Court File and Parties
ONTARIO COURT OF JUSTICE DATE: August 11, 2023 COURT FILE No.: 19-A38503
BETWEEN:
HIS MAJESTY THE KING
— AND —
TIMOTHY HILL
Before: Justice P.K. Burstein
Heard on: September 8, 2022 and June 14, 2023 Reasons for Judgment released on: August 11, 2023
Counsel: M. Tait, counsel for the Crown P. Chmiel, counsel for the Defendant
Introduction
BURSTEIN J.:
[1] “Plus ça change, plus c'est la même chose”, the infamous epigram penned by Alphonse Karr so many years ago translates roughly to mean “the more things change, the more they stay the same”.
[2] As a society, we have allowed our criminal justice system to incarcerate far too many First Nations people. Almost 30 years ago, in recognition of the gross disproportion of incarcerated Indigenous offenders resulting from Canada’s long history of mistreating First Nations people, Parliament directed judges to consider “all available sanctions, other than imprisonment” when sentencing Indigenous offenders. In the years since that clarion call, the Supreme Court of Canada has repeatedly had to remind judges of the compelling need to consider Parliament’s directive when sentencing Indigenous offenders: (R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Ipeelee, 2012 SCC 13; and, most recently, R. v. Hilbach, 2023 SCC 1).
[3] The lessons from Canada’s historic discrimination against First Nations people are now regularly referenced either in ceremonial land acknowledgements or in media reports of the decomposed bodies of Indigenous children being discovered at former residential schools. Regrettably, despite these frequent public displays of respect and sympathy for First Nations people, the grossly disproportionate number of incarcerated Indigenous offenders has not changed for the better. Rather, while the proportion of Canada’s Indigenous population has remained relatively constant (at approximately 3-5%), the national percentage of incarcerated Indigenous offenders has actually increased from 12% in 1997 to 20% in 2008 to 32% in 2022: see R. v. Gladue, supra at para. 58 and Spirit Matters: Aboriginal People and the Corrections and Conditional Release Act, Office of the Correctional Investigator, October 22, 2012; Office of the Correctional Investigator Annual Report, 2021-2022. [1] It would seem “the fear that s. 718.2(e) of the Criminal Code might come to be interpreted and applied in a manner which would have no real effect upon the day-to-day practice of sentencing aboriginal offenders in Canada”, as expressed 25 years ago by the Supreme Court of Canada in Gladue, has proven to be real.
[4] In this case, I must decide whether or not to accede to the Crown’s request to incarcerate Timothy Hill for possessing a loaded handgun, contrary to s. 95 of the Code. Timothy Hill is a 37-year-old offender of Mohawk descent. Mr. Hill’s paternal great grandfather attended a residential school in Belleville, Ontario. To avoid his children also being forced to attend a residential school, Mr. Hill’s great grandfather eventually moved off the reserve and forfeited his “Indian status” and, thus, that of his descendants. Despite having lost their legal status and connection to the reserve, Mr. Hill’s father was still raised to respect his family’s Mohawk heritage. According to the Gladue Report filed in this case, Mr. Hill has always identified himself as Mohawk.
[5] On November 15, 2019, Mr. Hill was arrested at the Super 8 Motel in Ajax for being in possession of a loaded handgun. He pleaded guilty before me on September 8, 2022, to two charges relating to his illegal possession of that handgun (i.e., the s. 95 offence and an offence of careless storage, contrary to s. 86 of the Criminal Code). As a result of some delays in obtaining reports about Mr. Hill’s Indigenous background, the sentencing hearing did not take place until June 14, 2023. At that hearing, the Crown sought a sentence of 2 years of imprisonment. The defence contended that, in view of Mr. Hill’s Indigenous heritage and the time he had spent under very restrictive house arrest, any sentence of imprisonment ought to be served conditionally in the community.
[6] There can be no dispute that gun crimes in Canada should be met with the strongest of responses from our courts. Despite having been written more than 5 years ago, the comments of Nakatsuru J. in R. v. Morris, [2018] O.J. No. 4631 (S.C.) about how courts should respond to gun crimes are equally true today:
It seems like not a day goes by without the media reporting yet another gun tragedy. Sometimes very horrible ones. It happens in every neighborhood. It happens in my own. None are immune from gun violence. People are rightfully outraged and bewildered by it. They feel powerless in its onslaught. Afraid. It brings up some strong and very basic emotions in all of us. This gun violence has been with us for some time. I am afraid it will be with us for a while. The tide of fear in our communities rises and falls with the tragedies that come with gun violence. But when the tide of fear is high, we "feel" very strongly about gun crime. Because guns kill. Innocent victims die. Families are torn apart. Neighborhoods are gripped with pervasive insecurity. That grim reality pushes us to a one-dimensional view of gun crime and those who commit them. It pushes judges to impose longer and longer sentences.
My role is to give expression to that fear. To condemn the crime and those who do it. But it is not my role to give in to that fear. No matter how strongly it seizes the community's psyche. Reason must control emotion in sentencing. Because in our system, a sentence is not just about the crime. It must be also about the offender. It must be about the particular facts of the case. A sentence must be multi-dimensional. It must be proportionate.
[7] As Justice Nakatsuru rightly observed, while courts must send a strong message to offenders and to the community that gun crime will be met with harsh punishment, courts must also respect the need to fashion a sentence that recognizes the individual features of the offender before them. Indeed, the Criminal Code reminds judges that the fundamental principle of sentencing must always be proportionality. The Code specifically says that a sentence must be proportionate to both “the gravity of the offence and to the degree of responsibility of the offender”: s. 718.1.
[8] In an effort to protect the public from the significant harm associated with gun crimes, both Parliament (through the punishment scheme set out in the Criminal Code) and appellate courts (through their decisions) have made clear that sentences for these offences must focus primarily on sending a message that even the mere possession of a firearm will be met with harsh punishment. In view of the Supreme Court of Canada’s comments in R. v. Nur, 2015 SCC 15 (at para. 82), the Crown contends that the range of appropriate sentences for illegally possessing a loaded handgun for the first time is 3 to 5 years of imprisonment. However, as Justice Schreck held in R. v. Beharry, 2022 ONSC 4370, [2022] O.J. No. 3409 (at paras. 30 and 31), the gravity of a s. 95 offence will vary depending on whether the possession was “in the nature of a regulatory offence” as opposed to an “outlaw” who carried the firearm “as a tool of his criminal trade”. According to Schreck J., “[l]ower sentences in the upper reformatory or lower penitentiary range can and have been imposed in cases in the ‘middle of the spectrum,’ that is, where the firearm is not possessed in connection with other criminal activity.”
[9] An offence’s sentencing “range” must be applied flexibly so as to respect the need for individualization in the sentencing process: see R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No 64 (at paras. 12, 56-60). For example, in the Ontario Court of Appeal’s decision on the merits of the offender’s sentence appeal for a first-time s. 95 offence in R. v. Smickle, 2014 ONCA 49, the Court recognized that the offender had already served the equivalent of 12 months of imprisonment (due to the time he had already been subject to house arrest) and that the public would be much better protected by not interfering with the offender’s positive 5-year course of post-offence rehabilitation. Consequently, while noting that it would have been appropriate for the trial judge to have imposed a sentence of “two years less a day of imprisonment” for Mr. Smickle’s first s. 95 offence, the Court of Appeal decided that no actual imprisonment would be necessary given the particular circumstances of Mr. Smickle’s case.
[10] As s. 718.1 of the Criminal Code says, a court’s determination of the proportionate sentence for an offence begins with an assessment of the “gravity” of that offence. In this case, the fact that Mr. Hill possessed the loaded handgun in a public place added to the risk of serious harm already inherent to a s. 95 offence. Moreover, despite the absence of any evidence that he intended to use it, Mr. Hill chose to arm himself with that loaded handgun during the illicit transaction he had arranged with two sex-trade workers. Nevertheless, Mr. Hill was not possessing the firearm “as a tool of his … criminal trade”. Still though, having regard to the real and immediate harm created by Mr. Hill’s possession of the loaded handgun in public, his offence requires a sentence that will send a clear message to both him and others that our society does not tolerate such serious misconduct.
[11] Before turning to my analysis of the second half of the proportionality equation – Mr. Hill’s “degree of responsibility” – it is necessary in this case to first turn to another aspect of the sentence calculation. Since his arrest in November of 2019, Mr. Hill has been subject to a very restrictive “house arrest” bail. The Crown fairly concedes that, in the circumstances of this case, it would not have been realistic for Mr. Hill to have sought a loosening of those restrictions through an application to vary the bail. Consequently, Mr. Hill has already suffered a serious deprivation of his liberty for almost 45 months. I accept Mr. Hill’s evidence that his strict house arrest has had some significant negative impacts on him and his family. For example, despite having been gainfully employed for most of his adult life, he has had to depend on his aging parents to not only house him but to also support him financially. More importantly, Mr. Hill’s ability to father his young son was materially curtailed as a result of Mr. Hill’s inability to leave his parents’ house. In view of the significant prejudice occasioned by Mr. Hill’s house arrest bail, I accept the Crown’s concession that, pursuant to the reasoning in R. v. Downes, 2006 ONCA 3957, 205 C.C.C. (3d) 488 (Ont. C.A.), Mr. Hill is entitled to a total mitigative credit of 12 months for both the time he has already spent under that strict house arrest and the time (i.e., 23 days) he has already spent in actual pre-sentence custody.
[12] Having regard to this 12 months of mitigative credit for the time he has already served under some form of strict pre-sentence detention, the Crown submitted that the appropriate sentence in Mr. Hill’s case (for both offences combined) should be in the range of 2 years imprisonment; effectively, the maximum permissible length of a reformatory sentence: see R. v. Morris, 2021 ONCA 680 at para. 131. For the reasons set out below, I am satisfied that, if actual imprisonment was necessary, the appropriate period of imprisonment in this case would have been 18 months.
[13] I turn now to my assessment of Mr. Hill’s “degree of responsibility”. I accept that the handgun Mr. Hill possessed was one that he had previously possessed lawfully pursuant to a licence which had expired in 2017. While that does not in any way excuse his offences on November 15, 2019, this fact does mitigate some of the harm otherwise associated with possessing handguns. Unlike “outlaws” who possess illegal handguns, Mr. Hill’s possession did not contribute to the criminal underworld’s black market for firearms.
[14] Although this was Mr. Hill’s first firearms offence, he did have one prior conviction in 2017 for a weapons offence for which he received a small fine and some probation. Subsequent to his arrest in this case, he had also incurred two further convictions – one for drunk driving and one for breaching his bail. Mr. Hill has never before been sentenced to a term of imprisonment. The only time he has been to jail is when he was detained for three weeks following his arrest in this case. In my view, his minor criminal record did not really enhance or detract from his “degree of responsibility” for the s. 95 offence.
[15] The most significant individual factor for me to consider in determining a proportionate sentence in Mr. Hill’s case was his Indigenous heritage. As noted above, Mr. Hill’s great grandfather was a residential school survivor. The impact of his great grandfather’s negative experience with Canada’s residential school system can be readily traced to Mr. Hill’s childhood estrangement from his abusive alcoholic father. Moreover, it was as a result of his great grandfather’s desire to prevent his own children from ever having to experience the residential school system that Mr. Hill’s family lost its legal status under the Indian Act and much of the connection to its Mohawk heritage. I am satisfied that Mr. Hill’s estrangement from his father and Mr. Hill’s loss of culture had a profound negative impact on Mr. Hill during his formative years. Furthermore, as he was growing up, Mr. Hill was frequently the target of racial slurs by neighborhood peers and would sometimes be forced by older tougher boys to fight because of his apparent Indigenous heritage. Both the Pre-Sentence Report and the Gladue Report show that Mr. Hill’s life has been marked by the negative effects of discrimination due to his Indigenous heritage.
[16] None of this is to suggest that Mr. Hill’s decision to possess a loaded handgun on November 15, 2019, was caused by his Indigenous heritage nor by his disconnection from it. Rather, to borrow the words of the Gladue Report (at p. 12): “Timothy’s experiences with his Aboriginal identity are not uncommon. Cultural identity is important; without it, people can feel lost or adrift with no real attachment to a group or to a place.” I accept that, at the time of his offences, Mr. Hill had become quite socially isolated as a result of having suffered a number of accidents resulting in a series of concussions. In the context of his troubled upbringing and loss of cultural identity, that social isolation was so overwhelming that it led Mr. Hill to reach out to the sex-trade workers on November 15, 2019, for some companionship. I infer that he only armed himself with the handgun on that day because he was worried about being robbed or threatened by the sex-trade workers or their associates. While Mr. Hill’s “motive has only a limited mitigating effect, it nonetheless distinguishes this case from those where offenders possessed firearms to further some criminal purpose (often drug trafficking), which is a significant aggravating factor”: R. v. Beharry, supra at para. 24. More importantly, however, I am satisfied that the negative impact of Mr. Hill’s difficult upbringing, which was clearly connected to his family’s loss of its Indigenous heritage due to the “legacy of colonialism”, contributed to his poor decision-making on November 15, 2019. Consequently, having regard to s. 718.2(e) of the Code and to the 12 months of pre-sentence detention already served, I would have considered a sentence of imprisonment in the upper reformatory range to have been more than adequate to achieve the relevant sentencing objectives in Mr. Hill’s case (i.e., 18 months of imprisonment on top of the 12 months the Crown concedes he has already served): see R. v. Beharry, supra at para. 31.
[17] The real question for me in relation to Mr. Hill’s Indigenous heritage, however, is whether this factor tilts the sentencing scales in favour of me deciding that it would be appropriate for him to serve his sentence of imprisonment conditionally in the community. Although still relatively rare, there have recently been some cases where judges have decided to impose conditional sentences for first-time s. 95 offenders. The growing number of these cases has come on the heels of the earlier appellate decisions striking down the mandatory minimum sentence for s. 95 offences – a former statutory bar to them being eligible for a conditional sentence under s. 742.1 of the Criminal Code. For example, my colleague Justice Green, recently imposed a 20-month conditional sentence for a first-time s. 95 offender in R. v. McLarty-Mathieu, 2022 ONCJ 498 (and see the cases cited therein at para. 73). Moreover, it is worth noting that through Bill C-5 (S.C. 2022) Parliament has recently repealed the statutory bar to s. 95 offenders being eligible for conditional sentences for the purpose of allowing courts to help reduce the over-incarceration of racialized groups.
[18] While I readily acknowledge the importance of using the sentencing process to communicate society’s strong condemnation of gun crimes, I do not agree that it is always necessary to impose an actual sentence of imprisonment for some first-time s. 95 offenders. The Ontario Court of Appeal in R. v. Morris, supra recently recognized this reality in the context of sentencing members of another over-incarcerated racialized group for a s. 95 offence (at para. 180):
… When the appropriate sentencing range includes sentences at or below the two-year mark, a sentencing judge must give careful consideration to the imposition of a conditional sentence. As outlined earlier, conditional sentences, properly used, can ameliorate the longstanding problem of the over-incarceration of young Black men.
[19] When sentencing Indigenous offenders, our courts risk losing any remaining shred of legitimacy if the abstract and unproven concepts of deterrence and denunciation are relied upon as the sole justifications for incarcerating yet another First Nations person. Where there is something particularly aggravating about the circumstances of even a first-time s. 95 offence – such as the offender having been previously convicted of a gun-related offence, the offender having also been found in possession of drugs while possessing the gun, or the offender having been the subject of a court order prohibiting him from possessing weapons – I would have much less trouble deciding to send them to jail. In those hypothetical circumstances, a sentence of actual imprisonment would be justified on the additional need to deter or incapacitate the individual offender because of the very real additional harm presented by their case. However, in view of the Supreme Court of Canada’s firm recognition that conditional sentences do achieve some measure of deterrence and denunciation (see R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6 at paras. 41 and 67 and R. v. Sharma, 2020 ONCA 478, [2020] O.J. No. 3183 at para. 110 (C.A.)), I cannot see how incarcerating another Indigenous offender is necessary to simply re-emphasize the message that “guns are bad”. To put it bluntly, Indigenous offenders like Mr. Hill have sacrificed enough. They need not be sacrificed again on the altar of deterrence and denunciation when a lesser restrictive sentence would reasonably accomplish the same objectives. In the absence of any particularly aggravating factors in a case involving a first-time s. 95 offence, I am satisfied that imposing a conditional sentence on an Indigenous offender whose life has been negatively impacted by the “legacy of colonialism” would almost always better promote the notion that Canada is “a just, peaceful and safe society” than would a period of actual imprisonment.
[20] While a sentence in the range of 18 months of actual imprisonment might have otherwise been appropriate in Mr. Hill’s case, imposing a lengthier conditional sentence of 2 years less a day can equally send the message that possessing a loaded gun will be met with harsh penal consequences. During that 2-year period, Mr. Hill will not be allowed out of his home unless he is at work. As with incarcerated offenders, Mr. Hill will be denied the ability to roam freely about the community. Indeed, he will be stigmatized by the fact that he must decline any invitations from friends or coworkers to socialize out in the community during the 2 years he is serving his house-arrest sentence. Subject to special dispensation being granted by his conditional sentence supervisor, Mr. Hill will also continue to be deprived of the opportunity to take his young son on outings like fishing or camping trips. Moreover, the whole time that Mr. Hill is serving his 2 years of house-arrest he will know how swiftly and surely he would face actual incarceration were he to disobey any term of that conditional sentence.
[21] At the same time, the “restorative objectives” of sentencing will be much better served by having Mr. Hill serve his sentence in the community. Allowing him to return to work will not only benefit Mr. Hill and his employer, but also Mr. Hill’s parents and his ex-spouse as it will allow them to collect on the debts incurred by Mr. Hill during the 3.5 years that he has been unemployed due to his restrictive bail terms. A conditional sentence will also allow Mr. Hill to maintain and foster the relationship with his young son. This will inevitably lead to a better outcome for Mr. Hill’s son than would separating Mr. Hill from him through incarceration. Courts should strive to break, rather than perpetuate, the cycle of paternal estrangement which has sadly been so prevalent amongst descendants of residential school survivors.
[22] I am satisfied that a conditional sentence of imprisonment of 2 years less a day for Mr. Hill’s two offences in this case would meet all of the requirements set out in s. 742.1 of the Code. I am also satisfied that, in the circumstances of this case, it is appropriate to impose a concurrent 6-month conditional sentence in relation to the s. 86 offence. While the focus of a s. 86 offence is slightly different than the mischief sought to be prevented by a s. 95 offence, the two offences in this case were part of a brief singular transaction. Having regard to the totality principle of sentencing, it is appropriate that Mr. Hill’s two sentences be served concurrently. The 2-years-less-a-day conditional sentence will be followed by 3 years of probation, the maximum period allowed by law. Apart from the rehabilitative benefits to Mr. Hill resulting from maintaining his connection to the counselling services offered by probation, the fact that Mr. Hill will be subject to a total of 5 years of compulsory community supervision helps send the message to others that possessing loaded guns will be met with lengthy periods of punishment: see R. v. Gladue, supra at para. 72.
Released: August 11, 2023 Signed: Justice P.K. Burstein
[1] Shockingly, the OCI Report, 2021-2022 suggests that the rate of incarceration of female Indigenous offenders has reached 50% of the total inmate population (despite Indigenous females comprising only 5% of the female population in Canada).
