R. v. Daniel Joseph Cook

Date: December 18, 2014

Upon Resuming

THE COURT: Returning to the Cook matter then. You can have a seat for now, if you wish, Mr. Cook, because I am going to be a few minutes.

Reasons for Sentence

KONYER J. (Orally):

Robert [sic] Daniel Cook has entered guilty pleas today to offences that occurred on the 8th of December, 2014. Specifically, he has pled guilty to a charge of driving while disqualified that resulted from a now somewhat dated Criminal Code prohibition order. As well, he pled guilty to a charge of breaching his recognizance, specifically a curfew condition that required him to be in his residence by 10:30 p.m.

Mr. Cook, as I understand the facts, was stopped by members of the Ontario Provincial Police in the area near Haliburton, Ontario, some one and a half hour drive from his residence at the time he was stopped at approximately 10:30 p.m. He was stopped in a R.I.D.E. program. He identified himself properly to the officer who stopped him, but he did not have any identification on him.

These are, of course, non-violent offences, and indeed, to the extent that any crime could be said to be victimless, the offences that Mr. Cook has pled guilty to today are as close to victimless crimes as one could imagine.

Background and Circumstances

Mr. Cook is of aboriginal background. He has, with the assistance of Duty Counsel here today and through his own words, described to me the personal history that is relevant to my determination on sentence today, and one that includes a life marked by abuse and violence early in his life, which contributed to a descent, in adulthood, into addiction, a pattern which is, tragically, all too common amongst aboriginal persons in this country.

Mr. Cook, now 50 years of age and the father of three adult children, has taken some very positive steps in recent years. I am informed that he is currently in the Drug Treatment Court in Toronto, and he has been for a number of years. The Drug Treatment Court, of course, is a court that deals with individuals suffering from drug addiction and a court that attempts to deal with those individuals and their issues in a holistic manner.

I have been provided with a letter dated December 16, 2014 from David Lucas, Mr. Cook's Addiction Therapist at the Centre for Addiction and Mental Health, and that letter reads, in part:

"Throughout his time in our program, Mr. Cook has proved himself to be an honest and dedicated participant. Despite his ongoing struggles with substance abuse and mental health, Mr. Cook's attendance and overall compliance with program obligations have been exemplary. He is an active group participant, continues to show deep insight into the root causes of his addiction, is supportive and compassionate with his peers, and has demonstrated a willingness to be patient with the recovery process."

The letter indicates that Mr. Cook has been a participant in the Drug Treatment Program for at least the last two years.

Legal Framework: Section 718.2(e) and Gladue Principles

Section 718.2(e) of the Criminal Code provides that

"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."

The Supreme Court of Canada, in the Gladue decision (R. v. Gladue, [1999], 133 C.C.C. (3d) 385) at para. 36, had this to say about that section of the Code:

"...The broad role of the provision is clear. As a general principle, s. 718.2(e) applies to all offenders, and states that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender."

The Supreme Court, in that same case, R. v. Gladue (supra), declared that the overrepresentation of aboriginal offenders in Canadian jails was a crisis in the Canadian criminal justice system, and called upon sentencing judges to address this crisis to the extent possible during the sentencing process.

The Supreme Court said, at para. 64 of that decision, the following:

"The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree. The provision may properly be seen as Parliament's direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process."

In a subsequent decision, R. v. Ipeelee, 2012 SCC 13, the Supreme Court said the following at para. 73:

"Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability."

Further on in that same paragraph, the Court again admonished trial judges of the need to take into account the unique circumstances of aboriginal offenders by saying:

"Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

Court's Analysis and Sentencing Decision

Mr. Cook, the Crown is asking me to impose a further period of jail as a sentence for the crimes that you have pled guilty to. If I looked simply at your criminal record, I could reach no other conclusion than that the sentence the Crown is asking for is perfectly justified, based on your record.

DANIEL COOK: I understand.

THE COURT: But I have to consider more than your record - much more than your record, in your case. Parliament and the Supreme Court tells me, as a sentencing judge, that I have to take into account your unique circumstances as an Aboriginal Canadian, and I am going to attempt to do that, to the extent that I can as a sentencing judge. I also take into account and credit you for an early plea of guilt to this charge, and I am taking into account the pre-sentence custody of – it's 11 days, Mr. Peters?

MR. PETERS: Yes. The gentleman was brought into custody I believe it was December 8th or 9th, so I had it at 11 days. No dispute about that.

THE COURT: I am taking into account the 11 days of pre-sentence custody that you served to date, and I am crediting you for that pre-sentence custody at a rate of 1.5 days to one. So there is 17 days of pre-sentence custody that you are entitled to credit for.

I have to impose the sentence that is the least restrictive of your freedom that I feel is reasonable in the circumstances. I have to impose an alternative to custody, if I feel that one is reasonable in your circumstances, taking into account your background, taking into account the quite remarkable progress, frankly, that you have made in the Drug Treatment Court, and taking into account the nature of the charges that you have pled guilty to, which, as I have said already, are at the lower end of the scale. When I do all of that, Mr. Cook, I am compelled to the conclusion that there is a reasonable alternative to imposing the jail sentence that the Crown seeks here.

Sentence Imposed

So my sentence today, Mr. Cook, taking into account the time served, the sentence of the court is a fine of $25 on each of the two charges that you have pled guilty to. I am as well, sir, giving you six months to pay that fine, the total of $50. Is that sufficient?

DANIEL COOK: That's wonderful. Thank you, sir.

COURTROOM CLERK: And the surcharge, Your Honour? Is there a surcharge?

THE COURT: There is a surcharge which I am obliged to impose. For that amount of fine, the surcharge is $15.

COURTROOM CLERK: Fifteen on each or on the 50?

THE COURT: No. Fifteen on the 50.

COURTROOM CLERK: Okay.

THE COURT: So, $7.50 surcharge on each.

COURTROOM CLERK: Thank you.

THE COURT: So the total fine will be $65. There are no days in default of payment. I will give you six months to pay the surcharge as well. Okay, Mr. Cook?

DANIEL COOK: Yes, sir. Yes.

THE COURT: You will be released once the paperwork is done up. Continue with the good work you have been doing in Drug Treatment Court.

DANIEL COOK: Okay. Thank you, Your Honour.

COURTROOM CLERK: And Your Honour, the DNA?

THE COURT: I will make an order that you provide a sample of your DNA.

COURTROOM CLERK: Count number 2, Your Honour?

MR. PETERS: If that could be withdrawn, Your Honour. And with regard to prohibition - I don't have the Code open - I think you are required as a matter of law to impose a prohibition order in this matter.

THE COURT: Yes. Thank you for reminding me, Mr. Peters.

MR. PETERS: Thank you.

THE COURT: There is a mandatory driving prohibition, Mr. Cook; it is 12 months.

DANIEL COOK: All right. So I'm not going to be doing any jail time?

THE COURT: No.

DANIEL COOK: No?

THE COURT: Not for this.

DANIEL COOK: Okay. No, that's good, because, okay, I would have worked it out if I had to do it, but okay, this even makes it better for me, right? I can focus on what I'm doing, right?

THE COURT: That is the most important thing here, in my view, Mr. Cook.

DANIEL COOK: Okay. Okay, thank you, yeah, 'cause I can go back to doing what I did. Okay.

THE COURT: Good. Take care.

DANIEL COOK: Thank you, sir.