COURT FILE NO.: 17-85 DATE: June 26, 2023

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Caitlin Downing for His Majesty the King

- and -

MARK CAMERON Jon Doody and Michelle O’Doherty for Mr. Cameron Accused

HEARD: April 14, 2023

REASONS FOR SENTENCE

James J.

Introduction

[1] On June 25, 2021, Mr. Cameron was found guilty of the following offences:

i) Break and enter with intent to commit an indictable offence; ii) Robbery with a firearm iii) Possession of a weapon for a dangerous purpose iv) Possession of cocaine

[2] On October 1, 2021, I made an order for Mr. Cameron to be assessed pursuant to section 752.1 of the Criminal Code of Canada.

[3] The assessment report, prepared by Dr. Mark Pearce, a forensic psychiatrist, was released on February 20, 2022.

[4] On March 27, 2022, Ms. Downing, Crown counsel, brought an application requesting that Mr. Cameron be declared to be a long-term offender.

[5] The consent of the Attorney General for Ontario to pursue a long-term offender designation in relation to Mr. Cameron was granted on April 25, 2022.

[6] The sentencing hearing commenced on April 6, 2023. During the course of the proceeding Crown counsel requested that the long-term offender application aspect of the sentencing process be withdrawn, and the sentencing submissions were completed on April 14, 2023.

[7] The proceeding was adjourned to today for disposition.

Circumstances of the Offence

[8] Mr. Cameron was one of three persons who committed a home invasion style robbery at a private residence in a rural area near Barry’s Bay, Ontario.

[9] Mr. Cameron did not enter the residence but aided and abetted and appeared to direct the two other perpetrators who were armed with a rifle and a knife and were wearing masks when they forced their way into the victims’ home near midnight.

[10] One of the victims suffered a facial laceration from the knife during a scuffle with the perpetrators.

[11] The assailants placed a quantity of cash and some jewelry in a grocery bag by the front entrance to the home but mistakenly took a bag containing dog toys instead when they exited the residence.

[12] The female victim, Jody Tettemer, called 911 from her bedroom as the co-accused entered the home. Ms. Tettemer was able to provide the dispatcher with her address before she threw the phone under the bed as someone approached her bedroom. The line remained open during the robbery.

[13] Police were dispatched from the Killaloe Detachment of the OPP in response to the 911 call. The distance from the detachment to the Tettemer residence is about 34 kilometres. The route passes through the village of Barry’s Bay.

[14] As the police made their way to the residence the OPP dispatcher was able to provide additional and updated information from Ms. Tettemer before they arrived.

[15] Mr. Cameron was arrested in a rented vehicle near the Tettemer residence as the police arrived on scene.

[16] The two assailants who actually entered the residence fled into the woods and were subsequently arrested. Later they both entered guilty pleas and were sentenced without implicating Mr. Cameron.

[17] A search of the cell phone in Mr. Cameron’s possession at the time of his arrest revealed several incriminating texts that were exchanged with the co-accused before and during the robbery.

Circumstances of the Offender

[18] Mr. Cameron grew up in a supportive and stable family environment.

[19] Mr. Cameron was 43 years of age at the time of the offences.

[20] He is 49 now.

[21] He is the father of two children. Their mother died of cancer in 2016.

[22] He is currently residing with his partner in a blended family arrangement. His partner is also one of his sureties.

[23] He has a significant but dated criminal record that includes three robberies and multiple assault convictions.

Impact on Victims

[24] The victims in this case, Jody and Miles Tettemer, both provided Victim Impact Statements.

[25] Ms. Tettemer said the robbery had a profound impact on her emotionally. The fear that she was going to die triggered significant long term changes in her outlook. She has trouble trusting people.

[26] At the time of writing her statement, she had not returned to work as a special education teaching assistant.

[27] She said that the Tettemers incurred significant expenses installing a security system at their home and to repair damage to the interior of the house.

[28] Mr. Tettemer said that he continues to feel anxious and insecure. He has grown mistrustful of others. He reported that his right arm was injured in an accident several years ago and as a result of the physical altercation which occurred during the robbery, he injured his left arm and his recovery took several months.

[29] Also, he now has a scar on his face from the laceration he sustained during the struggle with the perpetrators.

Legal Parameters

[30] A conviction for break and enter with intent to commit an indictable offence carries a maximum penalty of life imprisonment.

[31] A conviction for robbery with a firearm carries a maximum penalty of life imprisonment.

[32] A conviction for possession of a weapon for a dangerous purpose where the Crown proceeds by indictment carries a maximum penalty of 10 years imprisonment.

[33] A conviction for possession of cocaine where the Crown proceeds by way of indictment carries a maximum penalty of seven years.

Position of the Crown

[34] Crown counsel seeks a global sentence of nine to ten years for the break and enter with intent conviction, a similar sentence for the robbery conviction to be served concurrently, one year concurrent on the weapons dangerous conviction and 90 days concurrent for possession of cocaine.

Position of the Defence

[35] The defence position on sentence calls for a global sentence of 6 years less certain credits.

[36] Defence counsel, Jon Doody, says that in addition to an allowance for Mr. Cameron’s pretrial custody, an appropriate sentence ought to reflect a significant credit for the onerous conditions that were attached to Mr. Cameron’s release order pending trial.

[37] Mr. Cameron was arrested on May 31, 2017, and was released on bail on December 22, 2017, a total of 206 days. At the rate of 1.5 to 1, this represents a credit of 10 months and 5 days.

[38] Following his release pending trial, Mr. Cameron was on bail for approximately 5.5 years. His bail conditions included a requirement to reside with his sureties and not to be absent from his residence except in the company of at least one surety. Mr. Doody suggests that a further credit of 421 days would be appropriate, so that the total credit would be two years in all. The defence is content to have this calculation apply to the period of time from the date of the sentencing submissions were heard until today.

[39] Ms. Downing does not take issue with Mr. Doody’s calculations and does not oppose the defence request for a global credit of two years.

[40] I agree that the requested credit is in line with the case law on this issue and I am prepared to give effect to the requested pretrial credits.

Case Law

[41] Both Crown and defence counsel have referred me to numerous cases that they say support their positions on sentence.

[42] While other cases serve an important function in establishing appropriate sentencing ranges and provide insight into how other judges have applied principles of sentencing, no two cases are identical. My task is to provide an appropriate sentence for this particular offender and for these particular offences.

[43] First, I will address the question of the appropriate range of sentence for a home invasion style of robbery.

[44] The law currently provides a range of sentence from four to five years at the low end and up to eleven to thirteen years at the high end.

[45] This type of crime encompasses a wide variety of circumstances which is why the range is so expansive. Home invasion cases require a careful examination of the circumstances of the particular case in question, of the nature and severity of the criminal acts perpetrated during the course of the home invasion and of the situation of the individual offender. On this last point, the situation of the individual offender, Mr. Cameron’s extensive criminal record, though dated, includes three prior robberies which of necessity must play an important role in determining a fit sentence even though he never entered the victims’ home.

[46] A sentencing range is simply a guideline; ranges are not meant to be rigid and inflexible.

[47] In R. v. Wright, 2006 ONCA 40975, 2006, 83 O.R. (3d) 427 Justice Blair of our Court of Appeal referred to some examples of how the range has been applied. He referred to the case of R. v. Nelson, 2001 ONCA 5235, [2001] O.J. No. 2585, 147 O.A.C. 358 in which the Court imposed a nine-year sentence for a home invasion where the victim was pepper sprayed. In that case the offender was young and had only a minor criminal record.

[48] In R. v. Harriott (2002), 2002 ONCA 23588, 58 O.R. (3d) 1, aff’d. 2003 SCC 5, [2003] 1 S.C.R. 39, the appeal court agreed with a nearly 10-year sentence for one of two assailants who pushed their way into an apartment wearing stockings over their head and carrying a gun. They threatened to kill the female victim if she did not turn over her jewelry and some cash. The female victim was made to kneel on the floor and was kicked in the back.

[49] In R. v. C. (A.J.), 2004 BCCA 268, [2004] B.C.J. No. 964 (B.C.C.A.) the perpetrators entered the home with an unloaded shotgun, pepper spray and a knife, bound the victims and threatened them in an attempt to extort $50,000. They were sentenced to 11 and 13 years respectively.

[50] A review of home invasion cases illustrate that it is common for a perpetrator to receive a stiff prison sentence unless there are special circumstances. The reason for this was explained by Trafford J. in R. v. Soares, [1996] O.J. No. 5488 (S.C.J.) at para 286:

The sanctity of one’s home is of fundamental importance in a free and democratic society. It is constitutionally recognized in our country. Everyone must not only be, but feel, secure in their residence. A society that tolerates significant criminal intrusions into the privacy of one’s home is a society that forces its citizens to resort to self-help to protect themselves against such wrongs. Absent effective responses from the judiciary, the alternative is for citizens to arm themselves in anticipation of a need to defend themselves against such criminal enterprises… The obligation of the Court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to thereby preserve the public’s confidence in the administration of justice.

[51] Mr. Doody provided copies of several cases that address the question of parity of sentence among the co-accused. As stated in R. v. Knife, [1982] S.J. No. 443 (Sask.C.A.) at para. 35:

As a matter of general principle, the courts seek to avoid disparate sentences for the same or similar offences, particularly in the case of co-accused, but not without considerable qualification for sentencing remains an individual process. The respective roles of the parties in the commission of the offence will be considered, along with their individual circumstances and may account, properly, for variations in sentence even in relation to the same crime.

[52] This issue engages an examination of the sentences imposed on the two other offenders, Christopher Gilmour and Donald Sullivan. Mr. Gilmour was a 23-year-old first time offender. He entered a plea of guilt. He was sentenced to 4 years, the mandatory minimum sentence in effect at that time, based on a joint submission from Crown and defence counsel.

[53] Donald Sullivan’s precise age is unknown. He had a prior robbery conviction on his record. Mr. Sullivan was sentenced for these crimes along with some unrelated offences, so it is difficult to identity his sentence for the home invasion.

[54] The defence submits that the parity principle warrants imposing a penalty on Mr. Cameron that is proportionate to the sentence imposed on the two offenders who actually entered the Tettemer residence. Mr. Tettemer was injured by Mr. Gilmour. Mr. Sullivan carried a firearm. Mr. Doody suggested that their moral culpability is greater than that of Mr. Cameron.

[55] Also, it is relevant to look at the particular crimes the other offenders were convicted of when considering how the parity principle ought to be applied, the suggestion being that they were charged with offences not applicable to Mr. Cameron.

[56] The parity principle does not mean that significant differences in the individual situations of the co-accused ought to be overlooked. In my view, four factors in this case tend to reduce the application of parity considerations, especially in relation to Mr. Gilmour:

i) Mr. Gilmour is more than twenty years younger than Mr. Cameron; ii) Mr. Gilmour was a first-time offender whereas Mr. Cameron has a lengthy criminal record; iii) Mr. Gilmour pleaded guilty; Mr. Cameron did not. Therefore Mr. Cameron cannot claim the mitigating effect of an admission of guilt; and iv) The court that sentenced Mr. Gilmour was presented with a joint submission that cannot be lightly ignored.

Mitigating and Aggravating Factors

[57] The identification and assessment of mitigating and aggravating factors is an important aspect of the individualized nature of the sentencing process. I will address the mitigating factors first:

i) Mr. Cameron has complied with onerous bail conditions for a lengthy period of time; ii) He is in a stable relationship and has contributed to childcare responsibilities within his family; iii) He has sought employment opportunities when he could; and iv) He has family support as evidenced by the letters of support from family members.

[58] I do not regard the fact that Mr. Cameron did not enter the residence as a significant mitigating factor. He was more than a provider of transportation. He instructed and directed his co-accused. His role within the group tends to increase, not lessen, his moral blameworthiness.

[59] The most notable aggravating factor is Mr. Cameron’s lengthy although dated criminal record that includes three previous robberies. He has served a significant prison time in the past.

Principles of Sentencing

[60] I agree with and adopt the summary of applicable principles provided by Justice Schreck in R. v. Holland, 2020 ONSC 846 where he stated at para 15:

Section 718 of the Criminal Code of Canada provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal recently stated in R. v. Morris, 2021 ONCA 680, at para. 58, “[t]he individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.” While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[61] Cases involving home invasion style robberies require that primacy be given to the need to denounce the offender’s wrongful conduct and to deter the offender and others from committing similar crimes in the future.

[62] Rehabilitation, where applicable, is an important sentencing consideration. Mr. Cameron emphasized that his criminal record is dated and he has a proven track record of compliance with his bail conditions over a lengthy period of time. Most of Mr. Cameron’s crimes were committed when he was a young man. He is almost fifty years old now. He referred to the case of R. v. M.(R.), 2020 ONCA 231 which stands for the proposition that an offender’s rehabilitative prospects ought to be assessed at the time of sentencing rather than relate back to the time of the offence. The letters of support from his family attest to his increased sense of responsibility and respectfulness.

[63] An assessment of an offender’s rehabilitation potential typically includes a consideration of the offender’s genuine expression of remorse, a recognition of the harm done and an indication that the offender has taken responsibility for his actions. These important factors are completely missing here. No remorse, no acknowledgment of the harm done, no apology. Their absence detract from Mr. Cameron’s rehabilitative prospects.

The Assessments Performed on Mr. Cameron

[64] Dr. Pearce assessed Mr. Cameron in his capacity as a forensic psychiatrist at my request. He conducted two video interviews with Mr. Cameron with a total duration of about 5.75 hours. He had a significant quantity of documentary information about Mr. Cameron from the police and prison authorities, Children’s Aid records, medical records and information from individuals who Dr. Pearce described as knowing Mr. Cameron well, about 13,000 electronic pages in all.

[65] Dr. Pearce has conducted approximately 100 similar assessments.

[66] In his opinion Mr. Cameron suffers from a mixed personality disorder with antisocial and narcissistic traits. Starting with his adolescent years, Mr. Cameron exhibited symptoms of what Dr. Pearce described as conduct disorder. This disorder involves a repetitive pattern of violating the rights of others and societal norms. It tends to be a precursor of antisocial personality disorder that develops in adulthood.

[67] Individuals with conduct disorder tend to have little empathy or concern for the feelings, wishes and well-being of others. They are often callous and lack appropriate feelings of guilt and remorse. Individuals with this disorder may try to blame others for their own misdeeds. Poor frustration tolerance, irritability, temper outbursts and recklessness are frequently associated features. This diagnosis is consistent with Mr. Cameron’s persistent pattern of reckless and assaultive behaviour as a young person.

[68] Dr. Pearce said that as an adult, Mr. Cameron had trouble remaining consistently employed, in part because he was in and out of custody. He worked as an enforcer and considered himself a vigilante. Interpersonally, he can present as grandiose, charming and glib. He can be impulsive and manipulative. He has antisocial personality traits that present with a pattern of self-centredness and the willingness to contravene the rights of others, a failure to conform to social norms with respect to lawful behaviour, deceitfulness, impulsivity, irritability, aggressiveness, irresponsibility and a lack of remorse.

[69] Individuals with narcissistic personality traits present with a grandiose sense of self-importance, a sense of entitlement and lack empathy. They have a tendency to exploit others.

[70] On a more positive note, Dr. Pearce observed that Mr. Cameron’s antisocial personality traits have been less evident over the preceding decade following the birth of his children. Dr. Pearce noted that others have described Mr. Cameron as more mature but the fact remains that he re-offended in 2017.

[71] Dr. Pearce also conducted or arranged for a series of tests to assess Mr. Cameron’s risk of violently re-offending. The conclusion he drew from these tests was that Mr. Cameron was at a low to moderate risk of re-offending and considering his success in the community since 2017, he probably tends towards the low end of the spectrum. Risk tends to diminish with age.

[72] A second report was prepared at Mr. Doody’s request by Dr. Jan Looman, a clinical and forensic psychologist. Dr Looman had access to Dr. Pearce’s report and conducted a second set of risk assessment tests. In terms of long-term risk, Dr. Looman’s view was that Mr. Cameron presented a moderate risk for future violent behaviour but when the factors focused on more recent considerations over the last year, the risk rating was in the low category. An important positive factor in Dr. Looman’s overall assessment was Mr. Cameron’s age.

Disposition

[73] Before concluding, I would like to comment on the sentencing range suggested by Crown counsel where Ms. Downing proposed that a sentence of 9 to 10 years imprisonment would be appropriate. I do not disagree with Ms. Downing that considering Mr. Cameron’s record, the circumstances surrounding this offence and the sentences imposed in similar cases, such a disposition would not be unreasonable. However, there is an additional consideration that warrants a reduction in what would otherwise be a fair and just sentence.

[74] Mr. Cameron has had his liberty interests compromised for an unusually lengthy period of time- from 2017 to 2023, about six years. Several factors have contributed to this situation, not the least of which has been the global pandemic.

[75] I recognize as well that counsel have agreed on an appropriate credit for time served and for the significant constraints on Mr. Cameron while he was on bail.

[76] In the final weighing of the various factors that ought to be taken into account, it is my view that some additional allowance needs to be given due to the simple fact that Mr. Cameron, not necessarily through anyone’s fault, has had his liberty interests compromised for an extended period of time. Such a credit is not derived by means of a mathematical calculation but the record ought to reflect that the sentence I am about to impose includes an allowance for this unfortunate fact.

[77] Mr. Cameron, will you please stand up. For the crimes for which this court has found you guilty, I sentence you to a global period of imprisonment of 8 years, subject to a reduction of 2 years for pre-sentence custody and credit for onerous bail conditions, so the sentence being imposed on you today is for a custodial sentence of 6 years. This sentence is broken down as follows:

i) Count 1- Break and enter to a private residence with intent to commit an indictable offence contrary to s. 348(1)(a) of the Criminal Code of Canada - 6 years imprisonment; ii) Count 2- Possessing a firearm in committing a robbery with violence contrary to s. 344(1)(a.1) - 6 years concurrent; iii) Count 5- Carry a weapon for the purpose of robbery contrary to s. 88 - 1 year concurrent iv) Count 7- Possession of cocaine contrary to s. 4(3) of the Controlled Drugs and Substances Act - 90 days concurrent;

[78] The following ancillary orders shall issue:

1. S. 109 weapons ban for life
2. Provide D.N.A. sample
3. S. 743.21 prohibition against communicating with Jody and Miles Tettemer
4. Forfeiture of any interest you may have in any items seized as part of the police investigation

Mr. Justice Martin James

DATE RELEASED: June 26, 2023