Court File and Parties

Court File Nos: 11-9923, 9924, 9925, 9785, 11-11526 and 11672 at London

Date: 2012-07-12

Ontario Court of Justice

Between:

Her Majesty the Queen

And

T.L.P.

Before: Justice J.C. George

Heard on: June 18 and 20, 2012

Reasons on Sentence released on: July 12, 2012

Counsel:

• Jennifer Swart for the Provincial Crown
• David Moffatt for the Federal Crown
• James Brown for the accused T.L.P.

GEORGE J.:

BACKGROUND

[1] Twenty-eight year old T.P. is before the court charged with several matters contained within six different Informations. She was initially granted bail but since her arrest on the most recent offences has remained in custody. As of July 12, 2012 Ms. P. has been in custody for 292 days - approximately 9 months and 22 days.

[2] On June 18th, 2012 Ms. P. pleaded guilty to nine different charges, which are representative of several separate occurrences. The dates for, and general description of these is set out below:

Offences

February 28/10 to March 2/11 - Respecting this timeframe, Ms. P. pleaded guilty to two offences, namely two separate assaults on her eleven year old daughter. Ms. P. admits to, first of all, assaulting her by pulling her hair and spanking her. During the disclosure of this assault to a Children's Aid Society worker, the daughter goes on to reveal that at some point between June 25, 2011 and July 24, 2011 Ms. P. became angry with her, punching her in the jaw and then "dragging her down the stairs". On another occasion, estimated to be sometime between March, 2010 and March, 2011, Ms. P. acknowledges striking this same daughter across the back with a leather belt.

August 31/10 to July 25/11 - During this broadly set out period, Ms. P. admits to having assaulted her nine year old daughter by throwing a shoe at her. This was done apparently while attempting to get her daughter to attend upstairs in their residence. The shoe struck the child on the side of her torso.

December 31/10 to July 25/11 - Ms. P. admits to assaulting yet a third child - her 8 year old niece for whom she was providing the primary care. During an interview with a Children's Aid Society worker, this child discloses that Ms. P. assaulted her on two separate occasions. First, Ms. P., after becoming upset, held the child (who was then 8 years old) by the throat up against a refrigerator. Reportedly, a red mark was left and the child was "slapped" for telling a cousin about it. Second, Ms. P., after becoming upset about the child bringing food upstairs when not permitted to do so, punched her in the face twice causing her to bleed and knocking a tooth loose. Ms. P. admits to instructing the child to tell the "doctors that she fell off her new bike".

July 24/11 - Ms. P. and G.C. were involved in an intimate relationship which had lasted for approximately ten years. They have three children together. On Sunday July 24, 2011 at approximately 3:25 a.m. the victim Mr. C. was asleep. Ms. P. admits to coming into the room where Mr. C. was sleeping and attempting to wake him so they could have sexual intercourse. At this point, when her advances were rebuffed, Ms. P., who had been consuming alcohol, began to yell and accuse Mr. C. of cheating on her. Ms. P. then retrieved a five inch folding knife and stabbed the victim once in the back, underneath his shoulder. Significant injuries were sustained. Ms. P. was charged with an aggravated assault, ultimately pleading guilty to the lesser included offence of assault causing bodily harm.

September 28/11 - At the time of these offences, Ms. P. was on bail for the previously mentioned matters. One of the terms of her recognizance required that she abstain from the purchase, possession and/or consumption of alcohol and not attend at any place where alcohol is sold or dispensed, primarily. At approximately 2:24 a.m. the victim and a friend were on R… S… near Jacks Bar. These two, while congregating with another group of people, were approached by Ms. P.. Ms. P. began accusing the friend of "saying things about her" and struck him several times. The victim then attempted to intervene at which time Ms. P. proceeded to strike her in the face, then grab her purse and flee the area heading southbound on R… S… The victim followed Ms. P. and while attempting to retrieve her purse, was blocked partially by an unknown native male. Ms. P. struck the victim again causing her to fall to the ground. Ms. P. left in a cab with the victim's purse. Ms. P. admits to having consumed alcohol, contrary to her bail terms.

October 3/11 - On this date, at approximately 8:20 a.m. Ms. P., who was an inmate at the Elgin Middlesex Detention Center, was getting changed for a court appearance. A jail employee was supervising. At some point a strip search was commenced when two plastic bags fell out of her bra. The accused was then placed into a holding cell where she admitted to having drugs, removing from her vaginal area a bag of cocaine. The total amount of cocaine seized was 15.4 grams, with an estimated value of $1540.00.

[3] Ms. P. has a criminal record. It is described below:

• May/98 - mischief under $5000 & common assault - twelve months probation and twenty hours community service
• December/98 - breach recognizance, theft under $5000 & fail to attend court - five days open custody (15 days of pre-sentence custody)
• May/99 - breach of probation - twelve months probation
• May/02 - theft under $5000 - suspended sentence & six months probation
• September/08 - impaired care and control - $600 fine
• June/10 - mischief under $5000 x2 - suspended sentence & twelve months probation

EVIDENCE AT SENTENCING HEARING

[4] The sentencing hearing for these matters proceeded on June 18th and 20th 2012. A Gladue Report was prepared which adequately set out Ms. P. life circumstances and background. In addition I received five victim impact statements including from the child victims, and medical records for Mr. C.

[5] T.P., also known as T.P., is one of four children born to A.P. of the Wikwemikong Reserve and J.P. of the M. Nation. Although Ms. P. herself knows very little of her parents upbringing, she has learned from others that her mother was raised in a home characterized by neglect, abuse, alcoholism, poverty and physical and even sexual victimization. Ms. P. father is a residential school survivor who suffered sexual and physical abuse while a student. Ms. P. believes several other family members attended residential schools including her paternal and maternal grandparents.

[6] Although raised by her parents initially, Ms. P. went into foster care at the age of ten, remaining there for approximately two years before returning to her mother's care on the M. First Nation. Unfortunately she was removed from her mother's care again at about the age of fourteen and spent the next while moving from group home to group home. The report indicates that at around the age of fifteen she would routinely run away from whatever group home she was at, and that by the age of sixteen she left the group home setting permanently. The report details Ms. P. account of her childhood and describes how she and her siblings lived in an extremely dilapidated home, and that they often went without basic necessities like food, clothing, hot water and electricity.

[7] Ms. P. began her romantic relationship with G.C. at the age of fifteen. They had their first of three children together when Ms. P. was sixteen. At present, all three children are in the care of their father with some Children's Aid Society supervision.

[8] Substance abuse has had a significant and far-reaching impact on both her and several close family members. Ms. P. describes her childhood home as one being marked by her parent's excessive use of alcohol. She also describes how her sister, at the age of twenty-two was killed in a car accident after drinking and driving. It was the death of this sister that led to her niece being placed in her care; this niece being the victim of the offences of December, 2010 to July, 2011. Additionally, her parents were involved in a serious motor vehicle accident which was caused by alcohol, and which led to her mother suffering significant injuries and being confined to a wheelchair.

[9] Medical, emotional and mental health issues abound in the P. family. Her father is diabetic and her mother suffers from epilepsy. Ms. P. was diagnosed with depression by her family physician and was prescribed and continues to take anti-depressant medication. Her two younger brothers have personal issues and have had their own encounters with the criminal justice system. The report goes on to describe Ms. P.' longstanding and ongoing battle with addictions. She has on several occasions attempted a life of sobriety with only short-term success. This is an unresolved issue. In terms of her education, Ms. P. did not complete grade 10 and has not since returned to school or any alternate educational facilities. Her work experience is minimal, consisting of only some past seasonal work as a cook in a chip wagon. Collateral sources of information were obtained confirming much of what Ms. P. advised.

[10] Ms. P. cousin, a member of the M. Nation described for the reports' author how alcohol, drugs, housing shortages and lack of employment opportunities are some of the community's most pressing concerns and as a result, most feel that they have no choice but to leave the reserve and re-locate to other towns, or cities. This is a belief shared by Ms. P. who has indicated that she does not believe she can return as there are insufficient resources available.

[11] The report suggests a strong desire on Ms. P.' part to overcome her addictions and to attend treatment. While incarcerated Ms. P. has become involved in the programming available to her, including anger management, AA meetings and a parenting program. Upon her release, many Native based, culturally appropriate programs will be available to her, and these are described in the report.

[12] Upon my review of the Gladue report, I am prepared to conclude that Ms. P. has a significant amount of insight into her own circumstances and displays a certain level of understanding as to what she needs to do to end her involvement in what has clearly become a cycle of abuse. The report, viewed in its entirety, can only be described as tragic. It is shameful that anyone in this country has to endure what this young lady had to endure as a child and teen. Ms. P. herself is a product of a dysfunctional home, which is a product of, among many other things, Canada's residential school system. At times, she has lived in what can only be described as third world conditions and it's astonishing that this occurs anywhere, let alone in south-western Ontario. In almost every conceivable way, this report addresses those societal and systemic issues that sentencing courts are required to acknowledge and attempt to address. In many cases involving the sentencing of aboriginal offenders, courts are left to, and indeed are required to take judicial notice of those things which have contributed to the harsh conditions generally experienced by aboriginal people and to the over-representation of Aboriginal people in Canada's detention facilities. However, in this instance, very little notice needs to be taken, as Ms. P. has clearly, and directly, been affected by poverty, lack of education, abuse, addictions, displacement from family and her community, the involvement of child protection agencies, teen pregnancy, domestic violence, loss of culture, untimely deaths of those close to her, and mental health issues.

POSITIONS ON SENTENCE

[13] The Provincial Crown submits that a global sentence on all matters for which it has carriage should be in the range of three years, in addition to any time Ms. P. has served in pre-sentence custody. It submits that this sentence would address the factors a sentencing judge is required to consider respecting Aboriginal offenders. It submits that the principal focus should be on denunciation and deterrence and that, in the circumstances, rehabilitation is only a secondary consideration.

[14] The Federal Crown suggests that a sentence of six to nine months is appropriate for the one count under the Controlled Drugs and Substances Act, and that this is the range Ontario's Court of Appeal has identified as being appropriate. Falling at the low end of this range, I am told, would represent an appropriate sentence and one that takes into account the principles set out in R. v. Gladue, [1999] 1 S.C.R. 688.

[15] Counsel for Ms. P. seeks, in addition to the time served in pre-sentence custody, a sentence of twelve to fifteen months. Taking into account the principles as set out in Gladue, and balancing all of the mitigating and aggravating factors, the defence contends that a global sentence that amounts to, or at least that which is close to a penitentiary sentence is sufficient. The defence high-lights Ms. P. Aboriginal ancestry, and her sincere wish to seek assistance for her many issues, and suggests that in imposing consecutive sentences for what admittedly are several separate, and distinct offences would, in the circumstances, amount to a penalty that is too harsh.

ANALYSIS

[16] The principles of sentencing are set out in s. 718 and 718.2 of the Criminal Code. These provisions read as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

• to denounce unlawful conduct;
• to deter the offender and other persons from committing offences;
• to separate offenders from society, where necessary;
• to assist in rehabilitating offenders;
• to provide reparations for harm done to victims or to the community; and
• to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

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

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) 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.

[17] All of the above must be balanced with each other and clearly denunciation and deterrence are important considerations. That is, at least in part, reflected in the concession by the defence that a further period of jail is warranted. I point out also that three of the statutorily mandated aggravating circumstances are present in this case.

[18] Since the landmark decision of the Supreme Court of Canada in Gladue, several cases have applied its principles. Sadly, notwithstanding continued and persistent direction to sentencing courts, several myths about Gladue have developed and have resulted in its misapplication. Justice LeBel, in R. v. Ipeelee; R. v. Ladue, 2012 SCC 13 indicates at para. 64 that:

Section 718.2 (e) of the Criminal Code and this Court's decision in Gladue were not universally well received. Three interrelated criticisms have been advanced: (1) sentencing is not an appropriate means of addressing overrepresentation; (2) the Gladue principles provide what is essentially a race based discount for Aboriginal offenders; and (3) providing special treatment and lesser sentences to Aboriginal offenders is inherently unfair as it creates unjustified distinctions between offenders who are similarly situated, thus violating the principle of sentencing parity. In my view, these criticisms are based on a fundamental misunderstanding of the operation of section 718.2(e) of the Criminal Code.

[19] At para. 68 Justice LeBel goes on to indicate that:

Section 718.2(e) is therefore properly seen as a "direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process" (Gladue at para. 64). Applying the provision does not amount to "hijacking the sentencing process in the pursuit of other goals". The purpose of sentencing is to promote a just, peaceful and safe society through the imposition of just sanctions that, among other things, deter criminality and rehabilitate offenders, all in accordance with the fundamental principle of proportionality.

[20] At the sentencing hearing, counsel for the Federal Crown disagreed with the Court's suggestion that in coming to the conclusion that an aboriginal offender should be incarcerated, the court must take a different path and undertake a different analysis than it otherwise would. After once again reviewing Gladue, and many of the authorities since, it is clear that that is in fact what the Court must do. It is a direction from higher courts that is clear and unequivocal. If the point the Crown was attempting to make was that Gladue is not a sentencing "discount" case; then point taken. The court can, however, deviate from what might be a typical sentence for a particular offence, if there is a reason to do it and if it is done with a view to achieve the purposes contemplated by section 718.2 (e) and Gladue.

[21] The most common myth that is regularly advanced as a sentencing submission is that, the more serious the offence the closer the term of imprisonment will be for an aboriginal offender than it is for a non-aboriginal offender. This no doubt derives from Gladue itself where, at para 78 Justices Cory and Iacobucci indicate that "generally, the more violent and serious the offence the more likely, as a practical reality, that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their difference concepts of sentencing". To suggest, as is often the case, that this is meant to be a rule of general application is inaccurate. This was expanded upon and clarified in the case of R. v. Wells 2000 SCC 10 where Justice Iacobucci discusses how and in what circumstances the concept of restorative justice applies in cases of serious misconduct. Paragraph 49 states:

I would like to add at this point that the reasons in Gladue do not foreclose the possibility that, in the appropriate circumstances, a sentencing judge may accord the greatest weight to the concept of restorative justice, notwithstanding that an aboriginal offender has committed a serious crime. As was concluded in Gladue ….the remedial purpose of s. 718.2 (e) directs the sentencing judge not only to take into account the unique circumstances of aboriginal offenders, but also to appreciate relevant cultural differences in terms of the objectives of the sentencing process……the generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely, as a practical matter, that similar terms of imprisonment will be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universal application. In each case, the sentencing judge must look to the circumstances of the aboriginal offender.

[22] I intend to do just that and, although it is conceded that additional jail time is warranted, it will be moderated to the extent that I can reasonably do it. No purpose is served in extending Ms. P. time in jail beyond what is only minimally appropriate. I conclude that, in these circumstances, rehabilitation is a factor to be afforded the same weight that is due denunciation and deterrence. Beginning at paragraph 72 of the Ipeelee / Ladue decision, the court directly addresses what has been the common criticism of this regime. Without reproducing it verbatim, the point is made that what could be construed by some as a sentencing remission can be appropriate, and that any criticism of that is unwarranted. That paragraph makes direct reference to a different methodology, which again goes to the exchange between the Federal Crown and myself, and builds upon what the Supreme Court in Gladue instructed sentencing courts to do; that is even if there are no alternatives to custody, the length of a custodial term must be carefully considered. I will do that as well.

CONCLUSION

[23] It is understood that there are many aggravating features to this case, some I am required by statute to consider as such. The breach of trust that is placed in a parent has been grossly breached here. The random nature of the violence surrounding the robbery and assault bodily harm counts, must be denounced. The community would expect nothing less. Drugs inside of our jails are causing an added strain on a system that is already over burdened. I get it. However, the punitive aspect of the overall consequence to Ms. P. can be reflected in a sentence that is slightly into the penitentiary range, taking the pre-sentence custody and further custodial period together. Ms. P. has served now what amounts to almost ten months in pre-sentence custody. She will serve a further 17 months in jail.

[24] The Information will be endorsed to reflect the following. With respect to the offence of October 3, 2012 (CDSA - Information 11-11672) 120 days of the pre-sentence custody will be noted. Respecting each of counts 1 and 2 on Information 11-9923 (ss. 266 and 267(a)) 90 days of the pre-sentence custody will be noted. On Information 11-9925 (ss.266 and 267(b)) the remaining 82 days of pre-sentence custody will be noted. That accounts for the time spent in pre-sentence custody.

[25] The one count on Information 11-9924 (assault with a weapon) will reflect a sentence of one day jail, which will be concurrent with the additional jail time I impose. The breach offence of September 28, 2011 will attract a jail sentence of 30 days, which as well will be served concurrently with the additional jail time I impose.

[26] On the September, 2011 robbery offence, there will be a period of 17 months jail, and for the assault bodily harm contained on Information 11-9785, 13 months. These two sentences will be served concurrently.

[27] Following her release, Ms. P. will be placed on probation for a period of 24 months on the following terms:

1. Statutory terms (keep peace and be of good behaviour; appear before the court when required to do so; and notify the court or probation in advance of any change in name, address, occupation or education);

2. Report to a probation office within 2 working days of your release and thereafter as required;

3. Reside as directed by probation;

4. Take such counselling, treatment, or participate in any programming as directed by probation and not discontinue it without prior approval of probation;

5. Provide probation with consents to release of information in order that your participation in any counselling, treatment, or programming can be monitored;

6. Not associate or communicate directly or indirectly with Sam Jacobs, Farah Zipursky, or any other person named in writing by your probation officer;

7. Not to associate or communicate directly or indirectly with G.C. except with his written consent which he can revoke at any time, said consent to be filed with probation;

8. Not to attend any known place of residence, education, or occupation of Sam Jacobs, Farah Zipursky, or G.C., except, as it relates to G.C. with his written consent which he can revoke at any time. Any consent provided here to be filed with probation.

9. Not attend at any place named in writing by your probation officer.

[28] I will seek input from counsel respecting any restrictions to be placed on Ms. P. access to her children and niece, and any exceptions, which I can tell counsel now there will be.

[29] A firearms prohibition is mandated and that order will be made under section 109 of the Criminal Code. Ms. P., as well, will be required to provide a sample of her DNA suitable for analysis and banking.

[30] Any victim fine surcharge will, in the circumstances, be waived. Ms. P. has no ability to pay and its imposition will clearly cause a hardship.

Released: July 12, 2012

Signed: Justice Jonathon C. George