Court File and Parties

Ontario Court of Justice

Date: 2017-06-23

Court File No.: Ottawa 16-f5468

Between:

Her Majesty the Queen

— and —

Debra Lynn Potvin

Before: Justice P. K. Doody

Heard on: June 8, 2017

Reasons for Judgment released on: June 23, 2017

Counsel

L. Chan — counsel for the Crown

E. Lyttle — counsel for the defendant

Reasons for Judgment

DOODY J.:

[1] Debra Potvin is an Ojibway woman and a member of the Serpent River First Nation, which is located on the Trans-Canada Highway north of Lake Huron, about halfway between Sudbury and Sault Ste. Marie.

[2] Ms. Potvin pleaded guilty to two counts of possession of a Schedule I substance. One count related to a syringe which contained fentanyl and the other related to a syringe which contained cocaine. I am required to determine the appropriate disposition for those two findings of guilt.

[3] She is a 36 year old first offender, is addicted to fentanyl after taking it under a legal prescription, and has longstanding mental health issues.

[4] Crown and defence counsel are in agreement that it would be appropriate to require Ms. Potvin to undergo probation for a period of 18 months on conditions designed to maximize her access to counselling and treatment.

[5] Counsel differ on whether Ms. Potvin should be granted a conditional discharge, rather than having a conviction registered and the passing of sentence suspended. Crown counsel submits that fentanyl is so dangerous to the community that the principles of deterrence and repudiation require that a conviction be registered.

The Legal Framework for Discharge

[6] Sub-section 730(1) of the Criminal Code provides that a person who pleads guilty or is found guilty of an offence may be discharged if the sentencing court considers it to be in the person's best interests and not contrary to the public interest.

[7] I agree with Crown counsel that fentanyl is a dangerous drug which is having significant ill effects in our communities. It is apparent to me, however, that Ms. Potvin, having become addicted to that drug, is a victim of those who manufacture and traffic in it. It serves no purpose to treat her harshly.

[8] I agree with Justice Rose, who wrote in R. v. Marchese, 2015 ONCJ 126, that the war on drugs should not be waged against addicts, like Ms. Potvin, who are making significant, real and ongoing efforts to properly address their addiction. As Justice Rose held with respect to the defendant before him:

This is a public health issue primarily, and much less a matter of criminal interdiction.

Consideration of Indigenous Status

[9] I must also, however, consider the effect of Ms. Potvin's life as an Indigenous person.

[10] Sub-section 718.2(e) directs sentencing courts 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."

[11] The importance of this statutory obligation was explained by the Supreme Court of Canada in R. v. Gladue, [1999] 1 S.C.R. 688. It is intended to ameliorate the serious problem of overrepresentation of aboriginal people in prison, and to encourage sentencing judges to have recourse to a restorative process of sentencing. It directs sentencing judges to undertake the sentencing of Aboriginal offenders individually, but also differently, because the circumstances of Aboriginal people are unique. Sentencing courts were directed to take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, together with additional case-specific information from counsel and the pre-sentence report. The sentencing judge must be aware of alternatives to incarceration that exist whether inside or outside the Aboriginal community.

[12] The Supreme Court returned to this issue in R. v. Ipeelee, 2012 SCC 13, [2012] 1 SCR 433. The Court noted that in the 13 years since its decision in Gladue, its optimism that the application of the sentencing principles explained therein would ameliorate the overrepresentation and alienation of Indigenous peoples in the criminal justice system had not been borne out. Between 1996 and 2001, Indigenous admissions to custody increased by 3 percent while non-Indigenous admissions declined by 22 percent. Between 2001 and 2006, Indigenous admissions to custody increased by 4 percent despite an overall decline in prison admissions of 9 percent. The proportion of all federal inmates who were Indigenous had increased from 12 percent in 1999 to 17 percent in 2005. The Court felt it was appropriate to revisit the issue in order to provide additional guidance to sentencing courts, with the hope and expectation that some progress be achieved.

[13] Justice LeBel, writing for the majority, emphasized the following points:

(a) the overwhelming over-representation of Indigenous peoples in Canada's prisons is a result of both Indigenous people committing a disproportionate number of crimes and a discriminatory justice system;

(b) both of these issues must be addressed by sentencing judges:

(i) by reducing crime rates in Indigenous communities by effectively deterring and rehabilitating offenders, and

(ii) by ensuring that systemic factors do not lead inadvertently to discrimination in sentencing:

(a) by re-evaluating sentencing criteria such as employment status, level of education, family situation and other indications of stability to ensure that they are not contributing to ongoing systemic racial discrimination because of the social, political, and economic aspects of our society which place Indigenous people disproportionately among the unemployed, transients, and poorly educated; and

(b) by inquiring into causes of the problem and endeavouring to remedy it, to the extent that a remedy is possible through the sentencing process.

[14] The "causes of the problem" include the unique systemic or background factors which may have played a part in the Indigenous offender's conduct and diminished his or her moral culpability. These are mitigating factors. Failing to take these circumstances into account would violate the fundamental principle of sentencing – that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[15] These circumstances may also justify a sentence that takes account of the underlying causes of the conduct as being more appropriate than one only aimed at punishment. Viewing the circumstances through this lens bears not on the degree of culpability of the offender, but on the effectiveness of the sentence. Sentencing judges must abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and recognize that different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community.

[16] It is not necessary, in order to apply these principles, that a sentencing judge find a causal link between background factors and the commission of the offence for which an Indigenous offender is being sentenced. Furthermore, sentencing judges are required to apply these principles when sentencing an Indigenous offender no matter what the crime or how serious the Court considers it to be.

[17] Applying these principles does not mean that Aboriginal offenders are entitled to a race-based discount on sentencing. What they do mean is that sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case.

Background Circumstances of the Defendant

[18] I have had the advantage of being provided with a fully researched and thoughtfully written Gladue report in respect of Ms. Potvin. It is the source of the following information, together with submissions of defence counsel.

[19] Ms. Potvin's mother is also a member of the Serpent River First Nation. She experienced prejudice at a young age when she and her siblings were bussed off the reservation to attend school with non-Indigenous children. She had to sit on the back of the bus. She and her brother were bullied at school.

[20] Ms. Potvin's father was not Indigenous. While he and her mother were married, her father's relatives referred to Ms. Potvin's mother as a sauvage.

[21] Ms. Potvin's mother was sexually abused by her father (Ms. Potvin's grandfather), who was an alcoholic, from the age of 5 to 11. She was also abused by other relatives many times.

[22] Ms. Potvin told the Gladue report writer she was also sexually abused by her grandfather twice, in her early teen years. When she told her mother, her mother told her it was just a dream.

[23] Ms. Potvin's mother has, at times, been physically violent towards her. She witnessed physical violence between her grandparents, who lived with her and her parents when she was a child. Ms. Potvin told the Gladue report writer "My grandfather was an alcoholic. He was always drunk and angry and breaking things."

[24] Ms. Potvin's father was an alcoholic.

[25] Ms. Potvin has had unfortunate experiences with a number of male partners and is not, at present, in a relationship. She has one child, now 9 years old, of whom her mother has custody.

[26] Ms. Potvin started drinking at 14, using marijuana at 16, opiates at 18, and cocaine at 20. She dropped out of high school in grade 11.

[27] She acknowledges that she became addicted to fentanyl in 2009 when she was 28. She had originally been prescribed the drug by a physician, and then resorted to buying it on the street when her doctor lost his licence.

[28] She has attempted to deal with her addiction. In 2009 she attended a 21 day residential program at the Meadow Creek Addiction Treatment Centre at the Royal Ottawa Hospital. In 2012, she attended a residential treatment program at the New Gate 180 facility in Merrickville. In October 2016, she attended treatment at the Heritage Treatment Foundation in Godmanchester, Quebec. She told the Gladue report writer that that program managed to stop her using opiates.

[29] She is now taking part in the SMART recovery program, which helps people recover from all types of addictive behaviours, including drug addiction and substance abuse. She was on methadone, and is now, at her choice, on suboxone. She has indicated that she would like to attend another treatment program at an Indigenous-based centre called Rainbow Lodge on Manitoulin Island.

[30] Ms. Potvin has significant mental health issues. She told the report writer she has been diagnosed with obsessive compulsive disorder, borderline personality disorder, and anxiety. She reports that her anxiety is sometimes so bad that she does not want to leave the house.

[31] Ms. Potvin's Ojibway grandparents did not experience the horrors of the residential schools. They only managed to avoid that fate because her great-grandparents hid them when the authorities came to collect the children. That led to them living in hiding for a number of years.

Systemic Context and Historical Injustice

[32] What I have just recounted is Ms. Potvin's life story, and hers alone.

[33] The terrible reality, however, is that it is a variation on the theme of family turmoil, intergenerational physical and sexual abuse, alcoholism and drug addiction which pervades the lives of so many of the Indigenous peoples of this country. This is a direct result of the policies of the governments of this country since Europeans first came here. Governments at all levels and their agents set out to eradicate the culture, society, and traditions of these proud peoples. Far too many of the individuals brought before this court are the victims of those policies. Ms. Potvin is one of them.

[34] As Ms. Garant, the Gladue report author, wrote:

The long-term social and psychological impacts on the Aboriginal population of these policies are seen in numerous ways including disproportionately high rates of suicidality, addiction, dependency on the state, family violence and breakdown, poverty and poor social conditions.[1]

Application of Sentencing Principles

[35] How do these issues affect my decision with respect to the appropriate disposition of this matter? The Supreme Court of Canada has held that they support a finding of lower moral culpability on the part of the defendant, a greater emphasis on rehabilitation and less emphasis on deterrence and repudiation.

[36] Furthermore, as directed by s. 728.2(e), I am required to pay particular attention to the circumstances of aboriginal offenders when considering all available sanctions other than imprisonment. Although imprisonment has not been sought by the Crown, a suspended sentence for this offence may make imprisonment potentially easier to impose for a subsequent offence. A discharge may indirectly have the effect of keeping Ms. Potvin one step away from potential incarceration.

[37] I am directed by s. 730(1) to consider whether a discharge is contrary to the public interest. In my view, it is very much in the public interest to take any step possible to ameliorate the effects of the concerted government action of which Ms. Potvin has been the victim. A discharge may make it easier for Ms. Potvin to be employed or become engaged in her community. The criminal justice system should make her path easier, not harder.

Disposition

[38] I direct that Ms. Potvin be discharged, on condition that she undergo a period of probation of 18 months. The only terms of that probation, in addition to the statutory terms, are that she report to a probation officer today and as frequently thereafter as the officer determines, that she undergo such counselling and treatment for such issues as her probation officer deems appropriate, and that she sign the necessary forms to allow her probation officer to monitor her compliance.

Released: June 23, 2017

Signed: Justice P. K. Doody

Footnote

[1] Citing Laurence J. Kirmayer, Gregory M. Brass, Tara Holton, Ken Paul, Cori Simpson and Caroline Tait, Suicide Among Aboriginal People in Canada (Ottawa: Aboriginal Healing Foundation, 2007) at 59-64 and Health Canada, Honouring Our Strengths: A Renewed Framework to Address Substance Use Issues Among First Nations Peoples in Canada (Ottawa: Health Canada, 2011).