Court File and Parties

Court File No.: 12-242 Ontario Court of Justice

Between: Her Majesty the Queen — and — Andrew Edward Doxtator

Before: Justice Lloyd Dean

Hearing Date: December 21, 2012 Release Date: February 11, 2013

Counsel:

• Gary Nikota for the Crown
• Rae Anne Copat for the Accused

Ruling

DEAN J.:

Introduction

[1] On July 25, 2012, Andrew Doxtator pleaded guilty to one count of distributing child pornography pursuant to s. 163.1(3) of the Criminal Code (Cr.C.) and one count of luring child by means of a computer system pursuant to s. 172.1(1)(b) Cr.C. There were nine charges originally laid. The other charges have been withdrawn by the Crown as part of the plea negotiations, with all facts to be read in.

[2] The charges arose from an investigation by the Windsor Police Service after being contacted by an officer in the state of Kentucky. The officer in Kentucky, as part of his duties as a police officer, had posed as a 15-year-old girl on the Internet. While posing as a 15-year-old girl the officer had contact from Mr. Doxtator, who was residing in Windsor. As a result of the nature of that contact the officer in Kentucky contacted the Windsor Police Service which in turn led to a search warrant and ultimately the arrest of Mr. Doxtator.

The Offence

[3] On July 26, 2011, Mr. Doxtator made contact with who he believed was a 15-year-old girl over the internet through Yahoo chat. He counselled the 15 year old girl on masturbation. On January 18, 2012 he again had a conversation over the internet with the same girl he believed was 15 years old. Once again he counselled her on masturbation. There is no dispute that both of these occurrences are violations of s. 172.1(1)(b) Cr.C.

[4] On January 19, 2012, Mr. Doxtator sent via his computer to the officer in Kentucky posing as a 15 year old girl a video which clearly depicted young children engaged in sexual activities with adult males. The video was disturbingly titled "Dad up my Ass". The girls in the video were estimated to be in the 8 – 10 years old age group. The act of sending this type of video by way of the internet is clearly a violation of s. 163.1(3) Cr.C. The accused on this same date along with the child pornography sent adult pornography.

[5] On January 23 and 27, 2012, Mr. Doxtator over the internet indicated to the officer posing as the 15 year girl he wanted to have sexual intercourse with her. Some of the logs of the "online chats" were introduced as an exhibit.

[6] On January 31, 2012 a search warrant was executed on Mr. Doxtator's residence. There were three computers seized and analyzed by the Windsor Police Service. Found on the computers were 1,071 photos depicting children as young as three to five years old up to 9 years old with their vaginal areas exposed by different means. There were also eleven videos of child pornography seized.

[7] The Crown elected to proceed by way of indictment on all charges. Thus, Mr. Doxtator is subject to a minimum punishment of 12 months pursuant to s. 163.1(3)(a) Cr.C.

Issue

[8] Mr. Doxtator is of Aboriginal descent. The issue before this Court, at this time, is whether or not I should order a "full Gladue report" be prepared to assist this Court in determining the appropriate sentence.

[9] I currently have before me what is described as a pre-sentence report with "Gladue content", the evidence of the Area Manager of Probation Services and a 2010 report she brought with her prepared by the Deputy Regional Director of Probation Services.

Analysis

[10] There are no agencies, government or otherwise, within Essex County that are able to provide the court with a full Gladue report. Such agencies only exist in a few communities across this province.

[11] Andrew Doxtator is an Aboriginal offender with ties to his culture and heritage. This is a case in which the remedial provisions of s. 718.2(e) of the Criminal Code (Cr.C) are engaged.

The Purpose of s. 718.2(e)

[12] Section 718.2(e) is included in the sections of the Criminal Code that set out the purpose and principles of sentencing (718-718.2 Cr.C.). It reads as follows:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[Emphasis added.]

[13] The provisions found in 718-718.2 confirm that sentencing is an individualized process in which the court must take into account not only the circumstances of the offence, but also the specific circumstances of the offender. Thus, the objectives of sentencing cannot be fully achieved unless the information needed to assess the circumstances, character and reputation of the accused is before the court: see R. v. Angelillo 2006 SCC 55, [2006] 2 S.C.R. 728, at para 18. The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Cr.C., to consider the unique circumstances of Aboriginal offenders. Failure to apply R. v. Gladue, [1999] 1 S.C.R. 688, in any case involving an Aboriginal offender violates this statutory obligation: see R. v. Ipeelee 2012 SCC 13, [2012] 1 S.C.R. 433, para. 87. The law in Ontario requires the Gladue analysis be performed in all cases involving an Aboriginal offender, regardless of the seriousness of the offence: see R. v. Kakekagamick, 2006 81 OR (3d) 664 at para. 38.

[14] The imposition of a just sentence is a highly individualized process. Section 718.2(e) requires a sentencing court to pay particular attention to the individual circumstances of an Aboriginal offender. It is a fact undisputed that Aboriginal persons are significantly over-represented in Canadian's prison population. Section 718.2(e) is a remedial provision designed to relieve this serious problem by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. This requires the sentencing court to use a different method of analysis in determining a fit sentence for an Aboriginal offender, while adhering to the principle of proportionality and such other sentencing principles as may be relevant to the circumstances. Courts must ensure that a formalistic approach to parity in sentencing does not undermine the remedial purpose of s. 718.2(e): see Ipeelee, supra.

[15] The circumstances of Aboriginal offenders are unique and different from those of non-aboriginal offenders. The methodology set out in Gladue is designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider:

(1) the unique systemic and background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and

(2) 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.

[16] Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence.

[17] It is clear now that courts must take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. The systemic and background factors include the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel to enable a judge to determine an appropriate sentence: see Ipeelee, supra.

[18] The analysis set out in Gladue apply in all cases where the offender is an Aboriginal person, regardless of the seriousness of the offence: see Kakekagamick, supra.

[19] Section 718.2(e) does not mandate better treatment of aboriginal offenders than non-aboriginal offenders, such as reducing their sentences. Nor is it to be applied in a vacuum. Other relevant sentencing principles are to be considered along side of it. It is simply recognition the sentence must be individualized and that there are serious social problems with respect to aboriginals that require more creative and innovative solutions. A different methodology is to be used for determining a fit sentence for an Aboriginal offender but that does not necessarily lead a different result: see Ipeelee, supra. Section 718.2(e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender: see R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, para. 44. At the end of the day, it remains for the sentencing judge to consider the case as a whole. To the extent that Gladue will lead to different sanctions for Aboriginal offenders, those sanctions will be justified based on their unique circumstances - circumstances which are rationally related to the sentencing process. No two offenders come before the courts with the same background and experiences, having committed the same crime in the exact same circumstances. Section 718.2(b) Cr.C. simply requires that any disparity between sanctions for different offenders be justified: see Ipeelee, supra.

Further Analysis

[20] A case before the Superior Court here in Windsor, R. v. Corbiere, 2012 ONSC 2405, had almost the identical issue that I face. One difference in that case was that the offender was in custody. Pomerence J. was about to order a full Gladue report when she was informed by defense counsel that he had already looked into the matter and had been told by Aboriginal Legal Services of Toronto (ALST) that the agency did not have the funding to send a trained Gladue caseworker to Windsor. ALST would only prepare a report if the correctional officials transferred him to the Sarnia jail. That caused Pomerance J. some concern. While she could recommend a transfer to Sarnia, it would not bind correctional officials, who could choose whether or not to follow the recommendations. She had this to say at paragraph 9:

[9] …it seemed that the availability of a Gladue report should not depend on the good graces of correctional officials and their willingness to transfer a prisoner in a given case. Nor, it seemed, should the availability of such information depend on where an offender is situated. Section 718.2(e) applies to offenders across Canada, wherever they may reside and wherever they may be sentenced. As I put it in my later endorsement of January 6, 2012:

The remedial provisions of s. 718.2(e) of the Criminal Code are not location specific. These provisions require that courts in all jurisdictions across Canada have access to comprehensive information about offenders' aboriginal backgrounds and the extent to which systemic disadvantage, discrimination and other related factors have influenced the offenders' circumstances. This is an important objective relating to the proper administration of justice. It is designed to address and ameliorate the overrepresentation of aboriginal offenders in Canadian jails.

[21] She directed that the matter go over one week. In the interim she received a letter from the program director of ALST, Jonathan Rudin. In the letter, the director explained the Gladue caseworkers employed by a ALST served four distinct geographic areas (which did not include Windsor). He also confirmed that his agency does not receive funding to provide Gladue reports for offenders outside those catchment areas. On the next court date Pomerance J. made an order directing the Ministry of Community Safety and Correctional Services (MCSCS), Probation and Parole Division, provide the funding to allow a properly trained Gladue worker to attend in Windsor and prepare a Gladue report for the offender. As there was no one for the Ministry present in court to challenge the order she allowed for the filing of material challenging the order (by the Ministry) before the next court date and a hearing would be scheduled. No formal materials were filed by the Ministry. Nor did the Ministry request a hearing. Rather, she received a letter from counsel in the legal services branch of the MCSCS. The letter informed her that the Ministry was in a position to transfer the offender to the Sarnia jail for the purpose of having a Gladue report prepared. The counsel also asked in the letter that Pomerance J. rescind or vary her order. Pomerance J. was not prepared to do that. She stated at paragraph 14:

[14] …The fact remained that Mr. Corbiere did not have access to Gladue-related services in Windsor that would have been available to him in other city centres. An assurance that he would be transferred to Sarnia offered a band-aid solution, but it did not address the underlying injury. There persisted the systemic concern that Aboriginal offenders in Windsor were being denied access to certain services available to Aboriginal offenders in other city centres. In a written ruling released on January 6, 2012, I expressly declined to rescind the order, directing that a hearing take place: …

[22] A hearing was set for February 3, 2012. On that date, at the outset of the hearing she was advised that the offender had indeed been transferred to the Sarnia jail and a Gladue report had been prepared. Her comments regarding that development can be found at paragraph 17:

[17] This came as a surprise to the court. Giving government officials the benefit of the doubt, I will assume that Mr. Corbiere was not transferred to Sarnia for the purpose of sidestepping the broader systemic issue. I will assume that the transfer was motivated by a desire to assist the court, rather than a desire to frustrate the stated objective of the hearing.

[23] And at paragraph 18:

[18] Be that as it may, the effect of having the Gladue report prepared outside of Windsor was that the hearing became academic, at least where Perry Corbiere was concerned. It is the case before the court that drives its jurisdiction. Mr. Garson's position was that, once a Gladue report was produced for Mr. Corbiere, the jurisdiction of the court to inquire into the availability of such reports was effectively spent. I had to agree. It is not my role, as a sentencing judge, to conduct a reference or general inquiry. Nor is it my place to direct allocation of government resources in the abstract. The concern of the court was to ensure that Mr. Corbiere had the full benefit of the remedial Gladue principles in the context of his sentencing hearing. By virtue of the Sarnia report, that goal was met.

[24] So the broader systemic issue was not addressed by the court. At paragraph 28 Pomerance J. stated:

[28] I am satisfied that the updated Gladue report prepared by ALST for Mr. Corbiere while he was in the Sarnia jail captured the relevant and necessary information about his Aboriginal status and background. However, problems relating to the obtaining of Gladue information in Windsor and other centres raise continuing concerns for the administration of justice. There is no reason to believe that offenders in Windsor will be transferred to Sarnia jail for Gladue reports as a matter of course. To the contrary, the indication was that Perry Corbiere's transfer was an exception to the norm. What of the Aboriginal offender who is not in custody? Would he or she be expected to travel to Sarnia? Would a Gladue report even be available for an offender who was willing to travel, or would he or she be required to settle for a pre-sentence report with Gladue content? The Gladue framework requires a factual foundation, without which it is a hollow gesture. In Ipeelee and Ladue, the Supreme Court of Canada revitalized the remedial principles at stake in this context. Their application in Windsor and similarly situated locations will be seen in due course.

[Emphasis added]

[25] I will answer the questions in bold script later. Reproduced below is a letter from Jonathan Rudin of ALST, filed as an exhibit in this case. It is reproduced in its entirety:

October 3, 2012

Rae-Anne Copat Barrister and Solicitor

Dear Ms. Copat:

Re: Andrew Doxtator- next court date January 11, 2012(sic)

On September 27, 2012 Aboriginal Legal Services of Toronto (ALST) received a request to prepare a Gladue report for Andrew Doxtator for January 11. Please be advised ALST will not be preparing a report on behalf of Mr. Doxtator.

The Gladue Request form states this matter is being held at the Windsor Court. Regretfully ALST is not able to write a Gladue report on behalf of Mr. Doxtator. The Windsor region is outside of our catchment area, for our Sarnia Gladue caseworker. We understand that Mr. Doxtator is not in custody and is willing to come to Sarnia to meet our worker there. Despite this fact, we simply are not in a position to take on Gladue Report requests from Windsor in addition to the workload our worker currently has in Sarnia.

We apologize for the inconvenience this imposes onto Mr. Doxtator and to the court, but we simply cannot accommodate Gladue Report request for individuals in the Windsor area and meet our existing commitments to clients in the Sarnia region.

Sincerely,

Jonathan Rudin Program Director

[26] A copy of the letter was also sent to Crown counsel and to my office.

[27] In Corbiere, supra, Pomerance J. was provided information from counsel for the Ministry of Attorney General, Marc Garson. He explained there are four dedicated Gladue-based service providers operating within Ontario. ALST serves four distinct geographic areas - Toronto, Brantford-Hamilton, Waterloo-Wellington and Sarnia. The Ontario Federation of Indian Friendship Centres offers services within London Ontario. The United Chiefs and Counsel of Manitoulin (UCCM) operate in parts of Northern Ontario. The Thunder Bay region is covered by Thunder Bay Gladue Services. These agencies are variously funded by the Ministry of the Attorney General, the Department of Justice and Legal Aid Ontario. Outside of these catchment areas, the preparation of Gladue material falls to the Ministry of Community Safety and Correctional Services (MCSCS), as the Ministry responsible for preparation of pre-sentence reports (PSR).

[28] Defence counsel in support of their request that I order a full Gladue report provided a 2010 article written by Kelly Hannah-Moffat and Paula Maurutto, titled Re-contextualizing Presentence Reports - Risk and Race, 12 Punishment & Society 262. It compares the structure of pre-sentence reports to Gladue reports for Aboriginal offenders in Canada. It has been marked as an exhibit. Following are excerpts from the article:

A Gladue report and its recommendations are holistic and contextualized accounts that characterize the Aboriginal offender's needs, risk and community options differently from the actuarial risk-based character of PSRs. Essentially, they adopt a non-actuarial model and more contextualized approach to situate and frame Aboriginal offenders' risk.

A Gladue report is intended to contextualize the life and behaviour of an Aboriginal person, including the offender's family's experiences and his/her spiritual, cultural, family and community support network. For example, the courts are interested in: the family's involvement in the criminal environment; whether the offender or family members attended residential school; if so, where, how many years, how were they treated, how long were they denied family contact; the main social issues affecting the offender's home/original community; how the offender's family/community addressed those issues; how the offender, offender's family and the community have been affected by economic conditions; and the quality of the offender's relationship with family, extended family and the community.

It offers a different and more holistic understanding of the aboriginal offender, which clarifies how broader systemic factors are related to offending and sentencing. These factors are not intended to mitigate offending, but can be used to justify a noncustodial sentence [where one may be appropriate], or, to shape conditions in the case of a conditional sentence or probation order, and to present creative alternatives to the court. This kind of analysis can reframe the offenders risk/need by holistically positioning the individual as part of a broader community and as a product of many experiences.

… Gladue reports are an alternative type of sentencing report that include a comprehensive overview of the social 'systemic factors' facing an offender along with the identification of specific resources available in the community to address the needs of a particular offender. They are increasingly being used in Ontario to supplement or replace court-ordered pre-sentence reports (Campbell Research Associates, 2008) because the PSR does not systemically include Aboriginal issues as required by law. Reports are typically prepared by dedicated Aboriginal court workers, who are trained and hired by Aboriginal Legal Services of Toronto (ALST) and operate in a number of courthouses throughout Ontario. Preparation of reports involves lengthy and in-depth interviews with the client, and where possible with family members and acquaintances, as well as experts familiar with Aboriginal histories and communities. The reports are expected to include: a synopsis of the offence; the offender's past record; the offender's personal circumstances; report writers' contacts with the offender's family; options for services consistent with the proposed sentence; plan for services to meet offender's needs; contextualization of the offender's situation, including a description of the systemic issues affecting Aboriginal people; applications to and arrangements made with residential treatment facilities; and recommendations for sentence (Campbell Research Associates, 2008: 10). These reports clearly specify a treatment plan and recommend conditions.

One of the primary objectives of Gladue reports is to contextualize the offender's personal and family circumstances within the history and treatment of Aboriginal people in Canada. Our analysis of a sample of these reports reveals that, Gladue reports include considerably more detailed information regarding the offender's background, family and life circumstances than PSRs.

Position of the Parties

[29] Defence counsel argues Mr. Doxtator is entitled to a full Gladue report. She argues that the pre-sentence report with Gladue content and the information provided by the Area Manager of probation services falls short of providing this court with information consistent with the Supreme Court's ruling in R. v. Gladue and its progeny. With respect to the pre-sentence report with Gladue content, defence counsel submits the report is quite cursory in regards to the Gladue content. It addresses some of his background and states the facts but doesn't address issues and the effect those issues have had on him. She submits the content included in a full Gladue report would be more comprehensive and provide greater assistance to the court as it would better able this court to consider the background and circumstances of the offender. Defence counsel argues a full Gladue report is much more in-depth and would be prepared by an aboriginal person which would be more beneficial to the court, as they are able to get more information from the offender as a result of the offender being more comfortable to open up and share. The defence submits I should order a full Gladue report and order a specific agency to prepare such a report.

[30] Crown counsel argues the information I have before me is sufficient and the court should proceed to sentencing. He submits the information I have canvasses sufficiently the aboriginal issues with respect to the specific offender before the court and allows this Court to impose a just and appropriate sentence. The Crown further submits that this Court has no jurisdiction to require a government agency that is not a party in the matter, nor required by legislation, to prepare or pay for a full Gladue report, without them first having an opportunity to be heard.

Further Analysis

[31] I think it would be helpful at this point if I reproduce paragraph 28 of the Corbiere, supra, wherein I put in bold text the questions raised by Pomerance J.:

28 I am satisfied that the updated Gladue report prepared by ALST for Mr. Corbiere while he was in the Sarnia jail captured the relevant and necessary information about his Aboriginal status and background. However, problems relating to the obtaining of Gladue information in Windsor and other centres raise continuing concerns for the administration of justice. There is no reason to believe that offenders in Windsor will be transferred to Sarnia jail for Gladue reports as a matter of course. To the contrary, the indication was that Perry Corbiere's transfer was an exception to the norm. What of the Aboriginal offender who is not in custody? Would he or she be expected to travel to Sarnia? Would a Gladue report even be available for an offender who was willing to travel, or would he or she be required to settle for a pre-sentence report with Gladue content? The Gladue framework requires a factual foundation, without which it is a hollow gesture. In Ipeelee and Ladue, the Supreme Court of Canada revitalized the remedial principles at stake in this context. Their application in Windsor and similarly situated locations will be seen in due course.

[Emphasis added.]

[32] Here we are today with those questions front and center.

[33] What of the Aboriginal offender who is not in custody? Would he or she be expected to travel to Sarnia? Yes, as the Windsor region is outside ALST's catchment area.

[34] Would a Gladue report even be available for an offender who was willing to travel? The letter from the program director of ALST, Jonathon Rudin, clearly indicates a Gladue report is not available even for an offender who was willing to travel.

[35] Would he or she be required to settle for a pre-sentence report with Gladue content? That is the issue facing me: Is Mr. Doxtator entitled to a full Gladue report? What if I am satisfied the pre-sentence report with Gladue content satisfies the principles set out in Gladue? Is Mr. Doxtator nonetheless entitled to a full Gladue report or is he required to settle for a pre-sentence report with Gladue content? The analyses regarding these questions follow.

[36] In Corbiere, supra, Pomerance J. stated at paragraph 23:

[23] There is no magic in a label. A "Gladue Report" by any other name is just as important to the court. Its value does not depend on it being prepared by a particular agency. Its value does hinge on the content of the document and the extent to which it has captured the historical, cultural, social, spiritual and other influences at play in this context ...

[Emphasis added]

[37] I can find nothing in the authorities I have been provided, nor in Gladue itself, that suggest a full Gladue report is absolutely required or necessary. The emphasis is on whether or not the sentencing court has sufficient materials before it to meet the requirement of special attention to the circumstances of Aboriginals. As stated by LaForme J.A. in Kakekagamick, supra, at paragraphs 45:

[45]…In most cases, the information contained in a pre-sentence report may be sufficient to meet the requirement of special attention to the circumstances of Aboriginal offenders. …

[38] The authorities do not indicate the court must have all the information possible regarding the Aboriginal offender, only that the court have sufficient materials before it, in the manner set out in Gladue, to enable it to reach the proper and fit sentence for that particular Aboriginal offender, for the offence charged and with his or her unique circumstances and background.

[39] Laforme J.A. writing for the Court of Appeal in Kakekagamick, supra, also wrote how the pertinent information should be brought before the court. At paragraphs 44-46 he wrote:

[44] In order to help the court arrive at a fit and proper sentence, there is a positive duty on counsel to assist the sentencing judge in gathering information as to the Aboriginal offender's circumstances. Counsel will assist the sentencing judge by adducing relevant evidence (Gladue, para. 83). If an offender does not want such evidence to be adduced, he or she may waive the right to have particular attention paid to his or her circumstances as an Aboriginal offender. Such a waiver must be express and on the record, and was not present in this case.

[45] Where counsel does not adduce the evidence, it is still incumbent on the sentencing judge to try to acquire information on the circumstances of the offender as an Aboriginal person (Gladue, para. 84). In most cases, the information contained in a pre-sentence report may be sufficient to meet the requirement of special attention to the circumstances of Aboriginal offenders. But, where that information is insufficient, s. 718.2(e) permits the sentencing judge to request that witnesses be called to testify as to reasonable alternatives to a custodial sentence.

[46] While the role of the sentencing judge is not that of a board of inquiry, there is nevertheless an obligation to make inquiries beyond the information contained in the pre-sentence report in "appropriate circumstances", where such inquiries are "practicable" (Gladue, para. 84).

[40] The Court of Appeal appears to accept that a pre-sentence report with Gladue content is sufficient as long as the judge is fully apprised of the appellant's background as an Aboriginal offender. In R. v. Whiskeyjack, 2008 ONCA 800, 2008 93 OR (3d) 743, defence counsel had argued at the appeal that the sentencing judge failed to give adequate consideration to the offender's circumstances as an Aboriginal offender. Counsel relied on the fact there was fresh evidence in the form of a Gladue report which the trial judge did not have the benefit of. The Gladue report provided further details of the offender's life circumstances. The report essentially confirmed and elaborated on the details contained in the pre-sentence report which was before the trial judge, but also added some new information. The Court of Appeal, when considering this submission, was satisfied the sentencing judge had the benefit of a detailed pre-sentence report that provided her with considerable details regarding the appellant's background and circumstances, as well as very fulsome submissions from defence counsel. The Court of Appeal was satisfied the sentencing judge was fully apprised of the appellant's background as an Aboriginal offender.

[41] I conclude Mr. Doxtator is not entitled as of right to a full Gladue report. A full report is not necessary as long as the pre-sentence report with Gladue content is sufficient to meet the requirement of special attention to the circumstances of Aboriginal offenders, or in other words, satisfies me that I am fully apprised of Mr. Doxtator's background as a result of the report, as a result of counsel submissions and as a result of any other materials filed or evidence called by counsel.

Sufficiency of the Pre-Sentence Report Before Me

[42] Turning now to the pre-sentence report with Gladue content prepared for Mr. Doxtator.

[43] The report prepared is titled "Presentence Report" with a subtitle which reads "this pre-sentence report incorporates factors required by the court during sentencing, with a particular focus on principles enunciated in the Gladue decision". As noted later, the author of the report has been trained specifically to write a report of this nature. She is the designated officer in the Windsor office to prepare such reports.

The report indicates that the accused was born in St. Thomas, Ontario. He is 49 years old. He has no previous criminal record. He grew up here in Windsor. He is the youngest of seven children. His father originates from the Oneida Nation of the Thames River, while his mother is a member of the Six Nations Mohawk community. The report indicates he spent a large portion of his childhood and youth on the Oneida Nation of the Thames reserve. He learned to hunt and to fish, as well as participate in other cultural activities. The offender indicates he was taught traditional native teachings as well as Christian values in the home. He was taught the Oneida language by his father, and his mother brought him to Sunday school. The offender indicated he was able to integrate these beliefs and that he benefited greatly from both teachings.

[44] The offender informed that his maternal grandmother was taken from her family's home as a child and placed in a church-run residential school. He stated the schools were called "mushpits" by survivors. He was told stories about how his grandmother was verbally and physically abused in the school. The offender himself attended elementary and secondary school in Windsor. He completed his grade 12 education. He reports there were no significant issues in the school system.

[45] With respect to his father's side of the family, the offender advised his paternal grandfather was adamant about keeping his children out of the residential school system. The offender's grandfather took his children out of the home and they hid elsewhere. As a result, the offender's father was not placed in a residential school.

[46] The offender advised his parents divorced when he was approximately 14 years old. He shared that his father was unfaithful to his mother. His mother abused alcohol as a way of coping with her emotions and her troubled marriage. He reported she went to treatment at a native treatment center 30 years ago and that assisted her in attaining sobriety.

[47] He reported there was never any violence between his mother and father. He lived with his father after the divorce. He described growing up in a strict home. His father died eight years ago. His mother is now 79 years old and resides approximately a half hour away from Windsor. He advises she is experiencing significant health problem. He also shares a close relationship with his mother's husband, although he is now suffering from dementia.

[48] The offender married when he was 23 years old, to a lady he knew in high school. When they married she had a two-year-old daughter. As a result of the marriage, he has two biological children, a son (born in 1988) and a daughter (born in 1990). Unfortunately his wife began abusing alcohol and drugs after the children were born. According to the offender his wife was occasionally violent when abusing substances. He reported over time his wife's substance abuse issues worsened and approximately 10 years ago he and his wife separated. He realized he could not help her anymore with her addiction issues. He advised their three children remained in the family home with him after the separation. Despite the separation, he and his wife have occasional contact with one another. Apart from his wife's addiction issues they shared a close relationship with each other during their marriage.

[49] The offender's employment history consists of transport truck driving. Approximately 5 years ago he was involved in a truck driving accident. He suffered a shoulder injury and to this day experiences dizziness which has impacted on his ability to drive for long periods of time. He was laid off approximately 7 years ago due to the company's ownership changes. He was able to secure another job as a delivery truck driver but only for one year and then was laid off due to lack of work. He has been unemployed for four years, and is financially supported by social assistance.

[50] The offender advised he and his step daughter are no longer in contact with each other, reportedly due to her personal issues and his court involvement. He expressed concern for her. He went on to express that his biological daughter is disappointed in him and they are currently not speaking to one another. Apparently she inquires about him through his son. He is in regular contact with his son as they share a close relationship. He was residing with his son at the time of this offense. He cited his son as a source of strength for him.

[51] Mr. Doxtator reported his family is divided due to his court involvement. Three of his siblings do not speak to him because of the matter before the court. He expressed hope that his family relationships will improve over time.

[52] Mr. Doxtator currently resides with his sister and her husband. His sister was interviewed for the preparation of the pre-sentence report. The sister advises that she and the offender have always shared a close, loving and supportive relationship with one another. She identified herself as being a traditional native woman, of the Oneida nation. She is the eldest of the seven siblings, and 10 years older than the offender. She shared their father was employed as a truck driver and was often away from the family home. She indicated there was never any violence in the family home and the family was protective of one another. She shared with the author of the report that the family has experienced racism on a regular basis since they were children. She recalled she and her eldest siblings were targets of racist behaviour in the school system. She was uncertain if the offender had the same difficulties in school. She expressed her and the offender are often treated unfairly by other non-native people, including being followed in stores and ignored by salespeople. Both she and the offender were members of Aboriginal committees and on the Board of Directors for the Can-Am Friendship Centre over the years to better improve Aboriginal services for native people. She indicated her brother is positively influenced by the men in their native community. He is also supported by a large group of friends and an uncle on the Oneida Nation of the Thames reserve. Her brother is a skilled craftsman in wood and she hopes he will continue to create woodcraft and remained strong in his traditional beliefs as part of his healing journey. She and her husband are vendors of a native craft and supply company. They attend pow-wows and other various events to sell their goods. The offender accompanies his sister and brother-in-law to assist them with their business, as well as attending community events and celebrations. She noted the offender is a great help to their business.

[53] The sister is contemplating a return to the Oneida reserve to live once the offender's court matters are resolved. She will encourage the offender to join her and her husband. She advises that she was shocked when she first learned of the offense. She is confident he won't do it again. In her opinion, her brother is sincerely remorseful.

[54] Mr. Doxtator is an active member of his native community and he is greatly supported by that community. Indications are that he acquires knowledge, guidance, and support from the elders in the community. He was once on the Board of Directors for the Can-Am Friendship Centre before he resigned due to political differences. He does not attend any programs or events at the Indian Friendship Centre at the current time. He does attend pow-wows and other aboriginal ceremonies and gatherings on a regular basis throughout Southwestern Ontario and Michigan. He participates in smudging ceremonies with the elders of his native community in order to maintain focus and regain his "spiritual center". He indicated he may have ownership rights to a piece of land on the Oneida Nations of the Thames reserve which he eventually wants to pass down to his son.

[55] Mr. Doxtator reported no substance abuse issues. He has never abused alcohol or drugs. He stated he will typically drink alcohol twice per month, and he will not drink to intoxication. He denied any gambling behaviour. His sister expressed no substance abuse concerns regarding her brother now or in the past. She confirmed he does not use illegal drugs. She did indicate that the accused drinks regularly but it does not cause him problems.

[56] With regards to the offences before the court, Mr. Doxtator expressed sadness and shame when discussing it with the author of the report. He appeared to take full responsibility for his behaviour and acknowledged it was wrong. He referred to the offence as foolish and stated it won't happen again. He shared with the author that he became caught up in the Internet child pornography culture out of curiosity. He would play online games regularly, and through those websites he began chatting with people who were involved with child pornography. He estimated he participated in online gaming and internet chatting for eight months prior to his arrest. He stated he has never had concerns about disturbing sexual thoughts or sexually inappropriate behaviour. According to him he does not experience a preoccupation with sex or pornography.

[57] The author of the report recommends the following conditions should I impose any community supervision as part of my sentence:

1. That the offender report as required;

2. Sex Offender counselling under the direction of his probation officer;

3. Not to be employed or volunteer where placed in a position of trust of children;

4. No contact with anyone under the age of 16, unless that child is accompanied by their parent or guardian;

5. Attend and actively participate in any rehabilitative or healing program, and provide proof of participation and completion as directed by your Probation Officer.

Other Information Before the Court

[58] Crown counsel arranged to have the Area Manager of Probation Services, Debra Dumouchelle, appear before me. She indicated the person who wrote the pre-sentence report with Gladue content in the case before me has received extensive training, including additional training with respect to Gladue content. This is beyond the training provided to probation officers who do not write these types of pre-sentence reports. The officer has written 6-8 pre-sentence reports with Gladue content within the last 18 months. She acknowledged that the probation officer is not Aboriginal. Ms. Dumouchelle indicated there is a probation writing guide that specifically directs the probation officer to discuss what the impacts of being an Aboriginal offender has on the areas of the report such as: educational, employment, family history. She indicated each situation would be unique as it would depend on the offender. For example if the aboriginal offender lives on a reserve or in an urban center: Where did he go to school? What was the impact, if any, of going to that school as an Aboriginal?

[59] Ms. Dumouchelle has read the pre-sentence report provided and did not see any gaps in the report. She has never compared a full Gladue report with a pre-sentence report with Gladue content but admitted there must be a difference between them simply because of how they are named. I took from her evidence that she has never read a full Gladue report. Nor have I. Which should not be too surprising since there are no agencies here in Windsor to prepare them, as there are in the other parts of Ontario mentioned earlier.

[60] She also provided a 2010 report (not a pre-sentence report) prepared by the Deputy Regional Director. The report was marked as an exhibit. The report contains some background information regarding Aboriginal people in Ontario, including some statistical data. It also contains information about what is being done by the MCSCS to address and meet the unique circumstances and challenges of Aboriginal offenders. This includes recognizing and encouraging their religious traditions and accords Aboriginal spirituality and practices the same status and protections afforded to other faith groups. This includes such access to: sweat lodge, circles, drumming, pipe ceremonies, feasts, elders, smudging. The Ministry has contracted with Aboriginal program developers to provide several programs that address the unique needs of Aboriginal men and women in conflict with the law. There is a list of the programs offered and an explanation as to what each of the programs address. There is also a list of Provincial prisons that have programs for Aboriginal offenders and a list of what programs are offered at each.

[61] Ms. Dumouchelle indicated the Aboriginal status of the offender will play a role in how he is classified. And she is aware that my Reasons for sentence and the pre-sentence report with Gladue content will be provided to the classification officer.

[62] Defence counsel indicated that prior to this court passing sentence she expects to provide some information from the elders of Mr. Doxtator's native community, as well as from his mother. I have not been told what the nature of that information will be but I would expect it would help me further in reaching the fit and proper sentence in this matter.

Conclusion

[63] I am satisfied that I have sufficient information to render a proper and fit sentence.

[64] However I must say I am troubled that other areas of the province have access to the services of ALST or like agencies, but Windsor does not. On the surface it smacks of unequal treatment. Although I have sufficient information, it seems clear to me had I had a full Gladue report I would have more. Is sufficiency the bar to pass, or is it the best and most complete information? Based on the authorities I have discussed above, it appears to be the former. Does it matter that I could have had more? Does it matter that other courts, other aboriginal offenders in the province are able to get more? Should it matter? Perhaps these questions can be addressed when arriving at an appropriate sentence in this case, similar to that done in R. v. Knockwood, 2012 ONSC 2238.

[65] It should be noted the minimum sentence for the s. 163.1(3) offence is twelve months. The Crown, I understand, may be asking for a range of sentence a bit above the minimum.[1]

Dated this 11th day of February, 2013.

Justice Lloyd Dean Ontario Court of Justice Windsor, Ontario

[1] The Crown has clarified their position as 12 – 15 months, asking that the court consider something closer to 15 months.