Court Information

Ontario Court of Justice

Date: 2019-06-11

Location: London

Parties

Between:

Her Majesty the Queen

— AND —

Allyson Doxtator

Judicial Officer and Counsel

Before: Justice of the Peace Anna M. Hampson

Heard on: April 19, 2019

Reasons for Judgment released on: June 11, 2019

Counsel:

• T. Waugh — counsel for the prosecution
• B. Calquhoun — agent for the defendant Allyson Doxtator

JUSTICE OF THE PEACE HAMPSON:

Facts and Guilty Plea

[1] On January 14, 2019 Doxtator pleaded guilty to owning a motor vehicle and driving it on a highway while it was not insured under a contract of automobile insurance contrary to s. 2(1) of the Compulsory Automobile Insurance Act for an incident that occurred on August 22, 2018. The sentencing was adjourned on several occasions to allow for the defendant to gather information. I heard argument for sentencing on April 19th during which Mr. Calquhoun made submissions for sentencing involving the Gladue principles and argued that the fine ought to be $500. Ms. Waugh on behalf of the prosecution agreed that the Gladue principles apply, however argued that the minimum fine of $5000 ought to be imposed in the circumstances. The matter was adjourned to today's date for decision.

Personal Circumstances

[2] Ms. Doxtator is 22 years old and has 2 children ages 4 and 3. She resides with her mother in London. The oldest child is in school while the youngest is in daycare located in the Oneida Nation of the Thames community located just outside of London. She drives the children back and forth to the community. The children's father is not involved with the children and was abusive to Ms. Doxtator. She is currently enrolled at Fanshawe College. She is receiving services within the Indigenous Mother's Gateway Program. The goal of this program is to break the cycle of poverty of single mothers and their children by offering supports with housing, child care and after school care, skills training and academic upgrading, formal education through two year college diplomas, employment services etc. She is accepting the services and knowledge offered by the band and N'Amerind Friendship Center. She is actively involved in traditional ceremonies, beading and other community activities. Her grandparents on both sides of the family are residential school survivors. Her parents were impacted by the legacy of the residential schools and that trauma has impacted her. She is determined to walk the right path for herself and her young children and is immersing herself and her children within the traditional culture.

[3] Ms. Doxtator's source of income is (Ontario Works $1000 and the Child Tax Benefit $1300) approximately $2300 per month. Her expenses are modest and include a $300/month lease payment for her car as well as $270/month for car insurance. She acknowledges the gravity of the offence including the potential danger and admits it was an error of judgment and is determined that it will not happen again.

[4] Mr. Calquhoun argues that imposing the minimum fine of $5000 upon Ms. Doxtator would be more than oppressive or cause undue hardship for her—it would be crushing for her and her young family. He argues that the Gladue principles add an additional dimension to sentencing particularly in light of s. 59(2) of the POA. He argued that the recent case of R. v. Henry of Pelham Inc. 2018 ONCA 999 is distinguishable because it did not deal with an individual and did not consider Gladue principles. Ms. Waugh argues that the main consideration is general deterrence and thus the fine for these types of offences cannot be so minimal for people to take a chance and drive a vehicle without insurance.

Application of Henry of Pelham

[5] I disagree that Henry of Pelham is distinguishable because it involved a corporation and not an individual. The Ontario Court of Appeal's decision is binding and offered interpretive guidelines for the exercise of discretion pursuant to s. 59(2) which applies to all persons who may be subject to a minimum fine. In fact, specific references were made to individuals convicted of offences under the Compulsory Automobile Insurance act (paras 43 and 56 for example). In addition, the court specifically referenced individuals would normally seek relief due to personal hardship while corporations would normally seek relief due to the interests of justice—paragraph 57. Clearly Henry of Pelham is applicable and binding.

Gladue Analysis Within s. 59(2)

[6] I find that the Gladue principles do apply in these circumstances. Firstly, the Gladue principles are not just about residential school survivors. They have to do with recognition that the circumstances of indigenous people is largely as a result of colonialism and that direct and systemic discrimination still exists within the justice system. Secondly, the principles have been extended beyond criminal sentencing and have applied in bail (R v. Robinson 2009 ONCA 205; R v. Hope 2016 ONCA 648), in contempt proceedings (Frontenac Ventures v. Ardoch Algonquin First Nation [2008] ONCA 534), in extradition (United States v. Leonard [2012] ONCA 622), and dispositions after mental disorder defence (R v. Sim [2005] 37586).

[7] Although incarceration is not a possible sentence in this matter, the Gladue principles impose a duty on the court to consider the unique circumstances involving Indigenous persons before the judicial system in terms of the history of colonialism and the subsequent intergenerational trauma experienced by indigenous persons. As was noted by the Supreme Court of Canada at para 77 in R v. Ipeelee, 2012 SCC 13, [2012] 1 SCR 433 at para 60:

Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society…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.

[8] I set out s. 59(2) of the POA again for convenience:

(2) Although the provision that creates the penalty for an offence prescribes a minimum fine, where in the opinion of the court exceptional circumstances exist so that to impose the minimum fine would be unduly oppressive or otherwise not in the interests of justice, the court may impose a fine that is less than the minimum or suspend the sentence.

[9] The fact that Ms. Doxtator is indigenous does not automatically mean that there will be a fine less than the minimum of $5000. The test set out in s. 59(2) as explained in Henry of Pelham is still applicable. It is a very high bar for a defendant to claim relief and mere difficulty paying a fine is not enough. The Court of Appeal in Henry of Pelham set out in para 56:

Minimum fines are designed to deter and, as I have said, they are necessarily over-inclusive to a greater or lesser extent. To take an example, the Compulsory Automobile Insurance Act establishes a minimum fine of $5,000 for driving without insurance. That is a high fine for most people and is especially so for people of modest means. But the cost of insurance is also high for most people and is also especially high for people of modest means. The Legislature chose to require drivers to have insurance regardless of the cost, and chose to enforce this requirement with a mandatory minimum penalty. The Legislature chose, in other words, "to make it more financially onerous to offend the legislation than to bear the required cost of insurance premiums": Ade-Ajayi, at para. 13. That choice was open to the Legislature, and it should not be undermined by a decision to refuse to impose a minimum fine simply because it seems high in particular circumstances. Minimum fines will often seem high; that is the point of deterrence in public welfare offences. Something more is required in order to establish that imposing a minimum fine would be "unduly oppressive" in particular circumstances, lest the court's exercise of discretion have the effect of undermining the Legislature's purpose in establishing a minimum fine.

[10] However, it is in the context of the effects of colonization, displacement and residential schools resulting in intergenerational trauma that Ms. Doxtator finds herself. The Supreme Court of Canada in Ipeelee refers to and acknowledges at para 77 "poverty and other incidents of social marginalization may not be unique, but how people get there is. No one's history in this country compares to Aboriginal people's". This is truly Ms. Doxtator's own personal circumstances: being a grandchild of residential school survivors now raising two young children while attempting to break the cycle of poverty. It is within this context that moves her circumstances from being unfortunate (and therefore subject to the minimum fine) to exceptional circumstances such that to impose the minimum fine would be unduly oppressive. I find that she has met her onus for relief under s.59(2).

The Sentence

[11] Ms. Doxtator's sole source of support is public assistance and the child tax benefit. By going to Fanshawe College as part of the Indigenous Mother's Gateway Program, her goal is to be self-sufficient in whatever career she attains. The only sentence for a conviction pursuant to the Compulsory Automobile Insurance Act is a fine. However, I have found that s. 59(2) is applicable.

[12] As such a suspended sentence is possible. This would involve a period of probation pursuant to s. 72 of the POA. However, since there is no possibility of incarceration, the only terms of the probation would be the statutory terms pursuant to s.72(2). Thus there is no ability to consider restorative justice or community based sanctions which would be meaningful to an indigenous person. Perhaps Ms. Doxtator will find her own opportunity to consider these.

[13] In conclusion, there will be a fine in the amount of $1500.00 which is almost 6 months of the cost of the insurance premiums. She will be given 15 months to pay this fine. She will also be placed on probation for a period of 15 months with the statutory terms:

(a) the defendant not commit the same, namely own and operate a motor vehicle on a highway without it being insured under a contract of automobile insurance, or any related or similar offence, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment;

(b) the defendant appear before the court as and when required; and

(c) the defendant notify the court of any change in the defendant's address.

Released: June 11, 2019

Signed: Justice of the Peace Anna M. Hampson