CTATION: R. v. Gardner, 2022 ONCJ 652
Toronto
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JASON GARDNER
Before Justice Mara Greene
Reasons for Sentence released January 25, 2022
C. Sweeey ………………………………….…………………………………….for the Crown
J. Rybak ……………………………………………………..…………………for Mr. Gardner
1Mr. Gardner is being sentenced for a breaching of his Long-Term Sentence Order (LTSO). Mr. Gardner entered a plea of guilty to this charge back in September 2021. After a number of adjournments, at the request of Mr. Gardner and over the objection of the Crown, the evidence and submissions were completed on January 5, 2022. Crown counsel seeks a sentence of two years less pre-sentence custody. Counsel for Mr. Gardner argued that a sentence of time served is appropriate.
Facts of the offence
2In order to appreciate the gravity of this offence, it is important to review some of Mr. Gardner’s history including the reasons for the LTSO. On January 25, 2016 Mr. Gardner was found to be a dangerous offender after he was convicted of two counts of aggravated assault. The facts of the offence were that Mr. Gardner stabbed the woman he was involved with at the time as well as an innocent bystander who stepped in to assist the female victim. He was sentenced to seven years incarceration less pre-sentence custody and placed on a 10-year LTSO.
3Mr. Gardner was released to community on July 18, 2017. Mr. Gardner’s time in the community has not been a complete success story in that he has breached the terms of his LTSO numerous times. Two of the breaches have resulted in charges being laid and a finding of guilt. On other occasions, charges were not laid. Instead his community release was suspended, the breach and his potential risk to the community was investigated and assessed, and Mr. Gardner was released back into the community.
4Mr. Gardner’s early breaches related to positive urinalysis tests. His more recent breaches relate to his being AWOL from the Keele Correctional Centre (Keele CC). His breaches are as follows:
August 25, 2017 – Early release was suspended because of a positive urinalysis test.
June 11, 2018 – LTSO was suspended because of a positive urinalysis test.
December 7, 2018 – LTSO suspended because of a positive urinalysis and because Mr. Gardner was unlawfully at large (UAL).
January 26, 2019 – LTSO suspended because breach of curfew and was intoxicated.
May 1, 2019 – LTSO suspended because missed a check-in and when returned appeared to be under the influence
June 13, 2019 – LTSO suspended because of a positive urinalysis – charged criminally and received a six-month sentence (PSC) and 18 months probation which included drug treatment.
May 31, 2020 – LTSO suspended because UAL. Was not arrested until June 24, 2020.
October 3, 2020 – LTSO suspended because UAL.
April 6, 2021 – LTSO suspension because out past curfew.
5In order to properly understand the above breaches, some additional contextual information is helpful. In relation to the UAL from May 31, 2020, this occurred a few months into the pandemic. According to his correction plan, after his release from custody in December 2019, Mr. Gardner had been doing very well in community. In March 2020 the Keele CC centre went into lockdown because of covid 19. Mr. Gardner became emotionally fragile during this time and lost his ability to meet with the elder that had been supporting him. He also lost the ability to engage in the activities that helped him manage his stress. Mr. Gardner notified the staff at Keele CC that he was struggling and asked for help. Attempts were made to connect him with a psychiatrist but due to Covid 19 they were only able to set up a telephone call with a crisis centre. This crisis centre was focused on suicidal ideations and therefore were not able to address the issues that Mr. Gardner was facing. Once they were out of lockdown, Mr. Gardner became friends with a woman in the community but due to Covid 19, the staff at Keele CC advised that he could not have in person meetings with her. This added to his isolation. At the same time, Mr. Gardner was also struggling with employment due to the Covid 19 restrictions. It was in this context that Mr. Gardner failed to return to Keele CC as per his LTSO on May 30, 2020. Instead he went to live with a close friend, Mr. Mike Akiwenzie. Mr. Gardner remained there until he turned himself in on June 24.
6Mr. Gardner’s parole officer spoke to Mr. Akiwenzie who advised that he was dying of cancer and as such there was no alcohol or drugs in his residence. He confirmed that Mr. Gardner was staying with him and that Mr. Gardner only left the residence a few times to see his girlfriend. Mr. Gardner’s correctional team, after fully investigating this breach, concluded that he could be managed in the community.
7Mr. Gardner was released to the community on July 10, 2020 and was doing well in the community until October 2020. At that time, he suffered an injury at work when he fell through a roof. Concerned about losing his employment, Mr. Gardner continued to work instead of seeking medical assistance. His injury worsened and he was told not to return to work. Mr. Gardner assumed this meant that his employment was terminated and started to look for other jobs. While anxious about work and his health, Mr. Gardner went out to Riverdale park as being around nature is one of his coping mechanisms. He woke up the next day in the hospital after having suffered another fall. Mr. Gardner had lost consciousness and a bystander called 911. Worried that he was going to be breached again for not returning to Keele CC on time, Mr. Gardner panicked and did not contact his parole officer. He was located on October 9 in a hotel room. A urinalysis was conducted, and it was negative confirming that he was not using drugs.
8Most recently, in December 2020, Mr. Gardner was arrested and charged with criminal harassment and breaching his LTSO. He was released on bail for these charges on January 6, 2021. One of the terms associated with his release was to reside at the Keele CC and comply with electronic monitoring. These charges are still outstanding.
9In relation to the April 2021 suspension, a few weeks earlier, on March 22, 2021, Mr. Akiwenzie passed away. Mr. Gardner attended several cultural ceremonies to commemorate the loss. A woman, with whom Mr. Gardner has a negative history with was at one of these events. Mr. Gardner contacted his parole officer and left the event where this woman was. Around this same time, a new Covid outbreak was taking place at the Keele CC, so Mr. Gardner was given a 14-day emergency leave. He was to reside with his employer. Part way through this leave, Mr. Gardner failed to check in with his parole officer and his electronic bracelet ran out of battery. Again, his release was suspended. Mr. Gardner was arrested the next morning at his employer’s residence. Mr. Gardner advised that he had gone to see the above noted woman. She became angry and assaulted him and broke his phone. Mr. Gardner’s parole officer was able to confirm the attack on Mr. Gardner as he had injuries as a result of the attack. Mr. Gardner was again released.
10In relation to the present breach for which Mr. Gardner is being sentenced, on June 20, 2021, in the evening hours, Mr. Gardner left the Keele CC, after curfew, without permission and without properly signing out of the facility. Security at Keele CC and his parole officer were unable to reach him. As a result, a warrant for his apprehension was issued. On June 22, 2021 Mr. Gardner was arrested and charged with breaching his LTSO.
11According to the correction plan filed with the court, a series of events led up to this breach. First, all the strains of Covid 19 were still engaged. Secondly, Mr. Gardner was still dealing with the death of his friend, Mr. Akiwenzie. Thirdly, while steps had been taken to assist Mr. Gardner with counselling, gaps in the plan remained. Mr. Gardner had access to Dr. Bergamasco and an elder in the community. Dr. Bergamasco is of the opinion that Mr. Gardner’s present impulse control issues could be linked to a brain injury he suffered while in custody in 2015. Dr. Bergamasco was attempting to arrange a neuro-psychological assessment but there have difficulties finding ways to fund this assessment.
12In addition to these background factors, in the days leading up to this breach, Mr. Gardner had been contacted by an ex-girlfriend, Ms. Taite. She was in hospital as she was recently sexually assaulted and needed Mr. Gardner’s support. Mr. Gardner wanted to be there to support Ms. Taite but was prohibited from seeing her in person as she was viewed as a high risk for Mr. Gardner. Mr. Gardner was permitted to contact her by telephone. On the day of the breach, Ms. Taite had an altercation with the girlfriend of another resident at Keele CC. This occurred just outside of the residence. Mr. Gardner went out to address the situation. Once he thought it was resolved, Mr. Gardner returned to his residence for curfew, but as he was doing so, Ms. Taite telephoned him and said that the woman from the earlier altercation had returned. Mr. Gardner was worried that he was going to be suspended because of the altercation and was also concerned about Ms. Taite, so he left even though it was past his curfew. He then went to Ms. Taite’s residence which was where he was arrested.
Facts of the offender
13I had the benefit of a significant amount of information about Mr. Gardner. I had his criminal record, his correctional plan, his criminal profile, a document outlining his supervision history, his LTSO plan, the dangerous offender decision of Justice Cole from 2016, the psychiatric reports filed in support of the dangerous offender hearing (one dated June 2014 and the other Dated September 2015), three Gladue reports (2004, 2014 and 2021) and a letter of employment. In addition, I heard evidence from his parole officer, Ms. Vonetta McGhie and from Mr. Gardner.
14Mr. Gardner is 37 years old. He was born in 1984. Both his parents are Indigenous and many of his relatives, including grandparents and aunts were placed in residential schools. Mr. Gardner was raised for a period of time by his grandparents who physically and psychologically abused Mr. Gardner. He was also sexually abused by his aunt. I will not review in detail the extensive and consistent trauma suffered by Gardner throughout his life. It is well documents in Justice Cole’s decision and the Gladue reports. Moreover, all professionals that have been working with Mr. Gardner are aware of his past trauma and appear to have a clear understanding of the link between his background and his present actions. In the updated Gladue report, reference was made to a psychological study that found that children that suffered four or more of eight identified traumas as a child were more likely to experience suicidal ideation, anxiety, and substance abuse. The author noted that Mr. Gardner experienced six of the eight identified traumas including: exposure to psychological, physical, and sexual abuse, witnessing violence against his mother, and, living with household members who were either substance abusers or mentally ill.
15Mr. Gardner began abusing substances at a young age and first entered treatment when he was only 15 years old. Mr. Gardner has a criminal record for violence, property related offences and breaches of court orders. He also has two convictions for breaching his LTSO. One from June 2018 and one from Jan 2020. Mr. Gardner has been designated a dangerous offender. Both psychiatrists that assessed Mr. Gardner in 2014 and early 2015 (Dr. Gojer and Dr. Klassen) concluded that Mr. Gardner was a high risk to re-offend. Mr. Gardner was found to have antisocial personality disorder, a malformed personality due to childhood trauma, poor impulse control, and a significant addiction.
16In 2015, while Mr. Gardner was attending court for his dangerous offender hearing, but after Dr. Gojer and Dr. Klassen had completed their assessment of Mr. Gardner, he was attacked and suffered significant injuries. The Court was told at the time that he had a broken jaw. The material before me indicates that the injury was far more severe. He suffered injuries to his head, cheek and jaw and required metal plates in his cheek and jaw. Recent materials note that Mr. Gardner’s impulse control has worsened since this injury. As previously noted, steps are being taken to arrange for a proper neuro-assessment of Mr. Gardner.
17Since being designated as a dangerous offender, Mr. Gardner has engaged in counselling and program to help him address his past trauma, his ongoing addiction, and his impulse control. Ms. Sweeny, on behalf of the Crown argued that Mr. Gardner has failed to follow through with treatment so while it was made available to him, she urges me to find that Mr. Gardner has failed to take advantage of these opportunities. Respectfully, I disagree. While in custody serving his sentence, Mr. Gardner successfully completed the indigenous integrated correctional program.
18It appears that Mr. Gardner continued to really struggle with his addiction throughout 2018 and 2019. Upon his release on probation in December 2019, however, Mr. Gardner made numerous attempts to access assistance.
19On the record before me, while Mr. Gardner has not been able to complete some programs, this appears to be linked to access issues as opposed to Mr. Gardner’s lack of interest or follow through. Since his release from custody in December 2019, it appears that Mr. Gardner has made numerous attempts to access assistance. In December 2019 he sought admission to Maison Decision, a treatment facility, but was denied access due to his risk. He then applied to Stonehenge, but they do not take people on LTSOs. He then applied to Wasesku Healing Centre but was denied admission there as well. Finally, in January 2020, Mr. Gardner was referred to a counsellor at Anishnawbe Health. Due to difficulties in matching up Mr. Gardner and his counsellor’s schedules they had difficulty connecting. His counsellor then went on leave and Mr. Gardner was not assigned a new therapist. There is nothing in the material before me that supports Ms. Sweeny’s suggestion that Mr. Gardner was not making a real effort to connect with his counsellor.
20I further note that according to the correctional plan documents, when Mr. Gardner was struggling in 2020 because of the restrictions caused by the pandemic, he did reach out to staff and asked for assistance. Because of the lockdowns enforced because of the pandemic, he had limited access to psychological support because of the pandemic and was unable to utilize some of the coping techniques.
21Mr. Gardner, in addition to having a LTSO, was also on probation in 2020. His probation officer noted that Mr. Gardner met the terms of his probation which included accessing counselling.
22There is one program that Mr. Gardner did not complete in the community, that is the maintenance program with Elder Elaine. I understand that when he did attend, he participated and was engaged but did not complete the program as his community release was suspended.
23In addition to actively participating and seeking out counselling, according to the correctional plan filed with the court, Mr. Gardner has made actual improvements in the area of his anger management. The author of the correctional plan wrote that Mr. Gardner appears to be eager and willing to address his needs through indigenous and other programing. He has made some gains and there have been no recent instances of aggression or violence. In fact, it was noted that Mr. Gardner has been observed to walk away from conflict. His parole officer wrote that Mr. Gardner does not appear to value a substance abuse lifestyle but rather struggles with environmental and social factors that supports a propensity and eventually engagement in substance use. While this remains a risk factor, it is noted that Mr. Gardner is making efforts in this area as well.
24In relation to accountability, his parole officer wrote that Mr. Gardner is respectful and expresses remorse for his offending.
25Mr. Gardner continues to have the support of his parole officer, Ms. Vonetta McGhie. He can return to the Keele CC. Ms. McGhie confirmed that they are investigating a brain injury and its link to Mr. Gardner’s impulse control issues. According to Ms. McGhie, Mr. Gardner’s pattern is that he tends to do well at the centre. He works well and gets along with others. When events happen that he cannot handle, he runs, hence his numerous UALs.
Position of the Parties
26Crown counsel argued that a two-year sentence is an appropriate sentence. This sentence takes into account his prior breaches, the nature of the breach, as well as the gains that Mr. Gardner has made. Ms. Sweeny pointed out that the breach was serious as it went to heart of the LTSO and that Mr. Gardner is not remorseful for his actions. Crown counsel also argued that Mr. Gardner is in need of further treatment which is best done in the penitentiary.
27Counsel for Mr. Gardner argued that Mr. Gardner is doing well in the community, has significant supports in the community and as such should not have to spend any more time in custody. Her further argued that due to Covid, Mr. Gardner will not receive any treatment if sentenced to a further period of incarceration.
Guiding Factors on Sentence
28In assessing the appropriate sentence in this case, I must be mindful of a number of fundamental principles of sentencing. First of all, the sentence I impose must be proportionate to the gravity of the offence and the circumstances of the offender. In assessing proportionality, I must consider all the aggravating and mitigating factors. Pursuant to R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, I must also consider the unique systemic and background factors that may have played a part in bringing Mr. Gardner before this court. I must also take into account the objectives of sentencing, in particular the need to protect the public from Mr. Gardner, the need to assist Mr. Gardner with his rehabilitation, the need to denounce his behaviour and deter him and others from committing similar offences.
29In assessing what is the right sentence in this case, I must also be mindful of the specific objectives of sentencing an offence for breaching an LTSO which are protecting the public from “the risk of re-offence by long-term and dangerous offenders” and the need to rehabilitate these offenders and “reintegrate them into the community” (R. v. Bird, 2019 SCC 7 at para 37 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para 48)
30I must also consider the nature of the condition breached and its link to Mr. Gardner’s risk of re-offending. I must assess the importance of the condition that was breached to the overall management of Mr. Gardner’s risk to the public.
Aggravating and Mitigating Factors
31There are a host of aggravating factors in this case. Most importantly, this is not Mr. Gardner’s first breach. He has two prior convictions for breaching his LTSO and he also has had his community release suspended eight times. Mr. Gardner comes before the court as a dangerous offender, with a criminal record and a history of breaches. Moreover, the breach in this case was a serious breach in that it was directly linked to managing Mr. Gardner’s risk to the public. As I noted in R. v. Middleton, 2019 ONCJ 280, leaving the correctional centre and not reporting to one’s parole officer effectively ensures “that neither of the two purposes of the LTSO could be fulfilled” and does not allow for any management of the offender’s risk.
32In relation to the mitigating factors in the case at bar, they are numerous. First of all, Mr. Gardner is an indigenous man who is an intergenerational survivor of residential schools. His grandparents and aunts and uncles are all residential school survivors. Mr. Gardner suffered tremendous trauma as a child. This trauma can be directly linked to his past and present offending behaviours. In relation to the breaches, it was noted by a number of practitioners that Mr. Gardner’s recent UALs are linked to the fact that when events become too difficult to handle, he runs. All the material filed supports a strong link between his prior trauma and his past aggression, his addiction and his impulsivity. In relation to his past offences, his anger management issues are at times referred to as “trauma-based anger”.
33Mr. Gardner has been taking steps to address his criminality and impulse control. As I noted earlier in this judgment, he has attended programing and has reached out for assistance.
34While Mr. Gardner’s past provides an understanding of his struggles and ongoing conflict with the law, recent events in Mr. Gardner’s life explain his why, despite his access to treatment he is still breaching his LTSO. In the months preceding this offence, Mr. Gardner’s close friend died and another friend suffered a sexual assault. He also recently learned that his father is gravely ill. Mr. Gardner’s most stabilizing force has been his employment. This was disrupted first by the pandemic and then because of an injury. The sole mechanism that Mr. Gardner felt he had to combat stress and help him cope with the struggles of life was connecting with an elder and being in nature. Both of these were unavailable for significant periods of time because of the social distancing and lockdowns required due to the pandemic. In my view, this context serves to reduce Mr. Gardner’s moral blameworthiness for the offence.
35Mr. Gardner has the support of his parole officer, is seeing a psychiatrist and despite some setbacks, appears to be working hard to address his past trauma and move forward productively. Notably, CSC documents indicate that Mr. Gardner has made gains in controlling his anger, has even managed to extricate himself from conflict. Even when attacked, he was able to leave the situation without resorting to violence and immediately contacted his parole officer and his psychologist. It is noted that while at the Keele CC, there have been no angry outbursts.
36Mr. Gardner is also remorseful for his conduct and takes responsibly for actions. I appreciate that Mr. Sweeny urged me to find that he is not remorseful and that he does not take responsibility, but I view the evidence differently than Ms. Sweeny. According to the Correction Plan, Mr. Gardner always takes responsibility for his actions and expresses remorse. Ms. Sweeny urged me to find that Mr. Gardner, in explaining his behaviour, minimizes his actions. Respectfully, I disagree. In my view, Mr. Gardner’s explanation establish that he is exploring with his parole officer the external factors that played a role in his decisions. This is a necessary step in gaining insight into one’s behaviour.
37The final factor that, in my view, is mitigating is the fact that there is some basis to conclude that his present impulsivity may be linked to a brain injury that has not been treated. I appreciate that this link has not been confirmed, but his present psychologist is working towards obtaining a neuro-assessment because she believes this is a realistic possibility that warrants exploration. It has not been explored thus far because of lack of funding for the assessment.
Range of Sentences Normally Imposed
38With these aggravating and mitigating factors in mind, it is helpful to consider the range of sentences normally imposed for breaches of long-term sentence orders. In R. v. Middleton, supra, I found that the range of sentence for breaching an LTSO is between nine months and five years. I noted that a single breach with prior compliance often led to sentences in the one-year range. Where there is a history of breaches, higher penalties are often imposed. Generally, where a person has a history of noncompliance or where the breach is a complete AWOL, like the case at bar, a sentence well in excess of two years is normally imposed. In light of this, the Crown’s submission that a sentence in the two-year range is completely consistent with the case law.
39Having said that, in most cases where there is a history of non-compliance with an LTSO, the court also finds that the offender has responded poorly to supervision and lacks remorse. For example, in R. v. Matte, 2012 ONCA 504, Mr. Matte breached his LTSO by taking one pill of Dilaudid. In finding that a two-year sentence was appropriate for a third breach of his LTSO, the court noted that Mr. Matte had responded poorly to community supervision and minimized his poor behaviour. While Mr. Gardner is similarly situated to Mr. Matte, in that this is his third breach of his LTSO, Mr. Gardner differs in that, despite his struggles, Mr. Gardner is responding well to the community supervision, does not minimize his behaviour and retains the support of his parole officer.
The Appropriate Sentence
40In my view, there are some meaningful mitigating factors in this case that justifies imposing a sentence outside the range of sentence normally imposed for a third breach of a LTSO. First of all, Mr. Gardner’s criminality is directly linked to his trauma filled childhood. As previously stated, in one of the reports, his anger was referred to as his “trauma based anger”. Mr. Gardner has worked hard to address his past trauma and alter his pattern of behaviour. Mr. Gardner has made great strides and has significant support in the community through his psychologist, his parole officer, and his employer. While he continues to struggle by running in times of stress, he is improving. While he still runs, he is not acting out aggressively, is not committing other substantive offences, and even when on the run, remains connected to pro-social people. Moreover, the present breach, and the other breaches in the last two years are linked to identifiable challenges, namely the loss of a loved one, the pandemic and physical injury. What is of note, is that despite these stressors, Mr. Gardner has not committed any substantive offences, has been able to control his anger and has not engaged in violent behaviour.
41I appreciate that Mr. Gardner’s LTSO has been suspended eight times. A superficial view of this supports the conclusion that the community-based supervision is not working. When one looks beyond the superficial and considers the bigger picture of what Mr. Gardner has achieved, his growth as a person and his continued attempts to access support, his parole officer’s opinion that he can be managed in the community makes sense.
42There is one final argument that must be addressed here. Crown counsel argued that a longer sentence is necessary in this case to ensure that Mr. Gardner has access to treatment. Crown counsel argued that Mr. Gardner can better access treatment in the penitentiary and given his ongoing need for treatment, I should impose a sentence that will allow him to complete programs in the penitentiary. While I agree that Mr. Gardner needs ongoing treatment and counselling, I disagree that the evidence supports a finding that he can only access this in a penitentiary. Mr. Gardner has a psychologist in the community, a place to live and access to supports and programing. There is no evidence before me that what is available in the penitentiary is better than what is available in the community. On the flip side, counsel for Mr. Gardner argued that there is no counselling or programming in the penitentiary right now. In my view, I have no evidence of this. Mr. Gardner testified that during his short stay in the penitentiary in December 2020 he had no access to counseling and more importantly no access to smudging or other cultural necessities. I accept his evidence on this point and in my view, it is utterly unacceptable that this took place. Having said that, I have no evidence about what is happening right now in the penitentiary such that I can make a finding one way or another about what programming or cultural events are taking place there.
43The final factor I must consider is Mr. Gardner’s experience in the Toronto South Detention Centre since his arrest. Pursuant to R. v. Marshall, 2021 ONCA 344, [2021] O.J. No. 2757(C.A.), I can take into account extremely harsh conditions in pre-trial custody. I am mindful that counsel called no evidence about the conditions in pre-trial custody. However, we do not live in a bubble. It is well known that the jails have had significant lock downs because of Covid 19 and in the past two months, with the rise of the new variant omicron, many units in the jails are locked down to protect against the transmission of Covid 19. Mr. Gardner’s sentence should take into account this reality.
44In my view, in light of the unique factors outlined above, Mr. Gardner should receive a sentence at the lower end of the range. But for the effect of the pandemic on the conditions of incarceration, I would have imposed a sentence of ten months. When I take into account the conditions of the jail during this time due to the pandemic, it is my view that a sentence of eight months is appropriate. This sentence takes into account all the mitigating factors noted above while also imposing a meaningful sentence that is proportionate to the gravity of the offence and the Mr. Gardner’s personal circumstances.
45Mr. Gardner has been in custody since June 22, 2020 but was not arrested on this matter until June 30, 2020. He has been in custody for over seven months but has technically served two days less than seven months of his sentence. Taking into account the mitigating factor of the additional eight days that Mr. Gardner was in custody prior to his arrest, I am satisfied that a further 30 days incarceration is appropriate. I therefore sentence him to a further 30 days incarceration followed by probation for 18 months. The terms of probation are as follows:
Report to probation within 2 working days of your release from custody and thereafter as directed
Connect with Anishnawbe Health Toronto or a similar agency and enroll in concurrent disorder counselling or general mental health counselling and grief counseling
Connect with your case worker at Aboriginal Legal Services and participate in land-based healing sessions
Provide proof to your probation officer that you are complying with the above condition.
Released January 25, 2022 ______________________
Justice Mara Greene