Court File and Parties

Court File No.: 13-7668, 13-7667

Date: July 16, 2013

Location: London, ON

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Jason Green

Reasons for Sentence

Counsel:

• B. White for Crown
• B. Basiga for Mr. Green

Judge: Jonathon C. George

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[1] On January 3rd, 2013 Jason Green was ordered into a recognizance pursuant to section 810.2 of the Criminal Code of Canada. This order requires Mr. Green to abide by several conditions, including that he not consume or possess drugs, alcohol or other intoxicating substances; and that he at all times carry a copy of the recognizance with him. This order expires January 3rd, 2015.

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[2] Mr. Green violated these two conditions. He was arrested on April 29, 2013 and has remained in custody since. On July 12, 2013 Mr. Green pleaded guilty to these offences, as well as to possessing marijuana contrary to section 4(1) of the Controlled Drugs and Substances Act.

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[3] I received and reviewed a Gladue Report prepared by the local Native Friendship Center. The report is somewhat dated having been prepared for an unrelated matter in July, 2010, but was still helpful in coming to understand Mr. Green's background and personal circumstances. I received into evidence a document brief prepared by the Crown. It contains a copy of the recognizance in question, as well as transcripts of several proceedings involving Mr. Green for a period beginning in 2005 and ending in 2012.

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[4] Mr. Green's criminal record was filed and marked as an exhibit. It is extensive, to say the least, and troubling in its nature. He has compiled 76 prior convictions - 17 for acts of violence, 2 drug possessions, and on 22 prior occasions he has been convicted of breaching a court order. There are sexual assault convictions as well, most of which attracted fairly lenient punishments. The longest disposition received to date is a two year jail sentence.

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[5] Contrary to the Crown's assessment of this case, I don't view the two breaches as being most serious. Of course court orders are to be respected, but it is the necessary function of the court to place matters on the continuum so to speak. That is, every offence must be characterized in some fashion so that it can be properly placed on the spectrum of seriousness. If the goal is to fashion a fit sentence, there is no other way to approach it.

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[6] The Crown's position is essentially that the alcohol and drug addiction issues, which are clearly the underlying cause of most of Mr. Green's offending behaviour, go to the heart of the recognizance. As the argument goes, given this type of order is geared to address a high-risk offender, such a breach must be considered a serious one and must attract significant consequences.

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[7] The facts are fairly straightforward. Mr. Green had been the subject of surveillance by the London Police Service, the purpose of which was to ensure compliance. On April 29, 2013 Mr. Green was observed in the downtown core area of London, interacting with another individual. The officers observed what they believed to be a hand-to-hand transaction where Mr. Green was handed some drugs. Mr. Green then entered a city bus and was arrested upon his exit. Mr. Green was searched as an incident of arrest, at which time 2.4 grams of marijuana were found. In addition to the substantive offence, this was in breach of the recognizance. The facts in support of the second breach are that he was simply unable to produce the order and had not been carrying it on his person.

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[8] Received into evidence were three reports, all of which speak to Mr. Green's risk-level: a psychological/psychiatric assessment prepared by the Millhaven Assessment Unit; an 'Elder Review' prepared while Mr. Green was at Millhaven; and a copy of the Parole Board's decision of November 22, 2012.

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[9] The reports detail a dark history full of sexually offending behaviours, some involving close family members and others against complete strangers. His sexual deviances appear to have many root causes. Without elaborating upon them, his minimized self-control and inability to manage his urges is directly linked with his alcoholism. Addictions have been a part of his life since before the age of ten. Simply put, when Mr. Green drinks, he offends.

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[10] The psychological/psychiatric assessment, at page 5, indicates the following:

…..the offender evidenced distorted thinking that minimized the extent, frequency and intrusiveness of his offending history, as well as minimized self-control strategies and did not acknowledge planning involved in his offences.

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[11] This is consistent with what I otherwise know, and consistent with the behaviours and thought-process of someone who themselves was a victim of abuse. Indeed, the Gladue Report discloses such victimization as a youth. The overall impression, which is not meant as a criticism of Mr. Green necessarily, is that he lacks insight into his problems, beyond a general recognition that he shouldn't be drinking. Clearly this recognition becomes overwhelmed by his alcohol dependency.

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[12] Other than some minimal and short-lived interventions there, sadly, has been very little done in the way of assessments or treatment. There are mental health issues, most of which are undiagnosed. As to the risk of reoffending, I was advised that the specialized OPP Threat Assessment Unit has determined Mr. Green to be a high risk for potential sexual violence. The belief, which is a reasonable one, is that only intensive treatment and programming will alleviate this concern.

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[13] The 2012 Parole Board decision highlights Mr. Green's high risk to reoffend. Relevant to my point about treatment and programming, of particular concern is the following passage found at page 5:

……you (Mr. Green) have demonstrated consistent resistance to supervision by violating conditions, incurring fail to comply and escape lawful custody and being unlawfully at large convictions. This behaviour indicates to the Board that you are either unwilling or unable to abide by conditions and the Board has no confidence in your ability to do so.

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[14] I share this impression.

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[15] The Elder Assessment confirms much of the background and history contained in the Gladue Report, which is heartbreaking. Mr. Green is 32 years old. He is an aboriginal person and member of the Rat Portage First Nation, which is about 40 kilometres west of Kenora. His circumstances are tragic. He was exposed to alcohol and violence, and at a young age lost his sister in a house fire. The death of his sister is particularly troubling and is something with which Mr. Green continues to struggle.

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[16] Both of his parents are residential school survivors, and although Mr. Green may not understand the impact these institutions have had on subsequent generations and him specifically, it is widely accepted that the consequences have been significant and far-reaching. The physical, mental and emotional abuse suffered by the students has been perpetuated and occasioned upon their children. This cycle is ongoing.

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[17] The other complicating factor is the strong suspicion that Mr. Green has Fetal Alcohol Effect. In the Gladue Report Mr. Green's father suggests that Mr. Green's mother consumed alcohol while pregnant. If this is accurate, the prognosis is not good. Impulsivity and a lack of rational forethought will continue to highlight Mr. Green's existence. Only intensive treatment and consistent structure will lead to even the semblance of a normal life. In the recommendations section of the Gladue Report, it quotes the following from Dr. Laurence Hunt, who assessed Mr. Green in 2008:

Jason responds particularly well to external structure, and so will benefit ideally by participation in a succession of structured programs and settings, beginning with his first attendance at a residential addiction treatment program, and then, I suggest, in a halfway house treatment program designed for survivors of physical, emotional and sexual abuse who have post-traumatic stress disorder. In the interim, Jason will certainly benefit from individual psychotherapy.

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[18] If out of custody, there are a wealth of treatment and counselling options available to Mr. Green in the London area. The N'Amerind Friendship Centre, and KiiKeeWanNiikaan Southwest Regional Healing Lodge are two culturally appropriate local agencies that could assist Mr. Green.

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[19] The Crown's position on sentence has evolved. It provided a book of authorities with cases that seem to suggest, in circumstances like these, a range of sentence between 12 and 15 months jail. The initial position was ten months jail, but after a thorough consideration of Gladue principles and after receipt and review of the Gladue Report, it has modified its position to six months jail, less any time served in pre-plea custody. The defence advocates for a jail sentence of anywhere between time-served, and six months.

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[20] Mr. Green addressed the court and was most eloquent. He very clearly articulated an understanding of his issues and expressed a desire to seek help. Insight was shown into the underlying issues and some grief was expressed over events that occurred many years ago. He spoke of conversations he has had with elders and how that has assisted in forming his current outlook. Although this alone doesn't alleviate the risk concerns present here, I believe it was the expression of a genuine desire to get help.

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[21] What concerns me most, which is highlighted by Mr. Green's extensive record and considerable time spent in jail over the years, is his inability to access programming while in custody, particularly in the provincial corrections system. Mr. Green spoke at length about how the classification process has essentially prohibited him from serving any jail sentence to date in a treatment facility. The transcripts disclose how this frustration, on one occasion, led to Mr. Green advocating that he be sent to a federal penitentiary, in circumstances where it's appropriateness was debatable. This is a shameful testament to our corrections system, and runs contrary to any notion that in-custody rehabilitative efforts are occurring at all, at least for some people.

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[22] The Supreme Court of Canada in R. v. Ipeelee 2012 SCC 13, [2012] 2 C.N.L.R. 218 devotes considerable time and effort to assist those who actually chose to read the case, in making sense of aboriginal sentencing. It discusses how section 718.2 (e) of the Criminal Code was not universally well-received and directly addresses each of the, in their mind ill-conceived, criticisms of the regime. It quotes Professors Stenning and Roberts' publication "Empty Promises; Parliament, the Supreme Court, and the sentencing of Aboriginal Offenders" (2001), 64 Sask. L. Rev. 137, which characterizes this sentencing provision as just that; an "empty promise". The suggestion being the sentencing process, and judges are ill-equipped to accomplish this and in all likelihood the provision will have little impact. It's hard to argue with this, if the goal was to reduce aboriginal representation in our jails. This has simply not happened.

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[23] The Supreme Court, however, doesn't necessarily agree with Professors Stenning and Roberts, and are once again adamant that sentencing judges are to endeavour, among many other things, to attempt to reduce aboriginal crime rates, not only in having regard and giving effect to the existing purpose and principles of sentencing as they're found in sections 718 to 719, but also in tailoring sentences to meet the needs of aboriginal people.

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[24] The question here is, is there a reasonable alternative to custody that can both meet the needs of Mr. Green, having regard to his particular circumstances as an aboriginal person, and that can sufficiently protect the public?

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[25] Given the background, Mr. Green's particular circumstances, and the strong likelihood he is FAE, specific deterrence is completely irrelevant. A jail sentence will not deter Mr. Green from committing further crimes. In some sense this diminishes the import of general deterrence, and most certainly parity, as it's hard to imagine Mr. Green's sentence deterring likeminded individuals, similarly situated, with equivalent difficulties and ailments, from committing criminal offences. That would be a most naive thought. This, to my mind, places rehabilitation front and centre.

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[26] I say this cautiously, mindful of the jurisprudence that has developed relative to high-risk offenders breaching court orders. Justice Wake in R. v. Fraser (2010) O.J. No. 5439, indicates the following at paragraph 10:

When a breach of such an order ( s. 810.2 Criminal Code ) by an individual within that group occurs, it follows that protection of the public should be a significant factor in sentencing that individual for that breach. However, this does not mean that other sentencing principles should be minimized or even ignored.

Justice Laskin in R. v. Legere, [1995] O.J. No. 152 (Ont. C.A.) indicates that:

….I do not think that a judge can use his or her sentencing powers in the Criminal Code to impose a sentence disproportionate to the gravity of the offence on the ground that such a sentence is required to protect the public. I agree with the following passages from the majority judgment of the High Court of Australia in R. v. Even, No. 2 (1988), 33A Criminal Reports, 230, Australian High Court - "the principle of proportionality is now firmly established in this country. It was the unanimous view of the court in R. v. Veen that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender…….it is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.

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[27] This passage would seem to support the defence position, and my initial thought that this is not a particularly serious breach. Justice Wake, however, goes on to conclude that such an alcohol breach, where it is so intricately tied to extensive criminal behaviour and established risk factors, is, in his words "a little more significant".

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[28] Having regard to all the information before me, Mr. Green's particular circumstances and background, and after applying all of the relevant sentencing principles, in particular section 718.2 (e) of the Criminal Code and its elaboration in Gladue, Ipeelee and other cases, it is an unavoidable conclusion that further jail is warranted. I believe a sentence in the range of 4 months is appropriate, from which I will deduct the 78 days pre-plea custody. As Mr. Green was formally detained, and in light of an endorsement pursuant to section 515(9.1), this credit cannot be enhanced. That will be concurrent on both breach counts. For the drug offence, the record will reflect a concurrent 30 day jail sentence. That leaves a further 42 days to serve.

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[29] This will be followed by a two year probation order, which will in effect extend the existing terms (in the recognizance) for another 7 months or so. I decline to make a three year order, as requested. In addition to the statutory terms, Mr. Green will report to probation within two working days of release and thereafter as required; not consume, possess or purchase alcohol; not consume, possess or ingest any drugs except in accordance with a medical prescription; and he'll be required to undertake any assessment and take such counselling that's recommended by probation, which shall be First Nations based and culturally appropriate, if at all possible. I am not imposing a specific residence term, nor will I include a curfew provision.

Released: July 16, 2013

Justice Jonathon C. George