Court File and Parties

Date: 2012-12-11

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Douglas Archer

Before: Justice K. Caldwell

Reasons for Sentence released on: December 11, 2012

Counsel:

• Ms. Jennifer Gibson for the Crown
• Mr. Ari Goldkind for the accused Mr. Douglas Archer

Judgment

K. Caldwell J.:

The Charges and Submissions

[1] Mr. Archer is charged with breaching two terms of his eight year Long Term Supervision Order ("LTSO"). He failed to live at the Keele Street Correctional Centre ("KSCC"), and he failed to stay out of Oxford County.

[2] Ms. Gibson argues for a six year penitentiary sentence; Mr. Goldkind submits that the sentence should be two years.

[3] I find that a six year sentence is appropriate.

[4] At first blush, Mr. Archer's breaches appear to be on the lower end of the scale of seriousness given that they did not entail the commission of further separate substantive offences. Their very serious natures emerge once they are examined in the context of Mr. Archer's history.

These Breaches

[5] On March 16th of this year, Mr. Archer was released from the Kingston Penitentiary and was to go immediately to the KSCC.

[6] He failed to show up and a Canada wide warrant was issued. Two days later he went to the home of a person in Oxford County who was familiar with his troubled past. She demanded that he leave and contacted the police. His ex-girlfriend, Ms. Corbett, who was one of the victims of his arson/criminal harassment convictions, still lives in Oxford County. Four days after his release he was found in Winnipeg, Manitoba and was arrested after a brief foot chase.

Prior Criminal Record

[7] Mr. Archer has an extensive criminal record with 70 prior convictions. He was sixteen at the time of the first conviction; he is now sixty years old. These convictions range from minor to extremely serious. Notably, he has six prior dangerous driving convictions and one conviction for criminally negligent driving. Of greatest concern are his 1981 convictions for armed robbery and use firearm for which he received a nine year sentence and his 1999 convictions for arson, criminal harassment, and other related offences for which he received 11 ½ years less dead time. These offences also triggered the long term offender application. He received the eight year LTSO in 1999.

[8] Despite the thirteen year passage of time from then until now, that order is still in effect due to Mr. Archer's consistent pattern of statutory release violations and a prior set of LTSO breaches. Further, he was convicted twice in 2011 of being unlawfully at large and those resulted in the addition of several months of time to his record.

[9] In fact, Mr. Archer has been on statutory release on five different occasions since 2005. On three of those occasions, his release was suspended on the day he was released. On a fourth occasion, four days passed and on another occasion 78 days passed prior to suspension. Given this history, his long term supervision order is currently set to expire in July, 2019. His behaviour on release has been shockingly abysmal.

The Armed Robbery and Arson/Criminal Harassment Convictions

[10] I have been given the 1981 armed robbery reasons for sentence, the 1999 arson/criminal harassment reasons for sentence and LTSO, the 2004 reasons on appeal of the 1999 sentence/LTSO finding and, finally, the 2009 reasons relating to the first LTSO breach.

[11] In 1981 Mr. Archer entering a LCBO store while disguised. He held up a twelve gauge shotgun and pointed it at the two sole employees, stating "this is a hold up". One of the men responded, "you have to be kidding"; Mr. Archer then shot the wall five feet away from the other employee who was eighteen years old.

[12] The 1999 arson/criminal harassment convictions related to Mr. Archer's obsessive and violent stalking of Ms. Corbett, who had begun a relationship with another man. He conducted a campaign of terror against the woman, members of her family, and at her old business premises. He started fires at the business and at two homes. There was $145,000 in damage. The trial judge said that it was a "minor miracle" that no one was injured or killed. These offences occurred in the Ingersoll area in Oxford County where Ms. Corbett still lives. Mr. Archer is also from that area.

Prior LTSO Breach Convictions

[13] In 2008, Mr. Archer breached his LTSO in a manner similar to the scenario in this case. Mr. Archer was released on June 5, 2008 from Joyceville and failed to report to the Emerald Street residence in Hamilton. Six days later the police found him walking on the railway tracks in Ingersoll. He submitted that he was simply returning to visit his mother.

[14] He received a four year sentence minus dead time for these breaches. He is now before me on his second set of LTSO breaches. I note that between the first LTSO breaches and the ones before me, Mr. Archer had his statutory release suspended twice and was convicted twice of being unlawfully at large. Essentially, the first LTSO breaches temporarily resulted in a change in the type of subsequent release. Before the LTSO could begin to take effect again, Mr. Archer was required to finish the full term of his unlawfully at large sentences, including the statutory release portions. I outline those suspensions below.

Prior Behaviour on Statutory Release

[15] Proceeding back in time, a disturbing pattern emerges. Prior to his 1999 arson/criminal harassment convictions, he was placed on parole seven times and re-offended on all but one occasion.

[16] In 2005 he was required by his statutory release to live at the KSCC. He failed to report on his release date and spent fifty-one days living in the bush outside Ingersoll before turning himself in as he was suffering from pneumonia.

[17] In May, 2007 he was again released, again required to reside at the KSCC, and again failed to show up on his release date. He was seen purchasing a train ticket to Woodstock, which is near Ingersoll. He was arrested before he boarded the train.

[18] In December of the same year, he was released yet again. Yet again he failed to report to the residence on his release date and was again found by the police on the outskirts of Ingersoll. On this occasion, fifty days passed before he was located.

[19] In its 2007 decision, the Parole Board said:

At your post suspension interview you express no remorse for your actions, and indicated you have no intention to comply with residency requirements in the future given that you come from a small town and wish to return home where you benefit from support, have a home and a job offer. You claim you decided to travel to Woodstock instead of reporting to the Keele Centre in order to visit your father's gravesite. The Board notes, however, that your index offence was committed in that area where the victims continue to reside.

[20] In 2010, Mr. Archer was released again, this time on statutory release related to his 2008 LTSO breach. He did attend at the KSCC on this occasion, and stayed for 78 days before failing to show up again. He was ultimately arrested, convicted of being unlawfully at large, and received a 4 month sentence consecutive to the unexpired portion of his LTSO breach sentence.

[21] In 2011, he was released again and showed up at KSCC, leaving this time after four days. Once again he was charged with unlawfully at large, ultimately arrested, and received a further 60 day sentence.

[22] Mr. Archer told me during his sentencing that this time he has learned his lesson and will report if released. I don't accept that submission given that all of his prior behaviour suggests otherwise. Further, I note that Mr. Archer gave the same reason on this occasion for entering Oxford County that he gave in the past – to visit family gravesites.

[23] Mr. Archer has demonstrated a pattern of flagrantly breaching the terms of his LTSO and/or statutory release virtually immediately upon release, with the exception of the one 78 day occasion, and he continues to do this regardless of the penalties imposed.

The Law

[24] The maximum sentence for an LTSO breach is ten years. This offence has not been discussed by the SCC until this year, in R v Ipeelee. Mr. Ipeelee was an aboriginal offender and thus a substantial focus of the decision is upon sanctions relating to such offenders. The Court, however, also made broad principled statements which clearly apply to all offenders sentenced for LTSO breaches.

[25] Prior to Ipeelee, the trial and appellate courts focussed upon specific and general deterrence given the protection of society concerns raised by such breaches. Rehabilitation was of little or no concern.

[26] The SCC bluntly stated that such a characterization was incorrect. The Court viewed the purpose of the LTSO as two-fold – protection of the public on one hand but also rehabilitation and reintegration. The Court reiterated that rehabilitation is the key factor that distinguishes an LTSO order from a dangerous offender order.

[27] The Court noted, however, that this approach should not be interpreted to mean that rehabilitation is the primary consideration in all cases. The sentencing judge must look at all of the sentencing objectives and devise an appropriate sentence accordingly. The relative weight to be accorded each principle depends upon the specific circumstances of the case. And in all cases the sentence must be proportionate to the offender's degree of responsibility and the seriousness of the offence.

[28] The severity of the breach must be determined by all of the circumstances, including the nature and circumstances of the breach and link between the condition and the management of the offender's risk of re-offence.

[29] Further, the Court cautioned that the high statutory maximum, far in excess of the two year maximum for breach of probation, should not lead to the conclusion that all LTSO breaches must be punished by a significant period of incarceration.

[30] Of particular note in this case is the Court's reference to the words of the Federal/Provincial/Territorial Task Force on High-Risk Violent Offenders: "a key factor to the success of a long-term offender regime is 'a speedy and flexible mechanism for enforcing the orders which does not result in lengthy re-incarceration in the absence of the commission of a new crime'".

Application of the Law to This Case

[31] I do not take the Task Force's words, or the Supreme Court's reference to same, to mean that lengthy incarceration cannot be imposed in the absence of a new substantive offence. One of the primary prongs of Mr. Goldkind's submissions was that Mr. Archer's breach was relatively minor given that it did not involve a new substantive offence.

[32] In the very recent Ontario Court of Appeal decision R v Matte, the Court upheld a two year sentence imposed for an LTSO breach which did not involve a new crime but instead involved the seemingly minor ingestion of a 2 mg pill of Dilaudid in contravention of a drug prohibition term in the offender's LTSO.

[33] I find the Matte decision very helpful. Many of the earlier LTSO sentencing cases are of limited assistance given that they were decided prior to Ipeelee. Matte, however, is post Ipeelee. Furthermore, Mr. Matte shares striking similarities with Mr. Archer.

[34] Like Mr. Archer, Mr. Matte had breached his LTSO more than once. He had also violated his statutory release terms on multiple occasions. His parole suspensions followed within a few days or, at most, four months from his release date. Justice Watt said of Mr. Matte: "he just doesn't get it". Mr. Archer also doesn't get it.

[35] Justice Watt also commented upon the application of rehabilitation to Mr. Matte. He noted that the Court in Ipeelee had stated that rehabilitation need not always be the foremost consideration in all cases. Further, he noted the irony in an offender's contention that rehabilitation must be a predominant consideration when the offender has actively resisted historical efforts to rehabilitate him. Rehabilitation, he said, cannot be forced upon the unwilling. This analysis applies equally to Mr. Archer.

[36] Mr. Archer's LTSO contains numerous terms, including non-consumption of drugs, alcohol, and a requirement for treatment and counselling for both substance abuse and domestic violence. Mr. Archer's immediate flight upon release on virtually all occasions reflects his unwillingness to participate in any rehabilitative programs designed to assist him.

[37] Further, his immediate flight is a fundamental factor which makes the circumstances of Mr. Archer's breach far more serious than Mr. Matte's. The link between this breach and his risk of re-offence also is significantly stronger than in the Matte case. Mr. Matte's compliance with supervision and counselling was superficial; Mr. Archer's is virtually non-existent. Mr. Matte at least showed up at his community correctional centre so that supervision could commence. Mr. Archer has failed to even show on five occasions, and fled not long into his supervision on the other two occasions. Mr. Archer's actions essentially make the entire LTSO meaningless as supervision cannot even commence.

[38] I find that a six year sentence is proportional to the seriousness of the breach. It is crucial that offenders comply with the terms of LTSO orders. Both the protection of society and rehabilitation necessitate that compliance. Mr. Archer's failure to show up at the community correctional centre undercuts the entire LTSO and nullifies any possibility of achieving either of these LTSO objectives.

[39] General deterrence, specific deterrence and the separation of the offender from society also must be considered. A six year sentence achieves the objectives of general deterrence as it makes it clear that compliance is crucial. It serves to separate Mr. Archer from society which is also essential at this point in time.

[40] Mr. Goldkind put a great deal of emphasis upon the "burn out" principle. He argued that Mr. Archer posed little threat to society given his age and the theory that offenders "burn out" and thus are of minimal danger to the public past the age of 50. Respectfully, I do not give any weight to that submission as I have no expert evidence before me regarding that principle and its application to Mr. Archer.

[41] Finally, the six year sentence serves the principles of specific deterrence. Mr. Archer received the equivalent of a four year sentence on his last breach. The prior decision was rendered pre Ipeelee; I don't know if the judge on that breach would impose the same sentence now. The point, however, is that the four years imposed failed to achieve the specific deterrence objective. A significant increase in sentence is required on this occasion, particularly given that Mr. Archer has breached in precisely the same manner as on the first occasion.

[42] I have already commented extensively upon the principle of rehabilitation. It is a principle that must be factored into the sentencing decision but in this instance it is of lesser importance for precisely the reasons outlined by Justice Watt in Matte. It must not be discounted, however. The sentence imposed must not be so lengthy that it leads Mr. Archer to give up all hope of achieving reintegration with society and successfully dealing with the challenges that led him to commit offences. On the other hand, it must be lengthy enough to promote Mr. Archer's rehabilitation. In other words, it must be sufficiently lengthy to deter Mr. Archer from reoffending upon his next release and thus encourage him to attend at the community correctional centre. He can only rehabilitate himself and successfully reintegrate with society if he complies with the terms of the LTSO directed towards that end. Showing up at the centre is thus the first step in his rehabilitation as it is through that attendance that counselling and treatment can begin.

[43] I have focussed upon Mr. Archer's failure to report to the community correctional centre. There are, however, two breaches. The other involves Mr. Archer's return to Oxford County. I accept that Mr. Archer did not return to terrorize Ms. Corbett who still lives in that county. I also accept that his roots are there. The prospect of his return, however, must be very frightening to Ms. Corbett. I am told that she is informed every time he is released.

[44] Ms. Corbett expressed her views as recently as 2007 in a statement to the Parole Board: "[w]hen he is out I cannot go to my mother's as when I do, I am constantly watching to make sure he isn't lurking about or smashing up my car has he has done in the past. Until you live in constant fear for your life, or your family's life, you have no idea what it's like".

[45] I find that a sentence of six years is appropriate for the breach of residency condition. I impose a further four years concurrent for the failure to stay out of Oxford County.

[46] I am told that Mr. Archer's dead time on this matter is 6 months and 8 days. I give him credit, therefore, for 6 ¼ months. I deduct that dead time on a 1:1 ratio. The sentence after that deduction is 5 years, 5 months and 3 weeks on the breach of residency, count 4, and a concurrent 4 years on the Oxford County breach, which is count 2.

Released: December 11, 2012

Signed: "Justice K. Caldwell"