Court Information

Ontario Court of Justice

Date: 2020-06-25

Court File No.: Halton Information #'s 18-176; 18-1983; 19-35; 20-1537

Between:

Her Majesty the Queen

— and —

N.H.

Before: Justice Scott Latimer

Heard: June 19, 2020

Reasons for Sentence Released: June 25, 2020

Counsel

K. Frew — counsel for the Crown

G. Dykstra — counsel for N.H.

Decision

LATIMER J.:

[1] Introduction

[1] The circumstances of this case are familiar to anyone who works in the justice system: an in-custody individual in a time served position is pleading guilty to a variety of summary conviction charges, many of which relate to breaches of court orders, following which he is to be released from custody. Sentencing submissions include a debate about whether additional probation is necessary to "assist" N.H. upon his return to the community.

[2] This plea and sentencing occurred a day after the Supreme Court of Canada released R. v. Zora, 2020 SCC 14, a decision that addresses the efficacy of criminalizing certain types of bail non-compliance, and the disproportionate negative impact this criminalization has on vulnerable segments of our community. N.H., a twenty-five-year-old man who struggles with addiction and post-traumatic stress disorder, flowing from sexual abuse he suffered as a child, fits squarely within this defined category of offenders. What is the appropriateness of a lengthy probation order in this case, in these circumstances? Put another way, are we doing more harm then good when we criminalize certain types of "fail to comply with probation" offences?

I. N.H.'s Background

[3] N.H. is a twenty-five-year-old man who suffers from various addictions and has been diagnosed with post-traumatic stress disorder on account of sexual abuse he suffered as a child. His abusers, he advises, were his father and a family friend. The fallout of his disclosure of this abuse was a family torn apart, and N.H. being placed in foster care. He advises that he suffered abuse in this new setting as well. In his statement to the court, he indicated that his subsequent addictions were borne out of attempts to blunt the pain of those experiences.

[4] N.H.'s criminal record contains fourteen adult convictions. Eleven of those convictions are breaches of court orders; more specifically, of those eleven breaches, nine are related to probation orders. His first adult sentencing was in 2016, when he was sentenced for mischief under $5000 (involving his mother's property), resisting arrest, and two counts of breaching release orders. He was sentenced to twenty-two intermittent days in jail (on top of twenty-one days already served in pre-trial detention) and three years probation.

[5] N.H.'s 2016 probation order, an exhibit in this proceeding, was the maximum length allowable by the Criminal Code and contained a great number of conditions, such as reporting, residing where approved of by a probation officer, counselling, and abstaining from the possession of any non-prescribed drugs. It is the type of probation order, commonly made and always in good faith, that was almost certainly aimed, at issuance, at rehabilitation, as it provided him access to a probation officer, a pro-social path to follow, and therapeutic counselling options. I have no doubt that everyone in the courtroom that day was trying to assist a (then) twenty-one-year-old first-time offender. What is clear, however, with the benefit of hindsight, is that N.H. has had difficulty following the litany of conditions on the order, and those struggles caused him to be arrested and held for bail at least seven times over the following three years, resulting in nine convictions for failing to comply with probation and an additional eighty-five days imprisonment.

II. The Current Offences

[6] Before me, the Crown sought arraignment on the following criminal charges:

(1) Fail to comply with probation: On Feb 4, 2019, thirty-three months into his probation order, N.H. failed to appear for a probation appointment and a warrant was issued for his arrest. He subsequently turned himself in.

(2) Cause disturbance/assaulting an officer/assault/fail to comply with probation: On December 25, 2018, the police were called to an incident involving a visibly intoxicated N.H. Good faith attempts by the police to transport him to a hospital for assistance were met with yelling, curses and threats. He was combative with an officer during arrest, and intentionally spit on the officer's leg. He would later spit on a paramedic while restrained in an ambulance. His conduct violated the "keep the peace and be of good behaviour" statutory probation term.

(3) Fail to comply with probation: On May 30, 2018, while receiving medical assistance after having been found stumbling in public, a recreational amount of marijuana was found in N.H.'s possession.

(4) Sexual assault/threats: On May 12 & 13, 2020, N.H. engaged in casual conversation with an adult neighbour in an apartment building where he was, at the time, residing. During these interactions, on two occasions he aggressively fondled the victim's vaginal and buttocks area and became physically aggressive when rebuffed. This aggression was accompanied with threats to cause harm.

III. The Sentence Hearing

[7] After having conducted a judicial pre-trial on the sexual assault allegations, N.H.'s matter progressed to a global guilty plea before me on June 19. The agreement between the parties was that N.H. would be sentenced on all matters except the sexual assault and threats, for which N.H. would receive bail and return for sentencing in early September. This adjournment permitted him to return to the community, continue his "concurrent disorders programming" with the Canadian Mental Health Association (CMHA), and prepare for sentencing. The adjournment also gave the Crown time to obtain a victim impact statement and otherwise prepare. The parties' respective sentencing positions on the sexual assault-related charges differ to a significant degree.

[8] On all the other matters, N.H. was to be sentenced on June 19. Both lawyers agreed that he had served more time in pre-trial detention than would be required for these charges, the issue was how much time should be noted on his criminal record, and how much of a remainder would be available to him in September during his next sentencing. The Crown recommended forty-five days jail, the defence thirty. I ultimately acceded to the defence position.

[9] The Crown also sought a further two-year probation order that would require him to report as required, live where approved, and participate in counselling. It was submitted that such an order would assist his rehabilitation and return to the community. Upon hearing the defence submissions regarding the programming already available to N.H., Crown counsel withdrew her request for a further probation order to attach to these convictions.

[10] On consent, N.H. was placed on a release order without a surety in relation to the sexual assault matter. He was ordered not to have contact of any kind with the victim, whom I was advised no longer lives in the same apartment complex. Both counsel agreed that N.H. would have no present knowledge of where she currently resides. A Crown request to exclude N.H. from the entirety of Halton Region was rejected when it became clear that some of his counselling occurs at the Oakville Trafalgar Memorial Hospital.

IV. Discussion

[11] To review, a twenty-one-year-old man received his first criminal convictions in 2016. It is an accepted legal principle that, on a first sentencing, a jurist's focus should, generally, be on specific deterrence and rehabilitation. If jail is necessary, it should be as short as possible and tailored to the individual offender's circumstances: R. v. Priest (1996), 110 CCC (3d) 289 (Ont. C.A.). I accept that was the sentencing judge's intention in 2016 with N.H. Regrettably, however, I am driven to the conclusion that the system as a whole lost sight of that rehabilitative focus when, as N.H.'s failures on probation mounted, the response became to warehouse him for increasingly longer periods of pre-trial detention (five days, then nine days, then seventeen days, then twenty-seven...), followed by "time served" sentencings that occasionally included nominal fines ($1) or a concurrent probation order. What started as an attempt to assist a vulnerable youthful offender morphed into something different – short bursts of custody justified by general deterrence and a need to emphasize that court orders are meant to be followed.

[12] In this regard, there are parallels to the concerns raised in Zora regarding the disproportionate impact onerous bail terms have on vulnerable and marginalized individuals: "[t]hose living in poverty or with addictions or mental illnesses often struggle to meet conditions by which they cannot reasonably abide" (para. 79). On this point, the Supreme Court adopted language found in the Canadian Civil Liberties Association 2014 report, Set up to Fail: Bail and the Revolving Door of Pre-Trial Detention:

Numerous and restrictive conditions, imposed for considerable periods of time, are setting people up to fail — and failing to comply with a bail condition is a criminal offence, even if the underlying behaviour is not otherwise a crime.

[13] Probation terms are equally capable of setting vulnerable offenders up to fail once they are returned to the community. Rehabilitation is not always a straight path; there will be stops and starts and often relapses. The very fact of addiction, or mental illness, frequently makes the act of rehabilitation more difficult. Excessive criminalization of these stumbles can imperil an otherwise successful rehabilitative journey. I do not know if this applies to N.H.'s circumstances, I do not think I know enough about him to say. What I do know, however, is that the past four years of his criminal record have been littered, almost exclusively, with the criminalization of breaches of a court order that was originally designed to help, not hurt, N.H. It is difficult to see how this institutional response has assisted his rehabilitation.

[14] In the proceedings before me, N.H. has been prosecuted for, among other charges, three separate breaches of probation. For the first, he failed to report to a probation officer on a particular day, thirty-three months after his probationary term started. For the second, he was found in possession of marijuana while he was in medical distress and being assisted by paramedics. The third breach prosecuted was a general "keep the peace and be of good behaviour", related to other criminality that N.H. was concurrently pleading to. These offences, certainly the first two, amount to what has been referred to as "system-generated offences". In an article in the Canadian Criminal Law Review, Professor Tim Quigley discussed the problems such offences present:

There are, I submit, two forms of net-widening in operation. The first is the direct type already discussed whereby judges misuse sentencing options. The other is much less direct but just as insidious. It involves "system-generated" offences — offences such as breach of bail conditions, breach of probation, or breach of a conditional sentence order — that is, offences that flow out of conditions placed upon the offender by the criminal justice system itself. It is true, of course, that there must be some means of promoting compliance with court orders and the most direct means is by further invoking the criminal process. Judges, however, should exercise great care not to impose unnecessary conditions upon offenders… in the event of a breach, the offender must be sanctioned, often by imprisonment, and accumulates a longer criminal record that militates against further non-carceral sentences and all but ensures a jail sentence for subsequent offences. [emphasis added]

[15] This passage is entirely applicable to N.H.'s circumstances. Between 2016 and June 2020, nine of his eleven convictions relate to breaching a probation order. Stripped of these convictions, he presents as an entirely different person to a sentencing or bail court. These record entries no doubt played a role in his June pre-trial detention on the sexual assault charges, prior to the Crown's consent following his guilty plea. Such a record, for offenders like N.H., often leads to labels like, "an accused with a lengthy criminal record", or "a pattern of disregard of court orders" and place such accused persons in a more precarious legal position. Sometimes these labels are earned, but sometimes they are not. As Professor Quigley states in his article:

… judges sentencing someone for a system-generated offence should keep perspective about the conduct in question. Surely, there is greater seriousness in a breach of probation that involves the commission of an entirely new Criminal Code offence than for the failure to abide by a curfew. Undoubtedly, most judges would agree but imprisonment for relatively minor breaches of conditions nevertheless occurs with too much frequency. [emphasis added]

[16] In N.H.'s case, he received double the jail time (85 days vs 43 days) for violating his probation order than he did for the criminal conduct that earned him the order in the first place. Those eighty-five days were served intermittently over three years, during a time period when he was struggling with addiction and mental health, the very ailments that the probation order was aimed at addressing.

[17] N.H.'s current circumstances very likely provide an example of the justice system's over-criminalization of "system generated offences". Here, given the serious charges of assaulting the officer and the paramedic (the spitting), it is hard to see what public interest was achieved in having N.H. additionally plead guilty to the reporting violation, or the possession of marijuana in violation of the order. The overall sentence would not have changed. All that changed was the number of convictions on his (ever-growing) record. Viewed in such a light, the "assistance" the probation order was originally intended to offer N.H. becomes obscured.

[18] In conclusion, I have taken Professor Quigley's admonitions to heart. Not all breaches are created equal, and judges should be clear-eyed about the risks associated with lengthy and onerous probation orders for vulnerable individuals. A sentencing court must exercise restraint in deciding whether to impose probation in the first place and, in the event it is required, in selecting case-specific conditions to attach to such an order. Such an approach is consistent with the Supreme Court's recent guidance in Zora. In this case, a further period of probation risks setting N.H. up to fail. At present, I leave it to him to continue to chart his own rehabilitative path, with the assistance of the CMHA.

Released: June 25, 2020

Justice Scott Latimer

Footnotes

[1] To her credit, Ms. Frew withdrew the request for additional probation at the close of this proceeding.

[2] Based on my review of the various court documents.

[3] This principle applies with less force to very serious crimes and those involving violence: R. v. Tan, 2008 ONCA 574, at para. 32.

[4] "Has the Role of Judges in Sentencing Changed... Or Should It?", (2000) 5 Can. Crim. L. Rev. 317.