Court File and Parties

Court File No.: 11-11686 Date: 2013-05-09 Location: London, Ontario

Ontario Court of Justice

Between: Her Majesty the Queen -and- Ryan Hill

Before: George J.

Counsel:

• J. Spangenberg for Crown
• J. Brown for Ryan Hill

Reasons for Sentence

Overview

[1] Ryan Hill was found guilty of six offences, including robbery while armed with a weapon (shotgun), forcible confinement, possessing a firearm while prohibited from doing so, using a firearm while committing an indictable offence, and without lawful excuse possessing a prohibited weapon (adapted firearm). These offences were committed together with co-accused Jonathan Harp who has resolved his matters separately in another court.

[2] On an unrelated Information Mr. Hill was found guilty of uttering a threat to cause bodily harm to corrections officer Robert Como.

[3] Mr. Hill pleaded guilty to all offences and has accepted responsibility.

[4] Upon the pleas being entered the matter was adjourned to allow for the preparation of a Gladue report and for counsel to reference and provide case law. I have received and reviewed the report, a victim impact statement prepared by one of the victims, the filed authorities, and the reasons for sentence in the matter of R. v. Harp 2013 ONSC 1613.

Facts

[5] On September 15, 2011 the victim, 52 year old Pha Say, was at her residence along with her daughter 33 year old Neang Tum and 5 year old granddaughter Elizabeth Sang. They did not know either Mr. Hill or Mr. Harp.

[6] At or around 11:05 a.m. Elizabeth heard a knock on the door and opened it. At that point Hill and Harp entered the residence. Both were wearing hoods which were pulled over their heads, and gloves. Each had their faces covered and Hill was wearing a hat.

[7] Ms. Say was in the kitchen preparing food, and Ms. Tum was in a bedroom speaking with someone on the phone. The accused, with Hill carrying a sawed off shotgun, entered the kitchen area and approached Ms. Say. Hill pointed the gun at her head and Harp grabbed from Ms. Say a knife she was holding, and proceeded to place it against her abdomen.

[8] It appears this was a case where the accused, with a plan to enter a specific residence for a specific purpose, entered the wrong home. They seemingly believed there would be a large amount of money, which there wasn't, at least not in this unit. They nevertheless demanded money, and after Ms. Say was unable to accede to the demand was confined, and restrained by Harp who placed duct tape across her mouth and then her hands. Ms. Say was slapped, and dragged across the room to the bedroom area. She was threatened, essentially being advised if she didn't produce the money she would be stabbed and killed.

[9] As the assault and confinement of Ms. Say progressed, young Elizabeth attended to her mother's location where, as indicated already, she was on the phone. Ms. Tum was able to see her mother being held at gun point at which point she advised the person with whom she was speaking to call 911. This was done and within minutes police sirens could be heard from within the apartment. Upon hearing this Harp stole some items and both accused fled the apartment. Both were apprehended by the police in short order and both the sawed off shotgun and stolen items were located and retrieved. Harp initially denied any involvement in these offences while Hill immediately confessed and acknowledged to the police that he was in fact the one who had possessed and pointed the firearm, and that Harp was involved as well. The gun was not loaded.

[10] Respecting the second Information, while in remand custody at the Elgin Middlesex Detention Center (EMDC) Mr. Hill threatened to harm corrections officer Robert Como. On March 9, 2012 Mr. Como was working in the male segregation area at EMDC, at which time Mr. Hill became upset over a pending transfer. Due to Mr. Hill's violent past it was determined that he would remain alone in a particular cell until the situation calmed. As Mr. Hill's anger escalated he began to shout out at Mr. Como indicating that he was "going to make it his mission" to hunt him down, and that he would wait for him "in the parking lot with a shotgun". Mr. Hill also yelled that he didn't care if he was locked up for twenty years; that he was going to get out and "get Bob".

Co-accused - Jonathan Harp

[11] In the Harp matter counsel jointly recommended a six year jail sentence less credit for time served to be calculated on a 1:1 basis. The court gave effect to the joint proposal and imposed the sentence requested. In addition to the time served Mr. Harp received a four and half year Penitentiary sentence. Two ancillary orders were made, specifically a lifetime s. 109 prohibition order, and a DNA order.

Positions of Parties

Defence

[12] The defence advocates the position that, in terms of length of sentence, Mr. Hill should be treated identical to Mr. Harp. They also ask the court to grant him credit for his pre-sentence custody on a 1.5:1 basis.

Crown

[13] The Crown requests an eight year jail sentence and submits that Mr. Hill should be given credit for pre-sentence custody on a 1:1 basis. It points out several ways in which Mr. Hill should be distinguished and set apart from Mr. Harp. First, Mr. Hill was the only one of the two who possessed and carried the shot gun, ultimately pointing it at the victim. Second, it highlights Mr. Hill's criminal record which it argues is far more significant than Mr. Harp's.

Criminal Record of Hill / Harp

[14] Received into evidence, and filed as exhibits were the criminal records for each of the accused. Although Mr. Harp's record comprises the better part of four pages, in terms of the nature of past offences and the types of sentences attracted, it's hard to argue that Mr. Hill's record isn't more serious. The record contains several convictions, having been consistently obtained from 1995 until now. There are no gaps to speak of, and sadly I think it can be fairly said that Mr. Hill has become, or is close to becoming institutionalized. Although not a complete accounting of his record, of note are the following convictions:

2006 s.88(2) - lesser included offence of armed robbery

• 133 days jail

2008 assault with weapon (267(a)) x2

• 45 days jail + 53 days pre-sentence custody + 1 year probation

2009 spousal assault (s.266) / forcible confinement (s.279(2)) / utter threats (s.264.1(1)(a)) / criminal harassment (s.264(2)) / assault cause bodily harm (s.267(b)) / weapons dangerous (s.88)

• 2 years jail + 42 days pre-sentence custody + 3 years probation

[15] There are many others. Mr. Hill's past is replete with assault, threatening and breach offences.

Mr. Hill's Background & Personal Circumstances

[16] Mr. Hill is thirty five years old. He is an Aboriginal person - a member of the Oneida Nation of the Thames. The Gladue report describes a tumultuous past marked by instability and highlighted by early exposure to violence, alcoholism and poverty. He and his siblings were raised for the most part in a single parent home on the First Nation. Mr. Hill's mother discloses to the report's author that he had constant and extreme behavioural difficulties which lead to periods of time when he was outside the home and in the care of others. As a ten year old Mr. Hill was placed at the Child and Parent Resource Institute (CPRI) and afterwards in several different group homes. Mr. Hill discloses being the victim of both physical and emotional abuse but refuses to elaborate and say much about it. As a teen and young adult Mr. Hill lived a nomadic lifestyle residing mainly on the streets and sometimes in local shelters.

[17] Mr. Hill was in a lengthy common law relationship which produced five children, ranging in age from 7 to 12. These children all reside with Mr. Hill's mother and suffer from an assortment of mental health and physical issues some, it is suspected, as a result of the mother's use of alcohol and illicit drugs while pregnant. Although Mr. Hill no longer has contact with his ex-partner, when not in custody he periodically visits his children.

[18] Only a grade 9 education was obtained, and Mr. Hill's work history is limited. In addition to the problems just described, Mr. Hill has long struggled with addictions. I was told that he began experimenting with drugs and alcohol at the age of 13. His drug of choice has mostly been crystal meth, which has obviously been a destructive force in his life and the primary motivating factor in many of his past transgressions, including these offences. No meaningful treatment efforts have been made and although Mr. Hill has expressed a desire to seek help when released, his sincerity is doubtful.

[19] Bail was not sought and Mr. Hill has been in detention since his arrest on September 15, 2011. Respecting his time in custody to date, the report's author indicates the following:

Ryan has been incarcerated at (EMDC)……..Ryan indicated that since his incarceration he has spent a significant amount of time in a segregation unit. He stated he has often shared a cell with two other inmates due to over-crowding and his ability to participate in any rehabilitative programming has been extremely limited.

[20] Counsel supplemented this information, indicating that Mr. Hill was involved in several lock-downs, resulting in him being unable to access programming or visit with family and speak to counsel. When not isolated in segregation he was oft times housed in a cell with three people. The most concerning aspect of his time at EMDC is that he was the victim of a brutal assault which cost him his sight in one eye. Without elaborating further, I have no difficulty concluding that the conditions at EMDC have been deplorable.

[21] As of today's date, Mr. Hill has been in custody for 585 days. There is no statutory bar to the granting of enhanced credit. In light of the fact charges were incurred at the detention facility, I cannot say with any certainty that Mr. Hill has lost his eligibility for early release by virtue only of the status of his detention. I am therefore unable to conclude this would constitute the circumstances justifying enhanced credit, as I typically would. However, given the unacceptable conditions at EMDC, and the inability of correction officials to protect Mr. Hill from a most vicious attack, extra credit is warranted which I will grant at a rate of 1.5 days for each day served. In total, Mr. Hill is credited as having served 877 days in custody, which will be deducted from whatever I determine is a fit and proper sentence.

Sentencing Principles Applicable to Home Invasions / Robbery

[22] In this case, on these facts general deterrence and denunciation are the most important sentencing considerations. That doesn't make all other principles and factors irrelevant, nor does it remove from the sentencing judge the task of apportioning weight to each one specifically. It simply requires that I endeavour to fashion a sentence that at least attempts to dissuade others from committing similar offences, and that I sufficiently denounce the behaviour by clearly indicating that this kind of conduct will attract serious consequences.

[23] Home invasion robberies are most serious. It is becomingly increasingly common in many communities, often a by-product of substance abuse and the endless pursuit of addicts trying to support their addiction. Particularly troubling is when firearms are used or brandished, which is the case here.

[24] Counsel has provided cases and made submissions outlining what the appropriate range of sentence is for this type of offence. It is clear the typical sentence range is jail anywhere from four to thirteen years, which is of course variable and subject to many factors. Sentencing is always an individualized process and it is left to the sentencing judge to determine what weight is to be accorded each factor, and in appropriate circumstances generally accepted sentence ranges can be deviated from.

[25] There are several aggravating features to this case. Mr. Hill has a horrific criminal record, which is largely related. I note that he has before received a penitentiary sentence for a violent offence. The offence itself is alarming both in its level of violence, and in the fact it targeted innocent, vulnerable victims who were terrorized and traumatized. It's hard to imagine they will soon forget these events, if ever.

[26] In addition to Mr. Hill's troubled background which has clearly contributed to his offending behaviour, there are some mitigating factors. He entered a guilty plea which must be considered in mitigation as it is an acceptance of responsibility and expression of remorse. Mr. Hill immediately cooperated with police and admitted his involvement. It's important to recognize Mr. Hill's cooperation went beyond self-implication, and in the face of a denial by the co-accused, he described Mr. Harp's involvement.

[27] One final point on the applicable principles. At the heart of the defence position is parity, which suggests that similar offenders, in similar circumstances, who commit similar crimes, should be treated similarly. Notwithstanding the distinctions between Mr. Hill and Mr. Harp, there are many similarities. They are both Aboriginal and from troubled backgrounds. They both have lengthy criminal records and are close in age. There is no evidence or suggestion that one was the leader and the other a follower, which means they are equals in terms of morally culpability. Even though only Mr. Hill pointed the firearm, Mr. Harp was a party to that offence and brandished a knife and held it to the victim's abdomen. I would say as well that Mr. Harp was more active in the restraining of the victim and use of the duct tape. Otherwise each of their levels of participation was identical, with the only real distinguishing feature being Mr. Hill's cooperation with the police, which should be to his credit. The parity principle is important and will be applied.

Application of Gladue / Ipeelee

[28] Section 718.2 (e) of the Criminal Code requires that I consider all alternatives to custody that are reasonable in the circumstances, paying particular attention to the circumstances of Aboriginal offenders. Of course there is no reasonable alternative to custody in this matter, which doesn't render the point moot as, in adding body to the statutory language, the Supreme Court of Canada has very clearly directed sentencing courts in how to assess and treat Aboriginal offenders. That is, jail may well be the ultimate disposition, but the path to get there is very different. Also, it might be that for more serious offences the disposition for an Aboriginal offender will be similar to that for a non-aboriginal offender (see R. v. Whiskeyjack 2008 ONCA 800; R. v. Kakekagamick). This, however, is not a rule of universal application and careful consideration should be given to the length of any jail sentence (see R. v. Wells 2000 SCC 10). Indeed, a failure to consider and apply Gladue factors to the sentencing of an Aboriginal offender amounts to a violation of the proportionality principle (R. v. Gladue; R. v. Ipeelee 2012 SCC 13). Put another way, one could say that although never a defence, excuse, or justification, the systemic factors, disadvantaged background, and the intergenerational trauma caused by the residential school system, have all impacted Aboriginal people in a manner which fosters a general sense of hopelessness, a greater reliance on substances, higher levels of unemployment and community dysfunction, all contributing to their offending behaviour. In a sense this impacts upon an assessment of moral culpability. In Ipeelee, Justice LeBel speaks to how this can be relevant to one's level of blameworthiness.

[29] In addition to recognizing the root causes of Aboriginal poverty and other social ills, and how that contributes to offending behaviour, I am required to give effect to the meaning behind section 718.2 (e) which is, in part, remedial. That is, judges are required, if at all possible, to at least attempt to address the overrepresentation of Aboriginal people in prison. It really is an embarrassment to this County and to our system that such a small segment of the population represents such a significant number of those incarcerated. The prescription provided in section 718.2 (e), and the persistent direction of the Supreme Court of Canada, has largely been unsuccessful. In fact, some argue and the statistics would seem to support, that things have gotten worse.

[30] Beyond those issues for which I can take notice, it is clear that Mr. Hill comes from a disadvantaged social background and has a troubled family history, although I note that there need not be a causal link between the systemic factors and the commission of any particular offence.

[31] The application of these principles here should and will moderate any sentence that would have been imposed in the normal course.

Order(s)

[32] Not including today Mr. Hill has spent 585 days in pre-sentence custody. As discussed earlier he will be given extra credit at a rate of 1.5:1 which amounts to a total credit of 877 days, slightly in excess of 29 months. Having determined that a sentence slightly longer than that which was imposed on Mr. Harp but less than the Crown's proposal, I impose a further 49 months to be served in a Federal Penitentiary. That will be current on all counts on the main Information. Respecting the threatening offence there will be a five month jail sentence which, having regard to the totality principle, will be concurrent.

[33] I'll make a prohibition under section 109 of the Criminal Code, which will be in effect for Mr. Hill's lifetime.

[34] An order requiring Mr. Hill to provide a sample of his DNA suitable for analysis and banking is made as well, although I suspect that sample has already been taken.

[35] Any victim fine surcharge is waived.

May 9, 2013

Justice Jonathon George