Court Information
Ontario Court of Justice
Date: November 14, 2017
Location: Gore Bay, Ontario
Parties
Between:
Her Majesty the Queen
— AND —
Catlin Grant Hare
Before the Court
Justice: V. Christie
Heard: October 31, 2017
Reasons for Judgment Released: November 14, 2017
Counsel
For the Crown: Stacy Haner
For the Defendant: James Weppler
Judgment
Guilty Pleas
[1] On October 31, 2017, Catlin Grant Hare entered pleas of guilt to several counts including the following:
Count 1 - Assault Causing Bodily Harm
On or about the 3rd day of August, 2012 at the M'Chigeeng First Nation in the said Region did in committing an assault upon Tanya Armstrong cause bodily harm to her contrary to Section 267(b) of the Criminal Code;
Count 2 - Mischief
On or about the 10th day of July, 2015 at the M'Chigeeng First Nation in the said Region, did commit mischief by wilfully damaging without legal justification or excuse and without colour of right property to wit car window of Tanya Armstrong the value of which did not exceed five thousand dollars, contrary to Section 430(4) of the Criminal Code;
Count 3 - Theft Under $5,000
Between the 25th and 27th day of November, 2016 at the Township of Central Manitoulin in the said Region did steal Canadian Currency, the property of Dawn Debassige of a value not exceeding five thousand dollars contrary to section 334(b) of the Criminal Code;
Count 4 - Failure to Comply with Probation Order
Between the 12th day of January, 2017 and the 9th day of June 2017 at the Village of M'Chigeeng in the said region unlawfully did while bound by a Probation Order made by Her Honour Judge Serre in Ontario Court of Justice, Gore Bay, Ontario, on April 25, 2016, without reasonable excuse, fail to comply with such Order, to wit: By failing to "Report in person to a Probation Officer immediately on your release from custody" contrary to s. 733.1(1) of the Criminal Code;
Count 5 - Failure to Appear in Court
On or about the 25th day of April, 2017 at the Town of Gore Bay in the said Region being at large on his Recognizance of Bail given to a Justice of the Peace without lawful excuse did fail to attend at court Ontario Court of Justice, 27 Phipps Street, Gore Bay, Ontario, in accordance therewith contrary to section 145(2)(a) of the Criminal Code.
[2] The defence waived the limitation period, allowing the Crown to elect to proceed summarily on all charges.
Facts
Incidents Involving Tanya Armstrong
[3] In April 2016, Mr. Hare was before the court as a result of an allegation that involved an assault on Tanya Armstrong. After a period of pre-trial custody, Mr. Hare pleaded guilty to an assault on Ms. Armstrong. He received 90 days imprisonment and probation for 18 months.
[4] While Mr. Hare was in custody, the police investigated allegations of historical domestic violence and mischief involving Ms. Armstrong.
[5] Mr. Hare and Ms. Armstrong were in a relationship for approximately 6 years, until the spring of 2016. They have 2 children together. As well, Mr. Hare and Ms. Armstrong each have a child from another relationship.
[6] As a result of an altercation between the couple on March 10, 2016, Mr. Hare and Ms. Armstrong were both transported to the police station. At that time, the complainant was ill and unable to continue her statement to police. On March 18, 2016, the complainant provided a KGB statement. She stated that the accused abuses drugs and alcohol. The complainant described an incident that occurred at her residence in August 2012. She stated that she was getting up to feed their child. An argument occurred between Mr. Hare and Ms. Armstrong, and she accused Mr. Hare of infidelities. Mr. Hare became physical. He tossed her down and kicked her in the tail bone. She experienced pain through her back. She was also dragged by her hair and shoulders. The complainant advised Mr. Hare that something was wrong as the pain was intense. The complainant was too scared to report this incident at the time, for fear of losing her baby.
[7] A diagnostic imaging report from the Manitoulin Health Centre dated August 6, 2012 was entered as Exhibit 1. The report indicates "There appears to be an ill defined calcific density lying between the sacro-coccygeal region posteriorly and a small fracture cannot be ruled out. Clinical correlation is recommended." No further medical evidence was provided.
[8] The complainant had trouble working as a result of the injuries sustained and the pain from the injury.
[9] Ms. Armstrong also described an incident in July 2015. On Friday, July 10, 2015, Mr. Hare attended at the complainant's workplace and asked for her car keys. After some discussion the complainant offered to give him a ride. An argument ensued and Mr. Hare punched the rear window out of the car. The replacement value was determined to be $170.
[10] I was advised that the police had been called 31 times over the course of the relationship between Mr. Hare and Ms. Armstrong and that the relationship was a "cycle of violence".
Other Incidents
[11] While Mr. Hare was on probation in November 2016, he obtained a bank card belonging to Dawn Debassige, and removed $460 from her bank account without her approval.
[12] Further, Mr. Hare, while being bound by a probation order made by the Honourable Justice Serre, commencing April 25, 2016, failed, without reasonable excuse, to report to his probation officer between January 12th, 2017 and June 9th, 2017.
[13] Finally, Mr. Hare failed to appear in court in Gore Bay on April 25, 2017.
Criminal Record
[14] Mr. Hare does have a criminal record which was marked as Exhibit 2. In September 2004, he was found guilty of assault causing bodily harm, failing to comply with a recognizance, assault, fail to appear, and take motor vehicle without consent. He received a total sentence of 90 days, noting 78 days of pre-sentence custody, and 12 months probation. In 2006, Mr. Hare was found guilty of fail to comply with a probation order, fail to appear, fail to comply with recognizance and escape lawful custody. He received a 90 day conditional sentence order, and probation for 9 months. Pre-trial custody of 24 days was noted at the time of sentencing.
[15] Also, not noted on the criminal record but referred to in submissions, Mr. Hare pleaded guilty to assault, involving Ms. Armstrong, and fail to comply in April 2016. I was also advised that more recently, Mr. Hare was found guilty of an impaired driving and a breach for which he received a 90 day intermittent sentence.
Witness Evidence
Lynn McGregor – Native Court Worker
[16] Further, at the sentencing hearing, the court had the benefit of hearing from Lynn McGregor, Native Court Worker, who previously worked in the mental health field. She spoke very candidly about Mr. Hare, indicating that she had known him since grade school. She described Mr. Hare as a person that could always make others laugh and an excellent student. She believed that Mr. Hare had some mental health issues and that despite that, he went quite far in school. He was always interested in cooking and learned this through the life skills program.
Gladue Report
[17] A Gladue Report dated April 25, 2016 was submitted to the Court. The Report has been reviewed and considered in its entirety, and the following comments should be noted:
Mr. Hare was born on September 8, 1984 in Mindemoya, Ontario to Sally Hare and Keith Debassige, both members of the M'Chigeeng First Nation. Mr. Hare has one younger sister and two younger half-brothers. He has a close relationship with his sister who lives in Toronto but does not have a relationship with his half-brothers and biological father. His mother had a long term relationship with Taylor Debassige, and Mr. Hare considers him as a father.
Mr. Hare deeply cares for his grandmother and she stated "Catlin is my number one grandson who comes to visit me here in my apartment…..He is a caring father and is a good person…..Catlin has always been respectful to me and I like it when he comes to see me."
Mr. Hare has been involved in two relationships and is a father of 3 children: two children with Ms. Armstrong and one child from the previous relationship.
Mr. Hare and Ms. Armstrong were in a relationship for approximately 6 years on an inconsistent basis. They often experience disagreements and many arguments have ensued. Mr. Hare's mother reported that Ms. Armstrong would kick Mr. Hare out at least once a month and he would be told to take their daughter with him.
Mr. Hare's mother described him as a caring father who often stayed home to care for his children and that he also parented Tanya's eldest daughter.
Mr. Hare was quoted in the report as saying "I used to go out and have drinks with my buddies and watch sports together and when I got home Tanya was upset with me. I tried to avoid these but then I would end up hitting her. You know there were times I was assaulted by Tanya but never said anything".
Mr. Hare expressed that he would like to improve his relationship with his oldest son. Mr. Hare was 17 years old at the time he became a parent.
Mr. Hare obtained a grade 10 education. His regular alcohol consumption distracted him from attending school, however, he also preferred to work and earn an income rather than complete high school.
Mr. Hare worked for his step-father at Taylor's Sawmill in M'Chigeeng over a five year period. He also obtained short term seasonal jobs in the community. He is described as a hard worker who provides for his family. Mr. Hare was employed with a construction company in 2015 and was to start again in March 2016, however, he was incarcerated at that time.
Mr. Hare was exposed to alcohol misuse in his home environment throughout his childhood. His stepfather consumed alcohol on a consistent basis and his mother would join in occasionally, however, she eventually stopped drinking. His mother ended the relationship with his stepfather due to his alcohol consumption.
Mr. Hare's use of alcohol began when he was approximately 13 years old. It started as use on the weekends, but escalated to drinking during the week. Mr. Hare went to treatment when he was 17 years old, which only worked temporarily.
Mr. Hare continued abusing alcohol after that time and also began using cocaine and crack.
Mr. Hare acknowledged that alcohol has had a negative impact on his life and his relationship with his children. He stated, "I was not in my right mind when I hit Tanya and did not want to touch her like that".
Kina Gbezhgomi Child and Family Services have become involved due to his behaviour towards Ms. Armstrong. In a letter dated April 15, 2016, Kina Gbezhgomi noted that initially safety plans and counselling services were not being followed up on, however, in early 2016 things started to improve and Mr. Hare was getting some assistance.
Mr. Hare was open about his alcohol use and identified the need to attend a residential program.
Mr. Hare stated that his cultural identity is important to him ever since he was introduced to ceremonies at the age of 17. He stated that he was willing to participate and continue to learn about his culture as an Aboriginal person. Caroline Debassige provided a letter dated April 4, 2016 in which she described Mr. Hare attending a sweat lodge ceremony and described this as a positive move toward his personal well-being.
Position of the Parties
[18] Mr. Weppler, on behalf of Mr. Hare, submitted that a 6 month conditional sentence would be the appropriate result in the circumstances, particularly considering the Gladue factors to be taken into consideration, followed by 12 months of probation with terms such as no contact with the complainant, counselling as recommended by the conditional sentence supervisor, and a curfew.
[19] Mr. Weppler referred to the gap in Mr. Hare's record. He also referred to the fact that Mr. Hare's son was on the youth court docket on the same day that his father was before the court, demonstrating the cycle as referred to in the Gladue report.
[20] Mr. Weppler noted that Mr. Hare had been in custody since September 29, 2017, where he had been working in the kitchen. At the time of the arrest, he was working as a chef in Barrie.
[21] The Crown suggested a period of incarceration in the range of 4-6 months, followed by probation for 18 months. The Crown suggested that the probation order include terms such as absolutely no contact with the complainant and counselling. The Crown also suggested that there should be a DNA order and a section 110 order for 10 years.
[22] The Crown pointed to the fact that Mr. Hare has a criminal record, including violent offences involving Ms. Armstrong, and various breaches, resulting in his sureties suffering estreatment proceedings.
[23] The Crown also points to the gravity of the offences. The complainant suffered a great deal from the violence inflicted upon her by Mr. Hare, not being able to sit for a month. The Crown points to Mr. Hare's sense of entitlement, power and control toward the complainant.
[24] Finally, the Crown referred to the Gladue report and the recommendations made at that time, most of which were not followed through on, except PARS.
Victim Impact Statement
[25] No victim impact statement was received by the court.
Mr. Hare's Comments to the Court
[26] Mr. Hare also addressed the court. He indicated that he wanted to change his ways. He has not used crack or cocaine in over 9 months. He misses his children. He has not spoken to the complainant.
Analysis
General Principles
[27] The fundamental purpose of sentencing, described in section 718 of the Criminal Code, is to contribute along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.
[28] The objectives for sentencing judges to consider are set out in section 718(a) to (f) and are as follows:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.
[29] Pursuant to section 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is a cardinal principle of sentencing: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
Aggravating and Mitigating Factors on Sentencing
[30] Section 718.2 of the Criminal Code directs the court to consider various relevant aggravating and mitigating circumstances relating to the offence or the offender, such as:
(a) Offences motivated by bias, prejudice or hate;
(b) Abuse of offender's spouse or child;
(c) Abuse of a person under the age of 18 years of age;
(d) Abuse of a position of trust or authority;
(e) Evidence that the offence had a significant impact on the victim;
(f) Benefit to criminal organization;
(g) Terrorism offence;
(h) Commission of offence while offender was subject to a conditional sentence order or released on parole.
[31] General and individual deterrence are paramount considerations in sentencing involving domestic violence. A custodial term will be the norm where significant bodily harm has been inflicted. Persistent, repetitious and escalating violence toward one's spouse will often justify longer custodial terms. In R. v. Inwood (1989), 48 C.C.C. (3d) 173 (Ont. C.A.), at p. 181, Howland C.J.O wrote:
[W]here there is a serious offence involving violence to the person, then general and individual deterrence must be the paramount considerations in sentencing in order to protect the public. In my opinion, this principle is applicable not only to violence between strangers but also to domestic violence. Domestic assaults are not private matters, and spouses are entitled to protection from violence just as strangers are.
[32] Other considerations for the court which are included in section 718.2 are disparity, totality, and restraint, with particular attention to the circumstances of Aboriginal persons.
[33] The Supreme Court has offered guidance to govern judges when sentencing Aboriginal persons. In R. v. Gladue, [1999] 1 S.C.R. 688, the Court summarized this guidance as follows at paragraph 93:
Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence.
Section 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.
Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision's remedial purpose real force.
Section 718.2(e) must be read and considered in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. All principles and factors set out in Part XXIII must be taken into consideration in determining the fit sentence. Attention should be paid to the fact that Part XXIII, through ss. 718, 718.2(e), and 742.1, among other provisions, has placed a new emphasis upon decreasing the use of incarceration.
Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. However, the effect of s. 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.
Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider:
(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and
(B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.
In order to undertake these considerations the trial judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. In the usual course of events, additional case-specific information will come from counsel and from a pre-sentence report which takes into account the factors set out in #6, which in turn may come from representations of the relevant aboriginal community which will usually be that of the offender. The offender may waive the gathering of that information.
If there is no alternative to incarceration the length of the term must be carefully considered.
Section 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed.
The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved.
Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term "community" must be defined broadly so as to include any network of support and interaction that might be available, including in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.
Based on the foregoing, the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non-aboriginal offender for the same offence.
It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal.
[34] More recently, in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court of Canada reaffirmed the special sentencing approach that must be followed in respect of Aboriginal offenders. At paragraphs 84 and 85:
[84] The second and perhaps most significant issue in the post-Gladue jurisprudence is the irregular and uncertain application of the Gladue principles to sentencing decisions for serious or violent offences. As Professor Roach has indicated, "appellate courts have attended disproportionately to just a few paragraphs in these two Supreme Court judgments - paragraphs that discuss the relevance of Gladue in serious cases and compare the sentencing of Aboriginal and non-Aboriginal offenders" (K. Roach, "One Step Forward, Two Steps Back: Gladue at Ten and in the Courts of Appeal" (2009), 54 Crim. L.Q. 470, at p. 472). The passage in Gladue that has received this unwarranted emphasis is the observation that "[g]enerally, 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, even taking into account their different concepts of sentencing" (para. 79; see also Wells, at paras. 42-44). Numerous courts have erroneously interpreted this generalization as an indication that the Gladue principles do not apply to serious offences (see, e.g., R. v. Carrière (2002), 164 C.C.C. (3d) 569 (Ont. C.A.)).
[85] Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makes it clear that sentencing judges have a duty to apply s. 718.2(e): "There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence" (Gladue, at para. 82). Similarly, in Wells, Iacobucci J. reiterated, at para. 50, that
[t]he generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter for similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universal application. In each case, the sentencing judge must look to the circumstances of the aboriginal offender.
This element of duty has not completely escaped the attention of Canadian appellate courts (see, e.g., R. v. Kakekagamick (2006), 214 O.A.C. 127; R. v. Jensen (2005), 196 O.A.C. 119; R. v. Abraham, 2000 ABCA 159, 261 A.R. 192).
[86] In addition to being contrary to this Court's direction in Gladue, a sentencing judge's failure to apply s. 718.2(e) in the context of serious offences raises several questions. First, what offences are to be considered "serious" for this purpose? As Ms. Pelletier points out: "Statutorily speaking, there is no such thing as a 'serious' offence. The Code does not make a distinction between serious and non-serious crimes. There is also no legal test for determining what should be considered 'serious'" (R. Pelletier, "The Nullification of Section 718.2(e): Aggravating Aboriginal Over-representation in Canadian Prisons" (2001), 39 Osgoode Hall L.J. 469, at p. 479). Trying to carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to "the relative ease with which a sentencing judge could deem any number of offences to be 'serious'" (Pelletier, at p. 479). It would also deprive s. 718.2(e) of much of its remedial power, given its focus on reducing overreliance on incarceration. A second question arises: Who are courts sentencing if not the offender standing in front of them? If the offender is Aboriginal, then courts must consider all of the circumstances of that offender, including the unique circumstances described in Gladue. There is no sense comparing the sentence that a particular Aboriginal offender would receive to the sentence that some hypothetical non-Aboriginal offender would receive, because there is only one offender standing before the court.
[87] The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.
[35] In R. v. Kreko, 2016 ONCA 367, the Court of Appeal confirmed that no causal link is required to be drawn between the accused's aboriginal heritage and the offences before the Court. The Court stated:
[21] The jurisprudence makes it clear that no causal link is required. In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, the Supreme Court held that it was an error to require an Aboriginal offender to establish a causal link between his or her background factors and the commission of the offence(s) in question before he or she is entitled to have those factors considered by the sentencing judge. The court suggested, at para. 82, that requiring a causal connection demonstrated "an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples", and also imposed an evidentiary burden on the offender that was not intended by Gladue.
[22] The court continued, at para. 83:
[I]t 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.
[23] The court explained that what is required is that the factors must be tied to the particular offender and offence(s) in that they must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing. Finally, the court in Ipeelee also made it clear that s. 718.2(e) applies to serious offences: see paras. 84-86.
[36] There is no question that Aboriginal heritage is a relevant and mandatory consideration for the Court.
Conditional Sentence
[37] The offences for which sentencing is being imposed occur at different times. For example the charge of assault causing bodily harm occurred in August 2012. At that time, section 742.1 of the Criminal Code, which governs the imposition of a conditional sentence, read as follows:
742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3.
[38] In this case, the Crown has elected to proceed summarily and there is no mandatory minimum sentence. The offence of assault causing bodily harm, when proceeded with summarily, would not amount to a "serious personal injury offence" as it was defined at the time this offence was committed in August 2012. In fact, a conditional sentence would be available for any of the offences at issue in this sentencing.
[39] The next consideration is whether a sentence of imprisonment of less than two years is appropriate.
[40] If the sentence is to be less than two years, the court must then consider whether the service of the sentence in the community would endanger the safety of the community and would it be consistent with the fundamental purposes and principles of sentencing as set out in sections 718 to 718.2.
[41] The Supreme Court of Canada in the case of R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, made it clear that a conditional sentence can provide a significant amount of denunciation particularly when onerous conditions are imposed and the term of the sentence is longer than would have been imposed as a jail sentence. A conditional sentence can also provide significant deterrence if sufficiently punitive conditions are imposed.
Conclusion
[42] Mr. Hare is a 33 year old male member of the M'Chigeeng First Nation. He has had a lot of problems with alcohol and drug abuse. His relationship with Ms. Armstrong has been a tumultuous one.
[43] This case involves a history of domestic violence and breaches of various court orders. Both of these factors, alone or in combination, would most often require the imposition of a sentence of imprisonment.
[44] Mr. Hare's conduct toward Ms. Armstrong is reprehensible. Further, his disregard for court orders demonstrates a lack of respect for the administration of justice. The sentence imposed in this case must send a strong message to Mr. Hare and to the community that this behaviour will not be tolerated.
[45] Mr. Hare has a criminal record which includes violent offences against Ms. Armstrong. Mr. Hare has a criminal record which includes a number of breaches and as such leads this court to consider the likelihood of his compliance with any future court orders.
[46] In summary, the aggravating factors in this case are:
(1) Abuse of his partner
(2) The degree of violence involved, resulting in long term injuries
(3) The repeated violence toward this partner
(4) The impact the violence had on Ms. Armstrong
(5) Criminal record, involving violence and breaches of court orders
[47] In mitigation, however, Mr. Hare has entered pleas of guilt, which saves the community the expense of a trial and also saves Ms. Armstrong from the need to testify. Mr. Hare's pleas of guilt are a demonstration of remorse. Further, his comments to this court indicate that he is aware of the wrongfulness of his behaviour and his desire to change that behaviour. His comments demonstrate insight and remorse. I am advised that he is willing and able to participate in counselling and programs that will assist him on his rehabilitative path.
[48] It would appear from the Gladue report that Mr. Hare has the benefit of support from his mother, his grandmother, other extended family, and his community. The Gladue report also refers to a history of alcohol abuse that has plagued this family, including Mr. Hare from the age of 13.
[49] Mr. Hare has been working in the kitchen during his pre-trial incarceration. The Gladue report speaks to the fact that Mr. Hare has always been a hard worker and supports his family. Mr. Hare is also described as a dedicated father.
[50] There seemed to be some suggestion during the sentencing hearing that Mr. Hare may suffer from mental health issues, however, this was not developed in any way to assist the court. Mental illness can operate as a mitigating factor particularly where the illness is connected to the offence or where the offender would serve harder time in custody as a result of the illness. However, the court does not have enough evidence to consider that as a factor in this case.
[51] Mr. Hare had already served 27 days prior to the sentencing submissions on October 31, 2017. He has now served a further 14 days. It is uncertain as to how much of this further 14 days should be credited toward these offences as he is also serving sentence for an impaired driving. I will leave the remaining 14 days to be credited toward that impaired driving sentence.
[52] Taking into consideration the totality of the evidence and submissions, the Gladue Report, and the mitigating and aggravating factors, a conditional sentence is consistent with the principles of sentencing. The sentencing objectives of deterrence (both general and specific) and denunciation can be served by a conditional sentence while reflecting consideration of the rehabilitative prospects of Mr. Hare. In this case, a conditional sentence with restrictive terms, including a period of house arrest, followed by a curfew, will send a message to Mr. Hare and to the community that this type of behaviour will not be tolerated. A conditional sentence with restrictive terms is not a lenient form of punishment, and in fact, this sentence may be more difficult for Mr. Hare than a jail sentence. This punishment has no early release provisions and is served under the watchful eyes of the community.
Sentencing Decision
[53] The sentence imposed will be as follows:
(1) Assault Causing Bodily Harm - 8 month conditional sentence, followed by 16 months probation;
(2) Mischief – Time served (27 days), followed by 16 months probation, concurrent to count 1
(3) Theft Under $5,000 – Time served (27 days), 16 months probation, concurrent to count 1 and 2
(4) Fail to Comply with Probation – Time served (27 days), 16 months probation, concurrent to count 1 and 2
(5) Fail to Attend Court – Time served (27 days), 16 months probation, concurrent to count 1 and 2
Terms of the Conditional Sentence
[54] The terms of the conditional sentence will be as follows:
Keep the peace and be of good behaviour.
Appear before the court when required to do so.
Report to a supervisor within two working days and thereafter, when required by the supervisor and in the manner directed by the supervisor.
Remain in Ontario unless you have prior written permission from the Court or the supervisor to leave the province.
Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.
Cooperate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your supervisor on request.
Live at a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance.
For the first 4 months of this conditional sentence remain in your residence or on the property of your residence at all times, except:
(a) Between 12 pm and 4 pm on Saturday in order to acquire the necessities of life
(b) While in the company of your children during access visits
(c) For any medical emergencies involving you or any member of your immediate family
(d) For going directly to and from or being at school, employment, court attendances, religious services and legal or medical or dental appointments
(e) For going directly to or from and being at assessment, treatment or counselling sessions
(f) With the prior written approval of the supervisor. The written approval is to be carried with you during these times
(g) For carrying out any legal obligations regarding compliance with this Conditional Sentence Order
(h) While traveling to and from custody to serve any remaining sentence.
For the second 4 months of this conditional sentence, and for the balance of this Order, remain in your residence or on the property of your residence at all times daily between the hours of 12 am and 6 am, except:
(a) For any medical emergencies involving you or any member of your immediate family
(b) Travelling directly to, from and while at work or school
(c) With the prior written permission of your supervisor. The written permission is to be carried with you during these times
(d) For carrying out any legal obligations regarding compliance with this Conditional Sentence Order
(e) While traveling to and from custody to serve any remaining sentence.
(f) While in the company of your children during access visits
Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Tanya Armstrong, except:
(a) Pursuant to a family court order made after today's date or for the purpose of conducting or defending family court proceedings
(b) In the presence of or through legal counsel
(c) For the purposes of making contact arrangements for, or having contact with your children, which contact is to be made through a mutually agreed upon third party.
Do not be within 50 metres of any place where you know any of the persons named above to live, work, go to school, frequent or any place you know the person to be EXCEPT for required court attendances, and EXCEPT:
(a) Pursuant to a family court order made after today's date or for the purpose of conducting or defending family court proceedings
(b) In the presence of or through legal counsel
(c) For the purposes of making contact arrangements for, or having contact with your children, which contact is to be made through a mutually agreed upon third party.
Do not buy, possess or consume alcohol or other intoxicating substances.
Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor for:
(a) Anger management
(b) Substance abuse
(c) Alcohol abuse
(d) Domestic violence, which may include the Partner Assault Response (PAR) program
(e) Any other programs as directed by your supervisor
You shall sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
Terms of the Probation Order
[55] The terms of the probation order, which will commence immediately at the conclusion of the conditional sentence order will be as follows:
Keep the peace and be of good behaviour.
Appear before the court when required to do so.
Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.
Report in person to a probation officer within 2 working days of your completion of your conditional sentence and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request.
Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Tanya Armstrong, except:
(a) Pursuant to a family court order made after today's date or for the purpose of conducting or defending family court proceedings
(b) In the presence of or through legal counsel
(c) For the purposes of making contact arrangements for, or having contact with your children, which contact is to be made through a mutually agreed upon third party.
(d) With the prior written consent of the above named person filed in advance, by that person, with the probation intake or the assigned probation officer. This may be cancelled by the person in any manner at any time.
Do not be within 50 metres of any place where you know any of the persons named above to live, work, go to school, frequent or any place you know the person to be EXCEPT for required court attendances, and EXCEPT:
(a) Pursuant to a family court order made after today's date or for the purpose of conducting or defending family court proceedings
(b) In the presence of or through legal counsel
(c) For the purposes of making contact arrangements for, or having contact with your children, which contact is to be made through a mutually agreed upon third party.
(d) With the prior written consent of the above named person filed in advance, by that person, with the probation intake or the assigned probation officer. This may be cancelled by the person in any manner at any time.
Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for:
(a) Anger management
(b) Substance abuse
(c) Alcohol abuse
(d) Domestic violence, which may include the Partner Assault Response (PAR) program
(e) Any other programs as directed by your probation officer
You shall sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
Additional Orders
[56] With respect to a s. 110 order, which is discretionary, I have considered whether it is desirable in the interests of the safety of Mr. Hare, Ms. Armstrong or of any other person to make an order prohibiting Mr. Hare from possessing weapons. Given the facts of this case, I decline to make such an order and feel that it is not necessary in these circumstances.
[57] With respect to a DNA order, I believe this order is mandatory on the charge of assault bodily harm, and therefore, I order that you provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.
[58] There will be a victim fine surcharge of $500 ($100 for each summary conviction offence). You will have 24 months to pay.
[59] As you can see, Mr. Hare, this sentence is not meant to be a lenient sentence. The terms and conditions imposed upon you for this length of time will not be easy, but will allow you the opportunity to prove to this court that you truly wish to change your ways. There are many people ready and willing to assist you on your path to healing and rehabilitation. Make good use of those resources.
Released: November 14, 2017
Signed: Justice V. Christie