Court File and Parties

Ontario Court of Justice

Date: May 21, 2019

Court File No.: 4811-998-18-75005383-01, 4817-998-18-75005383-02

Between:

Her Majesty the Queen

— and —

Shawn Dusome

Daniel Lavigne

Before: Justice R. Rutherford

Heard on: October 31, 2018, March 21, 2019

Oral reasons released on: May 8, 2019

Written Reasons released on: May 21, 2019

Counsel:

• C. Faria, counsel for the Crown
• J. Halberstadt, for the defendant Shawn Dusome
• I. Horic, for the defendant Daniel Lavigne

Reasons for Judgment

Rutherford J.:

Introduction

[1] After a judicial pre-trial, Misters Dusome and Lavigne pleaded guilty to multiple offences. The sentencing hearing took place on March 21, 2019. Presentence Reports were filed. A Gladue Report was filed on behalf of Mr. Dusome and a letter from Aboriginal Legal Services was filed on behalf of Mr. Lavigne. I have reviewed all the material.

[2] The Crown and Mr. Halberstadt, counsel for Mr. Dusome, jointly recommend that I impose a 3½ year custodial sentence. What is not agreed to is whether I am permitted to assess the quality of time that Mr. Dusome has spent while awaiting sentence on this matter and reduce the sentence.

[3] The Crown argues that the proposed sentence should be served consecutive to the sentence that Mr. Dusome is presently serving. The Crown points out that Mr. Dusome is serving a 2 year sentence and should not benefit from a sentence reduction.

[4] Mr. Halberstadt submits that Mr. Dusome is an indigenous offender. It was recommended at his sentencing in January 2018 that he take part in traditional programs at the penitentiary. While awaiting sentence on this matter he has been unable to access them. Mr. Halberstadt also points out that Mr. Dusome has been unable to access traditional programs at the Toronto South Detention Centre. Counsel submits that Gladue factors cannot be ignored in this case and that some credit should be given for a portion of the time that Mr. Dusome has spent awaiting sentence.

[5] The Crown and Mr. Horic, counsel for Mr. Lavigne, jointly recommend that I impose a sentence of 3 years less pre-sentence custody. Mr. Horic argues that I should give Mr. Lavigne enhanced credit, also known as "Duncan credit", due to the conditions at the Toronto South Detention Centre.

Circumstances of the Offences

[6] On December 23, 2017 Jennifer Isaac, Riley Loutitt and Michael Phillip were in an apartment unit at 500 Dawes Road. Mr. Lavigne knocked at the door. Ms. Isaac opened the door. Mr. Lavigne, Mr. Dusome and two other men forced their way into the apartment breaking the door. Misters Dusome and Lavigne were armed with knives. Mr. Lavigne held a knife to Michael Phillip and took him into the kitchen of the apartment. Mr. Dusome, armed with a knife, took Ms. Isaac into the bathroom of the apartment. Ms. Isaac locked the door in an effort to hide. While she was hiding Mr. Lavigne banged on the door calling her a "rant cunt". He damaged the door. While this was going on, Mr. Loutitt was assaulted and threatened. At some point a firearm was discharged. The bullet went through the bathroom door, grazed Ms. Isaac's ear, went through the shower curtain and into the wall by the bathtub. All parties fled the apartment.

[7] The police were called. The police located a loaded rifle as well as additional ammunition.

[8] Mr. Lavigne was arrested in the area shortly thereafter. Investigation revealed that Mr. Lavigne was on probation for robbery and was ordered not to be in possession of weapons as defined by the Criminal Code.

[9] Mr. Dusome was arrested on December 27, 2017 while leaving his parent's home at 520-500 Dawes Road. Mr. Dusome was on probation and bail at the time of the offence. Both orders had conditions that he not possess weapons as defined by the Criminal Code.

Victim Impact

[10] There are no victim impact statements. Needless to say the victims, particularly Ms. Isaac, were terrified by Mr. Dusome's and Mr. Lavigne's conduct. Not only was Ms. Isaac held at knifepoint, she was pushed around the apartment, verbally abused in a gender-specific manner, was threatened and narrowly escaped being shot while she hid in a bathroom. The terror she experienced has not dissipated. It has prevented her from preparing a victim impact statement. This speaks volumes about the impact that Mr. Dusome's and Mr. Lavigne's actions have had upon her.

[11] There are many aggravating factors to consider in this case:

1. This is a home invasion.
2. Weapons were involved. Both offenders were armed with knives.
3. Extreme violence was used. A firearm was discharged by an unknown person narrowly missing Ms. Isaac.
4. The impact on the victims is profound.
5. The victims were vulnerable.
6. Both offenders have criminal records.
7. Both offenders were subject to court orders at the time of the commission of the offences.

Shawn Dusome

[12] Mr. Dusome is a 24 year-old indigenous man. His indigeneity stems from his mother's family. Mr. Dusome has both Metis and Cree ancestry.

[13] Mr. Dusome's maternal grandfather speaks Michif, a Metis language. He (the grandfather) does not like to identify as Metis. He and his family speak their language only to each other. I conclude this is due to their lived experiences as Metis people in this country.

[14] Mr. Dusome's grandfather's siblings experienced the residential school system. They went to what was commonly called the "Indian Day School". The grandfather escaped attending only because his family hid him. He did not go to school at all and eventually ran away. Mr. Dusome's aunt advised the Gladue Report writer that most of her family still hide their indigenous background.

[15] Mr. Dusome has had no teachings about his indigenous background. His aunt has embraced her culture and encourages other family members to do the same. When the issue of culture was raised with Mr. Dusome's mother, she confirmed that Mr. Dusome was not told about his indigenous background.

[16] Mr. Dusome's family background is rife with violence and substance misuse. Families were separated. Family members did not get to know each other. Much of this was as a result of physical and sexual abuse and alcoholism. Family members had to fend for themselves.

[17] Mr. Dusome's mother is a good example. She began a relationship with Mr. Dusome's father. He was a violent man. Mr. Dusome witnessed domestic violence. His father was in and out of jail. Mr. Dusome recalls being raised mostly by his mother. His family never had a stable home. They moved around. Both Mr. Dusome's parents struggled with significant substance misuse.

[18] Mr. Dusome attended many different schools. At a young age he was placed in foster care. Both of his parents acknowledge that Mr. Dusome's upbringing was turbulent and chaotic.

[19] Mr. Dusome began to use substances and drink alcohol at 12 years of age. He began to sell marihuana at 13. He told the Gladue writer that there were no limits in his home. He fended for himself. He explained that he tried to do chores in the home, namely, laundry and cooking, because his parents, as a result of their substance misuse, would not.

[20] For the same reasons Mr. Dusome candidly stated that as a young adolescent he would steal to financially support himself and his brother. Much of this chaos led to disruption in Mr. Dusome's education. He did not achieve a high school education. Mr. Dusome had his first encounter with the criminal justice system in Grade 7.

[21] Mr. Dusome has a criminal record. On January 11, 2018 he was sentenced to 2 years for possession for the purposes of trafficking in fentanyl.

[22] The presentence report indicates that when Mr. Dusome was arrested on these offences he was financially supporting his family. Ms. Dusome, Mr. Dusome's mother, told the presentence report writer that since her son's incarceration she is struggling financially. She advised that she is now responsible for herself, her younger son and Mr. Dusome's former partner and child who are living with her. I can infer from this, that although Mr. Dusome was engaged in serious drug activity, particularly trafficking, it appears that part of the money that he earned was going towards helping his family make ends meet.

[23] Mr. Dusome has a close relationship with his 13 year-old brother. His brother has been deeply affected by Mr. Dusome's incarceration. He is depressed and cries when he talks to Mr. Dusome on the telephone. He no longer wants to go to school. Children's Aid Society is once again involved in their lives. Mr. Dusome is very worried about his brother, mostly because he feels responsible for him.

[24] Mr. Dusome was highly intoxicated in the days leading up to the commission of the offences. He advises that he was anxious about what was going to happen at the drug sentencing in January 2018. Although intoxicated, Mr. Dusome takes full responsibility for his role in the offences.

Analysis

[25] Mr. Dusome's actions on the day in question are extremely disturbing. He barged into somebody's home at knifepoint. While armed with a knife, he took a woman to another part of the room. Although there is no evidence that he was armed with a firearm, somebody shot a gun and the bullet penetrated the bathroom door narrowly missing Ms. Isaac. It is only good fortune that she was not killed.

[26] Torontonians are sick and tired of hearing about senseless violence and death by gunfire. It is for this reason that they turn to the courts not only for protection but also to denounce the violence.

[27] Mr. Dusome is a young indigenous man who has lived a life of chaos. He has witnessed and experienced violence. He has seen what alcoholism and drug misuse does to families. He was forced to take on adult responsibilities when he was a child. He has been in foster care. He has had interrupted education and has had very little lawful employment.

[28] Mr. Dusome and his family have been affected by the intergenerational trauma of the residential school system. He has experienced disconnection from his family members and has experienced a loss of cultural identity. His aunt is urging Mr. Dusome and others in the family to embrace their culture and traditions. Mr. Dusome is just beginning to understand what his culture can offer him.

[29] In my view Mr. Dusome's life as a young indigenous man has a clear nexus with his criminal conduct. This cannot be ignored when assessing Mr. Dusome's moral blameworthiness. Counsel have clearly turned their minds to the principles outlined in R. v. Gladue, [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 in coming up with the joint submission of 3 ½ years. It is entirely appropriate.

Assessment of Time Spent Awaiting Sentence

[30] Mr. Dusome has not been housed on the indigenous unit at the Toronto South Detention Centre. I am told that one of the victims in this case was on that unit. Although Mr. Dusome has taken part in some mainstream counselling programs at the Toronto South Detention Centre, he has been unable to engage in indigenous traditional practices.

[31] He has been in custody since December 2017. This is a long time for a young indigenous man with history of chaos to be unable to connect with his culture, especially at a time when he is becoming aware of who he is and where he comes from. He welcomes the teachings and is ready to learn about culturally competent ways to live a peaceful life and ways to respect others.

[32] He is empathetic, he loves his family and he is ready to confront his past so he can make better decisions in the future. Who better to help him than the indigenous community. Mr. Dusome is at a critical stage in his life and should be able to access traditional counselling.

[33] Mr. Dusome is presently serving a 2 year sentence, meaning since January 2018 he has been unable to attend the Aboriginal Pathways Unit at the penitentiary to take part in aboriginal programming. The Gladue Report describes the Aboriginal Pathways Unit as a traditional environment for aboriginal offenders who are dedicated to following a traditional healing path. Mr. Dusome wants to take this path.

[34] I am aware that Mr. Dusome pleaded guilty to the offences before me on October 31, 2018, the first day of the preliminary hearing. This was long after disclosure was received and reviewed. It was not an early guilty plea. An earlier guilty plea would have reduced his waiting time in the provincial system and facilitated a quicker move to the penitentiary.

[35] However there are many reasons for an offender to wait until late in the trial process to plead guilty. In this case it was not until the preliminary hearing that the Crown decided to withdraw the firearms offences. This was a significant change in the prosecution.

[36] I do not find that the late guilty plea undermines Mr. Dusome's desire for rehabilitation and desire for that rehabilitation to be undertaken from an indigenous perspective.

[37] Mr. Halberstadt argues that had Mr. Dusome dealt with these offences before Mulligan, J. in January 2018, the principle of totality would have applied. The reality is he did not. In my view the principle of totality is not engaged in these circumstances given the separate nature of the offences.

[38] However I do find it concerning that Mr. Dusome has been unable to take part in indigenous programs while awaiting sentence. Had he gone to the penitentiary in January 2018 it is likely that he would have started traditional counselling, something that obviously will assist him.

[39] Mr. Dusome has done mainstream programs at the Toronto South Detention Centre. This demonstrates efforts towards rehabilitation. I also infer from this that had he been able to take part in culturally-sensitive programs, he would have done so.

[40] He is a young man with no history of violence on his criminal record. He needs and is ready to accept the support of the indigenous community. Since his incarceration in December 2017 he has not had that support. The principles set out in Gladue, supra, and Ipeelee, supra, are live in this case. These principles must be applied not only by sentencing judges but also by other state agencies such as jails.

[41] The Supreme Court of Canada has been very clear, there is an over-incarceration of indigenous offenders in our jails. This crisis must be addressed. To address it judges must take a restorative approach to sentencing and look to the indigenous community for help to achieve it. This all should have started in jail.

[42] The indigenous community, namely traditional counselling, is in the institution. Mr. Dusome could not access it. He could not go to the indigenous unit. This is not the first time that I have heard that an indigenous offender was unable to access this unit at the Toronto South Detention Centre.

[43] Indigenous men and women should not have to be on a special unit to be able to access traditional healing. If the institutional practice is, and I do not know whether one exists, to access culturally competent programs you must be on a special unit, then the unit should be bigger. If there is no policy, then for those indigenous offenders who are not on the specialized unit, programs should be made available. Our institutions should provide more.

[44] Mr. Dusome has been without indigenous programs for well over 1 year. This has impacted his healing journey. I find that the quality of the time that Mr. Dusome has spent waiting to be sentenced on the offences before me has been compromised. He has been unable to begin a traditional healing journey. In the circumstances I find that there should be a reduction in the sentence to address the failure of the state to provide Mr. Dusome with proper indigenous counselling while awaiting sentence. The 3½ year sentence will be reduced to 3 years consecutive to any sentence being served.

[45] There will be a DNA order and Mr. Dusome will also be subject to a section 109 order for life.

Daniel Lavigne

[46] Mr. Lavigne is 48 years of age. I have reviewed the letter from Aboriginal Legal Services. Although I do not dispute Mr. Lavigne's indigenous ancestry, I have no evidence before me to indicate how being indigenous has affected his life circumstances. I place little weight on the Gladue principles in this case.

[47] Mr. Lavigne has a lengthy criminal record. There is one recent conviction for violence.

[48] Mr. Lavigne has a long history of substance misuse. He began drinking and using drugs as a young adolescent. He has tried in the past to address this issue but has not been successful.

[49] Notwithstanding, Mr. Lavigne has a supportive family. His family has attended court on most days. His sister, mother and former partner say that when Mr. Lavigne is not using substances he is a kind and good person.

[50] He has had many jobs, predominantly as a roofer. In fact a job would be available to him today if he were to be released. He has been described as a helpful son and partner.

[51] He managed to get his GED.

[52] He presented to the presentence report writer as cooperative and polite. His family says that when Mr. Lavigne is using drugs, he is a completely different man.

[53] This is evident from the facts before me. Ms. Isaac knew Mr. Lavigne. After he knocked at the door he identified himself as Danny. He knew that Ms. Isaac would let him in. Mr. Lavigne facilitated the home invasion. This is an aggravating factor that I cannot ignore.

[54] Mr. Lavigne pleaded guilty. I accept that he is remorseful. This was evident from his words at the end of the sentencing hearing. His guilty plea has spared the victims from having to testify.

[55] Mr. Lavigne has tried to use his time productively while awaiting sentence. He has been working on the work range and has attended every rehabilitative program that he could. This shows that Mr. Lavigne is serious about his rehabilitation and has been able to put most of his time in presentence custody to good use.

[56] I accept that Mr. Lavigne has been subject to lockdowns. I have no evidence before me as to how many. Mr. Lavigne says it is about 2 per week. Although I cannot rely on Mr. Lavigne's numbers, I can take judicial notice of the fact that lockdowns occur frequently at the Toronto South Detention Centre and often because of staffing shortages, something that has been the subject of regular judicial criticism.

[57] Mr. Lavigne has asthma. What is concerning is that due to ventilation problems at the jail, Mr. Lavigne had a serious bout of asthma. This issue was not challenged. Mr. Lavigne's condition worsened. He was unable to see a doctor for over two weeks and his medication had to be increased.

[58] This should not happen. The Toronto South Detention Centre is a state-of-the-art jail. It has an up-to-date medical unit. People should not have to wait over 2 weeks to be seen by a doctor for something as serious as asthma and in a situation where the medical ailment was exacerbated by conditions at the jail itself. A prisoner's health should never be compromised. A civilized and humane community should not tolerate this.

[59] When I balance the positive things that Mr. Lavigne has done while awaiting sentence with the unnecessary and compromising conditions he has experienced, I find that that the qualitative nature of Mr. Lavigne's presentence custody has been affected. In my view there should be a reduction of 2 months.

[60] Mr. Lavigne will be sentenced to 36 months. He has served 502 days in presentence custody. This is the equivalent of 743 days, or 25 months.

[61] Two months will be deducted as "Duncan credit".

[62] He will serve 9 months, following which Mr. Lavigne will be placed on probation for 2 years with the following conditions:

1. Report as required.
2. No contact with any of the victims.
3. Not to attend 500 Dawes Road.
4. Not to be in possession of any weapons as defined by the Criminal Code including firearms.
5. Attend and actively participate in counselling for alcohol and substance abuse.
6. Sign the necessary consents.

There will be a DNA order and a section 109 order for life.

Released: May 21, 2019

Signed: Justice R. Rutherford