Court Information

Court: Ontario Court of Justice Date: March 16, 2017 Region: Toronto Region

Between: Her Majesty the Queen

— And —

Kenneth Delbert Quewezance

Before: Justice F. Bhabha

Heard: February 24, 2017

Reasons for Sentence Released: March 16, 2017

Counsel

For the Crown: Nancy Krigas

For the Defendant: Dragi Zekavica

Judgment

Bhabha, J.:

The Guilty Pleas

[1] On February 24, 2017, the defendant pleaded guilty to four counts of breaching the same section 810.2 recognizance. The Crown proceeded by Indictment.

[2] The breaches are as follows:

1. Failing to report to the Toronto Police Service;
2. Failing to report a change of address;
3. Failing to carry a copy of the section 810.2 recognizance; and
4. Failing to abstain from the consumption of alcohol.

Nature of Section 810.2 Recognizances

[3] Section 810.2 recognizances are extraordinary. The purpose of such orders is to protect the public by preventing future anticipated criminal activity. For that reason they are not meant to be punitive. They are most often sought in circumstances where an offender has:

a) A notable criminal history, and a history of violence, in particular;

b) Previously failed to successfully reintegrate into the community after a period of custody, or based on correctional assessments is anticipated to have difficulty successfully re-integrating;

c) Based on psychological/psychiatric assessments, been found to be at a significant risk of recidivism; and

d) Served a sentence to warrant expiry.

Overview of the Defendant's Background and Events Leading to the Recognizance

[4] The defendant is forty-eight (48) years old. He completed serving a fifteen (15) year sentence on March 24, 2016 for a number of offences (the "serious personal injury offences"), including:

1. Manslaughter;
2. Forcible confinement; and
3. Breaking and entering into a residence.

The "Serious Personal Injury Offences"

[5] The defendant's most serious and most recent offences were committed in Thunder Bay, Ontario on September 20, 1999. In the late summer of 1999 the defendant met the deceased, a sixty-one (61) year old woman, on the psychiatric ward of a hospital where they were both patients. After the deceased was released from the hospital the defendant visited her at her home which was across the street from the hospital. Also present during the visit was the deceased's husband, a retired Anglican Reverend.

[6] On September 13, 1999, the defendant tried to visit the deceased again but she did not answer the door. This upset the defendant. He later contacted the deceased by phone and she apologized for not answering the door.

[7] On September 17, 1999, the defendant was released from the hospital.

[8] A few days following his release from hospital the defendant and two other individuals went drinking at a local tavern. They left the tavern to go to his residence where they continued to drink and take pills.

[9] On September 20, 1999 the Reverend was awakened by the sound of someone entering his bedroom. He recognized the defendant as the intruder. After questioning the defendant, a brief altercation ensued. The defendant threatened to "slash" the Reverend with a knife. The defendant then revealed that he had killed the Reverend's wife and that he could kill him as well. He added that: "You people have been fucking me around".

[10] The defendant instructed the Reverend to get dressed. He complied. As he was getting dressed the defendant told the Reverend that he had been mean to the deceased and that all she wanted was to leave him. He demanded money from the victim and took a watch from a desk. As they walked downstairs past the bedroom, the victim could see the deceased lying face up with her head to one side. The defendant tried unsuccessfully to tie the victim up and then demanded the deceased's purse. He took money from the purse and demanded the keys to the car. The victim was directed to get his wallet and as the two men walked past the deceased's room, the defendant ordered the victim to touch the deceased saying: "See, she's dead". The defendant told the Reverend to take the deceased's pulse.

[11] The victim was escorted out of the house and pushed into his vehicle. The defendant brandished a knife and told the victim to drive to an ATM machine. When the victim revealed that he did not know how to use an ATM, the defendant asked him where he could go to get money. The victim suggested a restaurant where he knew the manager. The manager was not there and the victim then suggested they go to a friend's home. The friend was a police officer. The officer's wife answered the door and immediately saw that the victim looked distressed. She invited him in but told the defendant to wait outside. The friend's wife locked the door and the victim explained what had happened. The defendant fled the scene in the victim's vehicle.

[12] At 6:48 AM later that same day, the police located the defendant in the stolen vehicle. He identified himself to police. It appears that he had been counting money on the seat beside him. He was wearing the victim's watch and was in possession of the deceased's identification. He appeared intoxicated and stated: "It wasn't me, I don't know what is happening. I didn't murder her. Question her husband; he's always talking about getting rid of her".

[13] The defendant was arrested and remained in custody until his conviction and sentencing on March 28, 2001 when he was transferred into custody of the Correction Service of Canada (the "CSC").

[14] In an October 2000 interview with a psychiatrist at the penitentiary, the defendant gave different and conflicting accounts of what prompted him to suffocate and then strangle the deceased. First, he cast aspersions on the deceased's husband suggesting that the deceased's husband wanted her dead and had proposed a scheme to him in which the defendant was to murder her for a sum of $25,000.00. That plan was never carried out. Second, he stated that he loved the deceased like a mother and that she loved him. She told him that she wanted him to kill her. She allegedly said: "Ken, I need you to kill me". Finally, he stated that once he was released from the hospital he smoked marijuana and ingested prescription medication. It was in this "state" that he heard the deceased's voice, telling him "now is the time, please help me". He also described how the deceased smiled at him as he strangled her. "There was gleam in her eye like she knew where she was going."

Psychological Assessments and Parole Board Decisions

[15] According to the CSC psychological/psychiatric assessment report completed March 30, 2009, the defendant posed a high risk for violent recidivism. The report also indicated that he also met the criteria for diagnosis as a psychopath as defined by Dr. Robert Hare.

[16] During his incarceration the defendant completed several institutional programs and was subjected to numerous psychological and psychiatric assessments. A psychological assessment report dated February 5, 2012 placed the defendant at a moderate to high-moderate risk for both violent and general recidivism.

[17] The assessment also concluded that the defendant's risk of recidivism may increase if the subject consumes intoxicants or experiences instability in his emotional state. It was also noted that the defendant needed long term substance abuse and violence prevention maintenance programs and that he requires a highly structured environment. The assessment also concluded that the defendant needed to be closely monitored when it comes to associations, as well as mental health.

[18] On March 25, 2011, the Parole Board of Canada ("the Parole Board") initially ordered the defendant detained because he was deemed likely, if released, to commit an offence causing death or serious harm to another person before the expiration of his sentence. The detention order was subsequently confirmed by the Parole Board on each annual review from 2012 until 2015. As a result, the defendant served his full sentence until it expired on March 24, 2016.

The Application under Section 810.2

[19] Based on the defendant's background, the CSC risk assessments, and the decisions of the Parole Board, members of the Toronto Police High Risk Release Section feared that the defendant would commit a serious personal injury offence after his release from prison. As a result, the police applied to the Attorney General for consent to proceed with an application for an order under section 810.2 of the Criminal Code of Canada (the "Code") for a Judicial Restraint Order prior to the defendant's release from prison.

[20] The Attorney General granted consent for the application and the Information was sworn before Justice Horkins at the College Park courthouse.

The "Interim" Recognizance before Horkins, J. – March 22, 2016

[21] The defendant appeared by way of a Judge's order on Tuesday, March 22, 2016 at College Park before Horkins, J. in answer to the application. He indicated that he wanted to seek legal advice from his lawyer, Ms. Shaunna Kelly, prior to making a decision. His counsel was not available on that date and as a result, the defendant was placed on a recognizance of bail (the "interim" recognizance) with several conditions pending a hearing on the merits.

[22] Two of the conditions of the recognizance required that he: 1) report weekly, specifically each Tuesday, in person, or as directed to the Toronto Police Service at a specified address and time to a particular officer or his designate, and 2) report any change of address or telephone number within twenty-four (24) hours of any such change.

[23] Following that appearance, the defendant was transported back to the penitentiary to complete serving the remaining few days of his sentence to warrant expiry. After he was released on March 24, 2016, the defendant started reporting weekly to detective constable Scott Peters of the Toronto Police Service. He reported for a total of eight (8) weeks. Over the course of the eight (8) weeks, the defendant reported that he was residing at the Native Men's Residence ("NaMeRes") located at 14 Vaughan Road, Toronto. He admitted to occasionally sleeping on the street some nights but repeated regularly that he continued to reside the majority of the time at the Vaughan Road residence.

The Failure to Attend Court - May 24, 2016

[24] On May 24, 2016, eight (8) weeks following his release from the penitentiary, the defendant failed to attend a court date at College Park courthouse in relation to the section 810.2 application that was still pending.

[25] On June 3, 2016, Toronto Police Service officers attended at 14 Vaughan Road in an attempt to locate the defendant. They learned that the defendant had not been a resident there since April 20, 2016. This means he complied with the condition to advise of his address for a period of just four weeks before he stopped complying.

Failure to Report and Failure to Report Change of Address – April 20 to June 7, 2016

[26] In failing to report to the Toronto Police Service and in failing to report his change of address, the defendant was in breach of two (2) conditions of the "interim" recognizance of bail he entered into before Horkins, J. pending the section 810.2 hearing.

Guilty Pleas on June 23, 2016 - Two Counts: Fail to Attend & Breach Recognizance

[27] On June 23, 2016, the defendant appeared before me and entered pleas of guilt to one count of failing to attend court and one count of breaching the "interim" recognizance he entered into before Horkins, J.

[28] The Crown sought a ninety (90) day sentence, less pre-sentence custody, while the defence sought a sentence of time served: seventeen (17) days.

[29] The defendant's counsel advised the court that the defendant had met with staff at Aboriginal Legal Services and workers at Anishnawbe Health; that he would be entering a twenty (20) week counselling programme, and that he would be assisted with housing. Citing the difficulty with reintegration following a lengthy period of incarceration, counsel described the plan for Mr. Quewezance's release as a "highly structured" one within the aboriginal community where he could benefit from traditional and non-traditional approaches to counselling and treatment. On that basis, counsel for the defendant submitted that further separation from the community was not necessary.

[30] Hoping to impress on Mr. Quewezance the importance of compliance with court orders, and the seriousness of any breaches, I sentenced him to sixty (60) days jail less pre-sentence custody, for a further forty-three (43) days. He was released after serving approximately thirty (30) days of that sentence.

June 23, 2016 – Defendant Consents to section 810.2 Order

[31] On the same day that he was sentenced, the defendant consented to the section 810.2 recognizance. The conditions were almost identical to the "interim" recognizance imposed by Justice Horkins. The defendant was required to: report to Detective Constable Peters, or his designate, weekly; report any change of address within twenty-four hours of any change and: abstain from the purchase, possession or consumption of alcohol or any non-prescription drugs. He was also required to carry a copy of his recognizance on his person at all times.

[32] While he was serving the remaining forty-three (43) day sentence, the defendant was, for reasons unknown, transferred to the Ottawa jail.

Release from Ottawa and the Ensuing section 810.2 Breaches

[33] On July 21, 2016, the defendant was released from the Ottawa jail. He was required under condition #1 of the June 23, 2016 recognizance to report to the Toronto Police on Tuesday, July 26, 2016. He failed to report in person on that day. He also failed to leave a phone message advising the Toronto Police of any reason why he was unable to report in person. Finally, he also failed to advise that he had been released from jail.

[34] The defendant failed to report in person or otherwise the following three weeks: Tuesday, August 2, Tuesday August 9, and Tuesday, August 16.

[35] On August 22, the Toronto Police learned that the defendant had been released from the Ottawa jail on July 21. They contacted the Ottawa Police and learned that the defendant had not reported in that jurisdiction either.

[36] As a result of this information, it came to light that between July 21 and August 22 the defendant failed to comply with the reporting condition of the section 810.2 recognizance.

[37] Given the concern for public safety and the fact that the defendant had no phone number and was of no fixed address prior to his most recent arrest, a warrant in the first was sought and obtained.

Arrest in Ottawa on Charges of Theft Under (LCBO) and Breach Recognizance x2

[38] On January 7, 2017, the defendant was arrested for stealing alcohol from the LCBO. He tried to trick the cashier by leaving a bottle on the counter, indicating that he had "slipped", but was going to attend a meeting. Meanwhile, he had another bottle in his jacket for which he made no attempt to pay.

[39] When he was investigated, the defendant denied being subject to any Peace Bond. At the time of his arrest, the odour of alcohol was detected on his breath. Multiple searches of his belongings failed to locate any documentation: namely a copy of the section 810.2 recognizance. He was informed that he was in breach of the bond by failing to carry a copy of the recognizance on his person and for failing to abstain from the possession, consumption of alcohol etc. He was held in custody for a show cause hearing scheduled for January 19, 2017.

[40] Even after he was advised by the Ottawa police that he continued to be bound by the section 810.2 order, the defendant did not advise the Toronto Police that he had left the Toronto Region or that he was residing in Ottawa. He was therefore in breach of both condition #2 – report any change of address within twenty-four (24) hours of any such change.

[41] On January 17, 2017, the warrant in the first was executed and the defendant was turned over to the custody of the Toronto Police.

Circumstances of the Offender

[42] As noted above, the defendant is forty-eight (48) years of age. He was born in Saskatchewan. He is an aboriginal offender of Ojibwa descent. He had a very troubled childhood that involved separation from his mother and siblings from a very young age. He spent most of his childhood in the foster care system moving from home to home due to abuse issues. He describes his childhood as "painful" and emotionally harmful. He left the foster care system at age sixteen and has been on his own ever since.

[43] Mr. Quewezance was briefly married in the United States, but that relationship ended when he went to prison while living there. Institutional records are conflicting as to whether the defendant has any children. In some records, it is indicated that he has not fathered any children and in others it is noted that he has two children: a son and a daughter who would both now be in their early twenties. He reportedly has had no contact with them because their mother did not wish it. He has only sporadic contact with his mother and one of his sisters. Effectively, Mr. Quewezance has no steady or ongoing close family or other community support. He reports having contact with his cousins who are like siblings to him.

[44] Mr. Quewezance has little formal education, although to his credit he did complete his GED while in the penitentiary system. One of his elders believed he had the potential to go further and encouraged him to pursue a university education.

[45] In terms of his employment, he has held a variety of jobs over the years including as a janitor, caretaker and mail room clerk. He was unemployed in the six months preceding the commission of the offences that led to his incarceration in the federal penitentiary system. It appears that the defendant had another source of income apart from employment: a disability pension. Institutional records indicate that he was receiving a disability pension on the basis of a diagnosis for schizophrenia at the time he committed the manslaughter and related offences. In court, Mr. Quewezance advised that the pension was suspended in the early 1990's although he believes that he is now eligible again to receive the pension.

[46] Mr. Quewezance has a long history of previous psychiatric involvement. He reports a number of attempts at suicide in his past, but none recently. There have been mixed opinions among mental health professionals regarding his diagnosis. He has been diagnosed with schizophrenia. Alternative opinions are that he suffers from no major mental illness but a severe personality disorder (psychopathy).

[47] The defendant has a lengthy criminal record, which is set out at tab 2 of the Crown's Sentencing Materials (Exhibit #1).

[48] His criminal record begins in 1984, when he was just sixteen (16) years old. Between 1984 and the index offences in 2001 – there are seventeen (17) convictions for property offences, an assault, as well as three convictions for failing to attend court and three convictions for failing to comply with court orders.

[49] The record reveals two gaps of four years each between 1988 and 1992 for example, and again between 1995 and 1999. Institutional records make reference to the defendant having served a federal prison sentence in the United States which may explain one of these "gaps" in his Canadian Criminal Record.

[50] In 2006, the defendant was sentenced to a further six (6) months concurrent, but consecutive to the sentence he was serving for the offences of: assault; theft over $5000; driving "over 80"; fail to comply probation, fail to attend court, and fail to comply undertaking. These offences occurred in various jurisdictions predating the index offences.

[51] The most recent institutional reports prepared prior to Mr. Quewezance's release expressed concerns over a number of issues:

• His bad emotional management and impulsivity. For example, that his aggression was bubbling just below the surface. He was described as tempestuous and highly volatile;

• His inability to put any strategy into practice which remains wholly ineffective;

• His poly-substance abuse;

• His poor problem-solving skills and the inability to manage thinking that justifies and supports the use of violence and aggression;

• The presence of criminal values and a propensity for violence;

• The lack of any meaningful participation in programming within the institution; and

• His refusal to participate in psychological counselling.

[52] To be fair, Mr. Quewezance did successfully participate in some programming. He successfully completed a program on substance abuse. He also completed the "Finding Your Inner Warrior" programme and participated in sweats and smudging. His elders reported progress and he expressed an interest in becoming an Elder.

Position of the Parties

[53] The Crown seeks a sentence of three (3) years less time served on a 1:1 basis. Mr. Quewezance has been in custody since January 7, 2017. As of today's date: March 16, 2017, that is a period of slightly in excess of nine (9) and a half weeks, or sixty-nine (69) days.

[54] The parties agree that the defendant is not a candidate for earned remission and that any credit for time served should be calculated on a 1:1 basis.

[55] The Crown takes the position that Mr. Quewezance poses a very real risk of re-offending and for resorting to violence in so doing. She relies on the psychological and psychiatric assessments to support her submission that the multiple breaches of the section 810.2 recognizance are very serious and require a substantial sentence. This is necessary, she submits, not only to deter the defendant but to protect society from a moderate to high risk offender such as Mr. Quewezance.

[56] Ms. Krigas notes that the defendant failed to report for a period of five and one half months (5.5) and that in that time he returned to criminality by stealing alcohol. Alcohol, she submits played a prominent role in the commission of the index offences, which makes the breaches more concerning. It has a destabilizing effect on the defendant that puts the community at an increased risk. The Crown relies on a number of authorities in support of her position, notably: R. v. Labbe; R. v. McLeod and R. v. Ballantyne, 2009 SKCA 27.

[57] Counsel for the defendant notes the absence of violence since the defendant's release a year ago and submits that it shows that Mr. Quewezance is in fact able to exercise some restraint over himself. Mr. Zekavica also submits that the court should not overemphasize the need for deterrence and remind the court to give effect to the principle of proportionality.

[58] Mr. Zekavica relies on R. v. Elvis Christopher Brass, 2013 MBPC 40, a 2013 decision of the Provincial Court of Manitoba in support of his recommendation for a global sentence of twelve (12) months. He submits such a sentence can adequately address the principles of sentence for an offender such as Mr. Quewezance, without minimizing the seriousness of the breaches.

[59] The defendant chose to address the court. He expressed remorse for his conduct. He acknowledged feeling resentful that he had to be monitored after having served such a substantial sentence in full. He stated that he is ashamed of his conduct and that he now recognizes the community's need to feel safe.

[60] He advised that in the few weeks he was at the Toronto South Detention Centre (the "TDSC") he connected with a counsellor. As a result of the counselling he realized that he no longer wants to engage in self-destructive behaviour. He urged the court to sentence him to two years less a day so that he would not be sent to the penitentiary system. His reasoning was that by remaining in the provincial system he could continue to access the counselling at the TSDC he has found to be so beneficial over the past few weeks.

[61] Mr. Quewezance noted that many of his difficulties stem from a lack of belief in himself and a lack of trust in others. This is not surprising given his life circumstances.

Mitigating Circumstances

[62] The defendant has pleaded guilty and he appears to be genuinely remorseful for his conduct. I note that professionals who have had dealings with Mr. Quewezance in the prison system have expressed the opinion that he can be manipulative. I cannot entirely discount the possibility, but my impression of him is that he genuinely regrets his conduct. It bears noting that the Crown's case was an overwhelming one that would have been easy to prove. Nonetheless, the defendant still deserves credit for an early plea.

[63] While the defendant was involved in criminal conduct (theft under) while subject to the section 810.2 recognizance, he did not engage in any violence or threatening behaviour in the commission of the offence or upon his arrest for the theft under. There is no evidence that his non-compliance over a period of five and a half months actually posed a risk to the community. The risk of course remains and he had done nothing to attenuate the risk.

Aggravating Circumstances

[64] There are a number of aggravating factors present, that include the following:

• The defendant has a poor and lengthy history of complying with court orders. On the very day he entered into the section 810.2 recognizance, he pleaded guilty to failing to attend court and failing to comply with the "interim" recognizance, by not reporting his change of address;

• His failures to report to police or report his change of address were far from "mere slips". They were deliberate and showed an element of deceit and disdain for authority. The breaches for which he is now being sentenced began on the very first day of his release from custody after having served time for breaching his earlier "interim" recognizance. On that occasion he lied to the police about where he was actually living. This shows a troubling recent pattern of disregard for court orders;

• Once he was living in Ottawa he was completely non-compliant with the terms of the recognizance. His non-compliance continued over a significant period of time: five and a half (5.5) months. This time frame represents almost one quarter of the duration of what was to be a two year recognizance;

• Even on his arrest in Ottawa, the defendant continued to deny being subject to the recognizance. As well, after he was informed by the Ottawa Police that he continued to be bound by it, he still failed to report his whereabouts to the Toronto Police;

• The defendant had consumed alcohol when he committed the theft under. The destabilizing role of alcohol elevated the risk of recidivism; and

• There is no evidence that the defendant, left to his own devices, made any positive choices in seeking out counselling, stable housing, employment, or that he otherwise engaged positively in the community. He appears to have led an unstructured existence which, combined with his alcohol consumption, put him at a higher risk to the community.

Law and Applicable Principles

[65] Parliament intended that breaches of section 810.2 recognizances be treated as very serious matters. Section 811 provides that where the Crown proceeds by indictment, the offence of breaching a section 810.2 order is punishable by a maximum sentence of not more than four (4) years.

[66] As with any sentencing proceeding, the court sentencing an offender for breaching this rather extraordinary type of recognizance is required to give effect to a number of sentencing principles and to consider the Gladue factors, where appropriate.

[67] The primary sentencing principles in sentencing an offender such as Mr. Quewezance for breaching a section 810.2 order are: a) the protection of the public; b) specific deterrence; and c) general deterrence: see R. v. Ballantyne, supra, at para. 12.

[68] In Ballantyne, the Saskatchewan Court of Appeal noted that the "breaches must be looked at in light of the potential consequences of the offender breaching a condition. This requires that the gravity of the breach be examined in the context of the offender's history."

[69] Various Courts of Appeal have emphasized that although the primary or dominant consideration is the protection of the public, the principle of proportionality cannot be ignored. This means that the Court must be cognizant of the nature of the order that has been breached and the nature of the offender being sentenced.

[70] The guiding jurisprudence emphasizes that breaches of section 810.2 recognizances must be seen as a particularly serious matter and the principles of specific and general deterrence are of a "heightened importance". This is because the community faces a potentially significant risk to its safety when an offender bound by such an order fails to comply with it.

[71] The Newfoundland and Labrador Court of Appeal in R. v. Helary, 2007 NLCA 47, 225 C.C.C. (3d) 265 (Nfld. C.A.) at paras. 14-16, citing the trial judge in that case with approval, noted that:

[t]he community's safety can best be achieved by imposing sentences which ensure that those bound by a section 810.2 recognizance clearly understand that a breach of such an order will consistently result in considerable periods of imprisonment being imposed.

[72] This is a particularly relevant consideration where there is a strong link between the nature of the breach, the consumption of alcohol, for example, and the offences the defendant committed.

[73] In Ballantyne, supra, the offender was also aboriginal. Even applying the Gladue factors, the Court of Appeal for Newfoundland and Labrador, increased the offender's global sentence to fifteen months concurrent from the forty-five and nine day sentences, imposed at trial for the two breaches. In Ballantyne the breaches related to the consumption of alcohol.

[74] This Court cannot lose sight of the fact that alcohol played a significant factor in the commission of the defendant's most serious and recent convictions, and they played a part in the breaches he has pleaded guilty to.

[75] Mr. Quewezance is also of aboriginal background. He suffered separation from his family at a very young age. As well, he had emotionally damaging experiences within the foster care system. He was left to fend for himself at the age of sixteen (16). He has been in and out of custody for the better part of his adult life. For those reasons, the Court gives weight to the Gladue factors, but within overall context of his lengthy and serious criminal record, as well as the nature of the breaches he has pleaded guilty to. By this I mean that an alternative to incarceration is not an option in the circumstances of these offences and this offender.

[76] I have given serious consideration to Mr. Zekavica's recommendation for a twelve (12) month sentence, but find that it would not give appropriate weight to the gravity of the offences, bearing in mind the number, nature, duration and timing of the breaches and the risk posed to the community.

[77] I have considered the decision of R. v. Elvis Brass, supra, relied on by the defence in support of the position advanced. Although there are some similarities with the circumstances in that case, I find that it can be distinguished. Mr. Brass was facing two counts of breaching the recognizance and there were no additional criminality. Mr. Brass was compliant for a period of time. When he changed his address without notifying the police, he had moved to a place the police knew he had ties to. In the defendant's case, he has pleaded guilty to four (4) different breaches and he has acknowledged that he stole alcohol from the LCBO. He was arrested in Ottawa, where he was living for a number of months. Ottawa is a city that he was not known by the police to have any ties to.

[78] I have also given serious consideration to the Crown's recommendation of three (3) years' incarceration. It strikes me as overly harsh, notwithstanding the aggravating circumstances. It does not, in my view, adequately take into account the need to emphasize proportionality, totality, or the possibility for rehabilitation. It would also, I find, be crushing on the defendant who is likely to continue to struggle with re-integration into society after having just completed a fifteen year period of incarceration to warrant expiry. In my view, something more measured is called for to give Mr. Quewezance hope for his future while at the same time protecting society.

[79] I also note that there were no other precedents for such a lengthy sentence in the material provided. The Crown relied on the case of R. v. Dwayne McLeod, supra. In that case, the defendant was a forty-five year old aboriginal offender who was deemed to be a high risk offender. He was a two time federal offender who had a history of violent sexual assaults. His record included a conviction for sexually assaulting his thirteen (13) year old daughter over a period of five (5) years.

[80] Mr. McLeod was subject to section 810.2 recognizance that, amongst other conditions, required him to: 1) advise the police if he became involved in an intimate relationship with a woman so that she could be informed of his criminal history, and 2) abstain from having any contact with any children under the age of sixteen except in the company of another adult approved by the police. Although Mr. McLeod reported regularly to the police, provided a stable address, and reported being employed, he nonetheless breached both of these conditions of his section 810.2 recognizance.

[81] The police learned from the woman he had become intimately involved with over a period of five months, that she was pregnant with his child and that she had concerns about her safety. She also had three young children in her home. The defendant pleaded guilty to breaching both of the conditions referred to above. At the time he was sentenced, Mr. McLeod had taken some counselling programs while in jail but was still not prepared to engage in any sexual offending behaviour programs. My colleague, Rutherford, J. sentenced Mr. McLeod to fifteen (15) months in custody and gave him credit for time served. She also imposed the maximum period of probation: three (3) years.

[82] It is always difficult to equate offenders or their misconduct when engaging in the sentencing process. Yet, I will generally compare Mr. McLeod with Mr. Quewezance. I note that Mr. McLeod reported regularly to police whereas Mr. Quewezance never did. Mr. Quewezance was in a different city completely unsupervised where he potentially placed the entire community at risk. Mr. McLeod, while he reported regularly to police, actually placed the woman he formed an intimate relationship with and her three young vulnerable children at significant risk. If Mr. McLeod, who is the same age and has a similar background to Mr. Quewezance, was sentenced to fifteen (15) months for the two breaches, it is difficult to conclude that the risk posed by Mr. Quewezance's four breaches warrant a sentence that is more than twice as long as the one that was imposed on Mr. McLeod.

Sentence Imposed

[83] In light of the number, nature, timing and duration of Mr. Quewezance's breaches of the section 810.2 order, and having regard to his criminal record and the risk posed to the public by his non-compliance, I find that the appropriate sentence is one of twenty (20) months, less time served of two months and 1 week. The sentence I impose is therefore a sentence of seventeen (17) months and 3 weeks starting from today's date.

[84] The particularly aggravating factors I find that mandate such a lengthy period of incarceration are the following:

• Mr. Quewezance has acknowledged that it was his resentment at having to be subject to any conditions on his liberty that lead him to breach. In that sense, the breaches cannot be characterized as "mere slips", but instead show a flagrant disregard and disdain for authority. He did not comply with the order for even one (1) day and was in breach over a period of five and a half (5.5) months before he was arrested committing a theft under involving alcohol;

• Mr. Quewezance's release from jail in Ottawa happened within mere weeks after he was sentenced to jail for breaching the "interim" recognizance of bail by failing to report to the Toronto police and failing to attend court in relation to the section 810.2 hearing. He was therefore well aware of the potential consequences of not reporting, carrying his bail papers, consuming alcohol, or failing to be of good behaviour. The timing of the breaches relative to the imposition of the order is troubling;

• At his sentencing on the earlier breaches of the "interim" order, his counsel submitted that a sentence of time served (17 days) was appropriate in light of his structured plan to engage in a twenty (20) week counselling programme through Anishnawbe Health in Toronto and to get assistance to find housing in the Toronto area, where he intended to reside. Yet, within weeks, Mr. Quewezance was living in the Ottawa area where he was not engaged in any counselling, nor is there any evidence that he even attempted to obtain any stable housing. His apparent lack of motivation to improve his life circumstances puts him at greater risk of re-offending;

• At the time of his arrest in Ottawa, Mr. Quewezance had consumed alcohol and was engaging in further criminal behaviour, albeit not of a violent nature; and

• He is acutely aware that alcohol has a destabilizing effect on his behaviour thereby placing the community at increased risk which goes to the very heart of the order.

Probationary Period

[85] The Crown did not originally seek any period of probation. It was not an available sentencing option in light of the penitentiary term sought. However, after being advised in court of the sentence I intended to impose, further submissions were made about whether a probation order was necessary or desirable in the circumstances and, if so, the duration of such an order and the possible terms.

[86] The probation order was resisted by counsel for Mr. Quewezance. Mr. Zekavica submitted that a further court order monitoring his client was not necessary as he would still be subject to the section 810.2 for a period of months following his release, likely in twelve months' time. After hearing submissions from counsel and hearing from the defendant who indicated that he welcomed a probation order because it would provide some structure for him, I imposed a probation order for a period of two years on the same terms as the s. 810.2 order. The terms of the order are set out in Appendix "A" to these reasons.

[87] The victim fine surcharge of $200.00 will apply to the first count and will be concurrent on the remaining three (3) counts to which he pleaded guilty. He will have two (2) years to pay the fine.

Released: March 16, 2017

Signed: Justice Bhabha