Court File and Parties

Court File: 2311-998-12-6065 Location: London, ON Date: 2012-12-03

Ontario Court of Justice

Between: Her Majesty the Queen — and — Summur George

Before: Justice J.C. George

Heard: November 26, 2012

Reasons for Decision on Sentence Released: December 3, 2012

Counsel:

• M. Potter for the Crown
• E. Seaman for the accused

Decision

GEORGE J.:

Overview/Background

[1] Summur George pleaded guilty to one count of robbery. At the time of the offence she had no criminal record, although I note she has in this jurisdiction incurred a breach charge since and, at least as of Monday November 26, 2012, was in custody on matters in another jurisdiction. She is a first time offender and is to be treated as such, although I believe her behaviour since the offence date is relevant insofar as the court can assess her desire and commitment to address the many issues confronting her.

[2] Ms. George is an aboriginal person; a status Indian and member of the Chippewas of Kettle & Stony Point. The family connection to that community is through her father. Her mother is Cree, a member of what was formerly known as the Nelson House First Nation. A Gladue report, which can only be described as heartbreaking, was prepared by Lorie Arias of the N'Amerind Friendship Centre.

[3] Ms. George's father is a residential school survivor as are other members of his family. Her mother has a similar experience in that she was removed from the care of her parents at a young age, and spent much of her childhood in various foster homes. Ms. George's half sister, whom she never met, took her own life at the age of thirteen, which sadly is a common occurrence in First Nation communities. Alcoholism and mental health issues have touched Ms. George, her mother, and other members of her immediate and extended family.

[4] Ms. George was raised, for the most part, in London although she maintained a close connection to her First Nation community, where she now resides. The report details the problems she encountered while attending school, a time in her life which was marked by bullying experiences and being the target of racist comments. Unfortunately, but not surprisingly given the difficulties I heard about, she dropped out of high school in grade nine. To her credit she completed all grade nine and several grade ten courses later on through an alternative secondary school. Ms. George has no employment experience.

[5] The report further describes how Ms. George withdrew from parental control at the age of sixteen. Not a wise choice as it turned out, although it rarely would be a good idea to venture out on your own at that age. In February, 2010 she gave birth to her first child, a son, who had serious health issues. In July, 2011 Ms. George gave birth to her second child, a daughter, which was followed by a period of some stability in that the children remained in her care. This period of stability ended with both of her children being taken into CAS care, which seems to represent the beginning of Ms. George's serious problems which has ultimately led to this offending behaviour. Ms. George has since given birth to her third child, whom is not in her custody.

[6] Tragically, her son passed away as a result of complications from congenital heart disease. This has obviously impacted Ms. George significantly and remains an unresolved issue. I won't pretend to know what Ms. George is going through but I have tried to imagine what that would be like. It's hard to believe anyone, regardless of their circumstances, would be well equipped to deal with this. The report goes on to detail Ms. George's struggles following this, which I would describe as essentially a mental breakdown. Ms. Arias attributes the following statement to Ms. George in the report: "I was feeling extremely depressed and out of control and drank alcohol to suppress my feelings".

Facts

[7] The facts are troubling. Ms. George acknowledges attending a variety store on Rectory St., in London. Inside, she encounters the night shift employee. Ms. George was described by witnesses as being "very pregnant", which I took to mean she appeared to be late in her term and was showing significantly. She was also described by those inside as appearing "very young". At some point she removed what appeared to be a hand gun and yelled "give me all your money". She was clearly intoxicated and pointed the, what turned out to be a toy hand gun, at the employee. Ms. George was handed $200 in cash, dropped some chocolate bars that she had been holding, and left the store. Civilian witnesses described Ms. George as falling down drunk, and at one point she fell onto the roadway as she was crossing the street in front of the store. Ms. George was observed meeting up with another person and entering a nearby home. When finally found and approached by the police, she stated "I shouldn't have done it - it was stupid". Later on she provided an inculpatory statement and described her motivation as simply being "mad at life".

[8] I would say the following about this matter generally:

• It is a most serious set of facts which must have been frightening for those at the store, and most certainly for the clerk who was the target.

• It was, however, a spontaneous, drunken robbery attempt that lacked sophistication and which was in all likelihood a cry for help.

• In the ordinary course, this offence, even without a prior record, would attract a significant period of incarceration perhaps, depending on the circumstances, in the mid to upper reformatory range.

• The sentencing considerations here are difficult, in large part because of Ms. George's particular circumstances, not to mention the other more general factors relevant to aboriginal offenders.

Positions of Parties

[9] Following submissions from counsel, I understood there to be what I'll describe as a half-hearted joint submission for a 60 day period of incarceration followed by probation. This was an extremely fair position for the Crown to take. That position, in and of itself, represents a remedial approach to sentencing and reflects in a real and meaningful way, all those factors to be considered in mitigation of sentence. Notwithstanding this joint proposal, all seemed to agree that were it available as a sentencing option, Ms. George would have been a suitable candidate for a conditional sentence. It's hard to imagine a case better suited for that type of disposition. With that recognition, and accepting that it is not available, both counsel did wonder aloud whether or not there were alternative, more creative ways to address all of the sentencing principles, including denunciation, deterrence, and rehabilitation and doing so within the framework set out by the Supreme Court in R. v. Gladue, [1999] 1 S.C.R. 688, R. v. Wells, 2000 SCC 10, [2000] S.C.J. No. 11, and R. v. Ipeelee/Ladue, 2012 SCC 13, [2012] 2 C.N.L.R. 218.

Analysis/Application of Gladue Principles

[10] More often than not the principles relevant to the sentencing of aboriginal offenders are spoken of but in the result seem to mean little. Sometimes they're outright ignored. I cannot say enough about counsel's consideration and thoughtful submissions in this matter, and of course the very helpful report that has set out Ms. George's background and life circumstances. I have yet to be involved in a case where it is so clearly obvious what has led to the offending behaviour. This is not to detract from Ms. George's responsibility but only to highlight what should be plainly evident to anyone who takes but a moment to review the facts and background here.

[11] Sentencing an aboriginal offender for a serious offence can be tough terrain to navigate as, notwithstanding the Supreme Court's persistent direction, criticisms come unabated largely from the appearance of a so called race-based remission. Crown counsel often takes the position, which the court typically accepts, that the more serious the offence the more likely a disposition for an aboriginal offender will be the same as for a non-aboriginal offender. This will quite often be the case, but is not a rule of universal application (see Wells). In all instances, regardless of the crime, the court must endeavour to address what has been described as a crisis in the Canadian criminal justice system, which is the over-representation of aboriginal people not only in correctional facilities, but in the criminal justice system generally. They are more likely to be charged; more likely to be held for a bail hearing as opposed to being released by an officer; more likely to be denied bail; more likely to be convicted; and more likely to receive a jail sentence. These are the reasons section 718.2(e) was enacted, with aboriginal people in a very clear way being set apart.

[12] At the time of the Gladue decision it was considered to be groundbreaking. However, what has been the real impact? Jonathan Rudin, Program Director at the Aboriginal Legal Services of Toronto Legal Clinic, in a presentation titled "A Court of our Own: More on the Gladue Courts" in 2006 said - "sadly, in the weeks, months and years that passed following the Gladue decision, little changed in the Canadian legal landscape. In fact, in the years since the decision, aboriginal over-representation has increased." That's not to say there haven't been several constructive initiatives undertaken with a view to address this. Indeed this Gladue Court which convenes in London on a weekly basis, and the efforts of my Judicial colleagues, the London-Middlesex Crown Attorney's office, and local defence bar in establishing and encouraging its growth, is such an example and represents a collective desire here to give effect and meaning to Gladue.

[13] To the typical criticisms, which I continue to sometimes hear, I consistently refer to paragraphs 68 and 72 of the Supreme Court's decision in Ipeelee/Ladue:

68. 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 paragraph 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.

72. While the purpose of section 718.2(e) may not be to provide a "remission of a warranted period of incarceration", critics argue that the methodology set out in Gladue will inevitably have this effect. As Professors Stenning and Roberts state: "the practical effect of this alternate methodology is predictable: the sentencing of an aboriginal offender is less likely to result in a term of custody and, if custody is imposed, it is likely to be shorter in some cases than it would have been had the offender been non-aboriginal" (p.162). These criticisms are unwarranted. The methodology set out by this court in Gladue is designed to focus on those unique circumstances of an aboriginal offender which could reasonably and justifiably impact on the sentence imposed. First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. This is perhaps more evident in Wells where Justice Iacobucci described these circumstances as "the unique systemic or background factors that are mitigating in nature in that they have played a part in the aboriginal offender's conduct". Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely -- if ever -- attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.

[14] In stressing the need to sometimes be creative and to deviate from what a typical sentence would be for a particular offence, which counsel seems to believe is open to me here, I am mindful of the comments of the Manitoba Court of Appeal in R. v. Vermette, 2001 MBCA 64 where at paragraph 39 it states:

The section does not mandate better treatment for aboriginal offenders than non-aboriginal offenders. It is simply a recognition that the sentence must be individualized and that there are serious social problems with respect to aboriginals that require more creative and innovative solutions. This is not reverse discrimination. It is an acknowledgment that to achieve real equity, sometimes different people must be treated differently.

[15] In considering the appropriateness of a non custodial sentence or a reduced period of jail, I paid careful attention to the comments of the Ontario Court of Appeal in R. v. Peters, 2010 ONCA 30, [2010] O.J. No. 128. This matter involved a 26 year old aboriginal female offender. She pleaded guilty to aggravated assault and acknowledged pushing the victim, and then lunging towards her with a beer bottle, striking her in the head and breaking the bottle as a result of the blow. Ms. Peters admitted to also, after breaking the bottle, following through with a swing of the bottle in a downward motion causing two lacerations to the victim's face that required 21 stitches to close. The injuries were lasting - the victim had continuing pain in her left eye and face, headaches, left eyelid muscle spasms, and facial asymmetry. The scars were permanent, and at the time of the sentencing hearing it was believed plastic surgery would be required.

[16] Ms. Peters circumstances and background were not unlike Ms. George's. She had a difficult and disheartening upbringing. She had problems with alcohol and anger management, and the sentencing judge concluded that her confrontation with the victim was directly related to her consumption of alcohol. The Court of Appeal ultimately rejected the argument that the trial court failed to give sufficient weight to the principles of denunciation and deterrence, concluding that "when consideration is given to the appropriate principles - as it was here - the weight to be attributed to those principles in the balancing exercise is generally a matter attracting deference to the sentencing judge's decision".

[17] While denunciation and deterrence would typically be paramount considerations in matters such as this, it is open for me to give greater weight to rehabilitative objectives. To this point, the trial judge in Peters said the following:

In the end result, I am not satisfied that a period of incarceration is necessary either for the purpose of expressing denunciation or deterrence in this case. Further, a period of incarceration manifestly fails to achieve the restorative purpose that is of particular importance in the case of aboriginal offenders. A period of incarceration would undoubtedly cause Ms. Peters to lose her job and then quite possibly set back the progress that she has made over the past few years. At the same time, however, I appreciate that there needs to be some close supervision of Ms. Peters in an effort to ensure that she does not commit a further offence.

[18] I found this passage to be relevant to Ms. George's matter and while it is clearly stated in a way that justifies the imposition of a non-custodial sentence there, it highlighted for me some differences between Ms. Peters' and Ms. George's circumstances. Ms. Peters was out of custody, and had not committed further offences since her matter began. That cannot be said for Ms. George. Ms. George is not currently the primary caregiver for her children; she is not employed; she is not enrolled in school; and I'm not entirely sure what her intentions are respecting treatment. She had ample time when she was out of custody initially to attempt to address her issues, but the best I have before me is an expression of interest to get help. In fact, her last attempt to get involved in programming at the local friendship centre did not end well. The report states - "….she had attempted to seek assistance through various programming at the N'Amerind Friendship Center; however, due to her mental state she was unable to keep scheduled appointments or follow through with any of her day to day obligations." While there clearly are extenuating circumstances, and reasons for her lack of commitment to date, basically, she wants to do this and she wants to do that, with very little follow through to this point. There are a wealth of supports and resources available to her and it is now up to her to avail herself of these. She will soon get that chance.

Order(s)

[19] I am unable to conclude that a non-custodial sentence is warranted, although the next step is to carefully consider the length of any custodial period. Having done that, and in the result, the sentence will be thirty (30) days jail to be followed by two years of probation. The terms of that order are as follows:

1. Statutory terms.

2. Report to probation within two working days of release, and thereafter as required.

3. Reside as directed by probation.

4. Undertake any assessments, and take such counselling or therapy that's recommended by probation, in particular as it relates to substance abuse, alcohol addiction, and grief counselling. I will indicate as well that, if at all possible, any such recommended counselling or therapy be First Nation based and culturally relevant and appropriate.

5. For the first seven months of this order she shall obey a curfew by remaining in her residence from 10pm to 6am, unless with either of her parents or with anyone else approved of in writing by probation. A further exception will include attendances at a residential treatment facility.

6. Not associate or communicate either directly or indirectly, with anyone named in writing by probation, in addition to Dolbar Singh.

7. Not attend at any place indicated in writing by probation, in addition to any known place of residence, education or occupation of Dolbar Singh.

8. Not attend any place whose primary business is the sale of alcohol.

[20] This being a primary designated offence, a DNA order is made.

[21] A firearms prohibition under section 109 is mandated. The minimum period that I must impose is ten years, but I'll hear from counsel as to length should they wish to make further submissions.

December 3, 2012

Justice J.C. George