Court Information

Date: November 15, 2017

Ontario Court of Justice

Between: Her Majesty the Queen — and — D.F.

Before: Justice Kate Doorly

Heard on: May 31, 2017, and September 27, 2017

Reasons for Sentence released on: November 15, 2017

Counsel:

• Ms. B. Vavougios for the Crown
• Ms. K. Edmonds, Duty Counsel

DOORLY J.:

Facts and Guilty Plea

[1] D.F. plead guilty to assaulting his common-law wife, Ms. J.B. He threw a can at her and it struck her in the head. He also threw her against a wall. A month later, he was found in her apartment, in breach of the non-contact term of his release.

[2] Mr. F plead guilty to these offences on May 31, 2017 – about a month after the commission of the assault. The sentencing was adjourned until September 27, 2017. The 4 month delay allowed some time for Mr. F. to get counselling.

The Sentencing Circle

[3] We had the privilege of entering into a sentencing circle in this matter. And I say privilege in the true meaning of the word – it was a privilege to hear from Dorothy Peters, a traditional teacher from Aboriginal Legal Services, to hear from Mr. F's wife and his mother, to hear from our court clerk Janice Morin, and the counsel Ms. Vavougios and Ms. Edwards, the Aboriginal Legal Services Court-worker, Sue McLennan, and the other thoughtful members of the circle.

Background of the Accused

[4] Mr. F is in his early 50's. He grew up with a devoted mother and sisters. When he was in his 20's, he learned that the man he believed to be his father was not. His father was in fact a man of Aboriginal descent from the Ojibwe band. This confirmed for Mr. F the feeling he had always had of looking different from his sisters – he no longer felt that he knew who he was. He turned to drugs and alcohol to deal with his feelings of depression and loneliness – "overwhelming loneliness" as he describes it. His father was not in the picture.

[5] Mr. F has been addicted to drugs and alcohol for years. Since these charges, he has stayed away from alcohol – which is confirmed by Ms. J.B. – for over 6 months. Drugs remain an issue, not just for him but for his wife too.

Layers of Pain Revealed in the Circle

[6] As the talk in the circle progressed, each layer of pain caused by Mr. F's addictions was pulled back to reveal yet another, deeper layer of pain. At one point, his mother asked Dorothy, the Elder "Are the drugs causing damage to him?" She asked whether she will ever get her son back? The nice, easy-going son who had a steady job? Or have the drugs taken him forever?

[7] Ms. J.B., who is very much in the throes of addiction herself, fantasized about a life where they were both off drugs – where they could "go on outings, and go to the movies – we can go to the boardwalk and swim downtown. We can have a life. An actual life, not sitting at home and 'Oh, let's do crack.'"

[8] The circle revealed a very live tension between Mr. F's mother and Ms. J.B. Despite their animosity, they both shared an enduring love for Mr. F.

The Nature of the Circle

[9] The sentencing circle was tough.

[10] There was no falsity to it – no insincerity or pretence, no posturing or shine.

[11] Many times, Dorothy spoke about the value of truth-telling:

"People are not out here when sitting in a circle to intentionally hurt you, but you need to hear the truth about what people see."

And then later:

"When people speak the truth, it is something that comes from that good place, their spirit lives."

The Elder's Wisdom

[12] In a beautiful way, Dorothy answered Mr. F's questions about her son and whether he would ever return. She told her that the spirit is everywhere, and when people use drugs, the spirit leaves. It goes away because it doesn't want to be part of that world. The negative energies consume the mind and emotions and "They don't care if you are hungry. They don't care if you are homeless. They don't care if you are hurting your children, your partner, it doesn't matter. It will take everything from you. So, when you let those things go, spirits slowly come back, and it will make your life better. You could achieve anything possible, and I've seen it. I have actually seen people change because they want to."

[13] And so much of the circle focussed on Mr. F's addiction, his wife's addiction and how his mother could barely manage anymore. By the time the circle ended, it was clear that they all needed help and they all acknowledged that. Offers and plans for counselling were briefly addressed with Mr. F's mother and Ms. J.B., with intentions to follow-up.

Sentencing Considerations

Criminal Record and Aggravating Factors

[14] Ultimately, of course, this is a criminal proceeding focussed on Mr. F. His moral blameworthiness and the principles of sentencing must be considered. He has a criminal record with five entries between 1983 and 2004, consisting mostly of convictions for theft, one for threatening death and one for impaired driving. He was convicted most recently in 2014 for theft under. This assault was domestic in nature, which by its very nature is aggravating. He breached a court order by contacting the complainant.

Crown and Defence Position

[15] Both counsel are submitting that a conditional discharge and probation is the appropriate sentence.

The Accused's Bravery and Rehabilitation Efforts

[16] During the circle, Ms. Edmonds, Duty Counsel, spoke about Mr. F's bravery in agreeing to this sort of sentencing proceeding. He willingly and openly spoke about his addiction battles, his self-esteem, his past, about being over-whelmed during the process. He listened to blunt and powerful and painful talk from his mother. He apologized to her. He apologized to Ms. J.B., who did not diminish the assault that he engaged in. He said again and again that when they had any money they blew it, they blew it and they blew it – on drugs.

[17] Ms. Edmonds makes an excellent point. Mr. F agreed to have a sentencing process where his wife and mother would be actively participating. Given the dynamics he had with each of them and then the dynamics between the two of them, he took a very brave and serious step towards reconciling with his family and towards restoring peace in himself by speaking about his shortcomings, his drug use and his sincere desire to do better. He engaged in a process that was sharply painful and personal in a public forum.

Commendation and Encouragement

[18] And so, Mr. F I commend you for having the strength to do what a lot of other people would choose not to do – for openly taking responsibility for the assault and the breaches, apologizing to your wife, talking about what you have to do to be better. I know you said your self-esteem is low – but you should give yourself credit for how you have challenged yourself since the assault. How you have pushed yourself and how you are working to be a better man. You have sought out help, you have apologized to those you have hurt. You want to be more engaged in the Native community and you see a path forward with counselling.

[19] As I mentioned earlier, this circle was tough. Your family has suffered. Their love for you, your mother's and son's love, has taken a thrashing from this addiction. Your wife has been hurt because of it. I sincerely hope that you find comfort in what Dorothy said – that you can change and that your good energies and spirits will return.

Legal Principles: Restorative Justice

[20] As the Supreme Court of Canada said in R. v. Gladue, [1999] 1 S.C.R 688 at para 70:

Most traditional aboriginal conceptions of justice place a primary emphasis on the ideals of restorative justice. This tradition is extremely important to the analysis under s. 718.2(e)…In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are inter-related and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist.

The Supreme Court went on:

In our view, a sentence focussed on restorative justice is not necessarily a "lighter punishment". Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

[21] Given everything I have heard Mr. F, there is no doubt that this circle and sentencing process has been anything other than a "light" consequence for you and I am satisfied that the principles of sentence have been met, especially given the gap in your record and your sincere effort at rehabilitation.

Sentence

[22] Accordingly, I will conditionally discharge you and place you on 12 months probation with the following terms:

• Keep the peace and be of good behaviour;
• Advise the court or probation officer of any change of name or address within 48 hours of any such change;
• Report today and thereafter as required to a probation officer;
• You are to have no contact directly or indirectly with Ms. J.B. except with her written orally revocable consent to be filed in advance with the probation officer. The consent is revocable in any manner;
• You are not to be within 100 m of anywhere you know Ms. J.B. to live, work, worship or anyplace you know her to be except with her prior written consent, revocable in any manner;
• You are to take such counselling as recommended by your probation officer, in consultation with Aboriginal Legal Services, for issues involving, among others, substance abuse and domestic violence; and
• You are not to have any weapons as defined by the Criminal Code in your possession.

Released: November 15, 2017

Signed: Justice Doorly

Footnote

[1] The circle was scheduled after a number of meetings between the Crown, the Aboriginal Court Worker, Duty Counsel and myself. Given this was a domestic assault, there was some trepidation about how the circle would proceed and how comfortable the victim would feel. We were fortunate to have the assistance of a VWAP worker whom, I understand, met the complainant before the circle and who sat in the circle with us.

In terms of the proceedings, the chairs in the courtroom were arranged in a circle. The Accused and victim did not sit beside one another. We started with a smudge and acknowledgements led by the traditional teacher. She had a garland of sweet grass that was held by whomever spoke. Unlike some circles, there was an informality in terms of the order of who spoke, although everyone in the circle did speak and some spoke multiple times.

The circle was conducted in a courtroom which was open to the public. There were two people who observed the circle, and they were included in the smudge.

The proceedings were all on the record, although in retrospect, more time should have been taken to properly place the microphones for the reporter's benefit. I understand it was a difficult transcript to type.

The guilty plea had been entered on an earlier occasion in court. The Crown position was clarified on the record before we started the circle.

I chose to wear business wear as opposed to my robes.

In terms of my role, I spoke when I felt I had something to add. The traditional teacher led the circle proceedings – she opened and closed them – and when court resumed, I returned to my robes and the formal passing of sentence was adjourned to another day.

The circle lasted about 1 1/2 hours.