Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 02 06

COURT FILE No.:

• Tor 998 22 70007861
• 998 22 70006947
• 998 23 70000210
• 998 23 70000371
• 998 22 70008348
• 998 22 10007556

BETWEEN:

HIS MAJESTY THE KING

— AND —

EVAN BUSWA

Before: Justice André Chamberlain

Heard on: January 26, 2023 Reasons for Judgment read on: February 2, 2023 Released on: February 6, 2023

Counsel: Mark Friedman, Counsel for the Crown Coulson Mills, Counsel for the Defendant Evan Buswa

Chamberlain J.:

Endorsement

[1] Evan Buswa may be the epitome of the tragic intersection of the impact of colonialism on Indigenous people in Canada and the resulting crisis within the criminal justice system. Addiction, poverty, chronic mental health challenges, homelessness, and loss of access to community and cultural supports are factors impacting the life of Mr. Buswa. Saddled with this multitude of challenges in his day-to-day life, Mr. Buswa often finds himself before the Courts, charged with, for the most part, theft under $5000, or for failing to comply with release orders and probation orders, his primary modus operandi being the theft of donation or tip boxes from the counters of local small businesses in Toronto.

[2] Mr. Buswa entered pleas and was found guilty of the following on January 26, 2023:

(1) Theft of a donation box on May 3, 2022, from a Tim Horton’s 229 Queens Quay;

(2) Break and enter, and failing to comply with his probation order on October 17, 2022. Mr. Buswa took a brick and threw it through the glass front door of the Pizza Nova at 714 Queen St. East in Toronto. The only item stolen was a tip jar with no estimates of how much it contained, and the damage to the door was between $500 to $1000. He was on probation at the time and breached the term requiring he 'keep the peace and be of good behaviour.'

(3) Prowl by night: On November 9, 2022, Mr. Buswa admitted that he was looking into the bedroom window of a woman's private residence on Seaton Street in Toronto. When she noticed him looking in as she was coming home, she called the police, and Mr. Buswa was arrested late in December. His photo was captured and circulated. There was evidence he had been there before.

(4) Theft of tip jar from a locally owned coffee shop, Si Espresso Bar, on Broadview Avenue on November 20, 2022. The owner-manager got a clear look at Mr. Buswa, though she did not have any photos or videos of the event.

(5) On January 1, 2023, Mr. Buswa entered a Macdonald's hoped onto the counter and tried to break into a donation box. He was trying to smash it with a brick. Police arrived quickly and found Mr. Buswa still on the counter. He was very cooperative with officers who arrested him for theft under $5000 and for failing to comply with his undertaking, breaching the condition that he 'not touch any tip or donation boxes at any business.'

(6) Mr. Buswa entered the Broadview Flower Shop on Broadview Avenue and stole the tip jar on January 5, 2023. This establishment was owned/managed by the same person who was the victim of the theft at the Si Espresso Bar on November 20, 2022. He was recognized and seen getting on a streetcar heading south on Broadview Avenue, police located him a short time later in Riverdale Park, and the money was recovered. At the time, he was on the same release, ordering him not to touch any tip or donation box in any business. His plea was only to the charge of failing to comply with his undertaking.

[3] Some other similar offences concerning the theft of tip jars or donation boxes were read in as aggravating. As of his sentencing date, Mr. Buswa had served 38 days of pre-trial custody and will get credit for 57 days: R. v. Summers, 2014 SCC 26. The Crown seeks one year in jail minus pre-trial custody plus a period of non-reporting probation.

[4] I have taken into consideration the following aggravating circumstances relevant to Mr. Buswa’s background and the offences for which he has been found guilty:

The Criminal Record: Evan Buswa has a nine-page criminal record with similar related entries. There are occasionally more serious offences, such as a robbery with violence in November 2020 and a robbery in May 2020. Still, for the most part, Mr. Buswa appears to have been convicted mainly of thefts, administrative breaches, and the occasional violent event. Having reviewed his criminal record, I am not concerned that he has a propensity for violence. However, I certainly recognize that the risk of violence exists when victims of crime come face to face with perpetrators, regardless of how petty and unsophisticated that crime may be. Mr. Buswa and some of his past victims have had this experience.

There is also a pattern worth noting in the entries on the record. Before and through the pandemic, Mr. Buswa was a regular attendee at our Courts. But that consistent pattern of returning to the Court is not indicative of his whole adult life.

His first entry in 2010 would have come when he was just beyond his 26th birthday. A late start to criminal behaviour, the low number and frequency of convictions initially, one in early 2010, a robbery with violence in Sudbury, the two frauds and two administrative convictions in late 2011. In 2012 there was a single count of assault, and in 2013 a single count of fraudulently obtaining food and lodging. Then in July of 2014, began a spiral of convictions every few months featuring simple assaults, thefts and other similar types of offences, and many administrative convictions. This run continues into early 2020. The 2011 charges appear to signal when Evan Buswa moved to Toronto.

During the first year of the pandemic, he was convicted of two robbery offences, one in May and then in November of 2020. Mr. Buswa spent a further 140 days on top of 88 days pre-trial custody in May and then another 90-day sentence in November.

The year 2021 takes him back to his old pattern, where he resolves four sets of charges similar to the subject of this ruling, all in April of 2021. I sentenced him in September of 2022 for very similar offences, a series of at least seven, all thefts, administrative, an assault when a store owner confronted him while he was stealing, and one mischief for breaking the glass on a door when confronted in another location. He slams the door causing the glass to break.

The Repetitive Nature of the Offences: There is no denying that Evan Buswa is stuck in a loop of petty criminal activity. As an unhoused, drug-addicted man diagnosed with schizophrenia with seemingly very little support in the community, I have no problem accepting that these are crimes of desperation. I appreciate that they are not easy to understand to the casual onlooker whose impression is that a drug addict is stealing from donation boxes for charities and the tip jars of low-wage workers. However, I am mindful that this casual observer does not have the benefit of understanding Mr. Buswa’s situation, even to the limited extent that I have.

The repeated nature of the charges, the targeting of small businesses, or rather, of their low-wage employees, or of the donations boxes where customers can contribute small change following a purchase, is troubling.

Theft of Donation Boxes: The Crown points out that this money is taken from the vulnerable. I cannot disagree. Objectively, we can appreciate that donation box theft is disconcerting. These are low-value targets, as customers, for the most part, are just throwing the coin change in the box following a purchase. Nonetheless, the theft of monies, however small, from charities presumed to be helping the most vulnerable is aggravating.

The Theft of Tip Jars: Stealing from workers who work minimum wage, often holding down a few jobs trying to make ends meet, is problematic. That these tips in the more low-end, primarily take-out establishments end up being a critical part of their earnings given the worker's economic status is noted.

I would only comment that it is a sad reflection on our society that a full-time minimum wage job leaves the workers so vulnerable that the theft of some loose change will leave them so lacking that they can ill afford to support themselves, never mind that they might also be supporting a family.

[5] I have also considered the mitigating factors relevant to Mr. Buswa:

Indigenous Heritage: Evan Buswa is Indigenous, of Anishnawbe ancestry. His counsel suggests he is from the north, somewhere between Sault Ste Marie and Sudbury. There are many Buswas from the Wikwemikong Unceded Territory on Manitoulin Island. But unfortunately, only a little information has been provided by Mr. Buswa about his background.

The impact on Indigenous people in Canada and Manitoulin Island is well known, and I take judicial notice of those factors affecting that community. They are detailed below but are noted here as mitigating on sentence.

Lack of Specific Background Information: Not much is known about Mr. Buswa’s background or previous life. Perhaps as a function of a combination of mental health and addiction, his past involvement with the criminal justice system, and the impact of racism. It is also within the realm of possibilities that Mr. Buswa chooses not to disclose the personal details of his life, which I have no particular right to hear absent his consent. Though I sensed no defiance or intent to mislead the Court on the part of Mr. Buswa. The duty to apply the Gladue principles in his case is mine, they are not necessarily incumbent on Mr. Buswa’s participation.

Mental Health Challenges: Mr. Buswa has been diagnosed as schizophrenic. I did not hear any information about any particular treatment regimen, but I cannot expect that managing his condition while being unhoused, and addicted is easy. His behaviour, though not raising any fitness concerns, certainly has the hallmarks of an individual with schizophrenia struggling with or not getting adequate treatment.

Homelessness: According to counsel, Mr. Buswa has been unhoused for many years. Chronic poverty and homelessness are burdens that directly reduce moral blameworthiness, given the harsh realities of life on the street.

Substance Use and Addiction: Mr. Buswa struggles with an addiction to crack cocaine and crystal methamphetamine.

Sentencing Principles.

[6] In striving to protect society, contribute to respect for the law, and maintain a just, peaceful and safe society, s. 718 of the Criminal Code identifies denunciation, deterrence and rehabilitation, among others, as essential sentencing objectives. Section 718.1 states that the “fundamental principle” of sentencing is that a sentence must be proportionate to the offence's gravity and the offender's degree of responsibility.

[7] Section 718.2 identifies some other statutory principles of sentencing. Under s. 718.2(a), a sentence must be increased or reduced to account for any relevant aggravating or mitigating circumstances. Under s. 718.2(b), Courts should impose similar sentences for similar offences committed in similar circumstances by similar offenders. Sections 718.2(c), (d) and (e) promote restraint in sentencing.

[8] Mr. Buswa is an Indigenous person and as such, s. 718.2(e) of the Criminal Code becomes the filter through which we must address the other sentencing principles. It reads:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [Emphasis added.]

[9] In R. v. Gladue, [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada made it clear that s. 718.2(e) is remedial and is intended to deal with the continuing crisis of over-representation of Indigenous offenders in the Canadian criminal justice system: Gladue at para. 33; Ipeelee at para. 59.

[10] Today, this crisis is driven by alienation, poverty, substance abuse, lower educational attainment, lower rates of employment, and prejudice experienced by Indigenous people in Canada. Sentencing judges are to take judicial notice of how Canada’s colonial history and post-colonial assimilationist policies have translated into these terrible outcomes: Gladue at para. 83; Ipeelee at para. 60. These systemic and background factors do not excuse nor justify criminal conduct. Instead, they provide the necessary context for understanding and evaluating case-specific information during the sentencing exercise: Ipeelee at para. 83.

[11] Systemic and background factors affect the incidence of crime and recidivism for all offenders. However, as the Supreme Court recognized, the circumstances of Indigenous offenders are different from other offenders because many Indigenous people are “victims of systemic and direct discrimination” and “dislocation” and are “substantially affected by poor social and economic conditions”: Gladue at para. 68.

The Impact of the Pandemic:

[12] Covid has curtailed access to services and supports in the community severely. Our Court is representative of the many good and powerful allies on which some in our community rely. I point to Aboriginal Legal Services, Thunder Woman Healing Lodge, Anishnawbe Health, and Na Me Res shelter, to name just a few. Whether for funding issues, the consequences of the pandemic, or the current trend of migration of workers, or simply because of a lack of adequate resources, the service delivery in the community and the Courts, in particular, has suffered.

[13] The Gladue Court at College Park is part of that circle of supports. We strive to create a community and safe place for people to connect to members of the criminal justice system more positively than their previous experiences. We build relationships as appropriate to connect with people and to help guide and encourage a new path to move beyond the criminal justice system. We try to do it differently, recognizing that we do so with the limited tools of the colonial criminal justice system that has served to continue the goals of previous policies toward Indigenous people. If we are not diligent about applying the Gladue principles, we can also serve to separate people from communities when we incarcerate people with sentences that can crush the spirit.

[14] So, if rehabilitative supports and community agencies are hampered, and people have once again been isolated from community and supports, where do we turn for solutions on sentencing? After giving due consideration to Gladue principles, in cases where there is no significant violence or sophistication for the most vulnerable of our population, if all we do is turn to incarceration and a focus on deterrence and denunciation, then we have failed.

[15] I consider the recent majority decision in R. v. Hills, 2023 SCC 2. The Court makes statements on applying sentencing principles and sanctions in its unanimous judgement. It directs us to consider the impact of the sentence itself on the individual, at para 135 to 136:

“[135] Courts should consider the effect of a sentence on the particular offender. The principle of proportionality implies that where the impact of imprisonment is greater on a particular offender, a reduction in sentence may be appropriate (Suter, at para. 48); B. L. Berger, “Proportionality and the Experience of Punishment”, in D. Cole and J. Roberts, eds., Sentencing in Canada: Essays in Law, Policy, and Practice (2020), 368, at p. 368). For this reason, courts have reduced sentences to reflect the comparatively harsher experience of imprisonment for certain offenders, like offenders in law enforcement, for those suffering disabilities (R. v. Salehi, 2022 BCCA 1, at paras. 66-71; R. v. Nuttall, 2001 ABCA 277, at paras. 8-9; R. v. A.R. (1994), 92 Man. R. (2d) 183 (C.A.); R. v. Adamo, 2013 MBQB 225, at para. 65; R. v. Wallace (1973), 11 C.C.C. (2d) 95 (Ont. C.A.), at p. 100), or for those whose experience of prison is harsher due to systemic racism (R. v. A.F. (1997), at para. 17; R. v. Batisse, 2009 ONCA 114, at para. 37; R. v. Marfo, 2020 ONSC 5663, at para. 52). To ensure that the severity of a mandatory minimum sentence is appropriately characterized under s. 12, it is necessary to consider the impact of incarceration in light of these individualized considerations (L. Kerr and B. L. Berger, “Methods and Severity: The Two Tracks of Section 12” (2020), 94 S.C.L.R. (2d) 235, at pp. 238 and 244‑45).

[136] The effects of a sentence are not measured in numbers alone. They are “often a composite of many factors” and include the sentence’s “nature and the conditions under which it is applied” (Smith, at p. 1073). Thus, as Lamer J. observed, a sentence of “twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement” (p. 1073). When presented with a sufficient evidentiary record, courts should consider how the conditions of confinement — for example, the difference between the supports available while serving a non-custodial conditional sentence versus serving a custodial sentence in a federal institution — would affect an individual offender. Trial courts have increasingly been of this view (see Adamo, at paras. 55 and 65; L. Kerr, “Sentencing Ashley Smith: How Prison Conditions Relate to the Aims of Punishment” (2017), 32 C.J.L.S. 187, at p. 201).”

R. v. Hills, 2023 SCC 2, at paras. 135 & 136 [Emphasis added]

[16] In considering the Hill decision of the Supreme Court, I am satisfied that Evan Buswa, other than being housed in a secure unit, indoors, with access to medical care, and limited ability to use any of his drugs of choice, no doubt benefits some with time while in custody. But jails cannot be a solution to the problems of housing, poverty, mental health, or addiction without a warranted or justified reason to have the person imprisoned. On balance, the harm caused by overincarceration far outweighs any benefit Mr. Buswa might get from being temporarily housed in a jail.

[17] The Crown, in reply, takes the view that I do not have sufficient evidence to meaningfully sentence Mr. Buswa under the Gladue principles, arguing that mere identification as an Indigenous person is not enough and that we need to know more about the offender. He posits whether a Gladue Report had ever been ordered or whether Mr. Buswa might benefit from a Gladue report. I find this submission deeply troubling.

[18] A Gladue Report may be helpful and provide some information on his background. Still, to be realistic, given the multitude of challenges, his counsel has been able to get very little background information. For whatever reason, Mr. Buswa is only willing or able to share a little about his personal background. I suspect that other than very helpful systemic information, much of which the Court has already been directed to take judicial notice of, it is likely that very little else will come of a Gladue report. The other concern is delay: A Gladue report, in this jurisdiction, means a six to eight-week wait for the report to be prepared, whether the person is in or out of custody.

[19] On the issue of the systemic factors to be considered, we must keep in mind the history of indigenous peoples in this country under colonial rule, where the government of the day assumed jurisdiction over Indians with clear goals:

“Our Indian legislation generally rests on the principle that the aborigines are to be kept in a condition of tutelage and treated as wards or children of the State . . . clearly our wisdom and our duty, through education and every other means, to prepare him for a higher civilization by encouraging him to assume the privileges and responsibility of full citizenship.”

Canada, Department of the Interior, Annual Report for the Year Ended June 30, 1876, Sessional Papers, 1877, vol. 7, No. II, xiv

[20] To that end, they created the residential school system in 1886. Sir John A MacDonald, as head of the department responsible for "Indians" as we were then known, the vestiges of which remain to this day as any Indigenous person in this country who has been granted a Certificate of Indian Status card can attest. In 1883, Macdonald reported to the House of Commons:

"When the school is on the reserve, the child lives with its parents, who are savages, and though he may learn to read and write, his habits and training mode of thought are Indian. He is simply a savage who can read and write. It has been strongly impressed upon myself, as head of the Department, that Indian children should be withdrawn as much as possible from parental influence, and the only way to do that would be to put them in central training industrial schools where they will acquire the habits and modes of thought of white men."

[21] Children were taught that their way of life was invalid, their cultural and spiritual teachings were evil, and that they were primitive and inferior. Residential schools provided very little formal education beyond that indoctrination and those teachings. They were mainly taught trades and domestic chores, often to the benefit and profit of the schools.

“The lack of role models and mentors, insufficient funds for the schools, inadequate teachers, and unsuitable curricula taught in a foreign language all contributed to dismal success rates. The Truth and Reconciliation Commission of Canada has heard many examples of students who attended residential school for eight or more years but were left with nothing more than Grade Three achievement and sometimes without even the ability to read. According to Indian Affairs annual reports, in the 1950s, only half of each year’s enrolment made it to Grade Six.” [2]

The Final Report of the Truth and Reconciliation Commission of Canada Volume 5

[22] Those who survived the physical, sexual, emotional, and psychological abuse returned to their communities a mere shadow of their former selves. They were traumatized, and the connection with their family, community, language, spirituality, and culture was crushed. The survivors quickly learned that they did not fit in and were not wanted in mainstream societies, and they quickly realized they did not fit in their own homes and communities.

[23] Meanwhile, families whose children were stolen were themselves traumatized. Communities were in a downward spiral toward poverty, addiction, and mental health crises, leading to violence, trauma, and despair. Is it a wonder that people seek comfort from the false promises of mind-altering drugs and alcohol? Is it a wonder that people resort to violence and criminal behaviours when they have been victims of the most horrid crimes and find themselves as adults, perpetuating the hurt and trauma they had imposed on them?

[24] The resulting harm from the legacy of Indian residential schools has led to people losing their way, leaving their communities, and finding themselves lost and alone, often in larger centres like Toronto. The over-representation of Indigenous people in the Courts who struggle with mental health challenges, poverty and addiction is staggering.

[25] Many have lost touch or have been rejected by families and communities. They have lost touch with their culture, language and traditions. They have lost touch with themselves. Having worked since the founding of this country to suppress and eliminate the Indigenous culture and Indigenous peoples, we cannot hold them responsible and deny them consideration for the impact of those actions by these practices by failing to acknowledge them when they appear before us, or by suggesting we cannot meaningfully apply Gladue principles when our government policies, our laws, and our criminal justice system have served to create that disconnect.

Conclusion

[26] I am sympathetic to the frustrations of the business owners and their staff victims of these offences. We are all alive to the increased incidents of crime on our streets. Whether these numbers are any more significant than the more recent spikes in the early 2000s remains to be seen. But from where I sit, in a busy downtown Court that serves vulnerable populations, the increase in these offences does not come from an increase in lawlessness and complete disregard for others. The impact on the mental health on all of us as we survive this now almost three-year Covid crisis, being felt more acutely by our most vulnerable populations, coupled with a surge in dangerous drugs like fentanyl and crystal meth, is a significant factor.

[27] I have often felt frustrated by the lack of services and resources available to our community. Access to the needed treatment and support services, housing, and poverty solutions would serve the most vulnerable who come before us more than a focus on incarceration and detention.

[28] But absent access to those community resources and supports, we cannot rely on the jails to be the solution to this problem. That approach is how we got to the crises in the criminal justice system so clearly laid out in the Gladue and Ipeelee decisions.

[29] If we default to jail, we fail.

[30] Section 718.1 of the Criminal Code states that a sentence must be proportionate to the offence's gravity and the offender's degree of responsibility. Having established the diminished moral culpability given the extreme poverty, challenge to find adequate housing, the ongoing struggles with mental health, and the Gladue factors noted above, I have sentenced Evan Buswa to the following:

(1) On the break and enter commit: in light of 38 days pre-trial custody and Summers credit at 57 days, a further suspended sentence and probation for one year.

(2) For all other counts, a suspended sentence and probation for one year concurrent to the break and enter count.

Released: February 6, 2022 Signed: Justice André Chamberlain