Ontario Court of Justice

Date: September 26, 2017

Ontario Court of Justice - Old City Hall

Between:

HER MAJESTY THE QUEEN

— AND —

CLINT RONDEAU

Before: Justice S.R. Shamai

Pleas entered: February 10, 2017

Sentencing hearing: July 4 and September 8, 2017

Sentence imposed: September 18, 2017

Reasons for Sentence released: September 26, 2017

Counsel:

• Fred Bartley, for the Crown
• Emily Lam, for the accused Clint Rondeau

S.R. Shamai J.:

Introduction

[1] Clint Rondeau has entered guilty pleas to a series of ten property offences and crimes of violence, which he committed between February 8, 2016 and March 13, 2016. He has admitted committing the following criminal offences:

• February 8 – theft of motor vehicle
• March 8 – robbery of Sean Sydney while armed with an offensive weapon, a knife
• March 10 – robbery of Lucija Blaxevic-Grenier while armed with an offensive weapon, a knife
• March 10 – aggravated assault of Lucija Blazevic-Grenier
• March 10 – assault of Thomas Laughlin while threatening to use a knife as a weapon
• March 10 – endanger the life of or cause bodily harm to Thomas Laughlin by administering a noxious thing, namely pepper spray
• March 12 – robbery of Ho Noh while armed with an offensive weapon, namely a knife
• March 12 – robbery of Keheeswary Tharmakulaswekaram while armed with an offensive weapon, a knife
• March 13 – robbery of Jill O'Dell while armed with an offensive weapon, a knife

The Offences

[2] The facts admitted by Mr. Rondeau on his pleas of guilt are low level acts of violence, upon random strangers who happen to have access to the property he wants. In other words, the threats of violence are worse than the physical harm done to the complainants, although the harm is not limited to verbal violence; and the actions, while clearly bearing some markers of pre-planning, are far from sophisticated.

[3] The offences are in close temporal proximity, indeed, geographically too, in the same part of west-end Toronto. The offences which Mr. Rondeau has admitted might be seen as a crime spree. They start on February 8 at King Street West and Beatty Avenues, a theft of a parked car. He continues on February 11 with a robbery, which Mr. Rondeau has admitted for the purposes of sentencing though not one on which he entered a guilty plea. He was at 1464 Queen West trying to rob a bank. March 8, it was an LCBO on Hanna Avenue, south of King Street West, near Dufferin Street. On March 10, Mr. Rondeau committed robberies at two ATM's. At each one, he used pepper spray or dog spray on his victim. He assaulted the woman at the second ATM robbery, breaking her nose. On March 12, it was a convenience store robbery on Roncesvalles, same part of town. Finally, he committed a Burger King robbery at 1182 King Street West.

[4] In the commission of the February 8 offence, breaking in to a parked car and stealing it, Mr. Rondeau left evidence of his DNA on the vehicle. The vehicle was recovered four days after the theft.

[5] The February 11 robbery was committed when Mr. Rondeau handed a bank employee a note saying "I got no problem doing what I need to do, like shooting you". This was accompanied by a gesture as if shooting, using his hand in his pocket. He demanded $5000 in used bills. He was handed money with a dye pack. Mr. Rondeau removed the dye pack and fled. The bank loss was $1555.10.

[6] On March 8, Mr. Rondeau entered the LCBO on Hanna Avenue, with a bandanna over the lower part of his face and brandishing a knife. He told the cashier, who was dealing with two customers, "get the money, don't fuck around". He received approximately $780. He was not arrested at that time, and no one was hurt, nor was there recovery of the funds. The event was captured on video.

[7] Mr. Rondeau admits that on March 10, he used pepper spray on a man at an ATM, thereby committing the "use noxious substance" offence. He used the spray, told the man "your money or your life". The man ran for the exit door, and succeeded in getting to the next door. Mr. Rondeau also pleaded guilty to assault with a weapon as he used a knife threat to back up his demand.

[8] Also on March 10, Mr. Rondeau attempted to rob a woman at an ATM on Roncesvalles. He approached her, threatened her with dog spray and a knife. He sprayed the substance in her face, and elbowed her in the face, breaking her nose. Passersby intervened, and he fled. Again he was not arrested that day. He entered a plea to aggravated assault in relation to the event.

[9] On March 12, Mr. Rondeau robbed an employee at the Burger King on King Street. He wore a balaclava over the lower part of his face and flashed a silver coloured knife. He demanded cash, as he came behind the counter and started helping himself to money in the till. Another employee swung a wire basket from the fryer at him. He then vaulted over the counter and fled on a bicycle. He took $250-300 from the store.

[10] That same day, Mr. Rondeau entered a convenience store on Roncesvalles, with his face covered by his winter jacket. In that case, the cashier refused to leave, brandishing a baseball bat. No property was taken; the event was captured on video.

[11] The last offence admitted by Mr. Rondeau was a robbery in an ATM vestibule west on King Street. Mr. Rondeau had covered his face. The complainant withdrew $40 from the machine. He threatened her with a knife, backing her against the wall, and telling her he was not afraid to use the weapon. He was assisted by a woman. He took $20 from the complainant.

The Offender

[12] Mr. Rondeau has a criminal record. He is now 38 years of age. He incurred six entries on a youth record, all property offences; his adult record picked up the same year that his youth record ended, and shows 21 occasions when he was sentenced for his criminal offending. I refer to the sentencing events, rather than say there are 21 entries: frequently, as the second last time he was sentenced, there is more than one entry on a date. Mr. Rondeau was first sentenced to a penitentiary term in 2002. In 2010, Mr. Rondeau was sentenced to 66 months, taking into account 6 months' time served, on 5 robberies and one count of "disguise with intent". Later that month, a three year concurrent term was registered on another count of robbery.

[13] It is clear that little time passed between Mr. Rondeau's release from completing the 66 month term which commenced in 2010, and committing the offences before the Court. I learned much about what happened in those short months in the course of the sentencing hearing.

[14] Mr. Rondeau has struggled with drug addiction over the years, and that for approximately 7 or 8 years prior to the commission of the offences before the Court for sentencing today, he was using methadone under medical supervision, clearly in the penitentiary.

[15] Despite sentencing hearings on the many convictions on Mr. Rondeau's criminal record after 1999, Mr. Rondeau has never identified himself as an Aboriginal person. After the Gladue decision was rendered by the Supreme Court of Canada, and indeed, since 1996, when Parliament enacted Section 718.2(e), which directs sentencing judges to give particular emphasis to the circumstances of the Aboriginal offender, the information about Aboriginal heritage has been mandated as an area for further information on sentencing, and is generally considered a positive factor, from the offender's perspective.

[16] I note that since 2002, Mr. Rondeau has been incarcerated in the penitentiary system on three robbery events. I have the advantage of reading the reasons of Provincial Court Judge Pothecary in R. v. Rondeau, [2006] B.C.J. No. 3527. As in this case, Mr. Rondeau had been on release from a sentence of incarceration only briefly: for just a week in the latter case, apparently. He was subject to a period of probation at the time. Judge Pothecary's three year sentence was the second penitentiary sentence imposed on Mr. Rondeau. It involved one count of robbery, plus two counts of possession of stolen property and attempted theft counts. His Honour's reasons included the following:

"In terms of an appropriate sentence in this case I certainly at the outset had been considering a sentence that could include a term of probation, but I am satisfied that given the information and the lack of responsiveness of Mr. Rondeau to probation and a rehabilitative type of sentence, that there is simply not any reason to be optimistic that that would in fact be of assistance. I am of the view generally that if the public could be protected by the rehabilitation of an accused person that that is a sentence that is worth giving serious consideration to. In this case there have been efforts made time after time for a rehabilitative sentence that simply have resulted in breaches very soon thereafter and the further commission of serious offences. This falls into that category."

[17] It is now common practice in this jurisdiction, in implementing the mandate of Parliament in Section 718.2(e), that a Gladue Report is ordered by the Court or by one of the parties in order to inform the Court about the Aboriginal heritage of an offender. This is to support the remedial and restorative purposes of sentencing, and to inform the application of all sentencing principles. The information is particularly important in connection with Indigenous or Aboriginal offenders, in light of the history of Canadian government action in suppressing and nigh-eradicating the Indigenous culture, and igniting the intergenerational trauma, associated with forcible attendance at residential schools, which has affected so many members of those communities. These are the facets of colonialism which the Supreme Court in Ipeelee (2012 SCC 13, [2012] S.C.J. No.13 @ para 60) directs sentencing courts to take into account by judicial notice.

[18] The first step in applying a restorative principle of sentencing, as explained in Gladue and its progeny, is to provide a basis for understanding the Aboriginal heritage of the individual and the systemic erosion of that culture. Although an understanding of the nexus between Aboriginal heritage and the offender may be useful to the sentencing court, no necessary connection must be drawn, neither in a positive way nor a negative, for the principles to apply: Ipeelee, para's 81 – 83:

"As the Ontario Court of Appeal goes on to note in Collins, it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue, at p. 86:

'Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government's treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated'.

"Furthermore, the operation of s. 718.2(e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence".

[19] Given the history of the Indigenous peoples under colonialism in Canada, and in particular, their persistent over-incarceration, the remedial and restorative purposes of sentencing must be implemented, by using information about the Aboriginal heritage as well as the current circumstances of the offender. In that way, restorative justice gains meaning. As well, remediation can be effected, if appropriate. In some cases, the exercise specifically assists the Court in assessing moral culpability.

[20] I received a Gladue report authored by Sharon Archer of Aboriginal Legal Services (ALS). A second, addendum report was prepared in response to a specific inquiry I made at the sentencing hearing. It was prepared by an aftercare worker at ALS, Iris Taylor.

[21] Ms. Archer advises that Mr. Rondeau qualifies to be recognized as a "Status Indian" and for band membership in the West Moberly First Nation in British Columbia. That First Nation is in Peace River country, in the north-east portion of B.C. It is affiliated with the Treaty 8 Tribal Association. It appears that while Mr. Rondeau would be granted status if he registered as a member of the First Nation and would, if it had been a timely registration by June 2017, have been entitled to various monetary settlements, he has not taken steps to make that happen. I gather from the report that the settlements result from relatively recent exploitation of oil resources on their lands.

[22] However, when Mr. Rondeau was growing up on reserve, it was a very poor community. Many Band members were taken forcibly to residential schools. The report writer was advised that on West Moberly and its predecessor, Hudson Hope First Nation, the membership fought hard to keep their children from being taken to residential schools, to the extent of girls being married at age 11 or 12 to keep them out of the schools. Mr. Rondeau understands that his grandmother was a cook at one of the residential schools, but only met her a few times. He grew up in poverty.

[23] In Mr. Rondeau's case, he was raised by his mother and step-father. Mother died when Mr. Rondeau was 19 years of age: she died from Hepatitis C. Step-father died in a drunken accident five years later. Mr. Rondeau was incarcerated when each of them died.

[24] It was only when Rondeau was 16 years of age that he learned his step-father was not his biological father, and that was a blow to him. His early life had not been peaceful: his mother had had violent, tumultuous relationships with her three adult partners, which caused or exacerbated her mental health issues including schizophrenia and psychosis. His parents abused alcohol and drugs, and so did he, from as early an age as 7, when he started drinking at their New Year's Eve party. By the time he was 15, Mr. Rondeau had lived in 27 different houses in two provinces and attended 14 different schools. He did not, however, complete high school.

[25] His history of conflict with the law began at age 14, and by the time his adult record commenced he had six entries on his youth record for thefts and break and enters. As an adult, the extent of his incarceration is striking: he has been sentenced to 18.5 years in jail over the past twenty years. He developed an addiction to cocaine, drinking only when not on drugs. He claims a year and a half sobriety when he was out of custody prior to the 2010 convictions. He advises the court that he was on methadone and had been for 7 or 8 years at the time just prior to these offences. He advised that he was in segregation for two years at the Mission Institution during his last six year sentence. He had been out of custody for five months, having been released to Ontario to get a fresh start after service of his sentence. Sadly, although his intention was to gain admission to a residential treatment facility, he was unable to avoid returning to drug abuse.

[26] He details the unfortunate circumstances of discovering that the shelter he had been directed to was populated by drug users. Then he learned that the drug treatment centre he was interested in would not admit someone using methadone. He started a rapid withdrawal from the drug, as he was determined to go to the treatment facility. Still, he continued to receive medically supervised injections of testosterone. A third level of drug involvement affecting him at the time of the commission of the offences related to the diagnosis of multiple personality disorder and schizophrenia. That diagnosis had only been received and treated during the current pre-sentence incarceration at the Toronto South Detention Centre. The treatment involves a drug regime to control hallucinations. Mr. Rondeau says he has had "voices" in his head, since he was 18. In the Federal prison system, a psychologist told him he needed to be tested for multiple personality disorder, but apparently nothing happened until he was in TSDC. However, he was neither diagnosed nor treated for this condition prior to his arrest on the index offences.

[27] In the result, while Mr. Rondeau is currently medicated to prevent the hallucinations, he was not at the time of the incidents before the court. As well, at the time of the offences, he was withdrawing rapidly without supervision from methadone, a drug which he had been using to control cocaine and heroin use for 7 or 8 years, including a year and a half when he was not incarcerated. He had started using illicit drugs again. Finally, the injections of testosterone increased his impulsive and aggressive tendencies. Mr. Rondeau described it this way to the Report writer: (p. 10)

"Once I started relapsing, I wasn't thinking. The addict brain, that kicked right in. I was dope sick off methadone: no sleep and went into psychosis. They started me on testosterone therapy, because the methadone lowered my levels very low. I was a mental mess: not sleeping or eating. I wasn't thinking when I did them [the robberies]. I had no way of having money to get the drugs, so I turned to what I know. I don't have anyone, no support. I've done a little bit of treatment: six weeks in Prince George, BC in 2003 after my dad passed. I am interested in treatment now. I want to get my life in order. I think I'd have to attend treatment for a while."

[28] Mr. Rondeau wrote a letter to the Court, expanding on some of the information in the Gladue Report. He read it in to Court. I append it to this judgment: Appendix A. He assisted me further by responding to my questions concerning his history and his future prospects.

[29] As mentioned earlier, a further report was provided by Aboriginal Legal Services, in answer to my question about services which might be available to Mr. Rondeau in prison.

[30] The supplementary report includes valuable reflections on Mr. Rondeau's experience of his Aboriginal identity:

"Clint indicated that he has never disclosed his Aboriginal identity to the Courts in the past, due to the racism he believes he has encountered in his life. Clint stated that recently he has been accessing the support of the Native Inmate Liaison Officer [NILO] at the Toronto South Detention Center. In seeking the support of the NILO, he has been afforded the opportunity to participate in Smudging ceremonies and healing circles. Clint finds Traditional healing methods very helpful in managing the effects of his psychological condition, mostly he does not feel depressed and reports that he has been stable on his medication without any episodes of "hearing things…Clint places great value on hearing the wisdom that community Elders have to offer and would like to explore his Aboriginal identity more.

Clint'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. Thus, the aspect of providing and making connections to Aboriginal place and space is important. The Royal Commission on Aboriginal People comments on these aspects of cultural identity in the following:

'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 ….'

[31] It is worth noting that the supplementary report, generated by Aboriginal Legal Services, is written by an aftercare worker with the agency, Iris Taylor. Her report was based, among other things, on a further interview with Mr. Rondeau, focused on the particular issues and the context of his life which gave rise to the addiction and mental health concerns. Ms. Taylor described the resources available at the St. Lawrence Valley Institution as being particularly suited to Mr. Rondeau's issues. She told the Court that she would be available as the aftercare worker to provide support to Mr. Rondeau while serving sentence, and upon his release to the community.

[32] I inquired about resources in Federal institutions, as that was the direction which the sentencing submissions contemplated. I was advised that Ms. Taylor's experience was that with the classification process in the Federal institutions, the implementation of a Gladue Report was not as certain, and that Mr. Rondeau's previous experience in Federal institutions was an indication of how they were likely to deal with him.

[33] I note that while Mr. Rondeau had methadone treatment while serving his last sentence, he did not have any other sort of counseling while serving sentence, nor treatment once he was released. He had no support for his withdrawal from the use of drugs or to address the underlying issues. Although his mental health issue was identified by a psychologist while he was in federal custody in 2002, it was not until his recent remand custody at the Toronto South Detention Centre that he was formally diagnosed with a multiple personality disorder, a dissociative disorder, and schizophrenia, and provided with medication to control his hallucination disorder.

[34] The absence of support upon release seems to me to be directly related to Mr. Rondeau's commission of the offences before the Court. He told me, and Ms. Archer, the author of the first Gladue report who documented this too, that he wanted to gain admission to a residential treatment facility, couldn't do so while on methadone, and so took the precipitous course of withdrawal within two weeks. This made him vulnerable as described above. Unsupported, he relapsed to drug abuse. In my estimation, this contributed directly to making him dangerous to the community.

Legal Principles

[35] Proportionality is the central principle of sentencing: Criminal Code s. 718.1. In discussing the meaning of proportionality in sentencing, the Supreme Court of Canada tells us in Nasogaluak, (2010 SCC 6), that the measure of a sentence which is just and appropriate takes into account the moral blameworthiness of the offender and the gravity of the offence (para. 42). The Court refers to the principles enunciated in Sections 718 to 718.2 of the Code as providing broad discretion to sentencing judges to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. As well, the significance of a range of sentence is discussed, in paragraph 44:

"…it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside the range as long as it is in accordance with the principles and objectives of sentencing. Thus a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred."

[36] More recently, in the case of Lacasse, 2015 SCC 64, the point is made again by our highest Court:

"Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate…"

[37] The dissenting opinion of Justice Gascon and the Chief Justice refer back to the Court's decision in Proulx, which picks up the theme of moral blameworthiness, as an element determining the degree of responsibility. Justice Gascon "qualifies" the opinion of the majority in discussing the principle of proportionality, which states that "the more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be" (para 129, referring to para 12). Justice Gascon and the Chief Justice speak to the factors which relate to the offender's "moral culpability", as the "other aspect of the principle of proportionality". They note that with this balancing, the two factors may conflict. The principle of restraint plays a particularly important role, in balancing the potential conflict in the factors amounting to proportionality. (para's 131-134).

[38] This is of particular application in Mr. Rondeau's case, in light of the direction of the Supreme Court in the Ipeelee case. Justice Lebel notes at paragraph 73:

"First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. This is perhaps more evident in Wells, where Iacobucci J. described these circumstances as "the unique systemic or background factors that are mitigating in nature in that they may have played a part in the aboriginal offender's conduct" ( Wells at para 38, emphasis added).Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely – if ever – attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability"

[39] While at first jarring, to think that factors in a background of Aboriginal heritage feed into diminished moral blameworthiness or culpability, Justice Lebel's unpacking of the relationship of systemic or background factors brings some sense to the exercise in a way which particularly supports an application of the concept to Mr. Rondeau's case. In the recent decision of the Alberta Court of Appeal in the case of R. v. Swampy, 2017 ABCA 134, [2017] A.J. No. 429, Justice Greckol explains at paragraph 25 the link noted above in Ipeelee, as it affects the calculus of sentencing:

"…the central purpose of the Gladue analysis is to achieve proportionality … The 'constrained circumstances of Aboriginal offenders may diminish their moral culpability', as explained in Ipeelee at para 73 . Reduced moral culpability must also affect the proportionality analysis, since moral culpability is one component of the equation. It follows that where there is reduced moral culpability, there is a consequential reductive effect upon the ultimate determination of a fit and proper sentence: Ipeelee at para 87 ."

[40] In this case, Mr. Rondeau has experienced family violence and familial disruption, mental illness and substance abuse in himself and his family members, and his limited educational and rehabilitation opportunities have been influenced by all those factors. His experience of racism has caused him to turn away from his Aboriginal identity, depriving himself of cultural identity in the way that Commissioner Sinclair described in the RCAP, cited above. He has, in my view, re-victimized himself by not identifying as Aboriginal in the Courts, depriving himself of the potential "reductive effect" upon sentencing described by Justice Greckol. He has not received diagnosis or treatment for serious mental health issues until his most recent remand incarceration. Although he was given methadone while in penitentiary, the treatment was not supported on the street upon release. Treatment was, clearly, in my view, a complete failure without follow-through and support.

[41] Reviewing these factors, it is easy to apply the analysis of diminished moral blameworthiness to Mr. Rondeau's case, and in assessing proportionality, give great significance to the part of the equation which weighs the degree of responsibility of the offender. Though counter-intuitive at first blush, the legal analysis of his responsibility shows that it is diminished because of these factors, and so must receive particular attention in the application of the fundamental principle of sentencing, proportionality.

[42] Among the other statutory sentencing principles applicable to this case, Section 718.2(e) is key. The Court in Gladue, [1999] S.C.J. No.19, explained how the task of the sentencing judge, in applying Section 718.2(e) to an Aboriginal offender, is affected by unique systemic and background factors. Justices Cory and Iacobucci describe the impact:

"… 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 offender coming before the courts for 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 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 these circumstances? The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances…Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large." (para's 80-81)

[43] Approached with these factors it is clear how the method of analysis is affected by taking into account Mr. Rondeau's Aboriginal heritage. The jurisprudence mandates a shift not in the results, not by giving a so-called "Aboriginal discount" but by shifting the method of analysis.

[44] The method of analysis in performing the fundamental task of the sentencing judge is the part that changes according to the Gladue decision at paragraph 31 . Justice Laforme re-iterates in the Kakekagamick decision of our Court of Appeal ( , 81 O.R. (3d) 664), in interpreting that change, that Section 718.2(e) was enacted as a remedial provision. It recognizes that Aboriginal people are seriously over-represented in Canada's prison population and attempts to understand the reasons behind this over-representation.

[45] Proportionality prevails, nonetheless, even upon a thorough review of the systemic or background factors, as well as the circumstances particular to the aboriginal offender. The Court directs that "s. 718.2(e) does not require, nor is there a general rule, that aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence." As noted in the Gladue decision also, "while in some circumstances the length of an aboriginal offender's sentence may be less than that of any other offender, "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" ( Kakekagamick @ para's 42, 43)

[46] The offences at issue in this case are serious, as they all involved threats of violence or acts of violence, and on one occasion, aggravated assault resulted, as Mr. Rondeau broke the nose of a bank customer at an ATM, by elbowing her. Their seriousness is enhanced, in the Court's estimation, as these offences appear to be part of a pattern of similarly violent criminal conduct broken only by periods of incarceration.

[47] To the extent that restorative justice involves reconciling parties, there is a limited extent to which it applies in Mr. Rondeau's case. He has expressed remorse for his actions in the letter he provided the Court. He shows insight into the potentially long-lived consequences of his actions upon the victims of his crimes. Crown has not provided any statements from these individuals, to allow the Court some insight into their situations. Reconciliation with the individual complainants is not an outcome which has reality in this case, given the size of the community and the anonymous, random selection of victims. Reconciliation with civil society is a very real aspect of this sentencing, however.

[48] To the extent that restorative justice involves the creation of a positive environment for change and healing, Mr. Rondeau situates himself as a prime candidate for the application of restorative justice.

[49] Statisticians and scholars note a disturbing trend since the Gladue decision: far from reducing the rate of incarceration of Aboriginal members of the community, the rates of incarceration have risen since the date of the decision. Justice Lebel notes in the Ipeelee decision the "irregular and uncertain application of the Gladue principles to sentencing decisions for serious or violent offences" @para 84. Mr. Rondeau's case may shed light on this trend, as his is a case where Gladue principles were not applied in the past. Curiously, as noted earlier, Mr. Rondeau never identified as a person of Aboriginal heritage for the many times he was sentenced. It is unclear whether he lied about his identity in not disclosing it to the Court, or whether no question from counsel or the Court was ever made. He feared racism in the Courts, he says. This candid observation by Mr. Rondeau perhaps illuminates why the enactment of s. 718.2(e) and the direction, indeed exhortation by the higher courts since then, to give life to the remedial nature of the applicable sentencing provisions, has not resulted in a lower incarceration rate for Aboriginal offenders. To the contrary, the rate has increased.

[50] I am concerned about the impact of the prior record on this sentencing decision, where there appears to have been no previous analysis of Aboriginal heritage. The only reference I am aware of in the jurisprudence to a similar situation is in the Kakekagamick case, in the Ontario Court of Appeal. That case does not provide assistance to me, in interpreting the prior record, as the context was so completely different. On the one, hand, it was an appellate decision, where no Gladue Report was provided at trial or on appeal; there was a presentence report provided with information as to the background of the offender. More significantly, in so many ways, Mr. Kakekagamick was a first offender.

[51] The principled approach I take, on this issue is shaped by the clear direction of the Supreme Court in Lacasse, on the issue of range of sentence and tariffs and the "starting point" approach to sentencing, and I paraphrase paragraphs 57 to 60. Mr. Rondeau's record is a summary of sentences imposed in the past, but I cannot consider them an average or a ladder, and certainly not a straitjacket in dictating the sentence in the present case.

[52] Mr. Rondeau's prior record of incarceration may in fact represent an example of the over-incarceration of Aboriginal persons. My role, of course, is not to review prior judgments on sentence. However, to the extent that they were not informed by key principle due to Mr. Rondeau's fear of repercussion, I exercise an additional degree of restraint, as directed in sections 718.2(d) and (e) of the Code, in considering a range of sentence informed by the prior record of sentencing.

[53] On previous sentencing hearings, the Courts were not considering the systemic or personal factors informing a fit sentence, precisely because of the racism weighing on Mr. Rondeau. Previous sentencing Courts did not have the necessary context for understanding and evaluating the case-specific information about the offender. Those factors are enumerated as matters the Courts can know by way of judicial notice: the history of colonialism, displacement, residential schools, and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for aboriginal peoples. ( Ipeelee @60). Previous Courts could not even take judicial notice of these factors, without knowing he was Aboriginal.

[54] I have specific information about Mr. Rondeau, thanks to the Gladue Reports and Mr. Rondeau's statement to the Court. Mr. Rondeau clearly has experienced many of these factors in background, specifically, violence in his home life; displacement, living in 27 homes until he left home at 15; serious untreated substance abuse issues which characterized his childhood and family life; the failure to progress past Grade 8; the shock of learning at age 15 that the man he thought was his father was in fact a step-father; the early loss of his own mother, and the death of his step-father not long after that. His lengthy sentences were imposed without the mandated consideration of these aspects of his life and his life as a man of Aboriginal heritage under s. 718.2(e) and Gladue .

[55] Certainly in Mr. Rondeau's case, the violence and drug and alcohol abuse he experienced and witnessed while growing up must be factors specific to him, which impact the degree of responsibility to be assigned to him. His inability to identify his own culture or benefit on many levels by claiming his identity have diminished his ability to act responsibly in the community. All these are factors are all too characteristic of the Aboriginal experience precipitated by Canadian government treatment of Aboriginals. In Justice Lebel's formulation, these factors impact on moral blameworthiness.

[56] The past failures of the criminal justice and social services network in Mr. Rondeau's life are significant to an assessment of moral blameworthiness, for the purpose of sentencing today. It is impossible to look back and say what might have happened to Mr. Rondeau in the criminal justice system, had he not been afraid of the racism he had experienced in his life, on account of being Aboriginal, and provided to sentencing courts the basis for proper assessment of sentencing at an earlier stage. In looking ahead however, it is my task to consider, among other factors, how best to ensure that Mr. Rondeau will have support through incarceration and once in the community for the "dual diagnosis" of mental illness and drug addiction.

[57] This is not to say that Mr. Rondeau's actions did not warrant sanction, or that his actions do not currently attract serious penalty at the present time. Whether a restorative approach at some point in the past might not have assisted Mr. Rondeau in beating the substance abuse facet of his problems, and regaining some sense of identity and dignity about himself, we cannot know. That is the prospect which is offered to this Court today.

Application of Principle to Fact

[58] I return to the proposition that the fundamental principle in sentencing is proportionality, weighing both the moral blameworthiness of the offender and the gravity of the offence.

[59] The moral blameworthiness of the offender in this case must be assessed in the light of a number of factors. His expression of remorse by guilty plea, enhanced as it is by the pathos-laden statement filed with the Court, shows that his diminished moral culpability is not an enduring state. In a sober state of mind, not plagued by violent hallucinations and voices, he has taken responsibility for his actions, recognized the harm done to others by his actions, and expressed his wishes for the recovery of the victims of his offences. He relates his actions to the impaired judgment of his imbalanced mind at the time. He describes his isolation in a city which he had chosen upon release from penitentiary to distance himself from drug abuse and further his recovery, but which, for want of support, exacerbated his problems.

[60] Mr. Rondeau's circumstances are detailed as an Aboriginal offender in the two Gladue reports prepared for this court. The Court is mandated to consider the historical factors of family disruption, violence, mental illness and substance abuse through his formative years, and the complete failure of a stable family life including 27 moves while a child. The reports document the offender's enduring fear of racism, to the extent that notwithstanding a lengthy record and 18.5 years, more than half his adult life, in custody, this sentencing hearing is the first time he has disclosed his Aboriginal heritage to the court. This history is clearly a series of events which erode the degree of responsibility that can be assigned to Mr. Rondeau.

[61] In particular, I take into account Mr. Rondeau's mental illness and his substance abuse in assessing the degree of responsibility. Mr. Rondeau wanted to continue his recovery from drug addiction upon his release from penitentiary, a few months before the commission of these offences. To do this, he needed to stop using methadone. Unsupported, he attempted to do so very quickly, and ended up using again. In addition, he continued to use the testosterone which had been prescribed to supplement the depleted levels he experienced while on methadone. The final psycho-pharmaceutical factor which must be considered in the moral blameworthiness calculus is that although he had been described by a professional as suffering a hallucination disorder while in penitentiary, he was not provided treatment or counseling. I see Mr. Rondeau as a person with seriously compromised ability to make an accurate or responsible assessment of his actions at the time of the commission of these offences, in terms which might fit within the ambit of moral blameworthiness.

[62] This deficit does not in my view diminish Mr. Rondeau's dangerousness in that condition to the community. Clearly, he committed a remarkably unstinting string of robberies between February 8 and March 13, 2016. He undoubtedly harmed each individual whom he threatened on his robberies, and caused physical harm to the two individuals in the last two ATM robberies. He caused lasting injury to the woman whose nose he broke.

[63] Mr. Rondeau has been offered the remarkable opportunity through his time in remand and in the sentencing process of acknowledging the positive side of his Aboriginal identity. In doing so, he is approaching a reconciliation of his identity. Surely the ability to form a positive view of oneself, and to develop some understanding and compassion for the misdeeds and burdens wrongly visited upon him in his formative years offers hope to Mr. Rondeau and to the community.

[64] He has been provided a psychiatric diagnosis while in remand, and treatment for it, which seems to alleviate his symptoms. He has clearly stated his desire to reform his drug addiction. He has the resource of the Gladue aftercare worker as an advocate within the prison system and thereafter in the community.

[65] The task of crafting a proportional sentence takes into account the gravity of the offences and the degree of responsibility of the offender. I take into account the history of prior similar conduct, the harm done to the community by the commission of the offences, and the protection of the community in the future. I consider the possibility of rehabilitating Mr. Rondeau, and how, if successful, both he and the community will be well served. In all cases, the principle of restraint applies, even with a man who has spent so much of his life in prison for offences similar, on the face of it, to those which bring him before the court today. Modifying all these considerations is the mandate of Section 718.2(e), which remarkably, has never been considered in the formulation of prior sentences.

Conclusions

[66] Crown seeks a gross sentence of 8 years, from which credit for time served may be deducted. On his behalf, Mr. Rondeau's position is that a fit sentence taking into account time served is a maximum reformatory sentence with a lengthy period of probation.

[67] Mr. Rondeau was, on his last conviction for robbery, sentenced to 66 months in light of six months' time served. He has now served 18 months and five days in remand prior to sentence. I give Mr. Rondeau credit for approximately 27 months and one week in light of time served. With that credit for presentence custody, a fit sentence adds to that credit the maximum term which can be served in the reformatory system, two years less a day. The term of incarceration will be followed by the maximum probation term, three years. In this way, I impose a significant sentence of incarceration with lengthy community supervision, equivalent to four years, three months and six days. Mr. Rondeau has the opportunity to take advantage of institutional resources for his significant substance abuse and mental health issues with the unique support of the Gladue aftercare worker. The reformatory system, at St. Lawrence Valley, appears to be the resource in which the Court can repose greatest confidence among available options. The support of the Gladue aftercare worker is of particular significance, as Ms. Taylor will help Mr. Rondeau in his recovery not only in relation to the mental health and drug abuse issues, but also in the recovery of his identity as a First Nations man, and hopefully in the recovery of his self-esteem. This would give life to the principle of restorative justice, ameliorate the general dilemma of over-incarceration of Aboriginal offenders, and hopefully contribute to the greater safety of the community in the future. All this hinges on Mr. Rondeau's recovery and rehabilitation.

[68] In imposing a maximum reformatory sentence, I impose a sentence in light of time served which represents a significant penitentiary sentence: two years less a day plus 27 months, seven days equals 51 months and six days. That is over four years. That is a sentence which gives weight to the seriousness of the offences, and acknowledges the lengthy record of prior offences. It is not a direct function of previous sentences, however, giving considerable weight to the unique factors of Mr. Rondeau's previously undisclosed and unexplored Aboriginal heritage. I believe that the sentence accurately reflects the application of the principle of proportionality.

[69] As detailed above, the period of incarceration will be followed by a lengthy period of probation as well. That is in the interest of the community and of Mr. Rondeau. I am imposing a three year period of probation to follow completion of sentence, with conditions to require continued supervision and the input of the Aboriginal aftercare worker, and conditions to mandate continued support for mental health care and substance abuse counseling and treatment, I will place great hope in Mr. Rondeau will restore himself to be a responsible contributing member of the community.

Released: September 26, 2017

Signed: Justice S.R. Shamai

APPENDIX A