Court File and Parties

Court File No.: Ottawa 17-A11836 Date: 2018-12-21 Ontario Court of Justice

Between: Her Majesty the Queen — and — Guy Lavergne

Before: Justice David A. Berg

Counsel:

• H. Shouldice, for the Crown
• C. Nahum, for the defendant

Heard: In Writing

Reasons for Sentence

Introduction

[1] I have found Mr. Lavergne guilty after trial of two related offences: that on July 9, 2017, he drove a motor vehicle while disqualified; and that he also breached a condition of his bail that likewise prohibited him from driving. The Crown has elected to proceed by way of indictment. The Crown is seeking a sentence of six months on both counts to be served consecutively. For reasons that I will discuss below, Mr. Lavergne has no pre-trial custody credit available to him at this time despite having been in custody since July 18, 2017. Thus if I accept the Crown's submission, Mr. Lavergne would have to serve the better part of a year in custody.

[2] I note that the Crown's position is not unreasonable. Mr. Lavergne did not plead guilty and has a significant and lengthy criminal record. Amongst other things, he has been convicted a total of 21 times of various breaches of court orders, not counting driving prohibitions. The record is not dated. Directly relevant to the present charges, he was convicted in 2010 of flight while pursued by a peace officer as well as dangerous operation of a motor vehicle and sentenced to 120 days of jail (60+60 consecutive) and a two-year driving prohibition. In 2012, he was convicted of flight while pursued and drive disqualified. He received 90 days on each count concurrent and a three-year driving prohibition. On October 23, 2013, he was convicted of a whole slew of offences: three counts of breach of recognizance, four counts of breach of probation, one count of failure to attend court, one count of possession of break-in instruments, one count of obstruct peace officer, four counts of drive while disqualified, two counts of flight while pursued, and two counts of dangerous operation of a motor vehicle. For these offences, he was sentenced to a total of 26 months. As well, he was disqualified from driving for five years.

[3] More recently, Mr. Lavergne pleaded guilty on October 2, 2017 to a common assault, a theft under $5,000, and a breach of recognizance. He received a four-month jail sentence and a three-year probation order. On May 10, 2018, after he was found guilty of assault causing bodily harm, the trial judge noted seven months of pre-sentence custody and placed him on probation for three years. On August 22, 2018, after having been found guilty after trial of one count of drive disqualified, as well as one count of obstruct peace officer and three counts of breach of recognizance (all with the offence date of June 12, 2017), the trial judge noted 11 months of pre-sentence custody and placed him on probation for two years. Finally, Mr. Lavergne pleaded guilty early in 2018 to four counts of drive disqualified and several other charges before Boxall J. of this Court. He was sentenced on December 19, 2018 (i.e., two days ago) to a conditional sentence of 18 months in light of pre-sentence custody calculated at the enhanced rate to be nine months. Boxall J. did not make a probation order.

[4] Mr. Lavergne has been in custody since mid-July 2017. Despite this lengthy period of pre-sentence incarceration, he has no pre-sentence custody credit available to him on the charges at bar. This is obviously due to the fact that this time has been utilized by other sentencing judges, including Boxall J.

[5] Mr. Lavergne is an indigenous person. He has grown up in Ottawa and lives here. This is his community. As I will discuss, Mr. Lavergne's roots are Haudenosaunee. It is common knowledge that the indigenous community in Ottawa is heterogeneous. In other words it is made up of members of various first nations, as well as Metis, and Inuit. There is no evidence before me that establishes the existence in this city of a structured Mohawk community.

[6] I heard the evidence in this trial in December 2017 and again on March 5, 2018. I also made my finding of guilt on this latter date. Since then, the matter has gone over from time to time for various reasons related to sentencing. On March 5, after finding Mr. Lavergne guilty of the present offences, I was advised by his counsel that a Gladue Report had been ordered by one of the other judges who was to sentence Mr. Lavergne in 2018. That report took several weeks to be prepared. At one point, the defence was requesting that the charges to which Mr. Lavergne had pleaded guilty to in front of another judge be transferred to my court; ultimately, that did not occur as the Crown did not consent to the striking of those guilty pleas. The creation of an appropriate Gladue plan required time. A further factor that has been in play is that of a sentencing circle. After reviewing the Gladue Report, I began to consider whether a sentencing circle was appropriate to supplement that report. I subsequently learned that the judge before whom Mr. Lavergne pleaded guilty, Boxall J., had ordered one. Rather than reduplicate his efforts, and keeping in mind that he is dealing with some of the same charges as are before me and, as well, that we are both sentencing Mr. Lavergne in the same community, I opted to wait until Boxall J. had completed his sentencing circle.

[7] I do not feel that this delay offends s. 720 of the Criminal Code. Subsection 1 of that section reads "[a] court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed." The practicalities in this case were directly related to the length of the delay in passing sentence. The Ontario Court of Appeal has implicitly recognized that the preparation of a proper Gladue Report sometimes has significant inherent time requirements (see R. v. Macintyre-Syrette, 2018 ONCA 706). These adjournments "complement the duty to sentence and fall within the scope of the power to adjourn" (R. v. W.B.T.). Moreover, when I determined early in the process that the sentencing of Mr. Lavergne would take several months and involve several adjournments, I offered him the possibility of being sentenced there and then. I then had him confer with his counsel. He elected to engage in the process that has led to today's sentencing. To be clear, at the time that I offered Mr. Lavergne the option of an immediate sentencing, both the Crown and the defence had provided me with their respective sentencing positions (see below), I had received and reviewed the Gladue report, and I had indicated on the record that I was willing to consider the possibility that a conditional sentence of imprisonment might be appropriate despite the positions of the parties but that a conditional sentence was not a guaranteed outcome. Mr. Lavergne also confirmed that he was fully aware of the implications of a lengthy conditional sentence and that his decision to continue along that road was an informed decision.

[8] The defence has submitted that I should sentence Mr. Lavergne to a global sentence in the range of four to six months. Respectfully, I disagree. Mr. Lavergne's criminal record and specifically his history of driving while disqualified suggest that should I sentence him to actual imprisonment, a sentence closer to what the Crown has suggested would be appropriate. To do what the defence is asking would be mere tinkering. To my mind, a principled approach here leads me in another direction. It is my opinion that when I take into account all of Mr. Lavergne's circumstances, the proper sentence is one of a six month less one day conditional sentence consecutive to any sentence being served followed by three years of probation. The balance of this judgment is my explanation as to how I came to this conclusion.

Who is Guy Lavergne?

[9] Mr. Lavergne, who was 28 years old at the time of the preparation of the Gladue Report, is an aboriginal person. Specifically, the Report indicates, he is

eligible for registration as a "Status Indian" under the Indian Act, with the Mohawk of Kanesatake, located on the north shore of the Ottawa River, 53 kilometres west of Montreal.

This Mohawk nation consists of 2,547 members, with 1,375 members residing throughout the small community. Guy's Haudenosaunee connections can be traced to his maternal great-great-grandmother who was the last language carrier of his family, and resident of the Mohawk nation's Kanesatake reserve.

Guy's grandfather grew up without connection to culture or language, after his own mother's experience at the Shingwauk Residential School. Shingwauk residential School operated from 1873 to 1970 in Sault Ste. Marie, Ontario. The legacy of the residential school experience has been well documented and is clearly linked to symptoms of post-traumatic stress disorder, as well as a wide range of social problems, including addiction and physical and sexual abuse.

The Report quotes Mr. Lavergne's mother as referring to her upbringing and her life situation after Mr. Lavergne was born. I see no need to dwell on the details. It is sufficient to note that it describes a context where poverty, abuse, drugs, alcohol, and criminality were the norm. When Mr. Lavergne was a child, his mother was fighting her own demons and her effectiveness as a parent was minimal at best. The report is not exactly clear about Mr. Lavergne's father. It seems that he was frequently in jail and indeed, may have been incarcerated for murder; Mr. Lavergne was conceived during a conjugal visit to the penitentiary. At any rate he was absent from Mr. Lavergne's life during his childhood. The Report notes that he has begun to form a relationship with his father, however, the latter is dying from cancer and lung failure.

[10] The Gladue Report refers to a 2014 paper published by the Ontario Centre for Excellence in Children and Youth wherein the authors cite the 1998 Adverse Childhood Experiences study. That study identified eight childhood risk factors that were identified as leading to mental health problems in adulthood. Those factors are exposure to psychological abuse, physical abuse, sexual abuse, violence against mother, living with household members who were substance abusers, mentally ill, suicidal, or ever imprisoned. The author of the Gladue report notes that Mr. Lavergne "has experienced seven out of eight of these identified childhood exposures to harm or disadvantage during his childhood."

[11] Mr. Lavergne's mother proudly advised the writer of the Report that she has been clean and sober for almost 16 years. She stated

My father didn't teach me much about being Mohawk, but I remember going to visit my grandmother in Oka and sometimes we would get to visit my great-grandmother on the reserve in her little cottage there, by the water, it was very peaceful. She lived there until she was too old and couldn't be on her own anymore. Visiting her in the summers were the best memories of my childhood. I wish I had been raised with it more. My younger son and I have gone to programs at the Wabano Centre and it has been important to my sobriety and recovery. I know that Guy would get so much out of it too.

[12] In regards to Mr. Lavergne, the Report states that

Guy didn't learn about his culture growing up and didn't identify as an Indigenous person for most of his life. He knew of his family roots but was too caught up in the day-to-day survival that is elemental to cyclical poverty.

Nevertheless, it appears that he has used this current period in jail to "explore indigenous teachings by meeting with the Cultural Advisor or Elder when either are attending [the jail]." As well, I note that he has participated fully in this Gladue process.

[13] I would like to comment about the significance of Mr. Lavergne having not self-identified in the past as an indigenous person. I find that there is here little to no significance. This issue was dealt with by the Ontario Court of Appeal in R. v. Kreko, 2016 ONCA 367 at paras. 21:

[21] The jurisprudence makes it clear that no causal link is required. In R. v. Ipeelee, 2012 SCC 13, 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.

[24] In the present case, the appellant's dislocation and loss of identity can be traced to systemic disadvantage and impoverishment extending back to his great-grandparents. This was relevant to his moral blameworthiness for the offences. The intervener has referred to some studies suggesting that adoptions of Aboriginal children by non-Aboriginal parents have a significantly higher failure rate than other adoptions. The appellant's Aboriginal heritage was unquestionably part of the context underlying the offences. The sentencing judge erred by failing to consider the intergenerational, systemic factors that were part of the appellant's background, and which bore on his moral blameworthiness, and by seeking instead to establish a causal link between his Aboriginal heritage and the offences.

See, too, R. v. Fraser, 2016 ONCA 745, R. v. Elliott, 2015 BCCA 295.

[14] The defence provided me with three letters along with the Gladue Report. The first is from Mr. Lavergne. In it, he stresses what a significant event the recent birth of his daughter (his first child) has been for him. He also stated the following:

Moving forward in my life I understand that I'm facing an uphill battle, but with the help from Wabano, Odawa, The John Howard Society, and my family I know I will be able to finally succeed and be a positive and productive person both in my personal life, as well as within the community. As much as I have been working on my own to better myself I know that with good professional help in the community I will be able to continue my own healing process. My goal is to attend programs in order to help myself heal the damage I live with within myself. I also plan to work with these organizations to find proper employment in order to provide for my family. Getting a job is something I look forward to when I get out, but I understand that healing myself comes first. I plan to work really hard on fixing whatever needs to be fixed inside of myself in order to be the best husband and father I can be. I'm positive that being home with my family will help me to heal so much more than I ever can being in jail surrounded by criminals who only want to do drugs, drink, and commit crimes. In the future I want to surround myself with hard working people who share the same goals as Samantha and I do. People who go to work, raise families, and live positive healthy lives.

I take Mr. Lavergne as accepting that if he is to make substantial changes in his life, he will need help.

[15] The second letter is that of Samantha Henderson. She is the mother of his child. On its face, it would seem that Ms. Henderson and Mr. Lavergne did not actually spend much time together before he was incarcerated on the various charges that he faced in 2017 and 2018 (including the ones for which I am sentencing him). Yet I have no doubt as to her desire to continue in a relationship with him; to create a family. Words are easily spoken or written. However, Ms. Henderson has been in court on many occasions when Mr. Lavergne has appeared before me. If I have understood correctly, she has been active in searching out community resources in order to put together the Gladue plan. She and Mr. Lavergne's mother seem to have bonded in his constructive absence. I conclude that Ms. Henderson presents as a pro-social influence in Mr. Lavergne's life.

[16] The third letter is from Mr. Lavergne's mother. Her letter covers much of the same ground as what she told the writer of the Gladue Report. However, in it, she stresses the significance of the birth of Mr. Lavergne's daughter to him.

[17] I have also been provided with a letter from the Literacy and Basic Skills Program (Key Skills) of the John Howard Society at the Ottawa Carleton Detention Centre. As of July 12, 2018, Mr. Lavergne had successfully completed 5.5 months of that course.

[18] Mr. Lavergne is the product of a context. That context is the result of a historical process. The evidence with which I have been presented during this sentencing hearing clearly indicates that he has been effected by the intergenerational trauma referred to in the case law as resulting from that process: see, e.g., R. v. Kreko, 2016 ONCA 367.

[19] However, it seems that Mr. Lavergne has been fortunate over the course of the last year or so. I recognize that on its face, this seems like an odd, indeed perverse statement. He has been in jail facing multiple sentencing procedures. He has no work history. He has a long criminal record. He comes from a very disadvantaged background. Yet despite these negative elements, the last year has brought him to a point in his life, perhaps an unique point, where, based on his recent exploration of his roots, the support of his partner, and the desire to change that has been brought about by the birth of his first child, there is a significant possibility for a positive change.

The Elements of the Gladue Plan

[20] It has recently been stressed by the Ontario Court of Appeal that a judge who is sentencing an indigenous offender must be provided with information sufficient

"to determine the types of sentencing procedures and sanctions that would be appropriate given the offender's connection to his specific Aboriginal community … Section 718.2(e) imposes an "affirmative obligation" on sentencing judges to inquire into the relevant circumstances of the offender, including the types of sentencing procedures and sanctions which may be appropriate because of his or her particular Aboriginal heritage or connection; either from the parties or on his or her own initiative, a sentencing judge "must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community of the particular offender"." (R. v. Macintyre-Syrette, 2018 ONCA 259 at para. 19; see, too, Macintyre-Syrette, 2018 ONCA 706).

[21] In this present case, the Gladue Report suggested that Mr. Lavergne could approach certain organizations in the indigenous community of Ottawa upon his release from custody. Given that I was considering a conditional sentence of imprisonment that would require Mr. Lavergne to participate in certain specific support programs, I advised counsel that I would need further particulars. I was subsequently provided with an affidavit from Mr. Lavergne's partner, Samantha Henderson; that affidavit was entered as an exhibit in these proceedings.

[22] Mr. Lavergne is in custody. It is thus difficult for him to finalize the elements of any plan. Nonetheless, Ms. Henderson assisted him in exploring several support programs available for indigenous people in Ottawa. Mr. Lavergne was interviewed by workers from Odawa, Aboriginal Legal Services, and the John Howard Society. Ms. Henderson also assisted Mr. Lavergne in contacting various programs at the Wabano Centre for Aboriginal Health as well as Kagita Mikam Aboriginal Employment and Training. Given that Mr. Lavergne is incarcerated and it was unclear when he would be sentenced, it was not possible for specific appointments to be arranged. Nonetheless, I feel that I have sufficient information that I can craft an appropriate sentence.

[23] The purpose of the Gladue Report is not just to provide some evidence upon which I may accept that Mr. Lavergne is an indigenous person and then simply reduce the sentence that he would otherwise receive were he not indigenous. That is not the manner in which Gladue principles are to be applied. As seen in the summary at para. 93 of R. v. Gladue:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. If there is no alternative to incarceration the length of the term must be carefully considered.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

[24] The Gladue Report recommends the inclusion of the following elements in their sentencing plan. It should be noted that these resources are found in Ottawa and serve the indigenous community in that city.

• Attend anger management and counselling at the Wabano Health Centre;
• Attend Kagita Mikam Employment and Training for assessment and training;
• Attend I am a Kind Man Cultural program at the Odawa Native Friendship Centre for one-on-one participation;
• Work with an Aboriginal Legal Services caseworker.

[25] In Ms. Henderson's affidavit, she outlined the steps that she and Mr. Lavergne have taken to formulate a plan. She submits that:

• Mr. Lavergne will reside with her, her son, and their daughter;
• He will attend the Men's Circle once a week at the Wabano Centre for Aboriginal Health; at that centre, he can also have meetings with an adult and family support worker and also undergo mental health counselling there.
• Kagita Mikam Employment and Training
• Further employment opportunities through Higher Power at the John Howard Society.

[26] Combined with other reasonable conditions, I am of the view that the Gladue plan has provided me with sufficient information in order to craft appropriate conditional sentence and probation orders.

The Ripeness of the Gladue Plan

[27] It appears to me that Mr. Lavergne's life up to this point has been one that can be characterized as antisocial. By antisocial, I do not mean that Mr. Lavergne does not have friends or that he lacks the ability to get along with people. By antisocial, I mean that Mr. Lavergne has not obeyed the rules of society at large and that he has not been productive within society. He has no work history. His lengthy criminal record suggests most strongly that he has had no respect for the laws of the land. The Crown position of one year of incarceration would not be an unreasonable sentence for such a man in this case.

[28] Then, as part of the sentencing process, I learned that you, Mr. Lavergne are Haudenosaunee. Once I was advised of this fact, I was required to approach my calculation of what is an appropriate sentence in a different manner. As the Supreme Court of Canada reiterated in R. v. Ipeelee, 2012 SCC 13 at para. 87,

[t]he 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.

This statutory duty exists even where the offence for which the accused is being sentenced is considered a serious offence (see, e.g., R. v. Ipeelee, 2012 SCC 13 at para. 79; R. v. Van Every, 2016 ONCA 87 at paras. 87-88). I note here in passing that Mr. Shouldice, for the Crown, is not suggesting that the offences at bar are to be so considered.

[29] Section 718.2(e) reads

All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

The Supreme Court of Canada provided direction on how the courts are to understand this section in R. v. Gladue at para. 66:

[h]ow are sentencing judges to play their remedial role? The words of s. 718.2(e) instruct the sentencing judge to pay particular attention to the circumstances of aboriginal offenders, with the implication that those circumstances are significantly different from those of non‑aboriginal offenders. The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass a wide range of unique circumstances, including, most particularly:

(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.

And again, for example, in R. v. Wells, 2000 SCC 10 at para 38:

[i]n order to provide guidance to sentencing judges as to the manner in which the remedial purpose of s. 718.2(e) could be given effect, the reasons in Gladue set out a framework of analysis for the sentencing judge. In considering the circumstances of aboriginal offenders, the sentencing judge must take into account, at the very least, both 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, and 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). In particular, given that most traditional aboriginal approaches place a primary emphasis on the goal of restorative justice, the alternative of community-based sanctions must be explored.

[30] Yet the duty to consider Gladue factors does not lead to an automatic reduction of the sentence for an indigenous offender (see, e.g., R. v. Sackanay at para. 11). For a person with significant antisocial antecedents, even a good Gladue plan, as in the present case, may not be sufficient even where on its face, the plan would seem to meet the goals of sentencing. What benefit is a good plan if the person to be sentenced is unlikely to follow through with it? In that situation, an indigenous offender is likely to receive a sentence closer to that of a non-indigenous person.

[31] That being said, where an offender has a significant criminal record such that on its face it does not seem likely that they would comply with the conditions of a restorative sentence, yet their circumstances at the time of sentencing indicate that they have reached a point in their life where despite their antecedents, a restorative sentence may be successful, it is surely incumbent on a sentencing judge to consider sentencing them in a fashion that takes this opportunity into account. The direction that '[t]he Gladue factors are highly particular to the individual offender, and so require that the sentencing judge be given adequate resources to understand the life of the particular offender" (R. v. Macintyre-Syrette, 2018 ONCA 259 at para. 14) requires the Court to look at the information in the Gladue Report not only to understand that indigenous offender's past, but also, their present so as to be able sentence them in an appropriate fashion.

[32] I refer to the Supreme Court of Canada's majority decision in R. v. Lacasse, 2015 SCC 64 at paras. 57ff:

57 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...

58 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.)

60 In other words, sentencing ranges are primarily guidelines, and not hard and fast rules. … (Emphasis added)

And as remarked by Hill J. in R. v. Knockwood, 2012 ONSC 2238 at para. 54, "[i]ndividualized sentencing can be no more important than in the sentencing of an Aboriginal person."

[33] Here we have a 28-year old man who is at a unique point in his life. There is a woman in his life who clearly supports him: I refer here to Samantha Henderson. He has begun to engage some of the background reasons for his antisocial behaviours and is aware of community, his community, resources that can assist him. He has the example of his mother who has been clean and sober for 16 years. And perhaps most important of all, he has a daughter who was born to Samantha while he has been in custody.

[34] To my mind, there now exists a significant and real potential for change in the life of Mr. Lavergne based on the timeliness and quality of the plan. This may be a turning point. I recognize that there is no certainty. But to my mind, if Mr. Lavergne is ever going to be rehabilitated, it will be now. That being said, he will not be able to do this on his own.

Conclusion

[35] The Crown's position is reasonable on its face. It would be easy for me to perhaps, after some principled but minor tinkering with the amount of jail time, sentence him to further jail. I would be able to say that I have obeyed the letter of the law and sentenced Mr. Lavergne according to statute. My sentence would reflect all the relevant principles of sentencing especially that of specific deterrence.

[36] And yet I feel that should I proceed in that fashion, I would be failing to follow the spirit of the line of cases that we refer to as Gladue and Ipeelee. Courts are required to be creative and come up with innovative sentencing solutions when dealing with aboriginal offenders. As the Manitoba Court of Appeal stated in R. v. Vermette et al., 2001 MBCA 64 at para. 39 (cited in R. v. Ipeelee, 2012 SCC 13 at para. 71; see, too, R. v. Laboucane, 2016 ABCA 176 at para. 54),

[t]he section does not mandate better treatment for aboriginal offenders than non-aboriginal offenders. It is simply a recognition that the sentence must be individualized and that there are serious social problems with respect to aboriginals that require more creative and innovative solutions. This is not reverse discrimination. It is an acknowledgement that to achieve real equality, sometimes different people must be treated differently.

Similarly, we see in R. v. Ipeelee, 2012 SCC 13 at para. 66:

First, sentencing judges can endeavor to reduce crime rates in Aboriginal communities by imposing sentences that effectively deter criminality and rehabilitate offenders. These are codified objectives of sentencing. To the extent that current sentencing practices do not further these objectives, those practices must change so as to meet the needs of Aboriginal offenders and their communities. As Professors Rudin and Roach ask, "[if an innovative] sentence can serve to actually assist a person in taking responsibility for his or her actions and lead to a reduction in the probability of subsequent re-offending, why would such a sentence be precluded just because other people who commit the same offence go to jail?" (J. Rudin and K. Roach, "Broken Promises: A Response to Stenning and Roberts' 'Empty Promises'" (2002), 65 Sask. L. Rev. 3, at p. 20).

[37] I quote two examples of courts of first instance applying this approach. In R. v. Christmas, 2017 NSPC 48, Sakalauskas J. was dealing with an indigenous man who had plead guilty to possession of certain drugs for the purpose of trafficking.

[73] The Crown position is that they have factored in consideration of Gladue factors and Mr. Christmas' situation, and that is why the two-year custodial sentence is being requested. In short, they would have requested more time otherwise. The defence tells me that Gladue and Ipeelee invite a more creative approach from this Court, and Mr. Christmas is deserving of same. I agree with the defence.

[74] The Supreme Court of Canada tells us that we must take a more thoughtful and fulsome approach when sentencing Aboriginal offenders, as opposed to the simplistic approach to "knock off time". Gladue principles are more than new math when it comes to sentencing. A "different method of analysis" does not stop short at simple subtraction. Gladue is a clearly written decision, with a direct mandate from our highest Court. It has been nearly 20 years since its release and courts across this country are increasingly applying its principles.

In the result, the passing of sentence was suspended and Mr. Christmas was placed on probation for three years.

[38] Robert McGill was an indigenous person facing a charge of possession of cocaine for the purpose of trafficking. The Crown was seeking a sentence of two years less one day in jail. Green J. suspended the passing of sentence and placed him on probation for thirty months stating

[t]he Crown's position can fairly be described as marginally within or somewhat below the range of sentence generally endorsed by the Court of Appeal for the offence of possessing close to a third of a kilogram of cocaine for the purpose of trafficking. McGill's antecedents help situate and to some degree mitigate the circumstances of his offence. They also fall squarely within the matrix of concerns to which Gladue and Ipeelee invite a more creative approach to restorative justice than that too often honoured merely by way of a nominal tariff discount. (R. v. McGill, 2016 ONCJ 138 at para. 5)

[39] Mr. Lavergne has been in custody since July of 2017 as the result of a combination of pre-sentence custody and sentence being served. He has been sentenced by several different judges since this spring, one as recently as two days ago. It is my understanding that he pleaded guilty in front of some judges but was found guilty after trial before others. Now I am sentencing him.

[40] In Mr. Lavergne's case, the most significant aggravating factor by far is his criminal record and history of committing the exact same offences for which I have to sentence him. Significant mitigating factors are his indigenous status, the Gladue plan, and the ripeness of that plan.

[41] Totality is another factor that I must include in my analysis. As stated by the Ontario Court of Appeal in R. v. Johnson, 2012 ONCA 339:

[18] In short, a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender. The overall length of the custodial period imposed must still relate to and reflect the variety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders from society where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safe society: Criminal Code, s. 718. In this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns: see R. v. C. (J.A.) (1995), 26 O.R. (3d) 462 (C.A.). This point was reinforced by Lamer C.J. in M.(C.A.), at para. 74.

[42] I do not mean totality here in its usual sense. This is not a case where I have found an accused guilty of a number of counts and my combined sentences result in an unreasonable total. Once again I quote from the Ontario Court of Appeal in Johnson:

[19] There are at least two types of situation where the principle of totality in the context of consecutive sentences may arise. The first is where a single judge must deal with a series of offences, some of which require the imposition of consecutive sentences having regard to the criteria for such sentences. A second – which is the case here – concerns a situation where a sentencing judge must impose a fit sentence on an offender convicted of one or more offences where that offender is at the same time serving the remainder of a sentence for a previous conviction or convictions. Section 718.2(c) of the Criminal Code draws no distinction between these two types of scenario, and this Court and others have recognized that the totality principle applies where the offender is serving the remainder of a previous sentence: R. v. Cathcart, [1976] O.J. No. 1225 (C.A.); R. v. Gorham (1987), 22 O.A.C. 237; R. v. Bond, [2005] O.J. No. 108 (C.A.); R. v. Reid, [2003] O.J. No. 3255 (C.A.); R. v. Evans (1975), 11 N.S.R. (2d) 91 (C.A.); R. v. Bueger (1994), 48 B.C.A.C. 266; R. v. Saran (1996), 113 Man. R. (2d) 205 (C.A.); R. v. Parry, 2012 ONCA 171, [2012] O.J. No. 1209.

[43] When considering sentencing a conditional sentence of imprisonment, s. 742.1 requires that I be satisfied that allowing that offender to serve their sentence in the community (a) 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; (b) that the offence is not one punishable by a minimum term of imprisonment; (c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; or (d) a series of designated offences under certain circumstances. I note that in Mr. Lavergne's case, (b), (c), and (d) are not engaged. I turn now to (a).

[44] Lamer C.J. in R. v. Proulx, 2000 SCC 5 at para. 69 directs me to examine two factors when looking at the safety of the community. First of all, I am to ask myself, what is the risk of Mr. Lavergne reoffending should I allow him to serve his sentence in the community. Obviously, given Mr. Lavergne's criminal antecedents, there is some risk. However, I am sentencing Mr. Lavergne with respect to two non-violent offences: driving while prohibited and a related breach of a bail condition. He has been in custody for well over a year on these and other charges that are not before me. For the first time in his life, it seems that Mr. Lavergne is confronting the root causes of his criminality and there is a specific plan in place to help him in his rehabilitation. He is in a stable relationship and, of no little significance, he is now the father of a daughter born while he has been in custody. In these circumstances, I find that the risk that Mr. Lavergne will endanger the community is low.

[45] I wish to stress here the plan that will be in place. The specific elements of the plan will be reflected in the conditions of the conditional sentence. This is important. "Where an offender might pose some risk of endangering the safety of the community, it is possible that this risk be reduced to a minimal one by the imposition of appropriate conditions to the sentence" (Proulx, at para. 72).

[46] The second factor that I must examine when looking at the issue of safety of the community is the gravity of the damage in the event of a re-offence. Here, I once again note that I am sentencing Mr. Lavergne with respect to two non-violent offences, albeit ones that he has committed many times.

[47] In regards to the question of whether a conditional sentence in this case would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, I refer once again to the Supreme Court of Canada's decision in Proulx:

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

[48] A conditional sentence can be denunciatory (Proulx, at para. 102). The combined effect of my sentence and that of Boxall J. will be for the maximum period allowable for such a sentence. The combined effect will be both onerous and punitive.

[49] Mr. Lavergne has stressed how much he wishes to be with his daughter. There is a significant deterrent in the fact that Mr. Lavergne is aware it is highly likely if he does not comply with the conditions of my order, that I will take him away from her. He will be put back in jail and I will have the option of requiring him to serve all of the balance of his sentence behind bars.

[50] The use of the conditional sentence in the context of the sentencing of indigenous persons was commented upon in the seminal case of R. v. Gladue itself and reiterated in Proulx:

41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72:

. . . in our view a sentence focused 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.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

[51] Ultimately, the goal of a sentencing judge is a proportional sentence. As stated in Ipeelee,

[37] The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. …

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[52] The Court went on to discuss moral blameworthiness in the context of the indigenous offender.

[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" (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. 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. [emphasis in original]

[53] A final remark on the length of the conditional sentence. I allow that a longer such sentence might also have been the result here if it had been available to Mr. Lavergne. However, it was not. Boxall J. has just sentenced him to a conditional sentence of 18 months duration. Any consecutive sentence cannot result in a total conditional sentence of two years or more (see, e.g., R. v. Frechette, 2001 MBCA 66). Having determined that a conditional sentence is appropriate for the reasons stated above, I do not feel that, in the context of this case, my inability to sentence Mr. Lavergne conditionally to a term longer than six months less one day is a reason to not sentence him conditionally. I note here the analysis of Green J. in R. v. McGill, 2016 ONCJ 138.

The Sentence

[54] As I have indicated, Mr. Lavergne's sentence will be a conditional sentence of six months less one day duration followed by three years of probation. I turn first to the conditions of the former.

[55] The conditional sentence I am imposing will be served consecutively to that imposed by Justice Boxall. I am of the opinion that the conditions that I should include in my order should take into account those which he included in his order. For example, given that our combined conditional sentences will be for a period of two years less one day, and given that Boxall J. has included a condition of house arrest for the first twelve months of his sentence, I do not see that there would be any need to impose a similar condition in my order. If Mr. Lavergne has successfully completed Justice Boxall's conditional sentence, he will have completed twelve months of house arrest followed by six months of lesser supervision. To my mind, it would make no sense to re-impose a house arrest condition for the first months of my six month order.

[56] The statutory conditions during the six month conditional sentence will be:

1. Keep the peace and be of good behavior
2. Appear before the court when required to do so
3. Report as the Court directs in person to a supervisor and thereafter report when required by the supervisor and in a manner directed by the supervisor.
4. Remain in Ontario unless you have prior written permission from the Court or the supervisor to leave the province.
5. 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.

[57] In addition, I order the following conditions:

Reporting

1. Report in person to a supervisor within two working days of your release from custody and after that, at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision.
2. Co-operate 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.

Residence

3. Reside at an address approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance.

Travel Restriction

4. Remain in Ontario unless you have prior written permission from the Court or supervisor to leave the province.

Weapons and Permits

5. Do not possess any weapon(s) as defined by the Criminal Code.

Counselling and Treatment

6. Attend and actively participate in all assessment, counselling or rehabilitative programs follows and complete them to the satisfaction of the supervisor:

   a. Attend anger management and mental health counselling at the Wabano Health Centre; b. Attend Kagita Mikam Employment and Training for assessment and training; c. Attend I am a Kind Man Cultural program at the Odawa Native Friendship Centre for one-on-one participation; d. Work with an Aboriginal Legal Services caseworker e. Participate in the John Howard employment program "Higher Power".

Motor Vehicles

7. Do not be in the driver's seat of any motor vehicle.

Report to Court

8. Appear before Berg J. on December 27, 2018 at 10:00 a.m. in # 6 court and on such further dates as you are directed by the Court.

[58] The conditions of the probation order are as follows:

Reporting

1. Report in person within 2 working days of your release from custody 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.
2. The Court will consider waiving the reporting condition after the first 18 months.

Residence

3. Reside at an address approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.

Counselling

4. Attend and actively participate in all assessment, counselling or rehabilitative programs follows and complete them to the satisfaction of the supervisor:

   a. Attend anger management and mental health counseling at the Wabano Health Centre; b. Attend Kagita Mikam Employment and Training for assessment and training; c. Attend I am a Kind Man Cultural program at the Odawa Native Friendship Centre for one-on-one participation; d. Work with an Aboriginal Legal Services caseworker e. Participate in the John Howard employment program "Higher Power".

Community Service

5. Perform 40 hours of community service work at a rate and schedule to be directed by the probation officer but must be completed within 12 months of the start of this order.

Work and School

6. Make reasonable efforts to either seek and maintain employment or attend school or an educational or training program approved of by your probation officer.
7. Provide proof as required by the probation officer of job search, employment, educational enrolment, and educational attendance.

Motor Vehicles

8. Do not be in the driver's seat of any motor vehicle.

Released: December 21, 2018

Signed: Justice David A. Berg