Court File and Parties

Court File No.: Ottawa 16-143303 Date: January 4, 2017 Ontario Court of Justice

Between: Her Majesty the Queen — and — Paul Whalen

Before: Justice P.K. Doody

Heard on: December 19, 2016 and January 3, 2017

Reasons for Sentence Judgment released on: January 4, 2017

Counsel:

• M. Boyce, for the Crown
• C.A. Morrow, for the defendant

DOODY J.:

Part 1: Overview

[1] Paul Whalen pleaded guilty to one count of failing to comply with a long-term supervision order by having consumed cocaine on June 2, 2016. I entered a finding of guilt on December 19, 2016.

[2] On March 28, 2008, Mr. Whalen was found guilty of 9 offences: two counts of assault, two counts of pointing a firearm, forcible seizure, assault with a weapon, use of a firearm while committing the offence of assault with a weapon, and two counts of breach of probation. One of the pointing of firearm counts was stayed on the basis of the Kineapple principle.

[3] The Crown applied to have Mr. Whalen declared a dangerous offender. On October 19, 2010 Justice John Keast of this court declared Mr. Whalen to be a long term offender and sentenced him to 3 years in custody after giving him credit for 2 years, 6 months, and 21 days of pre-sentence custody. Justice Keast also imposed a long term supervision order for a period of 10 years, commencing at the warrant expiry date of the 3 year term.

[4] Mr. Whalen was not detained to his warrant expiry date. Instead, he was released on his statutory release date of October 7, 2012 subject to a condition that he reside at the Portsmouth Community Correctional Centre in Kingston.

[5] On October 18, 2013, his warrant expiry date, Mr. Whalen was released subject to the long-term supervision order. One of the conditions of that order was that he not consume, purchase, or possess drugs unless prescribed.

[6] On January 27, 2014, Mr. Whalen was reclassified to a lower security Community Residential Facility and completed a drug treatment program at Maison Decision House in Ottawa. He was then allowed to reside at St. Anne's, a half-way house in Ottawa, where he lived until June 6, 2016 when a urine test disclosed the presence of cocaine. He was arrested and has been in custody since then.

Part 2: The Law

(a) Breaches of Long Term Supervision Orders

[7] The law in respect of sentencing for breaches of long term supervision orders was set out by the Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. These are the principles established in that case which I must follow in determining Mr. Whalen's sentence:

(a) there are two specific objectives of long-term supervision as a form of conditional release:

• (i) protecting the public from the risk of reoffence, and
• (ii) rehabilitating the offender and reintegrating him into the community;

(b) rehabilitation and reintegration may properly be described as the ultimate purpose of a long-term supervision order, though they are inextricably intertwined with the protection of the public;

(c) as a result, rehabilitation is an appropriate sentencing objective when an offender is found guilty of breaching a long-term supervision order;

(d) the duty of a judge imposing a sentence for breach of a long-term supervision order is to apply all of the principles mandated by ss. 719.1 and 718.2 of the Criminal Code in order to devise a sentence that furthers the overall objectives of sentencing;

(e) the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence;

(f) the fact that there is a significant maximum penalty of ten years for breach of a long-term supervision order does not mean that a significant period of imprisonment should be imposed for any breach; breaches can occur in an infinite variety of circumstances;

(g) since Parliament did not see fit to impose a mandatory minimum sentence, the entire range of sentencing options is open to a sentencing judge, including non-custodial sentences where appropriate;

(h) the severity of a particular breach of a long-term supervision order will depend, in large part, on the circumstances of the breach, the nature of the condition breached, and the role that condition plays in managing the offender's risk of reoffence in the community; and

(i) although a fit sentence takes into account the correlation between the actions which constituted a breach (for example, drug or alcohol use) and the defendant's past violent behaviour, and a fit sentence should seek to manage the risk of reoffence in a manner that addresses that correlation, the sentencing judge must focus on the actual incident giving rise to the breach; if the conduct constituting the breach was becoming intoxicated, not becoming intoxicated and engaging in violence, it is the former that must be addressed and it would be contrary to the principles of fundamental justice to punish the defendant for what "might have been".

(b) Application of s. 718.2(e): the Gladue factors

[8] 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."

[9] This 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. This does not mean that all prison sentences of Aboriginal offenders are to be automatically reduced. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for Aboriginals and non-Aboriginals will be close to each other or the same.

[10] The Supreme Court of Canada returned to this issue in 2012 in Ipeelee. Mr. Ipeelee is an Aboriginal person. 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 Aboriginal peoples in the criminal justice system had not been borne out. Between 1996 and 2001, Aboriginal admissions to custody increased by 3 percent while non-Aboriginal admissions declined by 22 percent. Between 2001 and 2006, Aboriginal 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 Aboriginal 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.

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

(a) the overwhelming over-representation of Aboriginal peoples in Canada's prisons is a result of both Aboriginal 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 Aboriginal 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 Aboriginal 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.

[12] The "causes of the problem" include the unique systemic or background factors which may have played a part in the Aboriginal 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.

[13] 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.

[14] 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 Aboriginal offender is being sentenced. Furthermore, sentencing judges are required to apply these principles when sentencing an Aboriginal offender no matter what the crime or how serious the Court considers it to be.

[15] 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.

Part 3: Mr. Whalen's background and the circumstances and context of the offence

a) Family circumstances

[16] Mr. Whalen is 39 years old. He is Métis, with his Aboriginal ancestry on his maternal side. His maternal grandfather and great-grandfather were from the Pikwaganan First Nation (formerly known as Golden Lake First Nation).

[17] A Gladue report prepared for the dangerous offender application indicates that his mother experienced domestic violence between her parents, and that both parents abused alcohol. His mother reported that Mr. Whalen's father was sexually, physically and verbally abusive. She told the report writer that her mother (Mr. Whalen's grandmother) prevented her from having relationships with Aboriginal people, telling her "stay away from those reserve Indians" and "quit acting Indian" when she misbehaved.

[18] Mr. Whalen told the Gladue report writer that both his parents were physically abusive towards him. This was confirmed by his siblings. Mr. Whalen told the report writer that he had been sexually abused when he was 11 years old, by a man who had been welcomed into the home by his mother. He also reported being sexually abused by a youth worker when he was 14 years old and living at a group home.

[19] Mr. Whalen's mother took him and his siblings to a shelter when he was approximately ten years old and has been separated from his father since then. He told the report writer that he had moved more than forty times and attended approximately 16 different schools.

[20] Dr. Derek Pallandi, who conducted a court-ordered psychiatric assessment of Mr. Whalen for the purposes of the dangerous offender application (with which I will deal in more detail later in these reasons) noted in his report of February 18, 2009 that the Children's Aid Society first became involved with Mr. Whalen's family in 1987 when his mother alleged having been sexually abused by her then husband. The C.A.S. records described substantial domestic violence and a generally chaotic and violent home environment, with Mr. Whalen's father being described as distant and detached emotionally from the children. Mr. Whalen exhibited highly problematic behaviour and was placed in foster care in numerous group homes commencing at the age of 10. He frequently ran away, fought, and was functionally unable to follow the fundamental rules of the homes.

[21] He did not proceed beyond Grade 9 in his formal education. At the time of his dangerous offender application, he had had only sporadic employment experience as a roofer and landscape worker.

b) Substance abuse

[22] Mr. Whalen told Dr. Julian Gojer, the psychiatrist retained by defence counsel for the dangerous offender application, that he had first started drinking when he was 11 years old, and drank regularly from the age of 16. He drank to the extent that he had withdrawal shakes when he was 17.

[23] He told Dr. Gojer that he began using marijuana when he was 11 and used it regularly from the age of 13. He began using cocaine when he was 17 years old and became addicted to it very quickly. He told Dr. Gojer in 2010 that he had been using it on a daily basis since he was 26 – a 7 year period. During that time period he was selling drugs to fund his drug habit.

[24] He told Dr. Pallandi, who conducted the court-ordered assessment, that by the age of 23 or 24, his use was "constant" and that "all my crimes have been surrounded by the drug … I don't enjoy hurting people … I'm not the guy that police are projecting me to be." Dr. Pallandi's report also notes:

Mr. Whalen indicated that when using cocaine he becomes "paranoid" and dysfunctional. He stated that he becomes avoidant of others, withdrawn and that his relationships are "destroyed".

c) Gladue report conclusion

[25] The Gladue report writer concluded:

Paul Whalen's life is reflective of First Nation and Métis history as well as the Indian Residential School experiences of many Aboriginal children. He has experienced loss, abandonment, dislocation, rejection, conflict, abuse, a lack of security and no sense of identity or belonging.

d) Criminal record

[26] Mr. Whalen has a lengthy criminal record, dating back to 1989 when he was 12 years old. It includes numerous assaults, weapons offences, threats, and forcible entry offences prior to the offences of which he was convicted in 2008. In his decision on the dangerous offender application Justice Keast noted that there were only short gaps between occurrences and that Mr. Whalen had been on continuous probation from the age of 12 to the age of 30. He also noted that the offences, both those in the past and the offences predicate to the application, demonstrate a pattern of repetitive behaviour which included, among other things: assaultive behaviour, the use of weapons and firearms to ensure compliance with demands, seizing and confining residents to their vehicle or residences, taking control over the victims, a sustained environment of violence and confinement or both lasting from several minutes to several hours, and sustained fear or terrifying behaviour.

e) Psychiatric and psychological reports at time of dangerous offender application

[27] Dr. Derek Pallandi conducted a court-ordered assessment of Mr. Whalen and provided a report dated February 18, 2009. He diagnosed him as suffering from a severe antisocial personality disorder and noted, with respect to cocaine abuse:

Both by his own account and by that contained in file material, Mr. Whalen has had substantial difficulties with cocaine. He has used persistently and heavily despite being aware of the consequences of such ongoing use. It appears that at least some of his legal difficulties, although not likely to the extent that he asserts, have been attributable to ongoing cocaine abuse. Further, he has been largely, if not completely, unsuccessful in his attempts thus far to address his cocaine problems through traditional methods of treatment.

[28] Dr. Pallandi concluded, under the heading "Composite Assessment of Risk", as follows:

As articulated above, the actuarial assessment of risk portrays an ominous prognosis. That is, according to available actuarial instruments, Mr. Whalen presents with a very high likelihood of violent recidivism, if provided the opportunity.

What is less clear, however, is that should Mr. Whalen should re-offend, what the particular characteristics of a re-offense would be. It is not clear from the present assessment that his conduct, while antisocial, would distinguish him as among the most violent, brutal or unrestrained offenders. Further, Mr. Whalen has demonstrated, albeit briefly, periods when he can conduct himself somewhat more pro-socially. Further, he has expressed a willingness to engage in treatment and rehabilitation so that he might alter the current course of the above noted risk factors.

[29] Dr. Gojer was somewhat more optimistic. He diagnosed Mr. Whalen as suffering from an antisocial personality disorder and a personality disorder with borderline traits. He noted that at the time of his report in April 2010, when Mr. Whalen had been in custody approximately two years, he told him that he had not used any cocaine or alcohol since his incarceration and had not used any drugs for more than a year. He noted:

Drugs and alcohol are not a problem at this time and any dependence he has had on them are in remission. They have been an important part of his life and deserve to be mentioned as they have been linked to how he has coped with his emotions over the years and have a very strong association to most of his adult offenses. The alcohol and drug dependency cannot be viewed in isolation but must be understood in light of his personality development. He is presently exquisitely aware of how alcohol and cocaine have impacted on his life and he presents as motivated to accept help to eradicate any future use of all drugs and alcohol.

Clinically, based on his past history of aggression, persistent drug abuse and criminal offending, I see him as being at a high risk to reoffend in a moderately violent manner. His track record for abstinence is poor. I estimate that his risk of reoffending against males is higher than to women.

At this time, I see him as having had the opportunity to reflect on his past, place it in context and recognize how important it is for him to change. I see him as being motivated to change. While motivation tends to be higher prior to sentencing, I sense a sincerity in wanting to examine his past behaviours, a remorse for hurting the people he did and a desire to make something out of his life. Clinically I see his risk to reoffend violently as moderate.

Given the strong association between his drug and alcohol abuse and his violent offending, I am optimistic that if he remains sober, he will be able to settle into a more stable life style. The use of drugs and alcohol contribute to his antisocial personality disordered and borderline disordered profile. Alcohol and drug dependence are treatable conditions and both can be managed in the community. He recognizes that the use of drugs and alcohol has been prominent in virtually all of his adult offenses. Control of his use of drugs and alcohol will see a significant reduction in all antisocial and borderline behaviours. Abstinence from drugs and alcohol in the carceral system is the first step and he has taken that one. Engagement in counselling and follow through when released and close monitoring of his sobriety along with random screening to ensure compliance are the next steps and there are strategies that work and can be put into place. He will require ongoing community management of his alcohol and drug taking behaviour.

[30] Dr. David Nussbaum, a psychologist, provided a report dated March 28, 2010 for defence counsel on the dangerous offender application. It was Dr. Nussbaum's opinion that Mr. Whalen had a strong motivation to change his behavior. In coming to that opinion, he relied on an extensive series of psychological tests designed to determine the genuineness of that motivation. He scored well on this testing, supporting his opinion that Mr. Whalen's motivation to change was genuine. It was Dr. Nussbaum's opinion that at the time he conducted the testing, Mr. Whalen had a greater depth to his insight and motivation, in part contributed to by his lengthy period of sobriety which did not exist in the past, which had provided greater clarity to his contemplation. He saw a clear opportunity for a strong chance of resolution of Mr. Whalen's core difficulties.

f) Decision on dangerous offender application

[31] Justice Keast did not accept Dr. Gojer's opinion that there was a high risk of only "moderately" violent offences by Mr. Whalen in the future. Nor did he agree with Dr. Gojer's opinion that the risk of reoffending was greater against men than women. Justice Keast found that, taking the context of the offences into account, the violence engaged in by Mr. Whalen in his offences was severe and persistent, particularly as it relates to his female victims. He found that there was a high real potential for lethality in future domestic relationships.

[32] Justice Keast found that Mr. Whalen constituted a threat to the life, safety, or physical or mental wellbeing of other persons. This, together with his finding that the antecedent of a serious personal injury offence had been proven, met the criteria to declare Mr. Whalen to be a dangerous offender.

[33] He did not do so, however. Instead, he found him to be a long term offender because the sentencing sanctions available under the long term offender provisions were sufficient to reduce to an acceptable level the threat posed by Mr. Whalen.

[34] In coming to that conclusion, Justice Keast took careful account of the opinions of both Dr. Gojer, Dr. Pallandi, and Dr. Nussbaum.

[35] Justice Keast accepted the evidence of Dr. Gojer and Dr. Nussbaum that Mr. Whalen was honestly expressing insight into his crimes, remorse for what he had done, and a desire to change.

[36] Justice Keast concluded that there was a reasonable possibility of eventual control of the risk posed by Mr. Whalen in the community. In coming to that conclusion, he listed 8 factors. They included the fact that it appeared Mr. Whalen had become a model prisoner and was well-behaved in the prisoner population; his application and acceptance to the "Teen Challenge" program, a twelve-month residential placement program focused on addiction and related issues which has a 70% success rate among those who survive the first 12 months; and evidence from several witnesses who had known Mr. Whalen during the worst periods of his life who testified about the scope and depth of his desire to change.

[37] As a result of that conclusion, Justice Keast declared Mr. Whalen to be a long-term offender and imposed the 3 year sentence and 10 year long-term supervision order.

g) Correctional Service of Canada Psychological Intake Assessment March 23, 2011

[38] Dr. Patricia Parmashwar and Dr. Peter Marquis, both psychologists, prepared an intake assessment of Mr. Whalen on March 23, 2011. They noted that Mr. Whalen appeared to be interested and motivated to participate in substance abuse programming. They wrote:

Areas to be considered for treatment would include his propensity for violence particularly in the domain of Family/marital and his alcohol/drug dependence although it may be in remission. To his credit, he appears motivated for treatment and his responses acknowledge the importance of his problems and the perception of a need for help. He reports a positive attitude towards the possibility of personal change, the value of therapy and personal responsibility.

h) Parole Board of Canada's psychologist report March 26, 2015

[39] Dr. S. Kennedy, a psychologist employed by the National Parole Board, prepared a report dated March 26, 2015. She noted that Mr. Whalen:

(a) had been under community supervision for the prior 2 and a half years, and had been responding well to the structure and support afforded by a residency condition (other than a charge of breach of a condition to avoid certain persons, which was withdrawn and not proven at this sentencing hearing, so that I do not consider it for the purpose of this decision);

(b) was actively engaged in the therapeutic process and appeared to be deriving therapeutic benefit from the sessions with her;

(c) had completed all required programming for the substance abuse program at Maison Decision House and the Community Maintenance Program;

(d) had had a negative result on all urinalysis tests, indicating that he was committed to his sobriety;

(e) had a strong support system which includes his girlfriend, parents, brother and extended family, including an Aboriginal elder and members of the Canadian Amateur Boxing Association; and

(f) presented as motivated to remain abstinent from alcohol and drugs and continue to effect a positive and productive change in his lifestyle.

[40] Dr. Kennedy cautioned, however, that Mr. Whalen would be required to continue to demonstrate significant and sustained change and stability, particularly in the area of relationships, prior to removal of his residency condition.

i) Parole Board of Canada decision August 18, 2015

[41] On August 8, 2015 the Parole Board ordered that Mr. Whalen continue to reside at the half-way house for a further year as a condition of his long-term supervision order. The written decision noted a number of positive features:

(a) He continued to be employed full-time and had been progressing well in the community;

(b) He had completed programming to address his substance abuse issues and there had been no incidents of any relapse;

(c) He continued to have a positive relationship and recently had a child with his common law spouse;

(d) He had developed positive supports in the community through a local boxing gym;

(e) His behavior continued to be appropriate and he had a good relationship with his parole supervisor and the staff of the half-way house;

(f) He continued to participate in psychological counselling and a recent report from the psychologist indicated that he had been responding well to the structure and support provided by a residency condition;

(g) He was actively engaged in the therapeutic process and appeared to derive benefit from it; and

(h) On the negative side, he had not yet solidified a viable release plan.

j) Negative urinalysis tests

[42] Mr. Whalen was released on statutory release on October 17, 2012. From that date until November 2014, his urine was tested 23 times for the presence of, among other things, cocaine. All tests were negative. In November 2014, he was removed from the regular urinalysis regime and required to undergo urine testing only if there was a suspicion of substance use.

k) Circumstances of the offence

[43] On May 26, 2016, Mr. Whalen was advised by his parole officer that he could no longer see his common-law spouse or his infant daughter because his spouse had recently reported what the parole officer's report described as "negative behavior" by Mr. Whalen. The same report indicated that she "quickly recanted" that allegation. Nevertheless, Mr. Whalen's case management team decided that it was necessary to prohibit contact.

[44] On June 1, 2016, Mr. Whalen was advised that he was being placed back on regular urinalysis testing. The same day, he was asked to provide a urine sample. Mr. Whalen asked if it could wait until the next morning. The request was denied and a sample was provided approximately two hours after the demand.

[45] The sample tested positive for a cocaine metabolite, indicating that Mr. Whalen had used cocaine. The laboratory report, produced on June 6, indicated that the specimen was "dilute". Mr. Whalen was arrested the same day.

[46] A search of his apartment at the half-way house found no drugs or drug paraphernalia.

l) Correctional Service of Canada Correctional Plan of June 29, 2016

[47] After he was returned to custody, the Correctional Services prepared this document to outline the circumstances surrounding the suspension of Mr. Whalen's long-term supervision order on June 6, 2016. The author of the report interviewed Mr. Whalen on June 13, 2016. He provided him with the standard caution that he need not say anything and advised him that he had the right to retain and instruct counsel. He was asked if he wanted to call a lawyer before the interview was continued. Mr. Whalen replied that he had already spoken to his lawyer and wished to participate in the interview.

[48] Mr. Whalen freely admitted that he started using cocaine following the May 26 meeting when he was told he could not see his spouse or daughter. He said that the stress of being told he could not see his girlfriend or daughter was too much for him and he used out of "desperation". He said that he had used a "few times" between the meeting and when he was arrested. He said he wanted to tell his case management team, but felt that he could stop using, not get caught and move on with his supervision. He acknowledged that that was clearly not so.

[49] Mr. Whalen acknowledged responsibility for his actions, noting that he "messed up". He said that this would not ruin his future and he would do better on his next supervision period. He said he was going to plead guilty.

[50] The author wrote:

Overall, Mr. Whalen is considered to have progressed very well during the course of his supervision to date. He successfully completed required programming, was participating in regular psychological counseling and had maintained full time employment in the asbestos abatement field. Recently he was completing training for his journeyman certification.

Mr. Whalen is considered to be a moderate risk and needs offender with continued deficits in the domain of Substance Use which is a domain that is considered to require intervention. Mr. Whalen is an Aboriginal (Métis) offender and review of his Social History can provide some context for the ratings noted above.

m) Evidence of Mr. Whalen

[51] Mr. Whalen testified on the sentencing hearing. He described his attendance at the program at Maison Decision House, where he had spent the first three months after being released from the Community Correctional Centre. He admitted that he initially rejected the program, thinking he did not need it since he had been drug free for a number of years. He realized, however, that there were a lot of useful things in the program and he changed his attitude.

[52] He testified that when he first got to St. Anne's he was anxious and guarded with everyone. He became more comfortable over time and was able to share things with them. He had a good relationship with everyone there. He was seeing his case manager once a month. He was also regularly seeing Dr. Kennedy, a psychologist employed by the Parole Board.

[53] He said that when the long-term supervision order was imposed on him he was grateful because he recognized that without it he would be like a "ship without a rudder". The discipline required by the order had helped keep him in line.

[54] He testified that while he was living at the Portsmouth Community Correctional Centre he was employed as a forklift operator for 15 months at Corecan, a business operated by Correctional Services. After he left Maison Decision House he searched online for possible work and learned of a course to train how to remove asbestos from buildings. He took that course in April 2014 and began working in May 2014 removing hazardous material. He worked for one company for 12 months and then "took a break". He said he found the work hard on the body, particularly because he had resumed boxing, something he had done in the past.

[55] After 2 ½ months, he was hired by Elite Environmental Group removing asbestos. He was working there at the time of his arrest. He enjoys the work and it pays well. On Friday June 10, four days after his arrest, he was scheduled to obtain his journeyman's certificate, entitling him to higher pay and more stable work. If released, he will go back to Elite, where there will be a job available for him.

[56] He testified that he returned to boxing when he was living at the Portsmouth Centre. He joined a boxing club in Kingston. When he came to Ottawa, he took some coaching courses and was an active member of the Beaver Boxing Club.

[57] He also testified about his relationship with his common-law spouse, who was present in the courtroom throughout his testimony. When they met, she was studying at a university outside Ottawa. In February 2014, she gave birth to their daughter. She moved to Ottawa in August 2015 with their daughter and her four children from a previous relationship. One of her daughters, who was 8 years old, became severely ill in April 2016 and spent some time in hospital.

[58] Mr. Whalen's spouse lived in an area of Ottawa which was about 45 minutes to an hour away from St. Anne's by public transit. Mr. Whalen returned to St. Anne's after work every day to sign in, then took transit to his spouse's house. He also spent all his days off at the house. He paid half the household bills.

[59] Mr. Whalen testified that both he and his spouse were exhausted with all of the competing demands on their time and energy. They argued from time to time. They had a major argument when a computer fell off a fridge. This led to his case management team requiring him to cease contact with his spouse and, as a result, his daughter.

[60] Mr. Whalen said he was "messed up" as a result of this. He started using again. He wanted to tell his case manager but did not know what would happen to him if he did that. Consequently, he decided to get hold of an outside agency. He had scheduled an appointment for counselling with the Wabano Center for Aboriginal Health, an Aboriginal community health and outreach institution in Ottawa, for the day after the initial testing. He did attend that meeting. He said that he had done this to avoid talking to the case management team, who he knew would be disappointed with him. He did not want to let down his daughter, saying that he had already lost one daughter due to his troubles with addiction and the law and he did not want to lose another.

[61] He testified that he had a good support system, including his sister who has been a recovering addict for ten years; his cousin; his boss and friends. He was asked what happened to this support system and he said that he stopped using it and his self care started tapering off because of his exhaustion and lack of time. He said he would welcome another opportunity to reengage in a counselling program.

[62] In cross examination, he admitted that he had tried to delay the urinalysis so that the result would be negative. He said, however, that even if his test had come back clean he would have told his case management team.

[63] He admitted that his past use of cocaine had fuelled some of his past offences. He agreed that his use of cocaine had impacted every area of his life negatively.

[64] Mr. Whalen was not shaken in cross-examination. His evidence was consistent with the documents filed, including the Correctional Service records. I accept his evidence.

n) Support for Mr. Whalen

[65] Defence counsel filed a number of letters of support for her client.

[66] His spouse and fiancée wrote eloquently about her relationship with him, which has been ongoing for three years. She is clearly an intelligent and engaged Aboriginal woman, presently in the fifth year of a Ph.D. program in Indigenous Literature, having earlier earned her M.A. and B.A. (Hons.) in English Literature. She has taught as a sessional instructor at two universities in Canada over the past four years.

[67] She wrote:

My relationship with Paul has been great, and we connect well in many ways and I find him to be a warm, engaging, intelligent and compassionate man who has supported me emotionally through many hard times, and who contributes financially to our home and family life. He is an amazing stepfather to my four children, and throughout the years has established a very close relationship with all my children, and they currently miss him terribly and ask for him every day. He reads to them, participates in sporting and school events, long life discussions, outings and participates in the children's daily lives and activities in a deep and meaningful way. As their own father is not involved, they view Paul not only as a stepfather, but as the only male figure in their lives, so with this said, his absence is traumatizing and very difficult for the children at this point in their lives. When Paul was not here for Father's Day, my six and seven year old daughters cried because they had made him a very special gift and he wasn't there to receive it. Paul has been a part of our daughter's life since she was born. He has stayed up all night with her at times while she was sick, he has nurtured her, fed her, changed her, taken her for daily walks and outings, and they share a very close relationship which has been daily up until his incarceration. She looks for him and calls out Dada daily and I feel that she is feeling extremely saddened by his absence. Paul is a hands on father who takes fatherhood extremely seriously and puts the time and effort into building relationships with these children in a way that I have rarely seen a father do. We go to church together as a family, exercise together, travel and build our daily lives around creating a healthy and strong and spiritual family environment for the children and for our own relationship as well.

Currently, it has been difficult without Paul's presence in our home. I had moved to Ottawa to be with him and to relocate my children to build a life with Paul. We had both contributed financially during this time, and without his financial input into our rental and life and bills, I am having to consider moving to an apartment, putting my dissertation on hold and finding a job quickly, as I am currently on a full-time scholarship that is running out as I am in my fifth year. I have had to visit food banks and have found it both straining and difficult. I have been diagnosed with Post Traumatic Stress Disorder several years ago due to past trauma in my marriage, childhood abuse on my First Nation, generational effects from the residential school experience, and a sexual assault that occurred in 2012, and Paul has been a great emotional support to me for the last three years and has worked with me closely to deal with these issues. I am truly feeling his loss very deeply as a woman and partner as he has been my best friend as well.

I am writing to assert and to state that Paul Whalen is a man with deep personal values, an intensely strong and ethical man of character who has shown me a sense of responsibility to this family and this relationship for three years. Through the three years that we have been together, he has never shown anything but unwavering loyalty and hard work, and I can never imagine him being anything like he has expressed his past to be in any way. He is not that man with any of those capabilities. He has chosen to continue his work on his Indigenous Heritage, his Christian spirituality and has been a strong and wonderful partner to me and father figure to the children. He has proven to be a wonderful and hands on father who has contributed in every way to the family functionality. He is missed and needed in this family, and we will stand by and wait for him and support him during this time. His role as partner and father is a necessary part of six of us that are needing him to come home as soon as possible.

[68] Mr. Whalen's mother wrote that she has seen him undergo a tremendous change since his arrest and the imposition of the long-term supervision order in 2010. She notes that he could have reacted to that order in two ways, and he chose the right one. She wrote that he saw the order as an opportunity to get help, learn, and change. She said that Mr. Whalen knows he let himself down when he used cocaine this year – that "he feels the weight of his choice and has reflected on it almost continuously since he was arrested. He knows he has let himself and [his fiancée] and the children down."

[69] Mr. Whalen's father wrote a letter in which he acknowledges that when Mr. Whalen was growing up he never had much to do with him. He wrote that he had seen him a few times over the last few years and noticed a significant change in him – that he realized that he needed to change what he had been doing and was intent on succeeding. He wrote:

Paul knows he screwed up bad. He's not happy about it and he's beating himself up over it. There was too much going on what with the little one in and out of hospital. Things got away from him. He knows he has to slow it back down. I've had my own fights with drinking. It me half a lifetime so I'm proud of him.

[70] Les Palmer provided two letters. He is a trustee of Local 2000 of the International Union of Painters and Allied Trades, and a project supervisor at Elite. In his capacity as union trustee, he confirmed that Mr. Whalen has been taking training as a Hazardous Materials Worker specializing in asbestos and mould abatement and lead remediation. He noted that Mr. Whalen was very determined to change his life around and had been making great progress in this area, and wrote that "with Paul's training, skill set and work ethic he is very employable and would be in high demand." As project supervisor at Elite, he wrote:

we realize Paul has had problems in the past and he still has on going issues in his life which he has been addressing. Paul is a very capable individual and with the proper support will be able to overcome these issues. We are here to assure you that he has our support. There are a number of employees/friends who are here to help Paul with his challenges as he returns to work.

[71] Peter Aronis, the owner of Spartan Health, a training facility in Ottawa, wrote to express his support for Mr. Whalen, who he met at a boxing gym. He wrote that he knew of Mr. Whalen's past, understood how his past actions currently affected his life, and has told him that he is available anytime as a support.

[72] Kevin McNeil, the Assistant Head Coach of the Beaver Boxing Club in Ottawa, wrote that he has witnessed Mr. Whalen's personal commitment to his training over two years. He said that Mr. Whalen was a valued team member who worked hard for himself and the team.

[73] Jill Perry, the President and Head Coach of the Beaver Boxing Club, wrote that Mr. Whalen was an exceptional boxer with a strong work ethic. She wrote that she understands that Mr. Whalen violated his parole, but understands that people make mistakes in life and that they can, with the right support, move forward and get back on track – and that boxing is a sport that has helped many people in such situations. She hopes that Mr. Whalen will complete his coaching certification, on which he had begun work, and in that way give back to the community. She believes that he can do this if given the chance.

Part 4: Analysis

[74] Crown counsel seeks a 12 month sentence. Defence counsel submits that a six month sentence would be appropriate and, since Mr. Whalen has been in custody on this offence just one day shy of 7 months, he should be released.

[75] As the Supreme Court of Canada held at paragraph 55 of Ipeelee, it is the sentencing judge's duty to determine the sentence that will be proportionate to the gravity of the offence and the degree of responsibility of the offender. A contextual analysis is required in order to determine the severity of a particular breach, taking into account not only the conduct that gave rise to the offence but also what it portends in light of the offender's entire history of criminal conduct.

[76] The offence, taken on its own, is not at the most serious end of the range of possible breaches of long-term supervision orders. While possession of cocaine is itself a crime, no other criminal conduct was involved. Mr. Whalen did not engage in violence or any other criminal conduct. It would be wrong to sentence him for what might have occurred had he continued to take cocaine and not been subjected to mandatory urinalysis and brought back into custody.

[77] At the same time, however, Mr. Whalen's criminal activities all or almost all occurred while he was under the influence of cocaine, by his own admission. Cocaine is a trigger for his violent behavior. This condition, to use the language of the Supreme Court of Canada in Ipeelee, plays a large part in managing Mr. Whalen's risk of reoffence in the community. Protection of the public requires that Mr. Whalen not consume cocaine, and any sentence must strive to achieve this.

[78] Mr. Whalen used cocaine on four occasions, not just once, before he was brought back into custody. This suggests that, left alone, he may well have continued to use it.

[79] Mr. Whalen attempted to deal with his resumption of cocaine use without telling his case management team, who he knew were there to assist him in his rehabilitation, including his potential drug use. Instead of telling them, he tried to delay the test in order to avoid a positive result. This lack of forthrightness and attempt to cover up his breach is an aggravating factor that must be considered when determining how to ensure protection of the public.

[80] Mr. Whalen attributes his relapse to the stress that he was under dealing with his spouse, his spouse's children (including one who was very sick), his own daughter, his work, and commuting among his residence, his work, and his spouse's residence. This does not necessarily support a lighter sentence, since stress is a part of life, and Mr. Whalen must learn to deal with his stress without resorting to illicit drug use. If he does not do so, he will not be rehabilitated and the public will not be protected.

[81] The context of Mr. Whalen's relapse, however, gives reason to conclude that it may not have been an indication of a serious problem that requires lengthy incarceration to protect the public, but a warning light that, despite many positive signs, he still has a way to go before he reaches his goal.

[82] That context includes the following:

(a) he was found by Justice Keast to have been a "model prisoner" and well-behaved within the prisoner population at the time of the dangerous offender application;

(b) he abstained from alcohol or illicit drug use for the eight year period from 2008 to 2016 by his own evidence, with urinalysis confirming that for the two year period from November 2012 to November 2014;

(c) the psychiatric and psychological reports, Correctional Service and Parole Board reports prepared shortly after his incarceration in 2008 were gloomy in terms of likelihood of recidivism, but improved over the last eight years so that the most recent reports were positive (even after the cocaine use which gave rise to this charge);

(d) coinciding with the improvement in the reports, he recognized that he had to change if he was going to succeed, and made observable efforts to do so;

(e) he sought out training and achieved certification in a skill which will be in demand in the future, although he had only a Grade 9 education and never held steady employment before his 2008 arrest;

(f) he was working steadily (except for a two and a half month gap) during the two years and two months preceding his June 6, 2016 arrest;

(g) he entered into a relationship and had a child with a woman who is ready to stay with him;

(h) he has supported his new family financially;

(i) there is no suggestion that his cocaine use was with his past criminal associates;

(j) he recognized that he had lost control and sought assistance from an Aboriginal community health organization; and

(k) he has developed, through his own efforts, a strong support system of people in the community who, although aware of his past, are prepared to help him in his goal of rehabilitation. Those supports include, despite his past difficulties with his family members, his mother and father.

[83] The analysis required by s. 718.2(e), Gladue, and Ipeelee leads to the conclusion that Mr. Whalen has diminished moral culpability for this offence. This mitigates the sentence. It is not just that Mr. Whalen is Métis. His life, as the Gladue report makes clear, is reflective of the experiences of many Aboriginal children. As the writer of that report stated, "He has experienced loss, abandonment, dislocation, rejection, conflict, abuse, a lack of security and no sense of identity or belonging." This has understandably diminished his ability to deal with the stresses of life. A just sentence, one that is proportionate to the degree of his responsibility as well as the gravity of the offence, should take this into account and recognize that the path to rehabilitation for Mr. Whalen, like for many Aboriginal offenders, may be rockier than most.

[84] In my view, such a sentence should also take into account the way in which Mr. Whalen has responded to the various controls – including incarceration and gradually diminishing supervision since he was released in October 2012 – in order to determine what is needed to both protect the public and assist with Mr. Whalen's rehabilitation.

[85] I note that almost immediately after Mr. Whalen was required to undergo urinalysis, his cocaine use was detected and he was removed from the community. The long-term supervision order accomplished its goal – it protected the public while assisting in Mr. Whalen's rehabilitation. That long-term supervision order has 7 years to run.

[86] It is not surprising that an addict will relapse. Few do not. It would be foolish to expect someone with Mr. Whalen's history to go through ten years without relapsing. A just sentence, intended to rehabilitate as well as protect the public, will react to a relapse in a way that attempts to restore both sobriety and the conditions that supported it.

[87] In my view, an appropriate sentence for Mr. Whalen, considering the context of his breach, his Aboriginal background, the support system he has in place, and his own willingness to do what is necessary to get back on track, is 7 months of incarceration.

[88] The risk of cocaine use after the completion of such a sentence, in Mr. Whalen's circumstances, can be effectively managed by the imposition of a requirement for mandatory urinalysis as part of his long-term supervision order. Imposing a longer sentence would unnecessarily interfere with his rehabilitation by making it harder for him to reintegrate with his spouse and daughter, contribute to their financial needs, and reintegrate himself into the community from which he has been absent for 7 months. I am satisfied that Mr. Whalen's acceptance of the necessity of staying drug-free, combined with his knowledge that a future breach by using cocaine will bring a more severe punishment, will provide the necessary deterrence against re-offending.

[89] Such a sentence would not offend the parity principle by which like offenders committing like offences receive like punishments. No offenders and no offences are exactly alike. Even acknowledging that, however, a 7 month sentence for Mr. Whalen would not offend this principle.

[90] The Supreme Court of Canada reduced the 3 year sentence given to Mr. Ipeelee to 1 year. His offence was similar to Mr. Whalen's in that he was convicted of breaching a condition to abstain from alcohol, a condition which was crucial to his rehabilitation. Nor was there any evidence that he had consumed alcohol on any occasion prior to the breach. The context, however, was quite different. He had not shown a progression in his rehabilitation over many years, as has Mr. Whalen. Rather, his long-term supervision order was suspended four times between March 2007 when it commenced and August 2008 when he was arrested and charged with the breach offence. Furthermore, there was no evidence cited of his personal commitment to and success at improving his circumstances. The context of Mr. Ipeelee's offence, and his own personal circumstances, suggest a sentence of greater severity than would be appropriate for Mr. Whalen.

[91] Mr. Frank Ladue's sentence was considered as part of the same appeal as Mr. Ipeelee's. He pleaded guilty to a breach of his long-term supervision order after his urinalysis tested positive for cocaine. The sentencing judge imposed a sentence of three years' incarceration. The British Columbia Court of Appeal reduced the sentence to one year. The Supreme Court of Canada upheld the one year sentence, finding that such a sentence "adequately reflects the principles and objectives of sentencing set out in the Criminal Code". Mr. Ladue, however, had had his long-term supervision order suspended ten times between May 2006 and May 2009 and had been convicted three times of breaching his long-term supervision order prior to the offence considered by the Supreme Court of Canada. That is not like the context of Mr. Whalen's offence.

[92] Crown counsel relied on the decision of the Ontario Court of Appeal R. v. Matte, 2012 ONCA 504, 111 O.R. (3d) 791, in support of his submission that the "range" of appropriate sentences for an offence like Mr. Whalen's was 12 to 15 months in custody. In Matte, a sentence of one year's imprisonment was upheld for breach of a long-term supervision order by taking a prohibited drug. Drug use was, for Mr. Matte as it is for Mr. Whalen, inextricably interwoven with his criminal offences. Unlike Mr. Whalen, however, the conviction was Mr. Matte's third for breach of his long-term supervision order. He had violated the terms of his statutory release four times. He had a robust record of institutional offences. When granted release into the community before commencement of the long-term supervision order, his parole was suspended four times after a few days or, at most, four months from his release. The Court of Appeal described his response to long-term supervision as "tepid, characterized by minimal effort, negligible motivation and spotty and superficial participation." His attitude to authority was consistently negative. None of these things are like Mr. Whalen's record. I conclude that Mr. Whalen's sentence, to be consistent with the principle of parity, should be significantly less than Mr. Matte's.

[93] Since Mr. Whalen has been in custody 7 months less a day, I need not consider what credit would be appropriate to give him for his custody before sentence. This issue was raised in submissions before me. Furthermore, if I have proceeded on inappropriate principles in determining that the appropriate sentence for Mr. Whalen would be 7 months, it may be useful for a reviewing court to know how I would have exercised my discretion with respect to pre-sentence custody.

[94] Crown counsel submitted that it would be appropriate to give only one day's credit for each day in pre-trial custody. He relied on the decision of the Ontario Court of Appeal in R. v. Bourdon, 2012 ONCA 256, 110 O.R. (3d) 168. In that case, the Court of Appeal upheld a sentence for breach of a long-term supervision order which, due to an arithmetical error by the sentencing judge, gave less than the 1.5:1 credit he had intended. The Court held that, despite the error, the sentence was fit. Juriansz J.A. relied on the Court of Appeal's decision in the Ipeelee case, in which it had upheld the sentencing judge's refusal to give enhanced credit for pre-sentence custody because the long-term supervision order continued to run during the pre-sentence custody (implying that it would be wrong to give "double credit") and that Mr. Ipeelee would be unlikely to receive early release had he been serving a sentence. The court acknowledged, however, that the issue of a credit for pre-sentence custody was in the discretion of the sentencing judge.

[95] I am not satisfied, when considering Mr. Whalen's record since his incarceration in 2008 (which appears to be significantly better than Mr. Ipeelee's), that Mr. Whalen would have been unlikely to receive early release had he served a custodial sentence rather than been held in pre-sentence custody. I am also aware of the conditions in the Ottawa-Carleton Detention Centre, in which Mr. Whalen has been held since June 6, 2016. Those conditions are inappropriate and harsher than would be experienced were he to have served his sentence in a federal penitentiary.

[96] I acknowledge that it is somewhat incongruous for an offender to see his long-term supervision order diminish at the same time he is earning credit towards a sentence. This would not happen if the offender was serving a sentence for breach of a long-term supervision order – the sentence interrupts the running of the long-term supervision order. At the same time, however, the offender is denied the benefit he derives from the re-integration into society through the managed process of the long-term supervision order.

[97] In all of the circumstances, I would exercise my discretion to give Mr. Whalen a 1.3:1 credit for the time he has spent in custody between June 6, 2016 and today. That would entitle him to 9.1 months' credit for the 7 months he has actually served.

[98] In the result, I sentence Mr. Whalen to a sentence of one day's custody.

[99] I direct that a copy of these reasons be provided to Mr. Whalen's case management team supervising his long-term supervision order.

Released: January 4, 2017

Signed: Justice P. K. Doody