Court Information
Information No.: 11-664, 11-1023, 12-13
Ontario Court of Justice
Her Majesty the Queen
v.
Adam Gabriel Besito
Reasons for Sentence
Before the Honourable Justice G.J. Brophy
On March 8, 2012, at Walkerton, Ontario
Appearances
B. Linley – Counsel for the Crown
S. Newbould – Counsel for the Accused
Thursday, March 8, 2012
Reasons for Sentence
BROPHY, J. (Orally):
Mr. Adam Gabriel Besito has pled guilty to it would appear to me five offences in all. The first offence involves an event on the 9th of July 2011. He was charged with an aggravated assault contrary to s. 268 of the Criminal Code of Canada involving the victim Sandra Lynn Anoquot. He pled guilty to an assault causing bodily harm and he pled that on the 12th day of January 2012. It should be noted, because it's important, the Crown proceeded by way of indictment on this matter and that impacts the available options that the court has to consider.
Mr. Besito, as I understand the facts generally, wasn't held in custody or if he was it was very, very briefly on that matter and he next came to the attention of the authorities, vis a vis the charges that I'm dealing with, on the 1st day of December 2011. Now he may not have come to the attention to the authorities that day but shortly thereafter a complaint was made involving I believe his spouse who reported that Mr. Besito had been drinking. She had occasionally visited the matrimonial home, found him either intoxicated or drinking and ultimately he was charged with a number of offences associated with that. And he pled guilty to one offence from the 1st day of December 2011, and that is to say he breached an undertaking, the undertaking having been given on the events of Ms Anoquot of breaching that undertaking by consumption of alcohol, and that was an offence contrary to s. 154(5.1) of the Criminal Code. Subsequent to that and I believe he was held in custody briefly with reference to that matter for I think perhaps as much as nine days if I recall, if I read the information correctly.
On the 6th of January 2012 there was a further set of events. On that occasion, as I understand the facts, he had contact with Jennifer Roote, his common law spouse, and in the course of an argument with her he uttered a death threat to Ms Roote. He also then was arrested as a function of that event and with reference to the arrest on the 7th of January 2012 he became engaged with an Officer Mark Thompson and he assaulted Officer Thompson. When I listened to the facts it essentially was kicking at Officer Thompson as he was being placed into a cruiser. That was the uttering threat was an offence under s. 264.1(1)(a) of the Criminal Code and the assault on the officer was contrary to s. 270(1)(a) of the Criminal Code.
On the 6th of January 2012, the assault having occurred on the arrest on 7 January 2012, he also of course was in breach of a recognizance that had been provided as a function of the December 1st event involving Ms Jennifer Roote by being in her presence, and as a result he breached his recognizance contrary to s. 154(3) of the Criminal Code of Canada.
The events involving December 1 and January the 6th and 7th are relatively straightforward as to what occurred. They're most unfortunate but they are straightforward. It is important to reflect upon the facts from the 9th of July 2011, and this is in keeping with Ms Newbould's comments made this morning as she also had said the same thing on Monday last that this assault on Ms Anoquot has to be properly understood. It was not in the nature of a beating, it was not in the nature of a bar fight, it wasn't in the nature of a prolonged assault. Essentially what happened on the day in question is that Mr. Besito was at Ms Anoquot's residence. As the Crown read in the facts what the Crown indicated was there was minor drinking. I don't know what state of intoxication various people were at. I also know this was in the morning, sometime in the morning, and Mr. Besito was acting badly in some fashion because this was Ms Anoquot's residence and she wanted him to leave. She asked him to go out on the porch, which he did, and she's telling him to leave. Mr. Besito lost his temper for some reason, presumably prompted by a low threshold with reference to anger, that's commented upon in the presentence report, and the alcohol that he had consumed, and he pushed Ms Anoquot. And in doing so he knocked her off the porch. She fell to the ground. I don't know what the distance was but it was sufficient to knock her out cold; she hit her head in some fashion and she's out cold and assistance had to be given to her. I'll comment more about the impact of this on Ms Anoquot when I review the victim impact statements, but that's the nature of the event. It's important to understand that as being something different than other kinds of events involving assaults causing bodily harm. It is a serious matter. There is a victim who has been harmed and there is absolutely no excuse for that behaviour. Having said that, it, it's important to understand what those facts were. Now having said that, that is the situation in terms of the charges themselves.
I am the beneficiary with reference to this matter of a number of files. Principally I have been provided with a presentence report which I will comment on in some detail in just a moment. That presentence report fortunately contains a very complete statement of the prior record of Mr. Besito. The presentence report has some positives, it has some negatives with reference to Mr. Besito. In addition to the presentence report I have been provided with two victim impact statements. One is from Sandra Anoquot and one is from her daughter Sheri Cameron.
Sandra Anoquot, the victim of the assault from July of 2011, is a woman in her mid fifties. She previously, prior to this event, was employed and earned salary or a wage of $12.50 per hour. And the information I've been provided with is that she went to work and participated in that and in some fashion was able to support herself. The information I've received now is that she is, because of this incident, unable to work, and I'll comment upon that in just a moment, and as a function of that she is now having to apply for Ontario Disability Support Assistance.
Ms Cameron provided a victim impact statement as well. Ms Cameron is a woman who is I think, and I hope I haven't got these numbers wrong, approximately 33 years of age. And she was involved in this matter in an intimate fashion because Ms Anoquot had to go to London and was at the Parkwood Hospital for a number of months and Ms Cameron felt that she should and did, and it was rational to think she would do this, went to London to support her mother through her rehabilitation. Ms Cameron as a function of that has been impacted significantly by this event as well. And I'll comment upon that in a moment in addition.
Other filings I've received and they will receive some comment but not as extensive, save and except for the last filing, which is a letter dated March 2nd 2012 from Vivian Cubitt who is the mother of Mr. Besito, and she of course speaks well of her son and wants him to do well. And she is supportive of him. She also acknowledges what is confirmed in the presentence report about Mr. Besito's childhood and the difficulties associated with that childhood, both in his home of origin and ultimately when he was placed with the Children's Aid Society for reasons that are set out in the presentence report.
In addition, I have received a letter from Corrine King, who I'm told and I may not have the relationships completely accurate, but I understand she is either the mother of Ms Jennifer Roote or is closely associated with Jennifer Roote. She also is the Economic Development Officer for Saugeen First Nation, and this is the community where everybody lives, and she provides a letter saying that she comments upon Mr. Besito being punctual, eager to work and took direction very well and matters of that nature. And that she is of the view that there will be summer work available to him through the Saugeen First Nation offices.
In addition, there is a letter from Jennifer Roote and Jennifer is very supportive of Adam Besito. She is his common law spouse. She and Mr. Besito have been together for in excess of 20 years I believe, they have four children together and Ms Roote wants her husband home. There are many reasons for that no doubt but the large one is because of the fact that the four children she feels require his attention. And that's perfectly legitimate and there's no problem with that. She is candid enough to acknowledge that there are issues and that they are caused fundamentally by Mr. Besito's alcohol abuse and anger. I read elsewhere in the material that Ms Roote has effectively given Mr. Besito an ultimatum that he's got to clean up his act or the relationship will be over. This is a delicate area because Ms Roote no doubt has great affection for Mr. Besito but presumably she recognizes that her children shouldn't be raised in an atmosphere where there is constant anger and constant alcohol abuse. One hopes that that's the case. Notwithstanding her loyalty she is effectively saying there are problems. It is interesting to note at the time of the events that occurred on the 1st, pardon me, the 6th day of January 2012 she was in fact separated from Mr. Besito and that separation is a function of his alcohol consumption, the alcohol abuse and other issues in their joint lives. That's important to understand because the presentence report comments upon presumably a stable relationship, but as Mr. Linley mentioned in his submissions if you look at the history of the relationship, certainly over the last little while that I'm dealing with, one has to appreciate that there must be significant tensions in the relationship, which simply put, don't go away on their own. There has to be some effort in removing those stresses and strains that brought those on.
In addition, as Exhibit Number 8 I have received a letter from Mr. Gordon Kewageshig who works at Saugeen First Nation and assists with the Native outreach, pardon me, the alcohol and substance abuse issues there. He makes reference simply to programs that Mr. Besito can attend.
And then lastly and helpfully I have a letter from the Native Inmate Liaison Officer, Reverend Kathryn Gorman-Lovelady, a letter dated March 1, 2012, it has been received as Exhibit Number 9. Why this is of interest to me particularly is twofold. Firstly, it speaks about, and this is one of the first experiences we've had with documentation coming from CNCC with reference to what programs and services are available, so it's relative and informative. But particularly with reference to Mr. Besito it also speaks about what efforts he has made while he's been in custody awaiting the conclusion of this matter. And in fairness to him it speaks about the fact that he has attended at morning smudge services, he's attended with the Elders who are available at the facility, he has also spoken to Don, pardon me, he remains actively involved with the Elders. He has shown some interest in his native heritage and spiritual teachings and he has participated in The Eastern Door program that they try to promote at CNCC. Now the court is fully aware of course that Mr. Besito is very motivated right now and no doubt that in part explains why he's participating in these things because he wants to put himself in good light. So to a certain extent it's self-serving but that doesn't take away from the validity of what Mr. Besito has engaged in and I commend him for at least looking at these and trying to participate and trying to find some value in them. One hopes that notwithstanding the outcome of these proceedings, Mr. Besito will understand that his life and his family's life and his community's life will be better served if he participates fully in understanding who he is, what part he can play in the community and how he can best earn the respect of those persons that he thinks are important.
Now having said that, I've looked at those reports and the ones that need to be commented upon in some detail are firstly the victim impact statements. Ms Newbould makes a legitimate concern known and that is to say that it is important the court recognize that these are not medical reports. These are self-reporting of the impact that this event, the July event in particular, has had on Ms Anoquot most importantly and also Ms Cameron. Having said that, certain facts seem clear. Firstly, Ms Anoquot was made unconscious by this unlawful assault. Secondly, she had to be attended to by police officers and paramedics. Thirdly, she had to attend at in least three different hospitals before she gets to London. She goes to Saugeen, pardon me, she goes to Southampton Hospital, she then goes to Owen Sound, she goes back to Southampton Hospital and then I think she re-attended at the Owen Sound and then ultimately was taken to London. I think there was a reference in there she was at the University Hospital briefly and then she ends up at Parkwood. This is a very significant event obviously in a person's life, particularly a person such as Ms Anoquot who is in her mid fifties, doesn't have a spring in her step that we all would like to have and she is now effectively being disabled as a result of this assault. Ms Newbould makes the point that Mr. Besito didn't plead guilty to aggravated assault and that's absolutely correct and that is not part of this calculation. But he did plead guilty to assault causing bodily harm and the question is, what is the bodily harm here? The bodily harm is the impact upon Ms Anoquot to the point where she then is wearing neck braces, she is told she has, and it's a term she references, I don't have a medical report on it, but a spinal cord syndrome. What that may mean hasn't been defined for me but it sounds serious. She is at Parkwood hospital. She says in her victim impact statement, and I accept this as completely accurate, that for the first time in her life she has thoughts of, never acts on it of course, but she has thoughts of suicide. And in essence what she's saying is she's giving up because she's saying my life has changed completely. Every day is a struggle for me, it takes longer to get ready in the morning, my hands are no good anymore, my balance scares me of falling, my nerves feel like pins and needles, I can't sleep at night, I can't grip, I can't run, I can't cook, I can't work, I can't move the way I use to, my body is not the same. That is a real issue and Ms Anoquot clearly has communicated that to the court and I accept her statements about how she feels about what has happened to her and it cannot be minimized in any way; it is real.
Now Ms Anoquot has expressed the fear she has as well with reference to the fact that Mr. Besito lives in the same neighbourhood as her. I haven't had it defined exactly where the residences are but Saugeen First Nation from the get go is a relatively small community and I'm told through these materials that Mr. Besito is not that far away from Ms Anoquot's residence. And as a function of that she has fears about what Mr. Besito might do in the future. Now Mr. Besito here today I'm sure says I'm not going to do anything in the future and that's I'm sure an honest statement on his part, but if he gets angry, he gets drinking, is it reasonable for Ms Anoquot to be fearful of what might happen next. And it is a reasonable fear. You can understand why the fear exists.
I want to touch on other aspects in Ms Anoquot's victim impact statement and then briefly mention Ms Cameron's. Ms Anoquot then summarizes the physical impact on her as it stands today in the following terms, and I quote:
I suffer from extreme neck pain, throbbing headaches, and numbness through my body, stiffness in my hands, paralysis, pins and needles sensation, depression, and anxiety. Everything I touch feels like sandpaper, I've lost the sensation in my hands.
Obviously this explains why she has lost her employment. She can't do that kind of work anymore. She was pumping gas at a local store, she can't physically do that. She is now in a position where she's going to have to apply for ODSP and she is fearful that to make the proper modifications to her home she isn't going to be able to do that. So what's the future mean for Ms Anoquot? It's a difficult problem to say the least and it is heart rending.
Having said that, Ms Cameron provides me with a victim impact statement and Ms Cameron of course is responsive to her mother's needs. Ms Cameron has direct impact in the sense that she had to spend time with her mother and she continues to do so; perhaps not as intensively as she did when her mother was at Parkwood but nevertheless Ms Cameron indicates that clearly she has been impacted by it both emotionally, physically to a certain extent and financially because she's had to give up being some gainful employment to try and support her mother. So that causes financial stress for her. The extent of that is difficult for this court to know but it is not something which is unknown and it is something which is real. So that's the impact upon the victims of Mr. Besito's behaviours.
I need now to comment on the presentence report and recognize some basic facts. The first factual backdrop to all of this of course is that Mr. Besito, who it must be said, makes a very good presentation in court today and also did on his previous court appearances in front of me and indeed spoke very well about the situation that he is dealing with and that particularly on Monday of this week he indicated firstly that he apologized to the victims, which include Ms Anoquot, Ms Cameron and his wife; he repeated that today. He acknowledged that he has a problem with alcohol and that he's trying to get help for it. And lastly and thirdly on Monday he indicated that his time in custody has allowed him to reflect about what he really wants to do which is change his behaviour because his children mean an enormous amount to him and he wants to be there for them to use that phrase. So Mr. Besito makes all of those statements and I accept them as being sincerely expressed by him but that doesn't take away from some basic underlying facts.
The most cogent facts that the court has to reflect upon is Mr. Besito's prior record. Mr. Besito has in all both in adult and in youth court 21 prior convictions. He is a 37 year old man, 21 convictions. In youth court he had seven convictions ending in 1992. The rules of incarceration in those days were different but I do note that he spent some time in secure custody. Interestingly enough there is no assaultive convictions when he was a young person. Unfortunately since 1995 he has had 14 adult convictions and that's including it would appear six assault convictions, one of which was an aggravated assault for which he received nine months in jail and one of which was an assault with a weapon which he did by way of a 75 day intermittent sentence and that was in 2003. In fairness, the aggravated assault was in 1995. So there have been six prior convictions for assaultive behaviour and now we have two more, the one on Ms Anoquot and the one on the officer. So that's eight in all.
In addition, with reference to the record, he has two convictions for drinking and driving offences. He has two convictions for mischief and he has two convictions for breach of probation, which is not helpful to say the least. Mr. Besito's record then is significant, it's real and this court has to take it into consideration and I think that's recognized by counsel in terms of what sentence is available and appropriate.
As I've indicated already Mr. Besito has a difficult history in terms of his personal circumstances. He was – is now 37 years of age. His mother and father resided together in Saugeen First Nation but things did not go well and when Mr. Besito was apparently, according to his mom, struck by his father she left but ultimately that didn't go particularly well either and Mr. Besito was unfortunately required to reside in foster care through the Bruce County Children's Aid Society. He effectively did that until he was about 18 years of age and that was a large part of his life. He did manage to reacquaint himself with Saugeen First Nation and he since he left the Children's Aid Society has been living in Saugeen First Nation in that community and of course met Ms Roote and they've maintained a relationship and a home together for many years.
The backdrop to his family in terms of systemic problems and the residential school issues would appear on the basis of the information I've got to only have existed with reference to his maternal grandfather who was in residential school from ages 3-16. That issue is there. That doesn't mean that the R. v. Gladue, [1999] 1 S.C.R. 688 considerations don't apply because the case law clearly says they continue to apply, and I'll comment on that in a moment, but that is the connection that is apparent to me with reference to residential school issues.
Mr. Besito has two sisters, one of – both of whom he sees. His biological father lives at Saugeen First Nation but Mr. Besito as I understand doesn't have any real connection with him. His mother who now lives in Hamilton however he has pretty good communication with and communicates with her at least on a monthly basis, maybe he even sees her on a monthly basis.
Mr. Besito has not a long and extensive formal education. He left school in grade 11 but he did manage to go back and get his GED, that's to his credit. He did attend community college for training in carpentry and that's to his credit as well. He's taken a refresher course associated with that and that has been of assistance as well.
Mr. Besito as I've indicated has lived with Jennifer Roote for many years. They have four children. The oldest daughter, and the name isn't in my head but I suspect she's been in this court, has recently been attending a residential addictions treatment program and that is probably a good thing. She is now 16 years of age approximately according to the presentence report. There are other children as well. Another daughter 10 years, another daughter 22 months and a son age 11. Obviously a busy household. Mr. Besito, by his own report and none of this is contradicted in the material, indicates that he tries to participate in his children's lives. He attends sporting events with them, he works with them at home and none of that is quarrelled with save and except when he's had too much alcohol and he isn't able to function. But in a general sense he tries to act as a good father. The relationship as I've indicated already has had its rocky patches and Mr. Besito in his comments to the maker of the presentence report talks about some arguments, some verbal abuse, and physical aggression going both ways and the – he says there hasn't been any extensive separations. His wife works as a professional service worker, a PSW on the reserve. I suspect she works very hard trying to keep things together between her obligations to her employment, to her children and trying to support Mr. Besito; it must be quite a challenge. I note as well in particular that she is required to perform volunteer work for the athletic association so that there can be a waiving of fees associated with registration. So her life is challenging to say the least.
Interestingly enough Mr. Besito reports no particular health problems, no physical disabilities and that's useful to know but of course it begs the question why then isn't Mr. Besito isn't able to get a grip on things and bring things under control.
Another interesting aspect of Mr. Besito's background is that while he was in care, is what I take it to be, although he was with his mother briefly, he was in care, was in various forms of custody while he was a young person, but while he was in care at some point he went to a treatment program in Cleveland Ohio when he was ages 14 or 15 years of age. It is an interesting question about what that was about, whether it was substance abuse issues, alcohol abuse issues or something else, one would think it was probably alcohol but I don't really know but it raises an interesting question about what the backdrop to that was. Mr. Besito talks about returning to reserve when he was 16 or 17. As I indicated he met Ms Roote. And he indicates as well in a very candid remark to the maker of the report that he has probably not abstained from alcohol any more than months at a time, certainly not for years. He concedes that he binge drinks on weekends, generally with friends at house parties on the reserve. And when he gets drunk he does not think of the consequences or he thinks he won't get caught; that's what in the report. And that of course goes to the nub of the problem, he doesn't think when he's drinking and he does things that in the cool light of day knows to be wrong but there we are.
The report goes on then to talk about the fact that his wife has given him effectively an ultimatum to clean up his act. Mr. Besito also, as I've also commented upon already, has been the beneficiary of assistance from Mr. Gordon Kewageshig's services on the reserve. He has also participated now at CNCC in individual sessions with an Elder, he's attended The Eastern Door healing processes and Ms Gorman-Lovelady has already indicated that there are programs he can attend. She mentioned particularly Rainbow Lodge, Mr. Kewageshig has other references as well and that those programs are available through April, May and June of this year.
Lastly I think it has to be noted in this review of this presentence report that several sources who the maker of the presentence report has accessed have expressed concern that Mr. Besito's use of alcohol and his use of violence have been escalating over the years and everyone, everyone it appears recommends that he attend a residential treatment program. Hopefully Mr. Besito whether he agrees completely with that statement understands that the residential treatment program seems to be essential in his case because there has to be a fix on this problem, because if it doesn't get fixed Mr. Besito will continue in significant difficulties and ultimately will end up in custody for long periods of time. So that's the backdrop to this matter.
Sentencing Principles
Now in terms of the sentencing principles the court has to apply of course the starting point is s. 715 of the Criminal Code which sets out the basic principles. The basic principles include the obvious which is – I'm sorry, I said 715. S. 718 of the Criminal Code and the basic principles are in play. And the principles that this court has to be concerned about in general terms are that the denunciation of the unlawful conduct of Mr. Besito and the deterrence of him and others from committing similar offences. Also in this instance the court has to consider the separation of Mr. Besito from the community to protect members of the community and lastly and fairly, the court has to consider the rehabilitation of Mr. Besito and providing reparations to victims and promoting a sense of responsibility. Those are the fundamental considerations.
The court of course is also very concerned and aware of the Gladue principles with reference to Aboriginal offenders. A starting point to reference that of course is under s. 718.2 and particularly subsection (e) which talks about the court has to be concerned with canvassing all available sanctions other than imprisonment that are reasonable to the circumstances and that of course is the case with all offenders but with particular attention to offences to the circumstances of Aboriginal offenders. And that of course is the genesis of the issues in terms of Gladue and all of the cases that have flown out of that. It is also important to understand that the fundamental principle of sentencing is that the penalty should be proportionate to the gravity of the offence and the degree of responsibility of the offender. So all of those considerations have to be taken into account and I'll comment on those briefly.
Before I do so however, I'll simply reference what the Crown and the defence positions are with reference to penalty. The Crown, taking into consideration all of the facts that the Crown has available to it, is of the view that there should be 20 to 24 months in the reformatory or provincial jail and three years of probation on the terms and conditions as set out in the presentence report. One of the issues in that regard is that by incarcerated Mr. Besito will be able to take advantage of the programs that are offered in the institutions. Now there's always the debate about what the extent, what programs are available, but with reference to Aboriginal offenders there may be a few more that are available than in other circumstances. The Crown says that the primary consideration here is the question of deterrence. The Crown notes of course that there are victims in this case, and by victims I include Ms Roote, but principally Ms Anoquot, are also First Nations individuals and given the length of the record is predilection for alcohol the Crown takes the view that it does and the Crown says that also takes into consideration the issues related to the Gladue considerations. There's other ancillary matters that the Crown seeks by way of firearms orders and DNA orders but we'll deal with that at the end.
Ms Newbould takes a different view. Initially there was some thought that perhaps a conditional sentence would be considered but Ms Newbould upon review of s. 742 I think s. 752 and s. 267(b) acknowledges that a conditional sentence is not available. I should point out that even if a conditional sentence was available on these facts I don't think I'd be in a position where I would think it would be wise to order a conditional sentence. I don't have to elaborate upon that other than to say the facts, given the record, the breach record as well, and the alcohol issues would raise concerns in my mind about whether or not the principles as set out in s. 742 would be satisfied by the reference to the imposition of a conditional sentence. In any event it isn't available. The defence then says this. The defence says as it's amplified today that Mr. Besito acknowledges through counsel that there probably has to be a period of incarceration but the defence would say that the period of incarceration should be six months. I should point out that there is presentence custody. When the Crown speaks about the 20 to 24 months I think the Crown is saying that should be net of presentence custody. The Crown is saying in fairness a penitentiary term might be available but if you take away the presentence custody it would be a provincial period of incarceration. The defence I think says six months. I'm not sure then if defence is then saying I should deduct the presentence custody but I'll take that as part of the submission.
The presentence custody by my calculation should in fact be 70 days. Now on Monday it was thought it was 58 days but there was obviously 58 from Monday through to – there's another number of days in any event that have been added to bring it through to today and that's 61. But my calculations there was also at the time of the arrest in December of 2011 there was nine days that presentence custody at that point in time. Perhaps Mr. Linley can check his notes but if that is correct then the total time of presentence custody is 70 days. So I take that in consideration; I can be corrected on that last point if anybody can come up with better information.
Gladue Principles and Case Law
The issues that need to be dealt with are the obvious sentencing principles that are set out in s. 718 and 718.2 and sub (e) in particular and I have done that. And I have to do that while at the same time recognizing that the Gladue principles have to be looked to. Now I've already commented upon the fact that the connection between the residential school issues and Mr. Besito are a little tenuous, it's his maternal grandfather I think who was at the residential schools, and there's nothing else that has been developed in particular which tells me that there are systemic issues involving Mr. Besito. And by that I mean to say particularly pointing at him to create issues. There is a reference in the presentence report to some racism that was displayed towards him when he was in school but that isn't clearly developed. It is there but it isn't clear exactly what that means in terms of systemic issues.
However, having said that, the Ontario Court of Appeal in a decision of 2011, R. v. Collins, 2011 ONCA 182, in a fraud case from Fort William First Nation said at paragraph 32 the following:
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. Further, s. 718.2(e) and the Gladue approach to sentencing Aboriginal offenders is not about shifting blame or failing to take responsibility; it is recognition of the devastating impact that Canada's treatment of its Aboriginal population has wreaked on the members of that society.
Continuing at paragraph 33:
As expressed in Gladue, Wells and Kakekagamick, s. 718.2(e) requires the sentencing judge to "give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts": Gladue at para. 69. This is a much more modest requirement than the causal link suggested by the trial judge. As counsel for the appellant submitted in this case, it would be almost impossible for most Aboriginal offenders to establish a direct causal link between systemic factors and any particular offence. Commission of offences are affected by a host of circumstances, the systemic factors of the particular Aboriginal community may, as the name suggests, be nothing more than the background or the setting for commission of the offence. However, the Gladue principles require those factors to be taken into account. In cases where those factors are shown to have played a significant role, it may be that imprisonment will utterly fail to vindicate the objectives of deterrence or denunciation: Gladue at para 69. In other cases, where the impact is not as dramatic, those systemic and background factors must nevertheless be taken into account in shaping the appropriate penal response.
The Collins decision goes on to say a number of other things I think are very important and useful for the purposes of this discussion and I'll just briefly continue to reference them. At paragraph 35 the court said the following quote:
Even if the systemic and background factors did not play a part in bringing the appellant before the courts, the Gladue principles still require recognition of the impact of Canada's treatment of its Aboriginal population in shaping the appropriate sentence. The court is required to consider how this particular offender has been affected by those systemic factors. As the court said in Gladue at para. 80:
As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or case by case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances?
Paragraph 36:
And, as the court said at para. 81: "Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large." And again, at para. 68 [in Gladue]:
It is true that systemic and background factors explain in part the incidence of crime and recidivism for non-aboriginal offenders as well. However, it must be recognized that the circumstances of the aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions. Moreover, as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be "rehabilitated" thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions.
And then at paragraph 37, this is the Court of Appeal speaking:
I conclude this discussion with the point made by LaForme J.A. at paras. 34 and 35 of Kakekagamick:
Nor is being an Aboriginal offender, as I have heard it referred to, a "get out of jail free" card.
Rather, s. 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 over-representation occurs.
That is the backdrop to the sentencing that is important. However, it has to be recognized as well that the Court of Appeal and the Supreme Court of Canada have demonstrated that it – the sentencing remains an individualized process for every offender given the nature of their circumstances, their community, and the offence that occurred and the impact on the victims. In that sense the courts have also recognized that some offences would continue to merit periods of incarceration. In R. v. R.M., 2011 ONCA 132, the court commented that is noted in Gladue at para. 78, "the more violent and serious the offence, the more likely it is as a practical reality that the term of imprisonment for the aboriginal offender will be similar to other offenders."
The issue for the court is of course simply to understand that there is a methodology that has to be applied to sentencing an Aboriginal offender in light of s. 718.2(e) and also in light of the Gladue considerations. In a case called R. v. Whiskeyjack, 2008 ONCA 800, at paragraph 30, the matter is illustrated in this fashion and I quote:
However, at para. 36, LaForme J.A. [and that's in Kakekagamick] also make clear that s. 718.2(e) and the principles in Gladue mandate "a different methodology for assessing a fit sentence for an Aboriginal offender" but "not necessarily … a different result". As set out in Gladue in para. 66, the different methodology requires the sentencing judge to consider:
(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and
(B) 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.
And those are the principles that I think are applicable to this particular case. Defence counsel has referenced me two particular cases: R. v. Jacko, 2010 ONCA 452, and R. v. Peters, 2010 ONCA 30. Those decisions the Crown has commented upon as not being of dramatic significance in precedence with reference to this particular case and the reason for that is because both decisions, which ultimately resulted at least for Peters and Jacko a reduction of the period of time of incarceration were functions of, in the case of Peters, a 26 year old individual who had no prior criminal record as an adult, and in the case of Jacko, a person who had a limited record and who was determined rather to have a conditional sentence available to him, which is not the case here. So those two cases are distinguishable on the facts.
Sentencing Decision
So what am I to do with Mr. Besito based upon these principles and the background facts that I've talked about? Well what I have is a man 37 years of age, a member of Saugeen First Nation who has lived at Saugeen First Nation most of his adult life and certainly part of his childhood as well, has experienced some dislocation in his life as a function of what I take to be problems his mother had, vis a vis his ability to say on in the family home as a result of alcohol abuse on the part of his biological father and to a limited extent later with reference to alcohol abuse on the part of his mother. The alcohol abuse of course is an unfortunate reality and flows to a certain extent out of the history associated with Saugeen First Nation and Aboriginal persons in Ontario and Canada generally and it is real and palpable. So Mr. Besito is, is in part a product of that community and its issues.
Mr. Besito, having said that, has had some significant benefits in his life. He's had a long-term relation with Jennifer Roote, he has four good children whom he loves and wants to protect, and he has, given the nature of Saugeen First Nation a very small community, not a lot of job opportunities, he's reported to be a good worker and has had some employment and, in a general sense, has made himself useful. His core issue is of course alcohol problems and the secondary core issue is his temperament which leads him to become violent when he is consuming alcohol. As has been pointed out, all of his offences seem to stem from circumstances where he's had alcohol consumption which has allowed him to lose control of his better nature.
Mr. Besito has available to him supports in the community. He has available to him supports at CNCC. When I look at all of these facts and recognize firstly that this is a violent offence involving Ms Anoquot, secondly that he has breached his various forms of undertaking and recognizance's because of the alcohol issues and not being able to control that because he has some, I'll call it, abused his spouse by threatening her and by putting into her sort of life as a person who is abusing alcohol, certainly on January the 6th 2012 and likewise in December the 1st 2011 by his inability to stay away from the criminal justice system and by the fact that he has a record of six previous assaultive convictions, it is impossible for this court, notwithstanding the concerns that I have about Mr. Besito's need for rehabilitative work and need to be involved in a residential treatment program, there has to be a sharp denunciation of this unlawful behaviour. To a certain extent this has been anticipated by the defence because there is a recognition that there is going to be a period of incarceration. The question is, what is the proper period of incarceration to properly respond to the events to protect Ms Anoquot and other members of the community and to reassure the community that Mr. Besito's behaviours are not going to be tolerated? And he's not going to be allowed to behave in this way without some reprimand, which is consequence.
I note of course that he has spent nine months in custody in 1995 with reference to the aggravated assault. The Crown in his submissions said that should be the baseline to move forward. I am of the view that that is a rational way in which to respond. I am concerned about Mr. Besito's rehabilitation but I have to balance the rehabilitation aspect and the availability of a residential treatment program for Mr. Besito against the fact that there has to be a period of incarceration to demonstrate what this violent act with the repercussions its had on the life of Ms Anoquot cannot go without significant consequence.
Mr. Besito in his heart of hearts knows this. He wants the best result he can get today but he is an intelligent man. He is stone cold sober today and he understands that this is something that cannot continue, that there has to be an end to it. And if the only way in which members of the public can be protected is by incarcerating Mr. Besito then that sadly would have to be the result.
The Crown seeks 20 to 24 months. In my view, given the Gladue considerations, given the fact that at CNCC there seems to be some services available for Aboriginal persons, and given the fact that I want Mr. Besito to be able to move out of the custodial regime and into a residential treatment program in reasonably short order, it seems to me that the proper disposition for today's purposes is to think in terms of 12 months as the period of incarceration less the presentence custody time.
I've done some calculations associated with that and by my calculations the net result if I reduce the 12 months in custody by 70 days produces a final disposition today of 9 months and 25 days incarceration. I think that is an appropriately balanced response to this matter and that is the penalty I am going to impose.
Sentence and Conditions
So on the assault of Ms Anoquot there will be a term of custody of 9 months and 25 days. With reference to the other matters, the breach of the undertaking on December the 1st 2011 will attract one month jail concurrent. With reference to the events from the 6th of January 2012 and the uttering threat matter there will be two months but it will be concurrent. With reference to the event of the 7th of January 2012, the assault on Officer Thompson, there will be two months concurrent. And with reference to the breach of the recognizance by communicating with Ms Roote on the 6th of January 2012 there will be one month concurrent.
Madam Clerk, with reference to the presentence custody, which I calculated to be 70 days, that would be attributable to the assault matter. And the 9 months and 25 days is, is after reduction of the presentence custody. In addition on the two assault matters, and there will and Mr. Linley I suspect that it's a primary DNA order on the assault causing bodily harm with you proceeding by way of indictment.
MR. LINLEY: Yes, Your Honour.
THE COURT: So there will be a primary DNA order on that charge. With reference to the assault on Officer Thompson there will be a secondary DNA order and with reference to the uttering threat I believe there is a secondary DNA order applicable to that.
With reference to victim fine surcharges, I'll say it now that can be waived in light of the incarceration. With reference to firearms prohibition orders there would be a firearms prohibition order on the assault of Ms Anoquot proceeded by way of indictment, it will be a s.109 firearms prohibition order. Is Mr. Besito a subsistence hunter in any fashion, Ms Newbould?
MS NEWBOULD: He's indicating to me that he's not.
THE COURT: He's not. There will be a lifetime firearms prohibition order then on that matter. I decline making any other firearms prohibition orders. They are moot and they are not necessary for any administrative purposes.
With reference to a probation order, there will be a probation order to follow. The probation order will be for a period of 24 months following the serving of the sentence. The terms and conditions of the probation order will include the following: the statutory terms and conditions will apply. He will keep the peace and be of good behaviour, he will appear before the court when required to do so, he will notify the court or probation officer in advance of any change of name or address and will promptly notify the court or probation officer of any change of employment or occupation.
In addition to those statutory terms he will also abide by these terms: he will report immediately upon his release from custody in person to a probation officer as directed and thereafter report at such times and places as that person may require. While he is on probation, and Mr. Besito, this no doubt will be the highest level of challenge for you but this is absolutely necessary to your well-being and the well-being of your family and your community, you will abstain absolutely from the purchase, possession and consumption of alcohol or other intoxicating substances. There can be no escaping that. Further, you will attend and actively participate in such assessment counselling, rehabilitative programs as recommended by your probation officer. You will sign the appropriate releases, provide appropriate reports and not discharge yourself from that program until you have been released from it by your probation officer. That programming may include counselling for alcohol abuse, substance abuse, anger management, family counselling and spousal abuse.
In addition you will not associate or hold any communication directly or indirectly with Sandra Lynn Anoquot and Sheri Cameron absolutely. Further, you will not associate or hold any communication directly or indirectly with Jennifer Roote save and except with her written revocable consent filed in advance with the probation officer. When I indicated Madam Clerk he will not associate with Sandra Anoquot or Sheri Cameron, in addition would add to that Rodney Cameron to that list.
Next, he will abide by a curfew to be in his place of residence between the hours of 11:00 p.m. and 6:00 a.m. And Madam Clerk, in the presentence report it's the language on page 10, except for remunerative employment purposes or medical emergencies for himself or members of his immediate family.
In addition with reference to the probation order he will reside where directed by his probation officer and not change that place of residence without prior written approval of his probation officer.
And I also need to put in a requirement that he not attend within a certain distance of the residence of Sandra Anoquot and Rodney Cameron. Now Mr. Linley, could you - I picked up from the material that they literally live next door to each other. Is that the case?
MS CAMERON: It's very close.
THE COURT: All right, then simply put…
MR. LINLEY: How far away would you say?
MS CAMERON: Maybe, maybe the fact that he can't go out his back door.
THE COURT: Is there a clearly defined property line?
MS CAMERON: There is a fence.
THE COURT: There's a fence?
MS CAMERON: Yes.
THE COURT: Okay. So I've already said he's not to have any communication, so there will be no conversation over the fence, okay? Simply put he's to ignore you. In addition I'm going to say that he will not attend at or enter onto your property known as – do you have a municipal address?
MS CAMERON: 715 French Bay Road.
MR. LINLEY: Seven-one-five?
THE COURT: 715 French Bay Road, Saugeen First Nation. I think that's the best I can do under the circumstances. Mr. Besito knows, and he knows today that if there's any slippage in this it falls at your feet, right?
MR. BESITO: Yes.
THE COURT: Police are called, we know who's going to be arrested, so you don't want that. You have to legally follow the rules to the letter, okay? All right, so having said that, those are the terms that I think are appropriate for the probation order. And Mr. Linley, is there anything else I should be addressing?
MR. LINLEY: Not from the Crown's perspective, Your Honour, although I think it's important just for bookkeeping purposes is that I don't see him coming into custody before the 6th of January, Your Honour.
THE COURT: Well let me take a look at the information then for – well is that what you're – are you talking about the – what I was thinking here is I was told on Monday there was 58 days presentence custody.
MR. LINLEY: And I took that as 24 in January.
THE COURT: Right. I'm concerned about the time in December. When he was arrested in December, was he held in custody then?
MR. LINLEY: My indication from my file sir is no. He was…
THE COURT: Let's go to an independent arbiter. We'll have the clerk look at the endorsements on the December 1st information. The reason I say that is because I looked at it to see what the arrest issues were there.
MR. LINLEY: I'm just going by the briefs Your Honour knows. He appears on the 3rd, Your Honour and then he's released.
THE COURT: I thought I saw a recognizance ordered a number of days…
MR. LINLEY: And then a recognizance was signed on the 3rd, correct?
THE COURT: So Madam Clerk, you're telling me he was not in custody on December 1?
COURTROOM CLERK: I don't believe he was in custody on December 1. I believe he was brought before the court on December 3rd.
THE COURT: And when was he released after December 3rd, does it show?
COURTROOM CLERK: It doesn't show the actual date that he signed, nor the surety.
THE COURT: But there's a recognizance is dated what date?
COURTROOM CLERK: December 3rd.
THE COURT: Okay, recognizance is dated December the 3rd. Ms Newbould, based on that it would appear that he doesn't have any presentence custody from the December 1st event.
MS NEWBOULD: I defer to Your Honour's knowledge of that.
THE COURT: That's what I'm, that's what I'm told. That having been said, instead of it being 70 days it will be 61 days presentence custody which makes the sentence to date, Madam Clerk, 10 months and 4 days. Okay, 10 months and 4 days. All right, if that's everything then we're concluded here. Mr. Besito, I wish you good luck and I sincerely hope that things improve and that you are able to do what you know you got to do, okay.
MR. BESITO: Thank you, Your Honour.
THE COURT: Thank you.
...WHEREUPON THE PROCEEDINGS CONCLUDE.