ONTARIO COURT OF JUSTICE

DATE: May 4, 2017

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

S.C.

Before: Justice F. Crewe

Reasons for Sentence released on May 4, 2017

Counsel:

• Mr. J. Smith, for the Crown
• Mr. B. Gould, for Mr. S.C.

CREWE J.:

Introduction

[1] Mr. S.C. pled guilty, on October 5, 2016 to two offences: (1) Break and enter a dwelling house and commit therein the indictable offence of assault with a weapon, contrary to section 348(1)(b) of the Criminal Code and: (2) Assault with a weapon. Crown counsel acknowledged that on the facts of this case convictions cannot be registered on both offences. He therefore invited the court to enter a judicial stay of proceedings on Count 2, and I do so.

[2] Mr. S.C. has accepted responsibility for his actions, and the issue is therefore the determination of a fit sentence on Count 1.

[3] The determination of a fit sentence in this case will require examination of three discrete issues in addition to other core sentencing issues:

1. A consideration of Mr. S.C.'s Aboriginal heritage;
2. Whether the offence herein ought to be classified a "Home-invasion";
3. The effect on sentence of Mr. S.C.'s status as a first offender.

Summary of the Facts

[4] Mr. S.C. has been friends for some years with a young woman, N.B. They were at one point involved in a brief romantic relationship which they discontinued, but they remain friends and at the time of this offence were sharing an apartment.

[5] One evening, sometime evidently in late April 2016, Mr. S.C. gave N.B. a drive to the residence of a male acquaintance of hers named A.H.. She called Mr. S.C. later that night to pick her up, and he did so. Once back at their apartment, he noticed bruises on her knees, arms, back and face. Her pants were on inside out, her hair was a mess and her make-up smeared. He asked what had happened. She couldn't remember. They spent some hours trying to piece together the events of the evening and ultimately Mr. S.C. reached the conclusion she had been drugged and sexually assaulted by Mr. A.H.

[6] Mr. S.C. understood that N.B. had previously been drugged and sold into prostitution by members of her own family, her grandparents, "…and she … never received justice for it." (Gladue Report, p. 10). She had now been victimized again, in his view.

[7] At that point, Mr. S.C. took the unfortunate decision to take the law into his own hands and exact retribution on behalf of N.B.

[8] On May 1, 2016 Mr. S.C. went to Mr. A.H.'s apartment together with 4 people he had recruited to assist him, 3 males and a female. When Mr. A.H. opened the door to the female's knock, the males pushed their way in. Two of them, Mr. S.C. and Daniel Sinclair, were armed with baseball bats.

[9] Mr. S.C. accused Mr. A.H. of sexually assaulting N.B. Mr. A.H. managed to wrest the baseball bat away from Mr. Daniel Sinclair, who told him to stop fighting back or else he would "pull out the burner."

[10] Mr. A.H. was ultimately hit in the nose with the butt end of one of the baseball bats, which one isn't clear, and received a bloodied nose.

[11] Mr. S.C. smashed Mr. A.H.'s fish-tank with his baseball bat, and one of the other unnamed male accomplices sprayed a noxious substance, probably pepper spray, into the air, evidently at no-one in particular. There were other persons present with Mr. A.H. at the time the group muscled their way into the apartment.

[12] Mr. S.C. was identified by Mr. A.H., and he turned himself in to police.

Circumstances of the Victim and the Impact Upon Him

[13] Mr. A.H. was invited to provide a victim impact statement to the Crown Attorney, however he evidently declined to do so. I have no information with respect to the circumstances of the victim beyond those detailed above.

Circumstances of the Offender

[14] Mr. S.C., born […], 1993, had just turned 23 years of age at the time of the offence. He is now 24. He was raised by his mother, C.C., who was 19 years of age when her son was born. S.C.'s father wanted no part of his son's life and to this day refuses even to meet him.

[15] Until Mr. S.C. was 8 years old, he and his mother lived together without an adult male presence. At that time, Ms. S.C. married her first husband, whose presence in the home felt "out of place" for the young Mr. S.C.. (PSR-p. 3)

Aboriginal Heritage

[16] It wasn't until age 10 that his mother advised him his father was Aboriginal, until that time answering his questions about his father with vague references to him living "far away", etc. The knowledge of his Aboriginal heritage, the offender says, made him feel more settled and comfortable about himself, feeling he now had the missing piece of a puzzle.

[17] His exposure to his Aboriginal culture was, in the beginning, somewhat haphazard. In Grade 7 or 8, one of his teachers added native teachings to the curriculum and invited native speakers to attend class. It is not clear whether this was done for benefit of the young Mr. S.C., or simply an exercise the teacher felt all of his students would benefit from.

[18] Mr. S.C. subsequently became engaged in some self-exploration of his background by taking part in activities he felt would enhance his knowledge of his heritage, attending lectures and Pow Wows, and at the age of 14, experiencing a smudging ceremony. He notes that at this early stage his explorations were "small things" and solo in nature.

[19] Since the present charges were laid, Mr. S.C. has connected with Aboriginal Legal Services (ALS). Through this organization he has participated in their substance abuse/alcohol abuse programming.

[20] Jonathan McDonald, a Gladue aftercare worker with ALS and author of the Gladue report prepared for this sentence hearing, observed in his report that: "Growing up S.C. knew nothing about his Metis identity. C.C. explains: 'I refused to acknowledge it any further as I was respecting the wishes of his father who said not to mention him at all.' S.C.'s experience with his Aboriginal identity is not uncommon. Cultural identity is important: without it people can feel lost or adrift with no real attachment to a group or to a place. This, the aspect of providing and making connections to Aboriginal place and space is important … and further… S.C. appears to recognize and regret the separation from his cultural identity and he welcomes opportunities to reconnect with it through Aboriginal culturally based programming."

[21] Mr. S.C.'s father is W.B., who took up boxing as a way to protect himself from racist attacks growing up. He was evidently very successful in this pursuit, as he became the North American Native boxing champion three times in the welterweight and middleweight classes. He retired from boxing and became a trainer, and amongst other things now operates a business called Centre Ring in Toronto. The guidance he declined to provide his son seems therefore to be readily available for the general public, albeit of a different variety. One cannot help but wonder whether his son would or could view this as other than salt in the wound. One also cannot help but wonder the sort of role model a man with his father's obvious survival skills and drive could have offered an eager young son, even if not as an everyday parent.

Employment History

[22] Mr. S.C. has been gainfully employed for the most part since he was a student in junior high school. In grade 8 he worked weekends for a company selling antiques, at a wage of $10/ hr. He continued this work until late in high school, when he worked at odd jobs, painting and doing repairs for better pay.

[23] Over the next number of years he secured different jobs, including a one year stint as a machine operator, and at one point "moped around" for a year or so, smoking pot and drinking with friends, until he realized it was time to do something with his life.

[24] Since November 2015 he has been working at Canpar in a job where he feels financially stable. That company has hired him on a now full time basis and is aware of his legal difficulties. Kevin Cajuday, his immediate supervisor writes that S.C. is "…a dedicated, hardworking member of the crew… (and) … display(s) a strong work ethic and …dedication to any function he is assigned to." Notwithstanding his current situation and challenges, he describes Mr. S.C. as continuing to excel at work and taking on added responsibilities.

[25] Of note, Mr. Cajuday writes: "Of my current staff of 17 that I am responsible for, S.C. has been one of the few that I consider 'core'". He opines that the current charges are out of character with the individual he has come to know.

Personal Tragedy

[26] Aside from having never known his father, Mr. S.C. experienced further tragedy at a young age. At age 11, his best friend I. was killed by I.'s own father. Mr. S.C. had become close to both his friend and the father. It appears the father was ultimately found not criminally responsible for the death of his son.

[27] It was soon after this that Mr. S.C. started using drugs and alcohol as a coping mechanism.

Substance Abuse

[28] Mr. S.C. developed a regular drinking habit, drinking vodka regularly on weekends with friends. He also used marijuana and later, ecstasy and MDMA, which he ultimately used 4-5 times per week. While still in his teens he began to use cocaine.

[29] TALS has engaged him in their adult addiction course, and he has attended and participated in weekly two hour meetings. He completed the 6 week Addiction Circle in December 2016. (Gladue Report – attachment)

[30] In addition, he successfully completed an Anger management program through the John Howard Society in November 2016. (Gladue Report-attachment)

[31] Further in this regard, he has been attending individual therapy sessions with a registered psychotherapist, John Kotur, since September 2016, focussing on issues involving anger management, self-esteem and personal growth. (Gladue Report-attachment)

[32] Mr. Kotur opines that he has "…made very good progress and is learning alternate problem solving skills so that he does not use anger or violence as a way to deal with his feelings in the future. He has been co-operative, personable and self-reflective and has gained a good understanding of himself and his behaviour so that he can act in a responsible manner with others and in his life in general."

[33] Mr. Kotur further opines that it is "very unlikely that Mr. S.C. is at risk of reoffending as he is remorseful for his past actions and has changed his way of communicating and resolving conflict with others."

[34] To further illustrate this point, Mr. S.C.'s mother writes that when she and her husband signed S.C.'s bail in the instant matter, they were both nervous as to how it would work. She continues: "It is with utmost sincerity that I share with you how proud I am of the changes S.C. has made in his life and how much he has matured since he turned himself in to police on May 2, 2016"…. And further... "The day after his bail hearing, he approached my husband and I to ask what the house rules were and to my surprise, he did not try to negotiate any leniency and to date, he has not broken any of the rules."

[35] She also notes that he has become a positive role model for his younger brother and step-sister. She watches him carefully and even "sniffs" him every night to assure herself he is not smoking pot, as he used to do regularly. She reports that he has not come home under the influence of either alcohol or drugs.

[36] With respect to N.B., when Mr. S.C. moved in with his mother in accordance with the terms of his bail, he arranged for a mutual friend to move in with her to ensure she does not suffer any financial hardship.

[37] His mother notes further that on Christmas Day, at a family dinner, she observed that S.C. was visibly upset and agitated toward a friend his step-sister had brought to dinner. Notwithstanding his visible discomfort, he remained calm and respectful, and later talked to his mother and her husband and referenced how he used the tools he had learned in anger management to handle the situation and spend the evening without incident.

POSITIONS OF THE PARTIES

A. Crown Position

[38] Crown counsel submits that this is a serious offence, one which warrants a deterrent sentence. Mr. Smith submits that the appropriate sentence is one of 9-12 months, having regard for the two key factors of denunciation and deterrence. The Crown also seeks an order for a DNA sample, and a Criminal Code section 109 order against the possession of firearms and the like for a period of 10 years.

[39] Mr. Smith submits that while the Gladue principles are alive in this case and should be considered by the court, they are relevant only to a degree. Many of the factors often present in "Gladue" situations are not present here, such as lack of educational opportunity, inability to find employment, etc. Further, while he has suffered substance abuse issues, Crown counsel submits there is no evidence that was tied to his Aboriginal heritage.

[40] Crown Counsel relies on a number of aggravating factors:

• There is evidence of planning and deliberation;
• Mr. S.C. enlisted the assistance of three other accomplices, including a female whose role was simply to convince Mr. A.H. to open the door. These actions placed Mr. A.H. in a vulnerable and disadvantaged position inside his home;
• Weapons were brought and used;
• Other people were present in the apartment who were also under threat of violence; those parties were evidently told to leave, however they chose to remain.
• Damage was caused to the apartment through the smashing of the fish tank;
• A noxious substance was sprayed into the air;
• Mr. A.H. suffered injury. The fact it was not a severe injury is not, submits the Crown, a mitigating factor. It is simply less aggravating.
• Mr. A.H. was also threatened, when he disarmed one of the offenders, with "the burner." The fact there was no evidence they were in possession of a firearm is again not a mitigating factor, simply less aggravating.
• The offence took place in Mr. A.H.'s home. This is an aggravating factor, whether or not the court views this as a "Home invasion."

[41] Mr. Smith acknowledges a number of mitigating factors:

• Mr. S.C. was young at the time of this offence, 23 years of age. The potential for rehabilitation is great, and an important factor.
• He does not have a prior criminal record.
• The presentence report and the Gladue report are positive and indicative of a great deal of remorse.
• Mr. S.C. has pled guilty and saved the victim the trauma of reliving this event at trial.
• The requirement for individual deterrence is, Mr. Smith concedes, greatly diminished by Mr. S.C.'s actions since his arrest and his clearly demonstrated remorse.

Position of the Defence

[42] Mr. Gould advocates for a sentence of no longer than 90 days to be served on an intermittent basis. He submits a period of probation is necessary, and concedes the DNA Order and the section 109 Order against possession of firearms.

[43] Mr. Gould does not quarrel that denunciation and deterrence are required in the circumstances of this case. He submits, however, that in Mr. S.C.'s circumstances as a first offender, the principle of rehabilitation is of at least equal importance.

[44] He submits as well that if the court finds a jail sentence to be necessary, it ought to be within the intermittent range, 90 days or less. Otherwise it is clear that Mr. S.C. will lose his employment and be unlikely to meet the company's requirements for re-hire once terminated, with a criminal record.

[45] Mr. S.C. enjoys the full support of his family, who were in court in numbers the day of this hearing. He further enjoys the support of Aboriginal Legal Services, who have assisted with counselling and moral support.

[46] Mr. Gould advises that as far as the damage to the apartment is concerned, Mr. S.C. has provided funds to cover the cost of the fish-tank, $200.

[47] Mr. Gould also submits that his client's actions in this case reflect the mindset, then held by Mr. S.C., of a lack of trust for authority. This goes back to his father, and extends to the manner in which his friend N.B. was treated by her family, as well as his young friend I., who was killed by his own father.

The Gladue Issue

[48] Section 718.2(e) of the Criminal Code, which appears under the heading "Other Sentencing Principles", provides as follows:

All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. (Emphasis added)

[49] This subsection of the Criminal Code, which came into force on September 3, 1996, was first interpreted by the Supreme Court of Canada in its landmark decision R. v. Gladue, [1999] 1 S.C.R. 688.

[50] At paragraph 33, the court held:

In our view, s. 718.2(e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently, in order to endeavor to achieve a truly fit proper sentence in the particular case. It should be said that the words of s.718.2(e) do not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. For example, as we will discuss below, it will generally be the case as a practical matter that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders. What s. 718.2(e) does alter is the method of analysis which each sentencing judge must use in determining the nature of a fit sentence for aboriginal offender…

And further at paragraph 36:

Section 718.2(e) directs a court, in imposing a sentence, to consider all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, "with particular attention to the circumstances of aboriginal offenders." 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.

[51] The Court goes on to add, at paragraph 43:

Clearly, s. 718 is, in part, a restatement of the basic sentencing aims, which are listed in paras. (a) through (d). What are new, though are paras. (e) and (f), which along with paragraph (d) focus upon the restorative goals repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgement of the harm caused the part of the offender, and attempting to rehabilitate or heal the offender. The concept of restorative justice which underpins paras. (d), (e) and (f) is briefly discussed below, but as a general matter restorative justice involves some form of restitution and reintegration into the community. The need for offenders to take responsibility for their actions is central to the sentencing process…and further… Restorative sentencing goals do not usually correlate the use of prison as a sanction. In our view, Parliament's choice to include (e) and (f) alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for all offenders. The principle of restraint expressed in s. 718.2(e) will necessarily be informed by this reorientation.

[52] Finally, at paragraphs 80 to 81, the Court held as follows:

As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or case-by-case) basis: for this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular thunder coming before the courts of this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in the circumstances?

And at paragraph 81:

the analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, victims, and the community, including the unique circumstances of the offender as an aboriginal person. Sentencing must proceed with sensitivity to an understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating the circumstances in light of the aims and principles of sentencing as set out in Part XXIII of the Criminal Code and in the jurisprudence, the judge must strive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2(e), sentencing judges have been provided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration which are appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing. In this way, the effect may be given to the original emphasis upon healing and restoration of both the victim and the offender.

[53] Crown counsel acknowledges that Mr. S.C. does not bear the burden of establishing a direct causal link between the systemic and background (Gladue) factors and the commission of the offence. (R. v. Fraser, 2016 ONCA 745, [2016] O.J. No. 5253 (Ont. C.A.) at para 22.)

[54] He submits, however, that the Gladue factors need to be tied in some way to the offender and the offence, and that: "The rationale for Gladue is that many Aboriginal offenders come from situations of social and economic deprivation with few opportunities for positive development and these circumstances may diminish their moral culpability." (R. v. Bauer, [2013] ONCA 691 (Ont. C.A.) at para 13)

[55] Mr. Smith urges upon the court that Mr. S.C. did not suffer lack of opportunity for education nor indeed for employment. He has held gainful employment since he was in his teens and has worked hard. While these are mitigating factors on sentence, acknowledges Mr. Smith, they are not at work in the Gladue analysis and do not serve to reduce his moral blameworthiness.

[56] Mr. Gould submits, on behalf of Mr. S.C., that the distinction between "causation" and the need to "be tied to the offence" represents a somewhat elusive line. He submits that the Gladue factors here arise from abandonment by his father, and by having his aboriginal heritage kept hidden from him.

[57] These are valid observations by both counsel. It is important, however, not to view these considerations through too narrow a lens. While Mr. S.C. may not have suffered some of the disadvantages experienced by many offenders of Aboriginal background, particularly those who were raised on reserves, he also did not experience the benefits and wisdom offered by his culture, some of which he has begun to experience, ironically, from his connection to TALS in the months leading up to this sentence hearing. It is not to be ignored that after he was finally advised, at age 10, of his father's Aboriginal heritage, he felt comfort in this knowledge and felt as though a missing piece of the puzzle of his life was beginning to make sense. Still, the knowledge he gained regarding his culture was piecemeal and not fed in a meaningful way by people who would have been in a position to help, but by his own occasional forays.

[58] It does not behoove this court to underestimate the significance to this young man's life of his deprivation of this valuable life experience in his formative years. As noted by the Royal Commission on Aboriginal Peoples: (Gladue report, p. 5)

…Aboriginal cultural identity is not a single element. It is a complex of features that together shape how a person thinks about herself or himself as an Aboriginal person. It is a contemporary feeling about oneself, a state of emotional and spiritual being, rooted in Aboriginal experience.

Cultural identity is a state of being that involves being wanted, being comfortable, being a part of something bigger than oneself…

[59] The Gladue factors are clearly relevant to Mr. S.C.'s background, and are deserving of weight in determining his moral blameworthiness.

[60] It is my understanding from the authorities and from the reports on the impact of residential schools, etc., that parental abandonment is a documented issue of significance. Courts are directed to take judicial notice of such matters as the history of colonialism, displacement, and residential schools and the resultant impact of abandonment, amongst other things.

[61] In my view, it is amazing that Mr. S.C. has in his young life displayed the resilience he has, in the total absence of his father and his eventual introduction to a stepfather, with whom he was uncomfortable. He has never represented a financial burden to society, working since his early teens, and until now, has never been in trouble with the criminal justice system, notwithstanding some substance abuse issues.

Home Invasion

[62] Appellate Courts have recognized for some time that a "Home Invasion" style offence, typically a robbery where residents are at home at the time of a forced entry, represents a significant aggravating factor on sentence. The subject of what constitutes a "home invasion" has been the subject of some debate. I do not propose to canvass the authorities on this point in any detail, as in my view whether an offence is classified as a "Home invasion" or not, any intrusion into the sanctity of a person's home for the purpose of committing an indictable offence against one or more of the occupants is an aggravating factor on sentence. Neither of the parties quarrel with this proposition.

[63] I will briefly note one authority on the point. In R. v. J.S., [2006] O.J. No. 2654, (Ont. C.A.), the Court held, at paras 32-33:

…there appears to be general agreement in these authorities that the main features of home invasion include breaking and entering a dwelling place for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home is being occupied, and using or threatening to use violence. The presence of weapons is often a factor, as is the confinement of the occupants of the home in some fashion.

For the offence to qualify as a home invasion, I would add to the foregoing that the entry to the dwelling need not be only for the purposes of robbery or theft-or result in those offences being committed. The crimes committed within the dwelling may include other offences involving violence against the person, as, for example, assault, sexual assault, or unlawful confinement.

[64] The facts of this case fall squarely within this analysis. Each case must of course be decided on its own merits and have regard for the facts of the particular offence and the particular offender.

Sentencing of a First Time Offender

[65] Mr. S.C. has no criminal record, and is thus being sentenced for the first time. In determining a fit sentence, this factor alone presents in any case unique and considerable challenges for a sentencing court; evermore so on the facts of this case and in particular this offender.

[66] Courts have long recognized that in the sentencing of first time offenders, there is a need for restraint and a reduced emphasis on general deterrence.

[67] In R. v. Vandale and Maciejewski, 21 C.C.C. (2d) 250 (Ont. C.A.) at p. 251, the Court held, per Martin, J.A.:

… The fitness of the sentence in this case has troubled each member of the Court. The trial Judge obviously considered that a custodial sentence was necessary to emphasize the seriousness of the offence and to protect the public against the conduct engaged in by the appellants, notwithstanding that he was dealing with youthful first offenders. In view of the particular circumstances of the case and having regard to the repeated and deliberate nature of the appellant's conduct, we are not prepared to say that he was wrong in imposing a custodial sentence. We are, however, of the view that in all the circumstances he placed excessive emphasis upon the element of general deterrence. The trial judge said: "I feel it is necessary to deal harshly this type of case to act as a deterrent to others who may be tempted to do the same thing".

In R. v. Curran, (1973), 57 Cr. App. R. 945, Mackenna, J., delivering the judgment of the Court of Appeal, Criminal Division, said at pp. 947-8:

As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offense, and imposed as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence; and what sentence is needed to teach this particular offender a lesson which he has not learnt from the lighter sentences which he has previously received.

These observations are, as it seems to us, particularly applicable in the case of a youthful first offender.

[68] Similar expressions of principle have been voiced by the Court of Appeal for Ontario in other decisions, notably R. v. Stein, 15 C.C.C. (2d) 376 and R. v. Priest, [1996] O.J. No. 3369 at paras. 17 & 18, with due caution being raised in cases involving violence.

[69] In Stein, the Court, again through Justice Martin, expresses the view that: "…before imposing a custodial sentence upon a first offender the sentencing court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate."

[70] In Priest, the Court emphasized that the primary objectives in sentencing a first offender are individual deterrence and rehabilitation. (para 17)

Other Principles of Sentencing Engaged in This Case

Fundamental Principle

[71] The Criminal Code sets as the Fundamental principle of sentencing that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (section 718.1).

[72] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the Supreme Court described this principle in the following terms: (para. 12)

… Proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

Deterrence

[73] The Crown's position, not contested by the defence, is that the principle of deterrence is paramount in this case.

[74] Deterrence takes two forms: Individual and general. As discussed in the cases noted above, specific (or individual) deterrence is of enhanced importance when dealing with a first time offender, with general deterrence necessarily of diminished importance, relatively speaking. General deterrence still plays a role, particularly in cases involving more serious offences and offences of violence.

[75] The need for individual deterrence in this case is largely conceded by the Crown to have been met. The steps taken by Mr. S.C. since his arrest and subsequent release on bail have addressed this concern.

[76] Further, as observed by Justice Melvyn Green of this court in R. v. Al-Saedi, 2017 ONCJ 204 at paragraph 34, genuine remorse precludes the need for specific deterrence. Genuine remorse is present and rightly conceded to be so by both parties, for reasons set out below.

[77] Furthermore, while the motives of Mr. S.C., to extract some payback on behalf of his friend whom he viewed as a victim, can hardly be viewed as mitigating on sentence, it is not the sort of motivation which would tend to drive future criminal acts by the same offender. It is not a crime wrought for personal gain, as are most home invasion type offences. In that sense, again, individual deterrence has been met.

[78] General deterrence is of a somewhat more amorphous character. The principle of general deterrence insists that if an offender receives a punitive sentence, other like-minded individuals will be deterred from committing the same or similar offence by virtue of the punishment imposed upon him. This principle is conceded to be a relevant concern in this case, notwithstanding its somewhat reduced prominence in the instance of a first time offender.

[79] I also have regard for the comments of the Supreme Court in Lacasse, at para. 73, that: "While it is true that the objectives of deterrence and denunciation apply in most cases, they are particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence…"

[80] Lacasse was of course a case involving impaired driving causing death. It is a fair observation, in my view, that home-invasion style assaults are not the sort of offence normally contemplated by otherwise law-abiding people. Regard for general deterrence and denunciation of those offences are of course still required.

Remorse

[81] The common law has long recognized that an expression of remorse is to be treated as a mitigating factor on sentence. A plea of guilty, for instance, has generally been credited as a factor warranting a reduction of an otherwise fit sentence in view of the offender's demonstration of remorse, as well as his consequent sparing of the victim the need to recount his victimization in the witness box. A subsidiary beneficiary of this largesse is of course the criminal justice system, which is spared the time necessary to conduct the trial in already overburdened courts.

[82] It will be immediately obvious, of course, that the attendant remorse is somewhat transparent in many cases. Often, the offender's plea of guilty is a simple recognition of the fact the crown has an overwhelming case against him. Just as often, the plea is the product of legitimate negotiation between the prosecution and defence to arrive at a result that benefits both sides, and does so in a particular case for an endless number of reasons, including certainty of result.

[83] Much more rare, and much more difficult to refute when one does encounter it, is genuine remorse. In Al-Saedi, the offender had initially declined to offer any comment when asked if he wished to do so by the sentencing Justice, however he evidently felt compelled by the unanticipated presence in the courtroom of a group of high school students to plead with them not to make the same mistake he had made. In an impromptu and heartfelt allocution, wherein he spoke at length without benefit of notes and directly to the students, not the court, he accepted responsibility for his actions and urged the students to in essence learn from his mistake. The court gave him credit for real remorse, which negatived the need for individual deterrence and, to some extent, general deterrence (para. 34).

[84] The offender before me has likewise demonstrated genuine remorse, and not of the spontaneous variety. He has taken positive steps since his arrest and release on bail to right the wrong he committed against his victim and his community. Those steps are set out in detail above.

[85] In addition, Mr. S.C. took the opportunity afforded him to speak to the court on sentence. I do not propose to set out in full his comments, but suffice to say he expressed his deep regret for his actions. He advised the court he had gained valuable insights through counselling that have helped him realize just how wrong his actions were. "If I could go back, I would call the police", rather than taking the law into his own hands. The other benefit he has derived from this experience, he says, is that it has opened a door to his cultural heritage, one to which he was previously not privy. He swore he would "never put myself in this position again."

Rehabilitation

[86] As noted above, the Court of Appeal for Ontario in Priest directed that in sentencing first time offenders, a primary consideration is that of rehabilitation.

[87] In R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346, a sentencing decision of this court also authored by Justice Melvyn Green, notes, at para. 99:

Like deterrence and denunciation, the rehabilitation of offenders is an important objective of sentencing, both at common law and as now codified: s. 718(d). This sentencing goal takes on added weight in the calculation of an appropriate disposition in the instant case by virtue of its conceptual kinship with the doctrine of restorative justice…

And further, at para. 105:

Deterrence, general and specific, remains part of the constellation of objectives to which any sentencing judge must pay heed. Where, as here, there is unquestioned evidence of rehabilitation, social reintegration and a continuing resolve to remain crime-free, deterrence and denunciation take on more muted roles in the in the final calculus than they might in other cases where these virtues have not been satisfactorily established.

[88] McGill was also a Gladue-related decision.

[89] The Court of Appeal for Ontario, in R. v. Kerr, [2001] O.J. No. 5085 notes, at para. 17-18, per Abella, J.A., that:

… Although the seriousness of the offence is clearly relevant, to under-emphasize rehabilitation in this case would…send the unwarranted signal that courts will sacrifice evidence of considerable rehabilitative progress on the altar of general deterrence.

It seems to me that this is a case where the ultimate interests both of the community and the appellant are best served by a sentence most conducive to eliminating the risk of re-offending. And that, in turn, argues for a sentence that both acknowledges and facilitates the ongoing rehabilitation of the appellant.

[90] The offender in this case has made great strides toward rehabilitation. He has accepted full responsibility for his actions, expressed genuine remorse, and taken extensive counselling to gain insights into the root causes of his own behaviour and to ensure he does not fall into such serious mischief again. This progress must be acknowledged and reinforced.

Restorative Justice

[91] The concept of restorative justice, while a somewhat new and developing principle in the Canadian criminal jurisprudence, has roots that extend well back in Aboriginal justice. Restorative justice has as its aim not the punishment of the offender, but the restoration of the offender to his place in the community. As noted by the Court of Appeal for Saskatchewan in R. v. Morin, [1995] S.J. No. 457 at para. 80:

The sentencing circle has its genesis in the healing circle which from time immemorial has been a part of the culture of many First Nations of Canada and of the indigenous people of other countries….The circle was premised on two fundamental notions: first, the wrongful act was a breach of the relationship between the wrongdoer and the victim and a breach of the relationship between the wrongdoer and the community, and second, the well-being of the community and consequently the protection of its members and the society generally depended not upon retribution or punishment of the wrongdoer, but upon "healing" the breaches of the two relationships. The emphasis was primarily, if not entirely, upon a restorative or healing approach as distinct from a retributive or punitive approach.

[92] The principle of restorative justice has been given voice in the statutory revision to the Criminal Code in 1996 in s. 718.2(e), set out in full above at para. 48, requiring sentencing courts to consider "all available sanctions, other than imprisonment, that are reasonable in the circumstances…with particular attention to the circumstances of aboriginal offenders."

[93] The Supreme Court in Gladue said, at para. 93:

Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision's remedial purpose real force.

Conclusion

[94] There are a number of aggravating features in this case. They are set out above in the discussion of the Crown's position on sentence. Mr. Gould does not take issue with the Crown's list of factors.

[95] There are also a number of mitigating factors, which include:

• Mr. S.C. pled guilty, and signalled his intent to do so at a very early stage.
• Mr. S.C. has no previous criminal record.
• Mr. S.C. is still a very young man, just 23 years of age. He is previously of good character, and his potential for rehabilitation is very high, as evidenced by his efforts at rehabilitation since the charges were laid.
• The presentence report and the Gladue report are positive and indicative of real remorse. It is clear from Mr. S.C.'s actions, and from letters filed on his behalf by family members and others, that he has accepted full responsibility for his actions;
• Mr. S.C. has strong support from the members of his family and community. They have filled a good portion of the public gallery of the courtroom at each stage of the sentence proceeding and made clear their support for this young man.

[96] In my view, the mitigating factors in this case are significant.

[97] I do not wish to be seen as trivializing the assault against the victim, however the level of violence was, in the end, surprisingly modest in view of the volatile situation the offender had created. Mr. A.H. received a bloodied nose from the butt end of the baseball bat. But I recognize it could have been much worse: A group of young men, armed with weapons, in the residence of another young man, some of whose acquaintances were present, was a recipe for a potential serious confrontation. Fortunately that did not happen. Notwithstanding the volatility of the situation, the end consequences place this case, vis a vis home invasions, at the lower end of the scale.

[98] Deterrence is meant to send a message to other like-minded young people. The common message is of a negative character: If you do this, courts will send you to jail.

[99] It is rare that deterrent messages are of a positive sort. Justice Green notes, in Al-Saedi, at para. 34, that: "Nor do the amorphous aspirations of general deterrence and denunciation command much traction where, in the unique circumstances of this case, the offender's spontaneous address to a random high school class has achieved, but in palpable and poignant measure, the same objectives."

[100] What better message to send to other like-minded young individuals than conduct yourself the way this young man has and you will be treated with the respect and dignity you deserve.

[101] The fundamental duty of a sentencing judge is to engage in an individualized assessment of all the relevant factors and circumstances, including the status and life experiences, of the person standing before them. (R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, SCC at para. 75) The Court goes on to add, at para 86:

… Who are courts sentencing if not the offender standing in front of them? If the offender is Aboriginal, then courts must consider all of the circumstances of that offender, including the unique circumstances described in Gladue. There is no sense comparing the sentence that a particular Aboriginal offender would receive to the sentence that some hypothetical non-Aboriginal offender would receive, because there is only one offender standing before the court.

[102] The offender standing before this court is S.C.. I have considered the circumstances of his offence and his personal circumstances at length. At its essence, this sentence decision comes down to not so much a decision on the length of the appropriate custodial portion, but whether a period of custody is demanded. If ever there was an offender deserving of a second chance, I can think of no better candidate than this young man.

[103] The sentence of this Court, having regard for all of the above factors, is a suspended sentence.

[104] In addition, Mr. S.C. will be placed on probation for a period of 2 years.

[105] The terms of the probation are as follows:

• Report to the probation officer today and thereafter as directed by the probation officer;
• Report to Aboriginal Legal Services as directed by the probation officer;
• Perform 150 hours of community service within the first 15 months of probation, at least some of which should be spent speaking to other young persons, whether of Aboriginal background or otherwise, about his journey thus far and the pitfalls to be avoided, including substance abuse issues;
• Continue counselling as directed by the probation officer and sign releases to allow the probation officer to monitor your progress.
• Make restitution in favour of A.H. in the amount of $200;
• Not possess any weapons as defined by the Criminal Code;
• No contact or communication directly or indirectly with A.H., nor to be within 200 metres of his residence, workplace, or any place you expect to find him.

[106] In addition, the requested ancillary orders for a DNA sample and a section 109 Order will be granted.

Released: May 4, 2017

Signed: "Justice F. Crewe"