Court File No.:
January 29, 2015
at London, Ontario
Citation: R. v. Boyd, 2015 ONCJ 120
ONTARIO COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
-and-
WILLIAM BOYD
REASONS FOR SENTENCE
R. Farrington for William Boyd
J. Carnegie for Crown
GEORGE J. (orally):
[1] I believe that restraint should be used in sentencing, despite the fact we are retreating into a very punitive time. This is the trend; one that will continue, unless there is a change in leadership, and in the way we, as judges, collectively think.
[2] The various amendments to the sentencing provisions, made over the course of the past several years, and the direction from appeal courts, have impacted the way we view crime and punishment. There is a relentless movement back towards a reliance on incarceration as the primary sentencing tool. A pendulum that was, in the not too distant past, swinging in the opposite direction. That progression was occurring until the few years that followed the introduction of conditional sentences in the 1990’s. Times have changed.
[3] The biggest impact is in the way we apply, and attach importance to the various sentencing principles, in particular proportionality. Denunciation and deterrence are seemingly becoming the key feature of more and more matters. From where I stand it is often coming across as a stock Crown submission. This could not have been envisioned by those responsible for the amendments that occurred in the 1990’s.
[4] What is the relevance of this to Mr. Boyd? It highlights, for me, the need in each and every case, where there isn’t a mandatory minimum jail sentence, to seriously consider all reasonable alternatives, as a way to temper something that can ultimately get out of control. This can surely be done, in many cases, without compromising public safety, or frustrating Parliament’s intent. In Mr. Boyd’s instance, both counsel acknowledge a jail sentence is required. The alternative proposed being an allowance for that jail sentence to be served in the community.
[5] First - a review of the facts and of Mr. Boyd’s criminal history.
[6] Mr. Boyd pleaded guilty to driving while disqualified contrary to section 259(4), and to possessing instruments suitable for breaking into a place contrary to section 351(1) of the Criminal Code of Canada.
[7] On February 8, 2014 London Police officers were on patrol, at some point entering into the parking lot of a private shopping plaza. There they observed a male seated in a car located across the lot, in a gas station. According to one officer, the male (who we know was Mr. Boyd) stared at them for about fifteen seconds, immediately thereafter driving away, in the opposite direction. The officer drives off as well, the two vehicles meeting each other at a junction in the parking lot. At this point the officer waves and directs Mr. Boyd to stop and park the car.
[8] Mr. Boyd then proceeds “rapidly” eastbound in the lot. Sight was lost of his vehicle. In the lot of an adjacent building, the vehicle observed earlier was found unattended, with Mr. Boyd being located nearby behind a Tim Hortons. After determining he was indeed the driver, he was detained for further investigation. Upon detention, it was learned Mr. Boyd was a prohibited driver. I note also that this driving occurred during the actual prohibition period and not during the remedial portion that follows the expiry of the order.
[9] On March 2, 2014, a homeowner was in the kitchen area of his residence preparing dinner, when he heard a creaking sound from his balcony. He looked out and observed Mr. Boyd attempting to pry the patio door handle with a metal spade shovel. He yells out, which prompts Mr. Boyd to drop the shovel and run away. The police were called, and upon arrival are advised of his general direction. Mr. Boyd is quickly located by the police and arrested. He was found to be carrying an oversized duffel bag which contained instruments suitable for breaking and entering.
[10] The relevant entries in Mr. Boyd’s extensive criminal record are as follows:
1988 – impaired driving - $450 fine – 12 month driving prohibition
1992 – impaired driving – 14 days jail – 2 year driving prohibition
1994 – drive disqualified – 30 days jail – 2 year driving prohibition
1994 – drive over .80 – 30 days jail consecutive – 2 year driving prohibition
1999 – impaired driving – 90 days jail – 3 year driving prohibition
2000 – impaired driving – 5 months jail – 3 year driving prohibition
2000 – drive disqualified – 1 month jail
2000 – refusal to provide sample – 1 month jail (+ 1 month pre-plea custody)
2006 – possession stolen property – 15 months jail (+ 77 days pre-plea custody)
2006 – theft – 15 months jail
2006 – dangerous driving – 15 months jail – 2 year driving prohibition
2006 – leave scene of accident – 15 months jail
2006 – drive disqualified – 15 months jail
2006 – possession stolen property – 15 months jail
2006 – break and enter – 15 months jail
2010 – possess break in instruments – 90 days jail
2010 – theft – 90 days jail
2010 – break and enter – 90 days jail
2012 – theft - $500
2012 – drive disqualified – 90 days jail – 3 year driving prohibition
[11] This record is significant, and almost entirely related, to both the driving and property related offences before me.
[12] Respecting the possess break-in instruments, some context is provided by Mr. Boyd’s daughter, who wrote a lengthy and detailed letter for the court. The essence of the letter was to suggest Mr. Boyd’s culpability was diminished because of the impact of medications he had taken. He is described, that day, as being incoherent and emotionally distraught. She also described Mr. Boyd’s role as a babysitter/caregiver for his grandchildren, and how the family relies upon this.
[13] Jail is a necessary response. Both counsel agree. The question is, should he be permitted to serve it on a conditional basis? More specifically, as Mr. Boyd claims to be an Aboriginal person, what import does Gladue have? [R. v. Gladue 1992 CNLR 252].
[14] I did not have the benefit of a pre-sentence report that explored gladue factors. I did not have the benefit of a gladue report. I know only that he self identifies as an Aboriginal person, because apparently, one of his parents has Aboriginal ancestry. I am told that connection is with the ‘Oneida Band of the Blackfoot Tribe’. I have never heard of this. What I do know is the Oneida people are members of the Iroquois Confederacy. They are Haudenosaunee. I know also that the Blackfoot Nation is located traditionally in the upper plains of the United States and in parts of Canada’s Prairie Provinces. There was no elaboration. I was told nothing more than that.
[15] I am therefore of the view, notwithstanding the self-identification, that the gladue analysis should play no important role in formulating a fit sentence for Mr. Boyd. Identifying as an Aboriginal person does not amount to a sentencing discount.
[16] The decision to not engage the analysis, in the face of an identification, is tricky, because displacement is a key feature of Gladue, and who am I to serve any kind of gate-keeping function in determining who is Aboriginal and who is not. Displacement, and lack of connection to one’s Aboriginal community, is one of the sad and lasting legacies of the residential school system, as is the current prevalence of First Nations children being placed in the care of child welfare agencies. That is, loss of identity can play an important role in contributing to criminal behavior, and is encompassed within a gladue analysis.
[17] The problem here is, no part of the ‘picture’ has been painted for me, other than to be told he may have some First Nation blood; which is not even all that apparent, given the confusing description of his tribal affiliation.
[18] This dilemma, if it is indeed that, has been highlighted in several cases, most notably in R. v. JN, an Ontario Court of Appeal decision from 2013 – [2013 ONCA 251]. In dismissing an accused’ appeal against sentence, the court accepted that although the accused was an Aboriginal person – a finding the trial judge specifically made - his claim to the benefit of Gladue was weak. The court writes the following, at paragraph 6:
The gladue report is both general and speculative on the degree to which the appellants
Aboriginal background may have contributed to his criminality.
[19] This logic applies in Mr. Boyd’s instance; perhaps more so. Consequently, he will receive no benefit that may have been derived from the application of Gladue. Although a causal link to the commission of a specific crime isn’t required, it must be established that the Gladue factors (and I won’t recite them) touch upon the offender’s life and personal circumstances in some way. This was addressed by the Court of Appeal in the Bauer decision as well [R. v. Bauer 2013 ONCA 691]. And the record here is completely deficient in this respect.
[20] A conditional sentence is still available, however, as there is no statutory bar. Section 742.1 provides that:
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment
of less than two years, the court may, for the purpose of supervising the offender’s behavior in
the community, order that the offender serve the sentence in the community, subject to the
conditions imposed under section 742.3, if
(a) The court is satisfied that the service of the sentence in the community would not
endanger the safety of the community and would be consistent with the
fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
(b) The offence is not an offence punishable by a minimum term of imprisonment;
(c) The offence is not an offence, prosecuted by way of indictment, for which the
maximum term of imprisonment is 14 years or life;
(d) The offence is not a terrorism offence, or a criminal organization offence,
Prosecuted by way of indictment, for which the maximum term of imprisonment is
10 years or more;
(e) The offence is not an offence, prosecuted by way of indictment, for which the
maximum term of imprisonment is 10 years, that (……..then there are several
offences listed for which a conditional sentence is not available, which I won’t
enumerate).
[21] This is a permissive section, as the court “may” permit its service on a conditional basis, even when the statutory requirements are met. The question is always this – would such a sentence be consistent with the fundamental purpose and principles of sentencing.
[22] Notwithstanding my comments about the trend towards and reliance on incarcerating people – and how that trend is an unfortunate one – it would be irresponsible to allow it here. It would be inconsistent with several sentencing principles and would amount to an unfit sentence; one I would be hard-pressed to justify. I would say also that a well-informed, objective member of the public would have a difficult time understanding and accepting such a disposition, for obvious reasons, not the least of which is the prior record. Mr. Boyd has, on twelve prior occasions, been convicted of criminal driving offences; a remarkable number. Eight times he has been convicted of property related offences, including possessing break in instruments, and break and enter. To impose anything but a jail sentence, where he is actually separated from society, would be wrong and would represent a reversible error on my part.
[23] I don’t commit people to custody lightly, in particular those convicted of what I’ll call non-violent offences, but for the reasons indicated there is no reasonable alternative.
[24] For the driving offence I impose a sixty day jail sentence. For the property offence, I impose a consecutive sixty day jail sentence. This is a global four month sentence.
[25] I decline to make a probation order. At this stage there would be little value in a counselling term and, given there is no relationship between Mr. Boyd and the victim (they are strangers), there is no discernable need to address victim safeguards.
[26] The victim fine surcharge is waived.
January 29, 2015 “Justice Jonathon C. George”
Date Justice Jonathon C. George