Court File and Parties
Court File No.: Cayuga - 1111-998-11-449, 11-429, 111-998-11-444, 12-21, 11-45
Date: 2012-04-19
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Joshua Ryan Camara Ella June General
Before: Justice D.A. Harris
Heard: November 9, 2011, January 11, 2012, and March 21, 2012
Sentenced: April 19, 2012
Counsel:
G. Smith for the Crown
S. Bernstein for the accused, Joshua Ryan Camara
P. Osier for the accused, Ella June General
Reasons for Sentence
HARRIS J.:
Introduction
[1] Joshua Ryan Camara entered guilty pleas to possession over $5000 (a stolen motor vehicle) and to operating that vehicle while disqualified from doing so, both offences having occurred on April 12, 2011. The first offence is an indictable offence. Crown counsel elected to proceed summarily with respect to the second offence.
[2] He also entered guilty pleas to robbery, use of an imitation firearm in the commission of an indictable offence, possession under $5000 (another stolen motor vehicle) and to operating that vehicle while disqualified from doing so, all of these offences having occurred on August 20, 2011. Crown counsel elected to proceed summarily with respect to the possession under and drive disqualified offences. The others are indictable offences.
[3] Ella June General entered guilty pleas to two charges of dangerous operation of a motor vehicle causing bodily harm and to failing to stop for police pursuit causing bodily harm. These are all indictable offences.
[4] Mr. Camara and Ms. General are both before me today for sentencing.
[5] Although they entered their pleas on separate days and have been dealt with separately up until now, I note that the facts of both cases are closely related and that both cases share certain issues with respect to sentence. Accordingly, I propose to deal with both cases together.
The Facts
[6] With respect to Mr. Camara, it was agreed that I am to consider all of the following facts when determining the appropriate sentence.
[7] Mr. Camara was on probation at all material times and subject to a requirement that he keep the peace and be of good behaviour. He was also prohibited from operating a motor vehicle anywhere in Canada.
[8] On August 12, 2011, Mr. Camara was observed on video shoplifting property from a Shoppers Drug Mart. He was then seen driving away in a stolen car.
[9] On August 19, 2011, he was observed on video stealing three bottles of vodka from an LCBO store.
[10] On August 20, 2011, he stole a Dodge Caravan. He drove it to the LCBO in Caledonia where he took 10 bottles of Grey Goose vodka. He pointed a pellet pistol at store employees and said, "Don't be stupid or I'll use it." It was an imitation firearm but the store employees thought that it was real.
[11] Mr. Camara then drove off in the stolen minivan.
[12] Ms. General was a passenger in the vehicle. It was agreed that she was not responsible for any of Mr. Camara's crimes up until then. Her involvement as an offender began sometime later when she took over as the driver of the vehicle. She was not licensed to do this. Police saw them and began to pursue the vehicle with the emergency lights and sirens on. Ms. General then sped up and attempted to get away. The chase ended approximately four minutes later when Ms. General ran into the rear of another vehicle which was travelling in the same direction on the highway. She struck that vehicle with sufficient force that it struck the rear of another vehicle which was also travelling in the same direction. The occupants of both vehicles were injured and had to be taken to hospital.
[13] Ms. General had two days remaining on a probation order when this happened.
The Parties' Positions as to Sentence
[14] With respect to Mr. Camara, Crown counsel has suggested that an appropriate global sentence would be imprisonment for five years. Counsel for Mr. Camara suggested that a global sentence in the range of three to four years would be appropriate. Both counsel agreed that a firearms prohibition was called for here.
[15] With respect to Ms. General, Crown counsel suggested that the appropriate global sentence would be imprisonment for between six and nine months, followed by probation for three years and a driving prohibition running between two and three years. Counsel for Ms. General agrees with the proposed probation and driving prohibition. He suggests however that a shorter period of imprisonment would be appropriate.
The Law
[16] In determining the appropriate sentence for both Mr. Camara and Ms. General, I must consider the fundamental purpose and principles of sentencing set out sections 718 to 718.2 of the Criminal Code.
[17] The fundamental purpose of sentencing, as expressed in section 718 is to contribute to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society where necessary, assisting and rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
[18] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime, but there is no single fit sentence for any particular offence.
[19] The determination of an appropriate sentence involves attempting to apply a blend of the principles including specific and general deterrence, denunciation and rehabilitation.
[20] I must also consider the impact of section 718.2(e) which provides that:
All available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[21] The Supreme Court of Canada discussed the application of the section in Gladue v. The Queen (1999), 133 C.C.C. (3d) 385, and, in particular, said that section 718.2(e) applies to all offenders. It is doubly applicable here as both Mr. Camara and Ms. General are "aboriginal offenders" within the meaning of that section.
[22] The Supreme Court of Canada made it clear in Gladue that sentencing is an individual process, and in each case that consideration must continue to be what is a fit sentence for this accused for this offence in the community. The effect of section 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders. It is not a mitigating factor on sentencing simply to be an aboriginal offender, nor is being an aboriginal offender a "get out of jail free card". Rather, section 718.2(e) was enacted as a remedial provision in recognition of the fact that aboriginal people are seriously over-represented in Canada's prison population, and in recognition of the reasons for why this overrepresentation occurs. So, while section 718.2(e) requires a sentencing judge to consider reasonable alternatives to imprisonment for all offenders, special consideration must be given to the circumstances of aboriginal offenders. The subsection also requires that a sentencing judge consider a shorter period of imprisonment, in appropriate cases, for an aboriginal offender.
[23] Finally, at para. 43 in Gladue, the Supreme Court notes that section 718 now requires a sentencing judge to consider more than the longstanding principles of denunciation, deterrence and rehabilitation. Now, the sentencing judge must also focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgement of the harm caused on the part of the offender and attempting to rehabilitate or heal the offender. As a general matter, restorative justice involves some form of restitution and reintegration into the community.
[24] These issues were revisited by the Supreme Court of Canada recently in R. v. Ipelee, 2012 SCC 13. At paras. 59 and 60 the Supreme Court reaffirmed that section 718.2(e) of the Criminal Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing.
[25] It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for aboriginal offenders.
[26] Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique and different from those of non-aboriginal offenders. When sentencing an aboriginal offender, a judge must consider the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts and 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.
[27] Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report.
[28] Courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for aboriginal peoples.
[29] These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.
[30] At para. 71 the Supreme Court reiterated that Gladue had stated quite clearly that "s. 718.2(e) should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is aboriginal".
[31] So what impact should all of this have in this case?
Joshua Camara
[32] Crown counsel argued that these "Gladue" principles should not be given much weight in the case of Mr. Camara. Counsel noted that Mr. Camara had grown up in the Portuguese culture of his father and had no involvement within the First Nation community of his mother.
[33] I disagree with that position.
[34] The Ontario Court of Appeal states in R. v. Collins, 2011 ONCA 182, at para. 32 that:
There is nothing in the governing authorities that places the burden of persuasion on an Aboriginal accused to establish a causal link between the systemic and background factors and commission of the offence.
[35] This quotation is cited with approval in Ipelee, supra at para. 83 where the Supreme Court of Canada observes further that "it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex".
[36] In any event, in the case of Mr. Camara, the Gladue Report notes that Mr. Camara's mother and grandmother both attended residential schools. His mother experienced alcohol abuse and domestic violence most of her life. These experiences contributed to her decision to allow her son to be raised by his Portuguese father and stepmother. I find therefore that there is a connection here between his aboriginal roots and his offending.
[37] I note also that Mr. Camara's Portuguese father was an alcoholic who was abusive to Mr. Camara. Mr. Camara had a dysfunctional childhood and he began abusing drugs and alcohol himself at a very early age. These are systemic background factors whatever his cultural or racial heritage.
[38] Mr. Camara also turned to crime at an early age and he has already amassed a criminal record that certainly causes me concern. He has nine prior convictions for breaching various court orders. He has nine prior convictions for property offences ranging from simple theft to robbery. The sentence for the robbery was the equivalent to imprisonment for 18 months plus probation for two years. He had been out of jail for about five months when this current crime spree began. Despite sentences which have increased in severity, he has continued to commit further offences and the seriousness of those offences has increased.
[39] Apparently, imprisonment for the equivalent of 18 months in the reformatory system was not sufficient to motivate him to do what was necessary to stay out of trouble. Very much to the contrary, he has progressed, or perhaps I should say regressed, to the point where he is now using an imitation firearm to facilitate his crimes.
[40] Parliament has determined that this use of an imitation firearm is sufficiently serious as to warrant a mandatory minimum sentence of imprisonment for one year, consecutive to any sentence that is imposed with respect to the underlying offence.
[41] I realize that Mr. Camara is still a young man. I realize that I should not give up on the possibility of him being rehabilitated and I am not giving up all hope in that regard. I accept that he is sincere in his stated desire to get treatment for his drug addiction and to break free from the downward cycle he finds himself in. I view his guilty plea as an acceptance of responsibility and as an expression of remorse.
[42] Despite all of those considerations, however, the cold hard reality in this case is that I must emphasize deterrence and denunciation and impose a sentence of imprisonment that is long enough to make it clear to Mr. Camara and to others that this sort of behaviour will not be tolerated and in fact will result in very serious consequences. That reality was certainly recognized in the submissions that counsel made on behalf of Mr. Camara. Such a sentence will hopefully also motivate Mr. Camara to do whatever is necessary to overcome his addictions. Finally it will hopefully provide him with an opportunity to start that process within the structured setting of a penitentiary. In short, hopefully it will accomplish what his last sentence did not.
[43] For all of these reasons, I am satisfied that the robbery offence alone calls for a penitentiary sentence. The sentence for using the imitation firearm must, by law, be consecutive to that. I am satisfied that the sentences for possession of the stolen motor vehicles and for driving them when disqualified from doing so should also be consecutive. Mr. Camara has too many prior convictions for property offences and too many prior convictions for breaching court orders for me to simply group these offences together in one concurrent sentence.
[44] In my view, when I consider all of the above factors, the appropriate global sentence for Mr. Camara is imprisonment for four years.
[45] Mr. Camara has been in jail for 243 days of pre-sentence custody. If I accept the reasons set out in R. v. Johnson 2011 ONCJ 77, I would give enhanced credit for that time on a 1.5:1 basis. I decided otherwise, however, in R. v. Bridgeman and in R. v. Larochelle, 2011 ONCJ 339. Johnson sets out a persuasive case for why all courts should take the loss of remission into account in all cases and, therefore routinely give enhanced credit for pre-sentence custody on a 1.5:1 basis. What Johnson does not do, in my view, is explain how I can ignore the clear intention of Parliament to the contrary. Parliament has made it clear that in enacting section 719 of the Criminal Code, its intention was to make enhanced credit beyond 1:1 the exception and not the rule. I find here, as I did in Bridgeman and Larochelle, that I am bound by the recent amendments, and that I cannot give Mr. Camara enhanced credit for the whole time that he has been in pre-sentence custody.
[46] Having said that, I am satisfied that had I sentenced Mr. Camara on November 9, 2011, the day that he entered his guilty pleas, he would have earned remission at a rate of one day for every two days he served following the imposition of his sentence. I am also satisfied that he should not lose credit for those days he spent in custody while awaiting the preparation of the pre-sentence report and the preparation of my reasons for sentence. Those delays occurred, because I needed information about him and because I needed time to determine the appropriate sentence. Those days were beyond the control of Mr. Camara. By my calculation, that time encompassed 163 days. He would have earned remission for 81 days, and I am going to give him credit for those 81 days.
[47] Accordingly, I sentence Mr. Camara as follows.
[48] For the robbery offence he will be sentenced to time served of 243 days pre-sentence custody, credited as 324 days, plus imprisonment for a further 13 months.
[49] Pursuant to section 109 of the Criminal Code, he is not to own, possess or carry any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. That prohibition will be in effect for the rest of his life.
[50] For the offence of using an imitation firearm in the commission of the robbery, he is sentenced to imprisonment for one year, consecutive.
[51] For the offence of possession of the stolen motor vehicle on August 12, 2011, he is sentenced to imprisonment for three months consecutive.
[52] For the offence of driving while disqualified on that day, he is sentenced to imprisonment for three months consecutive.
[53] For the offence of possession of the stolen motor vehicle on August 20, 2011, he is sentenced to imprisonment for three months consecutive.
[54] For the offence of driving while disqualified on that day, he is sentenced to imprisonment for three months consecutive.
[55] With respect to each of the drive disqualified charges, he is prohibited from operating a motor vehicle on any street, road, highway or other public place for a period of three years following the completion of his period of imprisonment. Those driving prohibitions will be concurrent to each other.
[56] In light of the time he will be in jail, I waive the surcharges.
Ella General
[57] With respect to Ms. General, I wish to emphasize right from the beginning that she is not before me to be sentenced with respect to any part of the offences committed by Mr. Camara. Both counsel made it very clear that they were proceeding on the basis that she did not know Mr. Camara's intentions when he walked into the LCBO in Caledonia.
[58] Having said that, I must note that her offences here are serious and far too prevalent in the community. As I have commented on too many previous occasions, I do not have statistics, but I am certainly aware from the cases that have come before me, of the all too common scenario, where police attempt to stop a young person who is driving a stolen vehicle, and rather than stop, the young person continues to drive, in an attempt to escape. The driving often puts other motorists and pedestrians at risk. It usually puts the young person, and the police who are pursuing her, at risk. It also puts the police in the no-win situation, of having to decide whether to allow a suspected criminal to escape or to continue the pursuit and all the risks that go with it. It is imperative that the courts deliver the clear message that such behaviour will not be tolerated.
[59] In most of these cases, the risk to others is simply that, a risk. In this case, Ms. General struck another vehicle which then struck yet another vehicle. The occupants of both vehicles were injured and had to be taken to hospital.
[60] Further aggravating these circumstances is the fact that she was still on probation at the time. This most current breach is just one more in her very young life. Her record discloses some ten prior findings of guilt for breaches of various court orders.
[61] All of this cries out for jail.
[62] Having said that, I must take into account the following.
[63] Ms. General is only 18 years old. These are her first convictions as an adult and she has never been sentenced to jail before this.
[64] She has entered guilty pleas which I take to be an acknowledgement of responsibility and an expression of remorse.
[65] She too is the product of a dysfunctional childhood. Her Pre-Sentence Report states that:
The subject's formative years were riddled with physical, verbal, and substance abuse at the hands of her father and mother, removal from her home by CAS because of the mentioned issues along with domestic violence, being hit by a car at age ten, suicide of a friend at age twelve, victim of a sexual assault at age twelve, placement at forty-nine homes while under CAS care, and the birth of her two daughters before the age of eighteen. The subject has struggled with her own drug addiction and has been involved in one unhealthy relationship after another. She struggles with anger issues and has been disconnected from her Aboriginal heritage for the majority of her life. The subject admits to turning to drugs as a coping mechanism and her health, family, employment and education appear to all have been affected by her involvement with the Criminal Justice System, drug addiction, and connection to pro-criminal peers. She has minimal education and employment though has described these as goals to accomplish in the near future. The subject has also talked of working towards a life free from substances so she can work towards parenting her two children who her mother has custody of at this time.
[66] Ms. General has been in jail for 120 days of pre-sentence custody. As I set out above with respect to Mr. Camara, if I accept the reasons set out in R. v. Johnson, 2011 ONCJ 77, I would give enhanced credit for that time on a 1.5:1 basis. I have previously decided otherwise, however, and for the same reasons I find here that I am bound by the recent amendments to the Criminal Code, and that I cannot give Ms. General enhanced credit for the whole time that she has been in pre-sentence custody.
[67] Having said that, I am satisfied that had I sentenced Ms. General on March 22, 2012, the day that she was first before me to be sentenced, she would have earned remission at a rate of one day for every two days she served following the imposition of her sentence. I am also satisfied that she should not lose credit for those days she spent in custody while awaiting the preparation of my reasons for sentence. That delay occurred because I needed time to determine the appropriate sentence. Those days were beyond the control of Ms. General. By my calculation, that time encompassed 29 days. She would have earned remission for 14 days, and I am going to give her credit for those 14 days.
[68] So, by my calculation, Ms. General has been in jail for the equivalent of 134 days.
[69] Her counsel argued that this is long enough to satisfy the sentencing principles of deterrence and denunciation. Crown counsel argued that imprisonment for between six and nine months is appropriate.
[70] I find that the four and one-half months that she has served would be at the low end of the range of sentences that would be appropriate for the offences committed by Ms. General.
[71] Having said that I must note that imprisonment for four and one-half months is within the range. As a youthful offender, who has never been in jail before, Ms. General is entitled to the least restrictive sentence that I find to be appropriate. Taking that principle into account, together with those expressed in section 718.2(e) of the Criminal Code, I am satisfied that imprisonment for four and one-half months, combined with a lengthy period of probation and a driving prohibition is the appropriate sentence here.
[72] Accordingly, I sentence Ms. General to time served, being 120 days of pre-sentence custody credited as 134 days, followed by probation for three years. In addition, she is prohibited from operating a motor vehicle on any street, road, highway or other public place for one year. The sentences and the driving prohibitions will be concurrent with respect to all three offences.
[73] The terms of her probation will be that she will:
Keep the peace and be of good behaviour;
Appear before the court when required to do so by the court; and
Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.
Report to a probation officer within two working days and thereafter, when required by the probation officer and in the manner directed by the probation officer
Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer
Not associate or communicate directly or indirectly with Joshua Camara or anyone objected to by her probation officer, or anyone known by her to have a criminal or youth record other than members of her immediate family
Attend for and actively participate in, to the satisfaction of her probation officer, any assessment, treatment or counselling as required by her probation officer including but not restricted to a residential treatment program and she will sign whatever consents or releases that may be required by her probation officer to monitor and verify compliance with said assessment, treatment or counselling, and provide written proof of completion of said assessment, treatment or counselling to her probation officer
Abstain absolutely from the purchase, possession or consumption of illegal drugs
Make reasonable efforts to find and maintain suitable employment or attend school or other educational program and provide proof and show progress reports to her probation officer as required
Reside at an address approved by her probation officer
Not operate a motor vehicle or be in the driver's seat of a motor vehicle unless she is the holder of a valid driver's licence and has the prior written permission of her probation officer.
[74] I will point out here that I prohibited Ms. General from driving for one year only but included the above driving restriction as a term of her probation for the next three years so as to allow Ms. General the opportunity to show, over time, that she has become responsible enough to be allowed, on a graduated basis, to operate a motor vehicle. It will be up to her to learn how to make better decisions in her life if she wishes to avoid further conflict with the criminal justice system.
[75] In light of the time she has been in jail, I waive the surcharges.
Released: April 19, 2012
Signed: "Justice D.A. Harris"
Justice D.A. Harris