Court Information

Court: Ontario Court of Justice

Court File No.: Central East Region: Oshawa Court: File No. 17-DV21035

Date: December 19, 2017

Parties

Between:

Her Majesty the Queen

— And —

Clifford Burton Woodcock

Judicial Officer

Before: Justice Peter C. West

Counsel

For the Crown: K. Polley

For the Accused: S. Samet

Procedural History

Guilty Plea and Facts: Entered June 29, 2017

Submissions Heard: November 22, 2017

Reasons for Judgment Released: December 19, 2017

Judgment

WEST J.:

Facts of the Offence

[1] On January 9, 2017, Clifford Woodcock assaulted his common law partner of over two years, Amanda Elwell, causing her bodily harm. Both Ms. Elwell and Mr. Woodcock were extremely intoxicated. Ms. Elwell's right eye was blackened, bruised and swollen closed. She had abrasions on the right side of the back of her neck. Her arms and hands were bruised and scratched. There were scrapes on the right side of her mid-back. Exhibit 1 are a series of small contact photos, which depict these injuries. During the assault Mr. Woodcock held a knife to her throat and threatened to kill her. No injuries were caused by this. Ms. Elwell refused to go to the hospital for treatment of her injuries. Ms. Elwell also refused to provide a statement to the police. Mr. Woodcock had no memory of the altercation and no facts were provided explaining how the assaultive behaviour commenced. In fact, Mr. Woodcock first became aware he had assaulted Ms. Elwell at the courthouse when he requested she be called as she could act as his surety and he was told she could not bail him out of jail, as she was the victim.

[2] Mr. Woodcock pleaded guilty to assault causing bodily harm and uttering death threat on June 29, 2017. He did not dispute the facts indicated by the Crown.

Background of the Offender

Aboriginal Status and Systemic Factors

[3] Mr. Woodcock is an Aboriginal offender with ties to his culture and heritage. He is a status Indian, registered with the Mississaugas of Scugog Island First Nation (informally referred to as Scugog). He has, in the past, participated in the healing traditions of his community. His background, and that of his family, reflects systemic disadvantage and discrimination of the type historically aimed at Aboriginal peoples in Canada.

[4] In 1996, Parliament enacted s. 718.2 (e) of the Criminal Code, which directs courts to consider all available sanctions other than imprisonment that are reasonable in the circumstances "with particular attention to the circumstances of Aboriginal offenders". Three years later, in R. v. Gladue, [1999] 1 S.C.R. 688, the Supreme Court of Canada recognized that the purpose of s. 718.2 (e) was to address the problem of over incarceration of indigenous Canadians (at para. 64):

These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system…. The provision may properly be seen as Parliament's direction to the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process.

[5] I received two Gladue Reports respecting Mr. Woodcock, the first dated April 5, 2014, prepared by Mr. Chad Kicknosway, B.A. (Hons), LL.B., LL.M., of Aboriginal Legal Services of Toronto, Exhibit 6, and a second Supplementary Gladue Report, dated August 22, 2017, prepared by Ms. Margret Larochelle, Gladue writer, Aboriginal Legal Services, serving Durham, Kawartha & Northumberland Regions, Exhibit 7. Both reports provide extensive and detailed information concerning Mr. Woodcock's upbringing and personal circumstances. It is fair to say these are best described as tragic and upsetting.

[6] Mr. Woodcock was held for 10 days before being released on a recognizance of bail, which included house arrest, living with his mother. He has been on this restrictive bail for 11 months, without breach.

Background Circumstances of the Offender

[7] Clifford Woodcock was born on August 14, 1973 to Pauline Johnston (Duhamel) and John Woodcock. His mother is a member of Scugog and his father is a non-Aboriginal man. He has three siblings (oldest to youngest) Angela, Michael and Amanda and he is the youngest. His parents had one other daughter, Laura, who passed away at the age of 18 days. She was born when Clifford was seven years old. This tragedy significantly affected his parents' relationship.

[8] Clifford Woodcock has four children from two different women. His eldest daughter, Morgan Luke, was born to Christie Luke and he has three sons, Joshua, Jordan and Nathan Woodcock, born to Mandy Casteels.

[9] Mr. Woodcock's mother's parents were Scugog and she had a particularly difficult childhood. She and her sisters all endured sexual abuse by their father. Both of Pauline's parents were alcoholics. Growing up Pauline attempted to hide her younger siblings from an Indian agent but as a result of a surprise visit her younger siblings were abducted. Pauline's mother was only able to regain custody of some of her children.

[10] Growing up Mr. Woodcock experienced a great deal of emotional abuse between his parents. His mother was often physically aggressive with his father, describing how he witnessed his mother throw knives at his father. Mr. Woodcock's mother was a serious alcoholic and drug addict. In Exhibit 6 he described how his mother was often physically abusive towards him. He described how his mother was unfaithful in her marriage and how she had several men in their home when his father was away for work. Mr. Woodcock also briefly mentioned an experience of sexual abuse growing up but did not provide much detail concerning the incident.

[11] Mr. Woodcock described in Exhibit 6 his first experiences with racism and prejudice and bullying when he a child in school. His parents divorced when he was 14 years old. He and his brother Michael moved in with his father in Port Perry, although he would visit his mother for extended periods of time. His sisters lived with his mother in Scugog.

[12] He first smoked marihuana when he was 14 and between 14 and 15 he began to consume alcohol and harder drugs. At age 15 one of his mother's friends, Clarence, introduced him to crack cocaine. He explained in the Gladue report, Exhibit 6:

He [referring to Clarence] grew up with my mom; they went to school together. They were drug addicts together. I started to hang out with him when I was about 15. I used to work for him. He had crack and he told me about it. He got me to try it. I tried it. I didn't like the taste of it.

Another time, I was drinking, and I tried it, I couldn't keep my head up. I was having a good time. [Pause] They said once you do it once, you're always chasing it. [Pause] At 16 I escaped the real world through drugs. I got addicted fast; fast.

[13] By age 16 Mr. Woodcock was quickly becoming a crack cocaine addict. He admitted to being addicted to crack for over 20 years and how he committed thefts and break-ins to support his habit. Much of his criminal record reflects these type of offences.

[14] He dropped out of school at age 16. His crack cocaine addiction escalated and he has very little memory of events in his life during this period of time. On a number of occasions he was assaulted and attacked by large groups of men because of his Aboriginal background. These incidents caused Mr. Woodcock to isolate himself from town as he thought he would be jumped and attacked. He developed feelings of anger, depression, anxiety, feeling undervalued, worthless, and he had a lack of trust in others. His alcohol and drug use increased.

[15] In 1996, Mr. Woodcock's disabled girlfriend, Christie Luke became pregnant with his child. His daughter Morgan was born at the end of 1996, although he did not see much of his daughter because he had started seeing Mandy Casteels. Morgan was born with multiple sclerosis and required leg braces. Mr. Woodcock had very little contact with his daughter because of his drug use. His son Joshua was born in 1997. In 1997 the Great Blue Heron Charity Casino was opened and it was developed by the Scugog Island First Nation to provide economic development for the community. It was decided that each member of the community would receive money. Mr. Woodcock initially received a cheque for $10,000 and this was followed by a cheque of $2000 per month after that. Mr. Woodcock advised he no longer had to worry about how to afford drugs and alcohol.

[16] He and Ms. Casteels both struggled with alcohol and drug addictions. He and Ms. Casteels argued all the time, although their altercations were not physical. In 1998, Mandy became pregnant with their second child, Jordan. Their relationship was at its worst. CAS became involved with the family and their boys were shuffled between Mandy's parents and Mr. Woodcock and Mandy. Mr. Woodcock described in Exhibit 6 how his arguments with Ms. Casteels became physical, although she did not press charges against him.

[17] In 2003, he and Mandy had another son, Nathan, but by this point Mr. Woodcock was not permitted to be around Mandy or his three sons. Mr. Woodcock described in Exhibit 6 assaulting Mandy in front of the boys although he denied assaulting his sons. Ms. Casteels took the boys to Hamilton where she began seeing another man who was abusive towards her and the boys. Mr. Woodcock's sons were returned to Mandy's parents to live.

[18] Between 2004 and 2010, life was a blur for Mr. Woodcock. He became addicted to powdered cocaine in addition to crack cocaine around 2008. His boys were living with him for a short period of time but were taken away by Durham CAS because of his cocaine use. They were placed with his brother, Michael. By 2011, Mr. Woodcock had lost his job working as a labourer on the reserve. His kids had been made Crown wards.

[19] Mr. Woodcock began to turn his life around in 2011, when he was 37 years old. He fought to get his job back. He became involved with Pinewood and a treatment centre in Belleville. When he returned from Belleville he started seeing his boys, redeveloped relationships with his mother and his brother and was drug free. His father told Mr. Woodcock he was proud of what Clifford had done.

[20] Mr. Woodcock's criminal record was filed as Exhibit 2 and commences in 1990, when he was 16. Most of his offences involved thefts, possession of property obtained by crime, break and enter, mischiefs, fail to comply with recognizance, obstruct police, public mischief and over 80, which all reflect his alcohol and drug addictions. He also had a number of assault charges (4), uttering threats (2), possession of a weapon dangerous to the public peace, point firearm and his most recent conviction was in 2014 for robbery with an offensive weapon, for which he received his longest jail sentence, 234 days followed by 2 years' probation.

[21] In reflecting on his criminal record in the Gladue Report, Exhibit 6, prepared for the robbery sentencing, Mr. Woodcock stated:

I can't believe how much of an asshole I was. That's what I see. I see the assaults and that's what really shows that I'm an angry person. I have no respect for anybody; for the law, for myself. I'm ashamed. I want to go outside and smack myself for it. I wish I could go back and find everyone and apologize to everyone for what I did. That I stole a snowmobile or go back and say I'm sorry for hitting you. But I can't go back. I can't change that. I hope that I can move on. I'm really disappointed in myself. I aged my dad a lot. His health has gone down. It's all because of me. He won't tell me. But I know it's because of me.

I know [the court is] going to look at it and see that it's very long. I hope that they understand the kind of person that I turned into. I changed from being a crack addict to a better person. I have respect for myself. I have respect for my family until the day I die. But I'm changing to be a better person. I'm not as half as angry. I learned to realize that I do have an anger problem. I want that assessed.

[22] The robbery offence occurred in August 2013 and he was sentenced on May 5, 2014. Mr. Woodcock made significant progress in addressing his addiction to crack cocaine and powdered cocaine before his sentencing in 2014.

[23] After his release from custody in October 2014 he returned to Scugog Island First Nation reserve. A month after his return he met Amanda Elwell, the victim of his current charges. When he first met her, she worked as an escort. Within a few weeks Ms. Elwell moved in with Mr. Woodcock. Ms. Elwell was a serious alcoholic when she and Mr. Woodcock began to live together. Although Mr. Woodcock described his relationship with Ms. Elwell as good, his brother advised it was a bad situation for Clifford because Ms. Elwell was a hard-core alcoholic, who drank daily.

[24] Mr. Woodcock returned to his place of employment in April 2015 with Jon Boland, working as a seasonal full-time grounds maintenance worker for Mississaugas of Scugog Island First Nations Reserve. He has worked in grounds maintenance since 2003. Mr. Boland's letter is at Tab 3 of Exhibit 5.

[25] In August 2015, Mr. Woodcock attended the Health and Resource Centre, located on the Mississaugas of Scugog First Nations Reserve and began working with Pamela Johnston, the Healthy Lifestyles Co-ordinator. Ms. Johnston's letter is in Tab 2 of Exhibit 5. She developed a plan of care addressing Mr. Woodcock's individual needs, providing case management, counselling and support. Ms. Johnston states Mr. Woodcock "has demonstrated commitment by attending the scheduled and organized activities/events that will support his goal of wellness. Mr. Woodcock has demonstrated a genuine commitment to achieving a healthy lifestyle based on his needs identified in his plan of care."

[26] Mr. Woodcock's father passed away on June 21, 2016, which was a difficult loss for him because they were very close. Mr. Woodcock described in Exhibit 7, the Supplementary Gladue Report, how the loss of his dad brought him closer to his mom.

[27] In December 2016, Mr. Woodcock graduated from the Kizhaay Anishinaabe Niin [I Am a Kind Man] Program, which is a 12-week men's program, conducted by Craig Brochmann of Enaahtig Healing Lodge. The program ran at the Mississauga Scugog Island First Nation Health Centre, located in Port Perry, every second week. After completion of the program Mr. Woodcock has continued to meet with Craig Brochmann every second week for almost two years and was recently involved in a sweat lodge build.

[28] Mr. Brochmann described Mr. Woodcock's counselling in Exhibit 7:

…He's come a long way. He stepped into some pretty scary arenas when he started looking at himself, which, as we know, once you start looking at yourself, things start coming up and you're going to begin to react, perhaps how you were, not, as you are now. His relationship with alcohol really magnified his inability to drink.

He did disclose some things [referring to sexual abuse] but I think when he is submersed in an environment that has no distractions; that will benefit him. There's a lot of stuff around him; a lot of unwell family members and he is trying to create peace in his life, as well as, trying to teach others. Sometimes, even those supports on the 'rez' are family related and in some cases that I know of, people who have actually sexually abused their family members.

[29] Mr. Woodcock also attended and successfully completed the Adult Residential Program at Enaahtig Healing Lodge and Learning Centre at 4184 Vasey Road, Victoria Harbour from September 10-15, 2017. After completing this program Mr. Woodcock began seeing Liz Chamberlain for psychotherapy, commencing on October 23, 2017. She describes in her letter dated November 28, 2017, Exhibit 8, that Mr. Woodcock is participating in trauma informed therapy, addressing intergenerational victimization that he experienced since age six onwards.

[30] I was advised by Mr. Brochmann, who has attended every court appearance that Mr. Woodcock has attended before me, that Mr. Woodcock intended to take a two-week Trauma and Recovery Program at the beginning of 2018, which involves regression work, releasing the trauma from one's childhood, could be sexual, mental, physical or just from the impacts of colonization or residential school trauma from generation to generation.

[31] Mr. Woodcock has not used illicit substances for over seven years. It is his goal to become a motivational speaker and speak to Aboriginal youth and adults struggling with addiction and to inspire them to conquer their addictions.

[32] Mr. Woodcock's oldest daughter, Morgan, age 21, is a user of hard drugs and Mr. Woodcock expressed his desire to reach out to her once his charges have been dealt with to attempt to assist her.

[33] Mr. Woodcock described in Exhibit 7 how his relationship with his mother was strained just prior to the current charges but as a result of her acting as his surety and his being required to live at her residence, their relationship has really improved. It is clear from Exhibit 7 that Mr. Woodcock is close to his brother Michael, who has been a strong support and who also had to overcome serious addictions.

Position of the Parties

[34] The Crown argues the appropriate sentence is a reformatory sentence in the range of 9 to 12 months in jail, followed by two years' probation with conditions. The Crown also seeks a s. 110 weapons' prohibition order for 5 years and a DNA order pursuant to s. 487.04 on the offence of assault causing bodily harm, as a secondary designated offence.

[35] The defence is seeking recognition of the pre-trial custody of 10 days, which on a 1.5 to 1 basis would provide pre-trial credit of 15 days and a further pre-trial credit to be determined for the 11 months of restrictive bail based on R. v. Downes, [2006] O.J. No. 555 (C.A.). In addition, it is the defence position that based on the sentencing principles enunciated in R. v. Gladue, supra, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, this is an appropriate case, given the steps undertaken by Mr. Woodcock to overcome his addiction issues, for alternatives to incarceration in "real" jail, such as a conditional sentence, to be given serious consideration despite the seriousness of the offence and Mr. Woodcock's previous criminal record. The defence agrees with the probation term and ancillary orders sought by the Crown.

Mitigating Circumstances

[36] Mr. Woodcock pleaded guilty to the charges and this reflects his remorse and acceptance of responsibility for his actions. In Exhibit 7, the Supplementary Gladue Report he expressed his remorse:

When I seen those pictures that took me right down. I didn't feel like living; you can ask my doctor. That's how bad I felt. I prayed and I prayed. The men's group taught me that, that it is my mistake; I have to live with that and to learn from that. I know what I've done and what I now, can't do; I can't drink hard liquor. I know that if I'm in a crappy mood, not to drink. I can still hear my dad, "how many times do I have to tell you boy, if you're in a bad mood, don't drink because it intensifies it." My dad said, "You knew she was an alcoholic when you met her, it's something she has to work out." I've talked to her mother and her mother said, "She's cut down a lot. She's taking responsibility too." We both need to work on it. I can't use my father's passing as an excuse to drink and my father never would've wanted me to use alcohol as a crutch. This event made me realize what I had and what I lost and what I have to look forward to.

[37] Mr. Woodcock entered a guilty plea despite knowing Ms. Elwell was not co-operating with the police. She refused to go to the hospital when the police attended their residence on January 9, 2017 and she also refused to provide a statement as to what had occurred. The facts put forward by the Crown can only be described as "bare bones" with few details other than Mr. Woodcock and Ms. Elwell were extremely intoxicated and at some point there was an altercation, which resulted in Ms. Elwell being injured. Mr. Woodcock could not recall what occurred during the altercation but did not dispute the facts read by the Crown. By accepting responsibility for his actions Ms. Elwell was not put in the position of having to testify in court. It is my view Mr. Woodcock's guilty plea and acceptance of responsibility is a significant mitigating circumstance.

[38] Mr. Woodcock expressed in Exhibit 7 his remorse for his conduct and he is hopeful Ms. Elwell will forgive him. Mr. Woodcock expressed to the Gladue writer he is determined to make his relationship with Ms. Elwell work in the future. I find Mr. Woodcock's remorse is genuine and sincere.

[39] Mr. Woodcock has continued to address his addiction issues and is highly motivated to be successful in overcoming them. He has continued to be drug free for the past seven years and had made progress prior to his incarceration in 2014 in dealing with his alcohol addiction. Shortly after his release from custody Mr. Woodcock became involved with Ms. Elwell, who has been described as a "hard-core" alcoholic. This in no way provides an excuse for Mr. Woodcock's conduct however, it was a recipe for probable disaster. Mr. Woodcock's brother, Michael, described in Exhibit 7 how he believed when Clifford began his relationship with Ms. Elwell, it was as if Clifford was dating their mom, who throughout their childhood and teen years was a serious alcoholic herself. It is my view Mr. Woodcock's upbringing, together with the systemic and background factors discussed in Gladue and Ipeelee, provide a mitigating circumstance to be considered in determining a fit and appropriate sentence.

[40] It is clear from the two Gladue Reports that Mr. Woodcock has reconnected with and has embraced his Aboriginal heritage. He has completed the "I Am a Kind Man" 12-week program and has continued with counselling with Craig Brochmann, the Kizhaay Anishinaabe Niin (I Am a Kind Man) Facilitator. He also has been working with Pamela Johnston, the Healthy Lifestyles Coordinator at the MSIFN Health & Resource Centre. Recently, he has become involved with a psychotherapist, Liz Chamberlain, who sees Mr. Woodcock every two weeks. During the sentencing hearing, I was advised by Ms. Johnston that in the fall of 2017, a new program, providing individual psychotherapy for intergenerational trauma and victimization, was funded on the Mississaugas Scugog Island First Nations Reserve and when this was offered to Mr. Woodcock, he immediately agreed to become involved.

[41] A concern might be raised by the fact that shortly after completing the I Am a Kind Man program in December 2016, Mr. Woodcock drank alcohol to excess with his partner of over two years, Ms. Elwell, which ended in an physical altercation that caused her significant bruising and swelling to her right eye, scratches and bruising to her neck and back and scratches and bruising on her arms and hands. On the facts presented in court, it is unknown what caused the physical assault between Mr. Woodcock and his common law partner, Ms. Elwell. There is no doubt that Mr. Woodcock was extremely intoxicated at the time of the assault given his lack of recall of the events on January 9, 2017. In Exhibit 7 Mr. Woodcock explained what he recalled:

In January this year we were drinking. A buddy of mine was over there when we got into a bottle of gin, and all I remember is dancing wither; we were all drinking. I remember eating dinner and I kind of snapped out of it. I remember the cops being there but I couldn't figure out why. I woke up in a jail somewhere, my ear was bleeding pus, and then they tell me that I was charged with assault causing bodily harm and some other stuff so I thought I had gotten in a fight with my buddy. I asked them to call my wife to ask her to bail me out. They said, "She's not going to bail you out, you idiot, you're the one who beat her up." Couples have their disagreements but we both decided that when the argument gets heated, to walk away. That gin made me crazy.

[42] As I indicated previously, Mr. Woodcock put himself in a very dangerous situation when he began to see Ms. Elwell in April 2015. He knew he had an addiction to alcohol that he was attempting to overcome and he knew Ms. Elwell was also an alcoholic. I am cognizant of the difficulties experienced by alcoholics who are attempting to overcome their addiction and that circumstances can cause setbacks in maintaining sobriety. I do not view this as an aggravating circumstance, however, any sentence imposed will have to address Mr. Woodcock consuming alcohol in the future in order to provide for continued protection of Ms. Elwell and of the public generally.

[43] A further mitigating circumstance is the fact Mr. Woodcock has been gainfully employed on a seasonal basis with Mississaugas of Scugog Island First Nation as a grounds maintenance worker. He has been working in this capacity, off and on, since 2003 and upon his release from custody in April 2015 returned to work. A letter from Jon Boland, the Building and Grounds Maintenance Supervisor confirms Mr. Woodcock has been on seasonal full-time staff since April 25, 2017.

Aggravating Circumstances

[44] Section 718.2(a)(ii) provides that where an offender commits an offence by abusing his/her spouse or common-law partner this is deemed to be an aggravating circumstance. Further, it is my view it is an aggravating factor when the assaultive behaviour took place in the family home where the complainant should have been free from harm or violence. Section 718.2 (a)(iii) provides where the offender commits an offence which abuses a position of trust or authority in relation to the victim, in this case as a common-law partner in their shared home, is an aggravating circumstance.

[45] Mr. Woodcock has a related criminal record where he has been convicted previously on four occasions with assault, one which involved domestic violence in respect of a common-law partner. He also has two previous convictions for uttering threats, although I am unaware as to whether these charges were committed in respect of domestic partners. I was advised that alcohol or drugs were involved in the commission of these offences. This an aggravating circumstance. I have set out these offences below:

Date	Offence	Sentence
1992-11-17	(1) Point Firearm (Pellet gun)	(1) 5 days & prob. 18 mo.
	(2) Assault	(2) SSP 18 mo.
2000-95-19	Assault	SSP 2 years
2004-05-10	Assault	SSP 2 years
2010-04-16	Utter Threats	4 days intermit. (13 days PTC) & 2 years' prob.
	Assault (Spousal)	30 days intermit. & 2 years' probation
2010-12-17	Utter Threats	13 days (2 days PTC) & 2 years' probation

[46] It is also an aggravating circumstance that Mr. Woodcock's assaultive behaviour towards Ms. Elwell, his domestic partner, caused her bodily harm. Further, the circumstances surrounding the utter death threats is an aggravating circumstance to be considered in determining an appropriate sentence.

The Appropriate Sentence

Domestic Violence as a Serious Social Problem

[47] There is no doubt that domestic violence is a serious recurring social problem in Canadian society. A five-member panel of the Ontario Court of Appeal addressed the prevalence of domestic violence in the case of R. v. Inwood (1989), 48 C.C.C. (3d) 173 (Ont. C.A.). Chief Justice Howland made these comments concerning domestic violence, which are equally applicable today (at p. 181):

This court has acted on the principle that where 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. This does not mean in every instance of domestic violence a custodial sentence should be imposed, but that it should be normal where significant bodily harm has been inflicted, in order to repudiate and denounce such conduct. I am pointing out later that battered wives, where there are persistent or prolonged assaults, may require special consideration in determining the appropriate punishment. [Emphasis added]

[48] It is clear from the caselaw that when sentencing an offender for a crime of domestic violence a judge must emphasize the principles of denunciation, general and specific deterrence: see Regina v. Pitkeathly (1994), 29 C.R. (4th) 182 (Ont. C.A.), Regina v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.), Regina v. Edwards and Levo (1996), 105 C.C.C. (3d) 21 (Ont. C.A.), Regina v. Campbell (2003), 170 O.A.C. 282 (C.A.), and Regina v. Denkers (1994), 69 O.A.C. 391 (C.A.).

Sentencing Principles

[49] The purpose of sentencing is set out in s. 718 of the Criminal Code. I am of the view it is important to indicate what this section sets out and the sections that follow because I believe this is where the applicable principles of sentencing are defined for criminal cases. Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

a) Denounce the unlawful conduct;

b) Deter the offender, and others, from committing such an offence;

c) Separate the offender from society, where necessary;

d) Assist in the rehabilitation of the offender;

e) Provide reparation for harm done to "victims", or the community; and

f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

How much weight I place on any one objective will depend on the facts of each individual case.

[50] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[51] As Rosenberg J.A. held in R. v. Priest, [1996] O.J. No. 3369, at para. 26:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[52] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances, which I have set out above. This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. This last provision, in s. 718.2 (e), relates to a recognition of the over incarceration of Aboriginal offenders, which is reflected in Gladue, supra, and Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13 (S.C.C.).

Application of Gladue and Ipeelee Principles

[53] Section 718.2(e) alters the method of analysis which a sentencing judge must use in determining the nature of a fit sentence for an Aboriginal offender. "Sentencing determinations must take into account the unique circumstances of Aboriginal offenders, Gladue, at para. 75, and Jacko, at para.60.

[54] At para. 33 in Gladue the Court discussed s. 718(2)(e):

In our view, s. 718.2 (e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provision consists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges to undertake the process of sentencing Aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence in the particular case. … What s. 718.2(e) does alter is the method of analysis which each sentencing judge must use in determining the nature of a fit sentence for an Aboriginal offender. [Emphasis added]

[55] Section 718.2(e) "creates a judicial duty to give its remedial purpose real force" (para. 34). Sentencing judges should "pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique, and different from those of non-Aboriginal offenders. The fact that the reference to Aboriginal offenders is contained in s. 718.2(e), in particular, dealing with restraint in the use of imprisonment, suggests that there is something different about Aboriginal offenders which may specifically make imprisonment a less appropriate or less useful sanction" (para. 37).

[56] The Supreme Court in Gladue stated it is necessary for judges to take judicial notice of the systemic or background factors and the approach to sentencing which is relevant to Aboriginal offenders (paras. 83-84, see also Ipeelee, at para. 59), together with case-specific information of the particular offender's background provided by counsel. In Gladue, at para. 64, writing for a unanimous court, Cory and Iacobucci JJ., held:

These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of Aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out Aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree. The provision may properly be seen as Parliament's direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process.

[57] In Ipeelee, Lebel J., at para. 59, for the majority, held:

The Court [in Gladue] held, therefore, that s. 718.2(e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing (Gladue, at para. 93). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders. Section 718.2(e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders (Gladue, at para. 37). When sentencing an Aboriginal offender, a 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 (Gladue, at para. 66). [Emphasis added]

[58] Unfortunately, despite the recognition of the over incarceration of Aboriginal offenders and the need to consider a restorative approach to sentencing in Gladue and Ipeelee, the problem of the over incarceration of Aboriginal offenders has considerably worsened. As of March 2015, Aboriginals comprised 24.4% of the total federal inmate population but only 4.3% of the population at large. In 1997, the corresponding figures were 12% and 3% (Gladue at para. 58 and R. v. B.N., [2017] O.J. No. 6562 (O.C.J., Schreck J. (as he then was)).

[59] In Ipeelee, the Court recognized there were fundamental misunderstandings and misapplications of s. 718.2(e) and the principles set out in Gladue and identified three areas of criticism, which likely contributed to the failure to reduce the over-representation of Aboriginal offenders in the criminal justice system. The first was the mistaken belief that sentencing is not an appropriate means of addressing over-representation. The second was a false belief that Gladue principles provide what is "essentially a race-based discount for Aboriginal offenders." Finally, the Court recognized that some decision makers may feel "providing special treatment and lesser sentences to Aboriginal offenders is inherently unfair as it creates unjustified distinctions between offenders who are similarly situated, thus violating the principle of sentence parity." (Ipeelee, para.64.)

[60] The Supreme Court in Ipeelee sought to address these criticisms and misunderstandings. Section 718.2(e) "should not be taken as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is Aboriginal" (Gladue, at para. 88 and R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 30). Rather, it is a remedial provision that is designed to address the over incarceration of Aboriginal offenders. Courts have consistently held s. 718.2(e) does not create a race-based discount on sentencing (Ipeelee, at para. 75). The section is simply a recognition that sentencing is individualized and that because of the serious social problems affecting Aboriginal offenders, sentencing judges should pay attention to the circumstances of Aboriginal offenders "because these circumstances are unique and different from those of non-Aboriginal offenders". (Gladue, para, 37) Judges must consider creative and innovative solutions in sentencing Aboriginal offenders, recognizing how systemic and background factors may reduce the moral culpability of many Aboriginal offenders. This "different method of analysis" is to be used in determining a fit sentence for an Aboriginal offender.

[61] The jurisprudence indicates a range of sentence for assault causing bodily harm from conditional discharges to conditional sentences, where the Crown proceeds by summary conviction, to sentences in the upper reformatory, and in rare cases, low penitentiary sentences where the injuries are serious, the offender has a criminal record for similar offences and the Crown has proceeded by indictment. Recently the Supreme Court in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64, at paras. 57-58 and 60, made it clear that sentencing ranges are simply guidelines and all sentences must be individualized to the particular case:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered 'averages', let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case...

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that 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. (R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 44.)

In other words, sentencing ranges are primarily guidelines, and not hard and fast rules. [Emphasis added]

[62] It is clear that any sentence must focus on the protection of the public by the imposition of a penalty that denounces this type of conduct and provides for both general and specific deterrence. At the same time, the sentence must be individualized, as well as reflect and encourage as much as possible any apparent rehabilitative prospects. The appropriate sentence is determined by the circumstances surrounding the commission of the offence, including the nature of the assault and the seriousness of the injury caused and the individual circumstances of the accused, including the accused's background, mental health issues, addictions, or criminal record.

Restorative Justice Approach

[63] The sentencing of Aboriginal offenders according to Gladue (para. 93) and Ipeelee (para. 59) must involve a restorative approach to sentencing. In Gladue (para. 71) the Supreme Court held:

The concept and principles of a restorative approach will necessarily have to be developed over time in the jurisprudence, as different issues and different conceptions of sentencing are addressed in their appropriate context. In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime.

[64] Sentencing judges are required to consider 'the circumstances of Aboriginal offenders," which was explained in Ipeelee, at para. 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. As Greckol J. of the Alberta Court of Queen's Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097, 331 A.R. 50, after describing the background factors that lead to Mr. Skani coming before the court, "[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled." Failing to take these circumstances into account would violate the fundamental principle of sentencing -- that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. [Emphasis added] As Cory and Iacobucci JJ. state in Gladue, at para. 69:

In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means.

[65] The types of systemic and background factors that are relevant were set out in Ipeelee, at para. 60:

To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and 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. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

[66] Many of the systemic and background factors identified in Gladue and Ipeelee exist in Mr. Woodcock's upbringing and family history. Mr. Woodcock grew up in a family environment of emotional and physical abuse. His mother was a serious alcoholic, which led to the abuse described above in the Background Circumstances of the Offender. His mother and her sisters had all suffered sexual abuse by her father. His mother's parents were both alcoholics. Mr. Woodcock mentioned in the Gladue Reports an incident of sexual abuse involving himself but was not prepared to provide many details. He is currently addressing this issue through psychotherapy. Mr. Woodcock experienced racism and prejudice and bullying throughout his adolescent years and after because of his Aboriginal background. Taking these systemic and background factors into account relates to whether Mr. Woodcock's constrained circumstances diminish his moral culpability and blameworthiness, referencing the above passage from Ipeelee, at para. 73.

[67] The second part of the approach set out in Ipeelee is for the court to identify "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." This will certainly involve a consideration of the restorative approach to sentencing. In my view it is important to note that restorative justice is not necessarily a "lighter" punishment or an absence of consequences. Also, considering the principles of restorative justice does not mean that the principles of deterrence and denunciation should be given no weight in determining a fit and just sentence.

[68] Before dealing with what the appropriate sentence is in Mr. Woodcock's unique circumstances I want to address a fundamental fallacy identified in Ipeelee respecting the generalization that Gladue principles do not apply to serious criminal offences. In Ipeelee, at para. 86, LeBel J. held:

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.'"... 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.

Similarly in Wells, supra, at para. 50, Iacobucci J. held: "[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."

Conditional Sentence Analysis

[69] The Crown is seeking a further custodial sentence of 9 to 12 months in jail, less credit given for pre-trial custody. As I have indicated Mr. Woodcock spent 10 days in pre-trial custody, which provides on a 1.5 to 1 basis, 15 days of pre-trial credit. In addition, he has been on a very restrictive house arrest recognizance for 11 months, with no breaches. The recognizance signed on January 19, 2017, included the following condition:

Remain in your residence at all times.

EXCEPT

• For medical emergencies involving you or a member of your immediate family (spouse, child, parent, sibling).

• For purposes of travelling directly to, from and while at court appearances, or meeting with your lawyer, or for purposes of complying with this or any other court Order or for the purpose of attending MSIFIN Resource Centre.

• For purposes of travelling directly to, from and while at work.

• Unless you are in the direct presence of your surety or in the direct company of Pamela Johnston.

• While in attendance at a residential treatment program or attending any medical or counselling appointments.

[70] In R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.), Rosenberg, J.A. held that "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance." (See para. 33)

Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code. (See para. 29)

Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case. (See para. 36)

[71] The Crown did not argue that R. v. Downes had no application to this case. In my view, the appropriate credit for the 11 months of stringent bail restrictions without a breach is three and a half months. I recognize there is no formula for determining the appropriate amount of credit to be assessed from stringent bail conditions. I have therefore assessed Mr. Woodcock's total pre-trial credit as being 4 months.

[72] As a result of the Crown electing to proceed by summary conviction, if I determine a period of incarceration is appropriate, any sentence I impose will be 18 months or less. Indeed, the Crown is only seeking a nine (9) to twelve (12) month sentence less pre-trial credit. Ms. Samet is seeking a conditional sentence of imprisonment. The Crown conceded a conditional sentence is an available sentence in this matter but submitted it was not an appropriate sentence in the circumstances. It is my view that I must consider the appropriateness of a conditional sentence pursuant to s. 742.1 of the Criminal Code particularly given the need to consider how Gladue restorative sentencing principles apply to Mr. Woodcock's circumstances. The Supreme Court in Proulx, supra, at para. 12, stated, "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[73] There are five prerequisites for the imposition of a conditional sentence.

(1) The offender must be convicted of an offence that is not specifically excluded (e.g. sexual assault, when prosecuted by indictment).

(2) The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.

(3) The court must impose a sentence of imprisonment that is less than two years.

(4) The safety of the community would not be endangered by the offender serving the sentence in the community.

(5) The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[74] In my view the facts of this case meet the first four pre-conditions. The Crown did not proceed by indictment, there is no minimum sentence applicable, the Crown is seeking a nine (9) to twelve (12) month sentence and given the fact Mr. Woodcock has been on a very restrictive recognizance of bail for 11 months without any breaches, it is my view the safety of the community would not be endangered by him serving the sentence in the community. He has already served the equivalent of an 11 month conditional sentence without encountering any further difficulty with the police. Further, Mr. Woodcock throughout the past 11 months has made significant progress in addressing his addiction issues and continues to re-connect with his indigenous culture. He has extensive support systems in place within the Scugog Island First Nation community and he is highly motivated to engage in counselling and treatment to address his addiction issues, as well as his underlying issues surrounding intergenerational victimization since the age of six years.

[75] In R. v. Proulx, supra, at para. 127, #7, the Supreme Court directed that where the first four pre-conditions of s. 742.1 are met, sentencing judges must give serious consideration to community based sentences. The only pre-condition remaining therefore is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[76] At para. 22 of Proulx, the Supreme Court held a conditional sentence is a "punitive sanction capable of achieving the objectives of deterrence and denunciation." In para. 127, #8, the Court held:

A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.

[77] Initially the Supreme Court held in Proulx that a conditional sentence was in principle, although not always in practice, available for all offences where the prerequisites were met as no specific offence or category of offence was presumptively excluded from the conditional sentence option: R. v. Proulx, supra, at paras. 79-81 (see also R. v. Jacko, 2010 ONCA 452, [2010] O.J. No. 2583 (C.A.), at para. 69). The conditional sentence provisions in the Criminal Code have been amended on a number of occasions since they were first introduced in 1996. The current legislation sets out specific offences and categories of offences that are not eligible for the imposition of a conditional sentence. A conditional sentence is available for an assault bodily harm offence, where the Crown has proceeded by way of summary conviction. Therefore, a conditional sentence, depending on the severity of the conditions, may nonetheless be consistent with the fundamental purpose and principles of sentencing, even where deterrence and denunciation are the predominant sentencing principles (see Jacko, supra, at para 71). As I have previously discussed, deterrence and denunciation are the paramount sentencing principles in cases of domestic violence where bodily harm has resulted.

[78] Lamer C.J., in Proulx, supra, at para. 100, explained that a conditional sentence can achieve both punitive and restorative sentencing objectives:

To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.

(See also R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35.) It is important to recognize that a conditional sentence is a jail sentence, which is permitted to be served in the community to allow an offender to maintain employment, continue receiving counselling and treatment to address issues such as addiction or mental health, which form the underlying cause for the commission of the offence.

[79] The principle of restraint set out in s. 718(2)(d) and (e) has taken on a new prominence as a result of the introduction of conditional sentences pursuant to s. 742.1. In R. v. Gladue, [1999] S.C.J. No. 19, at para. 40, Cory J. said:

... The availability of a conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only when no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in s. 718.2(e) must be construed and applied in this light.

[80] It is my view the principles of deterrence and denunciation and the aggravating circumstances of this case require a jail sentence to be imposed. I was not asked to consider a suspended sentence and I am of the view such a sentence would not have adequately addressed the sentencing principles applicable in this case. However, applying the principles of restorative justice, which I find must also be considered in this matter, a conditional sentence served in the community, in my view will best achieve all of the sentencing principles that must be considered and balanced in determining a fit and just sentence for Mr. Woodcock.

[81] As I have described above, Mr. Woodcock has experienced many of the systemic and background factors identified in Gladue and Ipeelee. It is my view, as an Aboriginal offender, Mr. Woodcock's constrained circumstances do, to some extent, diminish his moral culpability and blameworthiness. He has been successful in addressing his serious drug and alcohol addiction issues since his convictions in 2010. The evidence before me supports his assertion that he has been drug free for seven years. This demonstrates his sincerity in his motivation to overcome his addiction to alcohol. He has become involved with and embraced his community and aboriginal heritage, having completed the I Am a Kind Man program, which is a men's group led by Craig Brochmann. He has continued one-to-one counselling with Mr. Brochmann, the program's facilitator, every two weeks for the past year. He has also sought out assistance since August 2015 from Pamela Johnston, the Healthy Lifestyles Coordinator with Mississaugas Scugog Island First Nations Reserve and has recently commenced psychotherapy with Liz Chamberlain. I should note that both Mr. Brochmann and Ms. Johnston have attended with Mr. Woodcock when he has appeared before me in court.

[82] Considering the systemic and background factors of Mr. Woodcock's circumstances as an Aboriginal offender, the rehabilitative steps Mr. Woodcock has taken and continues to take, the mitigating and aggravating circumstances surrounding these offences, pre-trial credit and taking into account all of the sentencing principles I have discussed, I am satisfied a six month conditional sentence, which is a jail sentence Mr. Woodcock will be permitted to serve in his community subject to the Electronic Supervision Program, to be followed by a two year period of probation, which will include community service and other conditions, will provide a fit and just sentence for you.

[83] Before addressing with counsel the terms of the conditional sentence and the probation order and the ancillary orders to be made I would like to address one final issue. In my view the sentence I am imposing is not one that is below the usual range of sentence imposed for an offence of assault causing bodily harm and uttering threat, nor is Mr. Woodcock getting some kind of "discount" because he is a member of an Aboriginal community. This is a sentence based on the fundamental principle of sentencing, namely, individualized proportionality, where the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Disposition

Released: December 19, 2017

Signed: Justice Peter C. West

Sentence Imposed

Six-month conditional sentence to be served in the community subject to the Electronic Supervision Program, followed by two years' probation with conditions including community service.

Ancillary Orders:

• Section 110 weapons prohibition order for 5 years
• DNA order pursuant to section 487.04 on the offence of assault causing bodily harm as a secondary designated offence