Ontario Court of Justice

Date: 2022 03 02 Court File No.: Toronto 4811-998-20-15001086, 4817-998-21-75000053, 21-45000369

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAYSON POTHIER

Before: Justice André Chamberlain

Heard on: November 4, 2021 Reasons for Judgment released on: March 2, 2022

Counsel: Jay Spare.............................................................................................. counsel for the Crown Fiona McNestry.................................................. counsel for the accused Jayson Pothier

Chamberlain J.:

[1] Jayson Pothier you entered guilty pleas to very serious charges. You have a pattern of committing similar serious offences. In the past you have been sentenced to the penitentiary for similar offences. But as I re-evaluate how the principles of sentencing apply to Indigenous individuals who come before the court, I must determine a fit sentence giving due consideration to your own personal circumstances, the circumstances of the offence, your current plan post sentencing to address some of your underlying issues, all while keeping in mind the overarching goal of addressing the overrepresentation of Indigenous people in the criminal justice system.

The Guilty Pleas

[2] On August 9, 2021, in anticipation of a sentencing that would proceed in a sentencing circle, you pled guilty to a single count of robbery from January 4, 2021. On that day, just after 9:00 pm, you made your way to the Shoppers Drug Mart at 2000 Queen Street East in Toronto. You had an unknown accomplice with you who served to distract the employees while you made your way to the high-end cosmetic section and began to fill your bags with high end products.

[3] One of the security staff, John Ruferezo, was working at the Shopper’s that evening. He is being paid to provide security to the company, its staff, and the public. As was his responsibility, he intervened an asked you to stop stealing. You pulled a buck or hunting knife that was probably about 9 to 10 inches long, and threatened him with it, telling him: “Don’t try to stop me,” and moving towards him while pointing the knife at him. You then got away with your accomplice and were arrested a short while later, still in possession of the knife, but the $1200 of cosmetics were gone and you were found with what appeared to be several stolen phone covers.

[4] We didn’t hear from Mr. Ruferezo but we can all take it as fact that this kind of experience can be life changing. I know you yourself have an appreciation of trauma and violence being forced on you. You’ve felt that pain, you have the emotional, psychological scars that come with it. And now you have spread that to other innocent victims.

[5] Another innocent victim was Philomena Miller, who was home when on August 27, 2020, you broke into Ms. Miller’s residence, her sanctuary, at night. As Mr. Spare said, and I think it was very apt for him to point out that you are here today asking for sympathy and understanding, for the court to give you a break and find stable housing so that you can feel safer and secure, so that you can have a chance at recovery, but you made that safety and security more tenuous for Philomena Miller whose home you breached.

[6] You also entered a plea to theft under from the Saks Fifth Avenue at 176 Yonge St., where on January 20, 2020, you stole a high-end jacket valued over $1200. You were confronted by staff but managed to get away. You then had the gall to return later to steal some more and you were arrested at that time. The Crown proceeded summarily on the theft under charge and by indictment on the other more serious charges.

Your Criminal Record

[7] It is not unusual to see lengthy criminal records associated to people who have struggled with addiction and mental health issues come through the criminal justice system. The lack of proper resources and community supports too often results in people having a lack of housing, a lack of treatment and support for their underlying issues, and too often leads to poverty, desperation, and criminal activity.

[8] This, unfortunately, is often amplified with Indigenous people who come before the court, because on top of whatever personal baggage they may bring, they are also carrying the burden of the colonial oppression and cultural genocide committed on their people, their community, their families, and too often on themselves.

[9] I would argue though that the criminal records often become a window into that person, not just as a reflection of their bad choices and the harm they have done to others and the community, but it is often a road map to their addiction and desperation. Very often, I can look at a record and guess that we are dealing with an addict or someone with mental health issues just based on factors like frequency of recurrences, the types of offences, often minor property offences, thefts, commercial break and enters, mischiefs, minor assaults, and multiple administrative breaches such as fail to comply bails and probations and failing to appear in court.

[10] But I am baffled by your record, Jayson. You certainly started with minor offences from your first entry in 1993 until about 1997. But then in 1998 you were convicted of 3 robberies and were sentence to four years. You were released in August of 2002, and then in October of 2002 you committed an armed robbery for which you got another two years and, because you were still on parole from your last sentence, you were re-committed and ended up serving almost three years in total. You were then released in May of 2005, and then did not encounter the criminal justice system until the following year in April of 2006. In 2006 and early 2007 you were convicted of two sets of charges resulting in some, I would say, fairly minor sentences, but given your record, they were probably longer than they could have been based on the on the offences alone. These were mostly property offences, thefts and such. You were released in 2009 April.

[11] Before your next conviction in April of 2010, you spent the equivalent of 12 months in jail of pretrial custody and were sentenced to a further two years for four robberies you committed, presumably sometime in 2009. Justice Rutherford also imposed a period of probation for three years, presumably to help you address your rehabilitation and to get your life back on track. But I'm told within days of your release from that sentence you committed a robbery for which you were sentenced to 42 months in jail or three years and eight months by Justice Shamai.

[12] Following this there seems to have been a gap of a few years where you were not involved with the criminal justice system. From what you’ve told me, that was at least in part because you were in a relationship that was positive and fulfilling for you. During this period of time you were on methadone for your addiction, and you were working to support yourself and your partner. But following a difficult breakup you found yourself back on the street and committing offences again to feed your addiction.

[13] You were convicted of forcible confinement in 2017 and got a six month sentence after credit for some 111 days pre-trial custody, then another gap, before your last conviction for simple possession of a schedule 1 substance and failing to comply.

[14] So, when I say I’m baffled by your record, it’s because it is so unusual because of the severity of the offences that have led to such serious penitentiary sentences in the past. I read that record and I have the image of a hardened criminal who commits serious, often terrifying offences with the threat of the use of a firearm for instance. I am baffled by the incongruity of what the record presents, and what you present as a person here before me. But the answers came to me when I learned about your background.

Jayson Pothier’s Background

[15] I am not going to spend a lot of time recounting the specifics of your background that I learned from the previous Gladue Reports and the one prepared for me by Tanis Desjarlais. I will do my best to give a summary while striving to preserve your dignity, with whatever level of privacy we can muster for you in such a public proceeding, as is required in the criminal justice system. I will also keep in mind that this is not just your story but the story of your family. You were not the only victim of the horrors inflicted on you. You had siblings you watched be brutalized as you were; you watched your mother be brutalized, and because of her own pain and suffering, stand by as you and your siblings were brutalized and harmed. And that harm, was physical, it was emotional, it was psychological, it was, at times, sexual and sadistic.

[16] When I say sadistic, I am choosing my words carefully. We all accept that sexual activity with a child is violence by its very nature, but you suffered indignities and violence that were meant to deliberately cause pain and suffering for the depraved enjoyment of adults who were supposed to be your protectors and your providers.

[17] And this did not only happen in your home and community, which would be horrific enough, in and of itself. But it happened when you were apprehended and taken into care by authorities who were supposed to take you from the pain and suffering in your family, and because of that pain and suffering, left you to be marked as an easy victim by other residents and the caregivers themselves of those agencies and institutions. That kind of betrayal cuts to the bone of our own view of ourselves as a caring and compassionate society. It is hard to fathom that we stood by while these horrors were happening, not just by the people who were supposed to protect you from that harm, but our government funded them, and did not meet its fiduciary duty to protect you and restore you to a healthier place.

[18] But I note that you have found peace and forgiveness, it seems, when it comes to your mother. You recognize that she is as much a part of this tragic story as you are. I admire you for that.

[19] You deserved to be cared for, nurtured, fed, protected, and supported. Instead, when your family couldn’t do it because of their own issues and pains, Canadian society stepped in and perpetuated your pain and suffering, adding to your trauma.

A Few Words About Trauma

[20] Dr. Gabor Maté is a renowned specialist on child development, trauma and addictions. He was interviewed on a website called HumanWindow.com and part of the transcript [1] was published on September 24, 2020. In it he defined trauma in this way:

The origin of the word ‘trauma’ is the Greek for ‘wound’. Trauma is a wound. How I think about it is that if I wounded you, if I cut your flesh, the healing would involve scar tissue forming. If the wound was great enough, you’d get a big scar, and it would be without nerve endings so you wouldn’t feel, and it would be much less flexible than your normal tissue. Trauma is when there is a loss of feeling and there is a reduced flexibility in responding to the world. This is a response to a wound.

Trauma is a psychic wound that hardens you psychologically that then interferes with your ability to grow and develop. It pains you and now you’re acting out of pain. It induces fear and now you’re acting out of fear. So without knowing it, your whole life is regulated by fear and pain that you’re trying to escape from in various ways. Trauma is not what happens to you, it’s what happens inside you as a result of what happened to you. Trauma is that scarring that makes you less flexible, more rigid, less feeling and more defended.

[21] That understanding of trauma was helpful to me in my analysis and determination of your sentence. And I am grateful that I stumbled upon it.

The Systemic Factors of Colonialism

[22] I am not going to spend a lot of time on the systemic factors impacting Indigenous people. Countless decisions have enumerated the long-term impact of colonialism, cultural genocide, and oppression impacting on the physical, psychological, emotional and mental health of our communities. That the rest of Canada is just now catching up because of the developments and the courageous voices of survivors and their advocates, is a reflection of how much healing needs to happen, and how much work we have to do to restore ourselves to wholeness.

[23] I also want to acknowledge the tragedy and horror we have been reading in the news lately about the discovery of unmarked mass graves of children on the sites of former residential schools. These were children who were stolen from their families and communities; children who were robbed of their language, their culture and their traditions. Children who were killed by violence, by neglect, by unchecked diseases, by malnutrition, and by hatred.

[24] We live with the legacy of that pain every day and we see it every day. Let us remember that many of the people coming through the Gladue court are a legacy of those actions. Those murdered and missing children were their ancestors. They are the survivors and the progeny of the children who survived residential schools, the children who witnessed those deaths and disappearances. They are the children and grandchildren of the people who were submitted to those same horrors, but who survived.

Gladue Principles

[25] In R. v. Morrisseau, [2017] O.J. No. 2409, Justice Gibson stated at para. 103:

103 Where, as here, we lack the assistance of community elders to help us identify all the energies disturbed by the offending behavior and to craft a plan for how to heal them, we must be creative. I recognized community based resources are often limited and the safety and protection of the community is always a consideration as well as the need to rehabilitate offenders. It is our legal obligation, however, not to allow ourselves to default to incarceration as a substitute for the exercise of imagination. Restorative justice requires us to identify the harm done, tailor a plan for the offender to make meaningful restitution and to get the help they need.

[26] This does not mean that jail is never an option. There are times when the need to protect the community or the need to send a clear statement to the offender or to the community that certain behaviors attract consequences and that the possibility of jail can and does exist in the most serious cases. However, where we lack the imagination to do things differently, we rely on what is familiar and gives the community comfort, in punishment that relies solely on denunciation and deterrence.

[27] The Supreme Court of Canada, in R. v. Gladue, [1999] 1 SCR 688, at paragraph 93, laid out a summary of the general principles in its application to sentencing. It clarifies certain fundamental truths that we continue to struggle with in its interpretation and application: (emphases added)

93 Let us see if a general summary can be made of what has been discussed in these reasons.

1. Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence.
2. Section 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.
3. Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision’s remedial purpose real force.
4. Section 718.2(e) must be read and considered in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. All principles and factors set out in Part XXIII must be taken into consideration in determining the fit sentence. Attention should be paid to the fact that Part XXIII, through ss. 718, 718.2(e), and 742.1, among other provisions, has placed a new emphasis upon decreasing the use of incarceration.
5. Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. However, the effect of s. 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.
6. Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider: (A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.
7. In order to undertake these considerations the trial judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. In the usual course of events, additional case‑specific information will come from counsel and from a pre‑sentence report which takes into account the factors set out in #6, which in turn may come from representations of the relevant aboriginal community which will usually be that of the offender. The offender may waive the gathering of that information.
8. If there is no alternative to incarceration the length of the term must be carefully considered.
9. Section 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed.
10. The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved.
11. Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term “community” must be defined broadly so as to include any network of support and interaction that might be available, including in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.
12. Based on the foregoing, the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non‑aboriginal offender for the same offence.
13. It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non‑aboriginal.

[28] I think it’s a mistake to say we’ve been given a roadmap to sentencing Indigenous offenders by the Supreme Court of Canada. They have given the courts guidelines and principles to consider, but no clear roadmap or path to achieve the goals they set out.

[29] By the same token, successive governments have left us with nothing more than the criminal code and the same rules and tools to use. The Supreme Court is telling us to be innovative, to be creative, to listen to Indigenous peoples and their communities for innovative and original approaches to sentencing. It compels us to focus on restorative justice. But the only tool it gives us is a hammer.

[30] Crown counsel can be a significant player in cases with Indigenous accused and offenders. They have discretion with respect to which charges to proceed with, if any. They have the discretion to consider formal or informal diversion, alternative measures or simply not proceeding in cases where it would not be in the public interests. I have been considerably honoured to work with some very enlightened Crowns who understood the task and applied the Gladue principles with insight and generosity, focusing on positively supporting the folks they encounter. In this jurisdiction, there has also been the leadership among the powers that be in the Crown’s office to assign those particular Crowns as dedicated leaders in the Gladue courts. But that attitude and approach is not universal by any means.

[31] Defence counsel and Duty Counsel play a significant role in the courts as well, but are also limited, perhaps most, other than their clients, by having little power or discretion to direct the process. But there are gifted advocates in the defence bar who are leaders in their persuasive skills and drive to advocate and keep the courts and the Crowns focused on the Gladue principles.

[32] But meanwhile, we must work with the tools we have to achieve the sentencings goals, not least of which are the overarching view to addressing the overrepresentation of Indigenous people in custody.

[33] I embrace the statement in Justice Gibson’s reasons in R. v. Morrisseau, 2017 ONCJ 307, that a focus on the important but by no means only goals of deterrence and denunciation, when dealing with Indigenous offenders, must be tempered with a view to the larger goals of reducing overincarceration of this specific population. Gibson, J. held the following: (at paras. 88 & 89)

88 Too often, in my view, the concept of deterrence, both general and specific, is used to justify an exclusive focus on a punitive message. Punishments that are designed to deter offenders and send messages to ‘potentially like-minded people’, are often used as a justification for a jail sentence. This tends to be particularly the case in sentencings involving the breach of court orders.

89 It seems to me to be especially ironic that those court orders are often made in the first place to encourage the rehabilitation of offenders and ‘impose’ structures on their disordered lives ‘for their own good’ and in the interest of protecting the public. Yet they most often seem to end in the jailing of Aboriginals who are struggling to cope with the fallout of histories like the one I have described here. At a certain point such an approach stops being only absurd and begins to look like systemic racism.

[34] Turning back to Mr. Pothier’s matters, I don't say that in this case the offence itself was not serious and I recognize how deeply troubling these events have probably been to the victims themselves who had to deal with the actions you took against them. But I take Dorothy Peters’ words to heart: sending people to jail will send the message to the community. It rids the community of the problem temporarily while they're locked up in an institution to pay for their crimes. But it does nothing to address the underlying problem. Ms. Peters, a knowledge keeper and valued resource who works at Aboriginal Legal Services is an invaluable voice in sentencing circles and we were blessed to have her participate in yours as well.

[35] The underlying problem here is the impact that the brutality and violence perpetrated on you, Jayson Pothier, which has led you to repeatedly seek comfort and shelter in opiate drugs. We all know that this shelter and comfort is transitory, meaning it doesn't last. But worse, it creates an addiction that drives our actions through its thirst for more while providing us less and less of that initial comfort and soothing shelter.

[36] Had you come to me without the determined steps you've taken to address your issues of addiction, trauma, and housing, and not presented me with the beginnings of a road map towards your recovery, I would not be imposing a conditional sentence on you. I would have sent you to jail because of the seriousness of the offences, because of the trauma to the victims and because of your repeated similar serious offences. I think no Court of Appeal would have challenged a more serious penitentiary sentence.

[37] But in my view, this is not the solution. You need help. And you need, once and for all, the support of your community to make that happen for you. But you have also satisfied me that you want to make changes in your life. You've satisfied me that you have a plan in place in order to make that happen. But you know and I know that it isn't going to happen on its own, or just because the community is there with some supports ready to help you through this. This is where the hard work begins for you.

[38] You've told me you've already begun taking methadone. That's a good thing, it will help you get through the worst of the cravings as you emerge into the community and begin to look at your life. But there is a whole lot more work to do. It's going to be painful. And it's going to be difficult. If we accept the analogy of Dr Gabor Maté, that trauma is a wound, then I think it is fair to say that your wound is deep. Recovery will not be simple and it will be painful. That wound will need to be lanced, cleaned, cared for, and you will need to give yourself time to feel that pain without resorting to opiates as a means of deadening the pain.

[39] I want you to have the best opportunity for success. And the plan, as it stood when I read these reasons in court, if you had been released, would have been for you to get yourself a shelter bed while you waited a recovery bed in a sober home through the John Howard Society. I was fearful that a shelter bed after you've been locked up for the last 10 months, would leave you too vulnerable and too susceptible to a relapse leading you back to the street, and ultimately to having to commit more offences to stave off the pain of coming off the drugs without the help or the work you need to do to address the trauma that causes the desperate need for those drugs.

[40] My intention at the time was to adjourn you with the understanding that once a bed at the John Howard Society or another similar safe longer term recovery bed was found, you would be released on the conditional sentence. It was my intention to follow that with a period of probation, again with the terms and conditions to be determined at a later date. It was my intention to adjust the terms and conditions based on the needs and rules of the agency or place you end up residing at.

[41] It is also my intention to have you report to me regularly throughout your conditional sentence and even perhaps through the period of probation following. My goal in that is not to be the heavy hand to come down on you when you struggle and or stumble, but it is to provide some accountability and encouragement to help you stay on track, and to keep true to your goals of recovery.

[42] In the intervening period between my ruling and your sentencing, you resolved other charges and were not free to proceed with sentencing. Unfortunately, my intention to release you to a more permanent or long-term supporting housing situation was undermined by the ongoing pandemic. In the intervening period, there was another outbreak of Covid-19 in the Toronto South Detention Centre all of which complicated matters for finding more supporting housing. Unfortunately, I will have to settle for you going to a temporary safe bed, perhaps a step or two above a shelter bed, but certainly not ideal.

[43] So, in light of 287 real days, with credit, enhanced to 430 days, I am imposing a six month conditional sentence, with terms that you reside at an address approved of by your conditional sentence supervisor, with a particular focus on a supportive housing bed for treatment for your addiction and trauma issues. I have chosen not to impose a period of house arrest or curfew so as to not interfere with any rules or expectations of any treatment beds you have to be at. You are to attend for treatment for trauma and addictions as directed by your conditional sentence supervisor and sign releases so they may monitor your attendance and progress. You are not to attend at the various locations of your crimes, and not have contact with the named victims. There is a weapons ban as part of the conditional sentence along with other terms cited in the order not mentioned in these reasons. I also ordered you to provide a sample of your DNA given the primary designation associated to the offences committed, and a section 109 weapons prohibition for life.

[44] I also wanted to make special note of the hard work and dedication of the lawyers involved in your matter: Ms. McNestry and Mr. Spare have brought a great deal of open-mindedness and heart to what could otherwise be a pretty cold sentencing process. By being open to proceeding in a sentencing circle with the participation of your community supports, and with the participation of our trusted Indigenous teacher and knowledge keeper, Dorothy Peters, they have shown leadership in the highest traditions of their office, and I am so grateful for their participation.

[45] But most of all, I want to thank you, Jayson Pothier: your willingness to go through this process was a risk. Some assume that sentencing circles are somehow easier. In fact, my experience is that they are in some ways harder because they allow for more direct conversations to address your issues. It is not other parties talking about you in the third person, handing up letters of support and reading in portions of reports meant to define who you are and what your prospects of rehabilitation are. The conversations involve you at every step. You have to answer for the assessments, you are given a voice in the plan moving forward, and you are held to account for your actions directly.

[46] It takes courage to take part in a sentencing circle as the offender. You showed us that courage by being open to the process, by not being afraid to look at yourself, by being honest about your challenges and your strengths. You honoured us by letting us be a witness to the process. Thank you.

Released: March 2, 2022 Signed: Justice André Chamberlain

[1] https://humanwindow.com/dr-gabor-mate-interview-childhood-trauma-anxiety-culture/