Court File and Parties

Court File No.: 12-7966 Date: January 30, 2013 Location: London, ON

Ontario Court of Justice

Between: Her Majesty the Queen

-and-

Jason Guillemette

Reasons for Sentence

Counsel:

• J. Skinner for accused
• N. Lamphier for Crown

Before: George J.

Charge/Facts

[1] Jason Guillemette was charged with and has pleaded guilty to wilfully damaging a van, the property of Bell Media Inc. contrary to section 430(3), and to being a member of an unlawful assembly contrary to section 66 of the Criminal Code of Canada.

[2] On a previous date I heard the facts, and viewed portions of a DVD recording which captured the role Mr. Guillemette played in what is commonly referred to as the "Fleming Drive" incident. This was essentially an alcohol fuelled riot, that occurred in close proximity to Fanshawe College in London and which involved mostly college students and college-aged young adults.

[3] Mr. Guillemette's conduct rose above and beyond simply being a part of a mob. He did not just passively watch others. He attempted to throw a large piece of wood, which I understood to be a piece of fencing, at a police SUV. Although Mr. Guillemette was unsuccessful, others nearby were. He also approached and struck a CTV (Bell Media) van, along with others, causing some damage. He was, as well, a part of the crew who rocked and ultimately overturned the van. The only qualification to this is, apparently his hands were not actually on the van as it flipped over. This point is of little consequence and not much turns on it.

[4] More generally, the group unlawfully assembled, of which Mr. Guillemette was a part, engaged in destructive behaviour, which was sustained and which put police officers and other members of the public at risk. This episode represents a black mark on not only Mr. Guillemette, and others who were charged and present, but unfortunately it is a stain on the Fanshawe College community, and indeed the City of London. Fires were lit, property was damaged, police officers were attacked, folks were injured, and a significant amount of city resources were expended needlessly. It was an atmosphere of unlawfulness.

Position of Parties

[5] The Crown seeks a jail sentence of three to six months, to be followed by a period of probation with a significant number of community service hours. Should the sentence be at the low end of that range, it only mildly opposes its service on an intermittent basis. Crown counsel as well notes, in initially seeking a restitution order, that relative to the CTV van, full restitution has already, in another proceeding, been ordered and made. I note as well that there was clearly damage caused to city property, and to privately owned homes on and in close proximity to Fleming Drive, but I have been presented with no specific facts to support that nor have I been provided any certain restitution amounts with corresponding proof.

[6] Counsel for Mr. Guillemette acknowledges that a jail sentence is appropriate but submits the requirements of section 742.1 of the Criminal Code are met and that he should be permitted to serve it on a conditional basis, within the community. The Crown does not dispute that a conditional sentence is available, conceding that there is no statutory bar. Its position is that it would be inconsistent with the fundamental purpose and principles of sentencing set out in section 718 to 718.2.

Preliminary Conclusions

[7] With the issue having been so clearly focused, I can readily conclude the following:

1. A jail sentence is appropriate and necessary.

2. That any jail sentence imposed would not reach the threshold described in section 742.1 (two years less a day).

3. Neither of the counts before the court would attract minimum periods of incarceration.

4. It is clear upon my review of Mr. Guillemette's background and current circumstances, that a conditional sentence of imprisonment would not endanger the safety of the community.

Would a Conditional Sentence be Inconsistent with the Fundamental Purpose and Principles of Sentencing?

[8] To answer this question, one must do two things. First, a careful review of Mr. Guillemette's particular circumstances and background must be undertaken, with a view to gaining a full understanding and appreciation of this offence and why he participated in it. Second, one must consider and balance with the above, the impact this crime had on the community and look at how it (the public) would, collectively, receive the imposition of a conditional sentence. This, however, is not to be confused with grabbing a random person off the street and asking them; or perusing a blog or comments section of the online version of the local newspaper. What would a prudent, reasonable member of the public, who has at least a working understanding of our system and more particularly the sentencing process, think? How would that person react?

Mr. Guillemette's Background/Circumstances

[9] A presentence report was prepared by probation and presented to the court. In addition, defence counsel made very able submissions on Mr. Guillemette's behalf.

[10] Mr. Guillemette is 22 years old. He has no prior criminal record. He is from the Kirkland Lake area originally, but is a long-time resident of London. He comes from a good background and has a supportive family. Mr. Guillemette graduated from high school and began to pursue post secondary studies at Fanshawe College in 2010. For various reasons he stopped attending Fanshawe in January, 2012, shortly before these events. I was told that he didn't withdraw from Fanshawe officially, and was still a student as at March, 2012. It was not until he incurred these charges that he was "banned" from continuing his studies there. It is his understanding that he will not be able to return, which is of note as he is only two credits shy of completing the program in which he was enrolled.

[11] Mr. Guillemette has a, relatively speaking, good work history. He has held many jobs as a youth, and is currently employed on a full-time basis at Sikorski Sausages, a warehouse located in London. His goal, according to the report, is to return to and work in the Kirkland Lake area mines.

[12] Mr. Guillemette fits the profile of many of the other accused who have appeared before the court in this matter. By all accounts this was out of character, and was the result of getting caught up in essentially a mob mentality. In all of the cases I have considered, including this one, alcohol is the biggest contributing factor.

[13] Mr. Guillemette's life has not been without difficulty. He has been diagnosed with learning disabilities and this has impacted him both in his educational and career pursuits to date. The report describes someone who is clearly a follower, and not a leader, which is consistent with his behaviour here, in that he could not be properly described as a 'ring leader'.

[14] For me, concerns remain about whether or not he, and his family, have a realistic perspective on any potential substance abuse or alcohol issues. The report describes drinking patterns consistent with someone who drinks to fit in, so in that sense it is, at least, a social crutch. Furthermore, the simple fact alcohol led him to commit a crime is in and of itself proof that the issue requires further exploration. The report also describes frequent marijuana use. Notwithstanding that, the impression I gather from the report is this is no big deal. He doesn't believe there's a problem. According to the author of the report, his family doesn't see any issues either. To my mind this behaviour and this report, insofar as it describes drug and alcohol use, would be an alarm bell. This general belief is in fact reflected in his counsel's position that a counselling term isn't necessary within any community based portion of a disposition. To that I disagree.

How Would the Public Respond to a Community Based Disposition?

[15] This is a relevant question, although not one always asked in such a stark way, as it relates directly to the issues of general deterrence and denunciation; the two principals I am being asked by the Crown to give the utmost weight.

[16] By statute, I am required to consider general deterrence. The idea here is that a sentence should attempt to deter others from committing like crimes - although one wonders how clearly these kinds of messages are received by its intended recipient (the public). Also the sentence, I'm told, should be fashioned in a way that denounces this behaviour. This would represent a signal to the community that this kind of conduct will attract serious consequences which would hopefully cause others to think twice before acting in a similar fashion. I agree that these two points are important and may indeed be the most important.

[17] Notwithstanding the above, I need to be mindful of three things:

First, just because there are sentencing principles and factors of paramount importance, that doesn't mean all others are to be ignored. In this case, on these particular facts, rehabilitation, as well as instilling a sense of responsibility in the offender are both relevant and potentially achievable.

Second, section 718.2(e) requires me to consider all available sanctions other than imprisonment that are reasonable in the circumstances. I don't read this as being an optional consideration. It is mandatory that I, in a real way, look to the alternatives to having someone sit in a jail cell, and to consider the ramifications of that, were I to do it. That is, beyond the knee-jerk reaction to satisfy the desire of some to have Mr. Guillemette put in jail, what benefit would society derive by introducing someone like Mr. Guillemette to the milieu and general atmosphere of a jail. What would we collectively gain by Mr. Guillemette losing his job, for instance?

Third, and finally, the principle of parity must be employed. I must ensure that Mr. Guillemette's sentence properly reflects the role he played and the extent of and nature of his conduct relative to others who participated. Where does it fit on the spectrum? Counsel seemed to agree that no matter how stupid and outrageous Mr. Guillemette's behaviour was, it cannot be said he was a primary player. He would be more properly placed in the grouping of offenders that slightly exceed what I'll call the 'middle range'. He wasn't a passive observer. He didn't simply yell and offer encouragement. He actively participated and was directly involved in causing damage. By the same token, his conduct did not rise to the level of some, and this is reflected in the nature and number of charges he faces. For instance, he has not been convicted of assaulting a peace officer, as some others were. The point is this – a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Conclusion/Order(s)

[18] After considering the materials before me, and upon hearing the most helpful submissions of counsel, I cannot come to the conclusion that service of a jail sentence within the community would be inconsistent with the fundamental rule and principles of sentencing.

[19] I agree with the range suggested by the Crown, which is three to six months. Recognizing that a conditional sentence order can, and in my view should, be of greater length, the conditional sentence I impose will be for 8 months.

[20] The terms of the Order will be:

1. Statutory terms that will require Mr. Guillemette to keep the peace and be of good behaviour; appear before the court when required to do so; report in person to a conditional sentence supervisor today and thereafter as required and in a manner directed by the supervisor; to remain within the province of Ontario unless written permission to go outside the province is obtained from the court or the supervisor; and to notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change in employment or occupation.

2. Abstain from the purchase/possession/consumption of alcohol.

3. Abstain from the purchase/possession/consumption of drugs except in accordance with a medical prescription.

4. Perform 50 hours of community service work. This work is to commence within 30 days of the commencement of this order and be completed before its expiration.

5. Attend and actively participate in such rehabilitative or counselling programs as recommended by the supervisor.

6. Either attend school full-time or make reasonable efforts to find and maintain suitable employment.

7. Not associate or communicate either directly or indirectly with anyone named in writing by the supervisor.

8. Not attend at any place indicated in writing by the supervisor.

9. For the first five months of this order, he will be confined to his residence subject only to the following exceptions:

a. Attending appointments with his health care-providers, or supervisor.

b. Performing community service work.

c. Attending any court ordered assessments, or counselling sessions.

d. Attending for employment during scheduled work hours, or prescheduled job interviews.

e. Searching for employment, in accordance with a schedule approved of in advance by his supervisor.

f. Attending scheduled classes at any place of education he is attending.

g. For three hours per week, the dates and time to be set by the supervisor, in order to purchase personal necessities.

h. Such other times as may be approved in advance by the supervisor.

i. Travelling directly between his home and the locations listed above.

j. He must provide the supervisor with work, school or other schedules from time to time and as may be requested.

10. Apply immediately for the electronic supervision program, cooperate fully with the application requirements and comply with the requirements of the program.

11. Present himself at his residence or by telephone as and when required by a peace officer, probation officer or supervisor.

12. Must carry a copy of this conditional sentence order (as well as any written authorizations to be away from his residence) on his person at all times that he is absent from his residence.

13. For the remaining three months, he will remain in his residence from 10pm to 6a.m. subject only to the following exceptions:

a. For employment, and travelling directly to and from his place of employment.

b. Medical emergencies.

c. As may be permitted in writing by his supervisor.

[21] Following this, he will be subject to a probation order. The length of this order will be 15 months and the terms to apply are as follows:

1. Statutory terms.

2. Report within 3 working days after the expiration of the conditional sentence order and thereafter as required.

3. Abstain from purchase/possession/consumption of alcohol.

4. Perform 50 hours of community service work, to be completed within the first 8 months of the order. Otherwise to be completed at a rate and in a manner approved of by probation.

5. Take such counselling that's recommended by probation, and not discontinue any recommended counselling without first obtaining the permission of his probation officer. There will be a requirement to sign any consents or authorizations necessary to enable probation to monitor his progress in any recommended counselling.

6. Either attend school full-time or make reasonable efforts to find and maintain suitable employment.

7. Not associate with anyone named in writing by probation.

8. Not attend any placed indicated in writing by probation.

[22] I will address restitution in this way. Having been told CTV Bell Media has been made whole for the damage to the van, and there being no request for restitution otherwise, I will remain silent on this point. However, I am doing so, in large part because defence counsel has undertaken on his client's behalf to make a charitable contribution in the amount of $1000, and to do so at the earliest opportunity. The Crown will be permitted to request proof of that, but I will otherwise leave it to counsel to confirm the details of the payment, and to whom the contribution should be made.

Justice Jonathon C. George