance, the Court in Ipeelee rejected the singular focus of protection of the public and demotion of rehabilitation endorsed in R. v. W. (H.P.), 2003 ABCA 131 (W.(H.P)), but otherwise implicitly endorsed several relevant sentencing considerations identified by the Alberta Court of Appeal.

97Based on the guidance in Ipeelee, W.(H.P), and the discussion in R. v. Bourdon, 2018 ONSC 3431, aff’d 2012 ONCA 256, I synthesize the following relevant factors guiding my sentencing decision:

1. The conditions attached to a LTSO are concerned with management of risk and protection of society in contrast to probation orders primarily focused on rehabilitation;
2. LTSO conditions are applied to offenders who have engaged in serious criminality and are being sentenced to at least two years incarceration thereby satisfying a high test in the Criminal Code;
3. A breach of a LTSO is more serious than a breach of a probation order as evidenced by the available 10-year sentence and the status of the offender;
4. Key to the analysis is characterizing the role of the condition breached;
5. The sentencing judge must contextually assess the severity of a breach based on “all of the circumstances, including the nature of the condition breached, how that condition is tied to managing the particular offender's risk of re-offence, and the circumstances of the breach”: Ipeelee, at para. 52;
6. If the condition is central and integral to the management of the offender’s recidivist risk, then the breach may be characterized as serious;
7. If the condition is ancillary to the central aim in managing the offender’s recidivism, then breach may be characterized as less serious; and,
8. While denunciation, specific deterrence, and general deterrence are central concerns, rehabilitation is also a relevant consideration.

F. The Sentence

98Balancing all of the aims of sentence and the relevant factors the primary sentencing considerations are denunciation, specific deterrence, and rehabilitation. The sentencing in this case must be driven by a focus on the defendant’s substance abuse and how that substance abuse contributes to the defendant’s risk.

99The key area of concern is the record demonstrating that the abuse of illegal drugs is a gateway to the defendant jettisoning gains achieved through counselling and treatment and regressing toward violent re-offence. The failed urinalysis test is an early warning signal, a precursor, to the risk of further violent behaviour. This condition is a central and integral piece of the LTSO and managing the defendant’s risk. It is not a breach of ancillary condition. It is a serious breach of the LTSO conditions.

100I find that the defendant’s record of substance abuse to be on the lower end of circumstances typically observed in criminal court in downtown Toronto. The defendant has demonstrated an ability to function in society. He has been able to comply with conditions at the Keele Centre. He has participated in counselling. He was gainfully employed and a hard worker.

101The defendant has not been found guilty of a violent offence in the past 5 years. The defendant’s parole officer testified that nothing in the defendant’s behaviour or conduct in the fall of 2020 suggested the abuse of substances until the failed urinalysis. The defendant had been subject to urinalysis testing four or five times in approximately 18 months without concern. I think the defendant’s parole officer is experienced enough to look through the defendant’s attempts to manage and influence persons in his sphere of influence. I believe that the defendant’s parole officer has sufficient experience to be alert to the onset of a substance abuse problem. Apart from his failed urinalysis, the defendant was doing well at the Keele Centre.

102Some of the earlier record of non-compliance involves alcohol abuse rather than “hard drugs”. While this is not irrelevant to the considerations on this sentencing, I must also recognize that the defendant does display a serial pattern of cocaine addiction directly fuelling criminal behaviour as evidenced by some offenders in the LTSO breach sentencing caselaw. Furthermore, I have evidence that the defendant engaged in counselling to address alcohol issues and stressors. He had agreed to intensive programming and counselling.

103Given my finding as to the importance of the condition prohibiting the use of non-medically prescribed drugs, the question then becomes whether the defendant is committed to counselling and treatment for substance abuse.

104Unlike the defendant in MacDonald, the defendant has not demonstrated significant progress in rehabilitative efforts. There is no documentary evidence on sentencing demonstrating the defendant’s sincere commitment to substance abuse treatment. Defence counsel did not emphasize this issue during submissions. It was only upon the Court inquiring directly of Defence counsel that it became clear that the defendant had expressed commitment to serious treatment for substance abuse including in-house treatment. This Court pressed for details concerning the commencement of this rehabilitation and learned it had not yet begun because of the defendant’s current incarceration.

105The defendant was out of custody for a significant length of time during the trial. Yet there is no evidence of even early efforts to obtain substance abuse treatment. As such, I may only infer that the impetus is recent.

106The most significant assistance on this issue was provided by the defendant when he addressed the Court in advance of the imposition of sentence. He declined an opportunity to speak with Defence counsel and wished to speak to the Court directly. I have outlined in this judgment the apparently evolution of the defendant’s approach to his failed urinalysis result (i.e., it was caused by the consumption of caffeine pills, muscle supplements, or, at trial, coca leaf tea). On the day of sentencing, the defendant spoke clearly and eloquently about his recognition that he has a substance abuse problem. He emphatically addressed the need for treatment including in-patient care. He told the Court that he is committed to this endeavour.

107Notwithstanding the defendant’s statements on this issue, I remain unclear about the specific circumstances animating the defendant’s breach of his LTSO.

108It is true that the defendant was not subjected to cross-examination concerning his statements to the Court. I am aware of the extensive psychological material before the Court. I am alive to the notion that the defendant may be experienced in presenting a certain persona to others. I am also aware of the possibility that the defendant is so institutionalized that he is skilled at attempting to manipulate others.

109I do not have a reasonable basis to mitigate the approach to sentence based on a finding that the cocaine use was a “one-off” or a “blip”: Middleton. Nor do I have the security of knowing the defendant encountered a set back involving substance abuse but has brought it under control through additional rehabilitative efforts. I am left with just the defendant’s statements to the Court at sentencing.

110Criminal Court judges are hopefully not generally naïve. Criminal Court judges hopefully do not evaluate circumstances as simply “black and white”. I am being positive and optimistic with a defendant who may yet demonstrate a serious commitment to substance abuse treatment. The defendant is approaching middle-aged adulthood – where experience and criminological resources suggest mitigation of violent risk.

111I harken back to other portions of the materials before the court where I find that the defendant’s cocaine use was linked to his girlfriend at the time and environmental encouragement. I think that the defendant has told the truth at times where he distinguishes cocaine use as a drug that has little attraction for him and being contrary to his fitness goals. I am also aware of the defendant’s self-report that he has never been under the influence of cocaine while committing the violent crimes on his record.

112I listened very carefully to the defendant in Court, and I believe that there is some measure of sincerity there. The defendant is respectful to the Court and works well with his parole officer. I give some weight to the defendant’s statements about recognizing that he needs help for substance abuse. This is enough for this Court to give some weight to this evidence and mitigate the sentence to a slight degree.

113I am also aware that the defendant will be bound by the conditions of his LTSO for many years after he competes this sentence. This is ample time to see if he was sincere in his statements at sentence.

114A sentencing judge should consider the least intrusive sentences that could achieve the aims of sentence and then move up the “ladder” of sentencing options. A discharge or a non-custodial sentence would be grossly disproportionate having regard to all of the circumstances and the sentencing principles applicable to this case.

115I find that further imprisonment is required. While a conditional sentence is available pursuant to statutory criteria outlined in s.742.1(b)–(f) of the Criminal Code, I find that a conditional sentence would be manifestly offensive to the fundamental purpose and principles of sentencing.

116It is reasonable for this Court to conclude that the defendant is potentially suffering from an untreated substance abuse problem given the evidence on sentencing. This is a central issue as it concerns management of risk. The defendant has been given credit by this Court for acknowledging the substance abuse issue. But this acknowledgement was presented on the day of sentencing. And perhaps given the late acknowledgement, no concrete arrangements to address rehabilitation were made (e.g., the treatment suggested by the defendant). The defendant’s current detention in custody would not prevent Defence counsel from presenting at least the initial steps taken to firmly address rehabilitation. On this record I have little confidence that the defendant would abide by the conditions of a conditional sentence. The defendant is already subject to very strict conditions and demonstrated an inability to comply with a core condition of his LTSO. The defendant’s history and current circumstances connotes a danger to the public – a serious concern given the defendant’s status as a dangerous offender. His current circumstances have not mitigated that risk.

117I order that a copy of these reasons be provided to the defendant’s parole officer by the Crown Attorney. I would like the correctional authorities to seize the initiative expressed by the defendant. I recommend and respectfully request that the correctional authorities take any available steps to arrange for substance abuse treatment.

Released: August 6, 2021 Signed: “Justice M.S.V. Felix”