Court Information
Ontario Court of Justice
Date: June 22, 2020
Location: Sudbury
Parties
Between:
Her Majesty the Queen
— And —
Scott Tremblay
Before: Justice Randall W. Lalande
Matter heard on: June 9 and 16, 2020
Reasons for Sentence released on: June 22, 2020
Counsel
Jenna Ricard — counsel for the Crown
Denis Michel — counsel for the accused Scott Tremblay
Decision
LALANDE J.:
1: INTRODUCTION
[1] On March 5, 2020, Mr. Tremblay entered pleas of guilt to three (3) criminal offences including break and enter and assault with a weapon occurring on March 23, 2019, possession of a schedule 1 substance and fail to comply with a recognizance dated May 31, 2019, both offences having occurred November 13, 2019 at South River in the District of Parry Sound.
[2] Given the egregiousness of the facts and Mr. Tremblay's criminal record, counsel for the defence confirmed that he and the Crown would, at the time of sentencing, be advancing a joint proposal of three (3) years custody plus 90 days on the possession charge to be served concurrently. In exchange, both counsel outlined a joint plan regarding Mr. Tremblay's temporary release from custody on strict conditions including the following:
That he wear an ankle monitor bracelet governed by GPS to be affixed by a qualified technician (who was present in court);
That both his parents (and himself) respectively sign a surety(ies) in the amount of $50,000.00;
That his parents (each of whom testified under oath) confirm to have assets, to have understood their commitment as sureties, to monitor Mr. Tremblay and to forthwith contact police regarding any known breach; and
That Mr. Tremblay return to court and turn himself back into custody on Monday March 9, 2020 at 10:00 a.m. in courtroom "C", pending sentencing.
[3] The arrangement between counsel was based on several factors including that Mr. Tremblay's grandmother with whom he was very close was quite ill, that he wished to get his affairs in order and he be required to attend a pre-arranged urgent dental appointment at hospital.
[4] Regrettably Mr. Tremblay failed to attend court as scheduled on March 9, 2020. His mother had driven him to the court house and had let him out in front of the building. She went to park the car and when she did so and was out of sight, he broke the ankle monitor bracelet strap and fled. Police were contacted and ultimately a Canada-wide warrant was issued for his arrest. He did turn himself in a few days later on March 12, 2020. On June 9, 2020, Mr. Tremblay entered a plea of guilt to a fourth charge of having failed to comply with his release order made on March 5, 2020.
2: BRIEF SUMMARY OF THE FACTS
[5] Essentially on March 23, 2019, Mr. Tremblay kicked open a side door at municipal residence 365 Mable Street. Two occupants namely Taylor Twilley and Natalie Peach occupied the unit. A physical altercation took place. Mr. Twilley was stabbed three (3) times. One stab wound was made to the upper chest area, two stab wounds to the left armpit. He was taken to hospital with non-life-threatening injuries. Also, and during the fracas, Ms. Peach was pushed and fell down a set of stairs leading to the outside of the residence. She sustained injuries to her shoulder and also went to hospital.
[6] On November 13, 2019 at South River near Parry Sound, Mr. Tremblay was charged with possession of a schedule 1 substance. He was found to have 0.03 grams of Fentanyl in his possession. He was also found to have failed to comply with his recognizance made on May 31, 2019 by not remaining in his residence.
3: SCOTT TREMBLAY'S PERSONAL BACKGROUND
[7] Mr. Tremblay is 32 years old. He is single and has no children. He was raised in Sudbury. His parents separated when he was 6 years old. He has one younger brother with whom he has a distant relationship.
[8] After his parents separated, Mr. Tremblay resided with his mother and brother. His father worked and lived in Sturgeon Falls and saw him on weekends. He developed a close relationship with his grandmother.
[9] Mr. Tremblay's mother, Marie-Luce, worked as a full-time nurse. She did her best as a single mother to provide an adequate home life. Regrettably, Mr. Tremblay (in the absence of a father figure, according to his mother) became associated with a wrong crowd. His behaviour deteriorated to the point where she cut her ties with him when he was a young teenager. She disallowed him to remain in the home. She said that she did so because of his lies, theft of her medication and drug abuse.
[10] Mr. Tremblay, due to reasons relating to health and misbehaviour, became ensconced in the drug world. Ultimately this became the main reason for which he committed criminal offences.
[11] On somewhat of a positive note, both Mr. Tremblay's parents have not abandoned him. They state to keep hoping he will change his life habits. They are committed to help and even support him as an adult. They will not, however, tolerate a continuance of his drug lifestyle.
4: POSITION TAKEN BY THE CROWN
[12] The Crown adheres to the joint proposal made on March 5, 2020, namely that Mr. Tremblay be sentenced to a period of custody of three (3) years. The Crown, however, submits that the breach committed on March 9, 2019 warrants an additional consecutive period of custody of three (3) months.
[13] In light of Covid-19 which has resulted in further delay and has impacted some circumstances at the jail, the Crown submits that the original joint proposal of three (3) years should be imposed but now include the additional three (3) months on a concurrent basis. The three (3) years also to be subject to time served on an enhanced basis. In summary, the Crown seeks a period of three (3) years custody less enhanced pre-trial custody (rounded at eleven (11) months). In other words, the Crown now seeks a net period of twenty-five (25) months additional custody.
5: POSITION TAKEN BY THE DEFENCE
[14] Mr. Michel now argues that because of the repercussions of Covid-19 and other circumstances at the jail, Mr. Tremblay's sentence should be globally reduced. In other words, the court is asked to deduct a certain amount of time from the sentence that would have been imposed as mitigation for unusual and/or harsh pre-trial conditions.
[15] Mr. Michel suggests that enhanced time already served by Mr. Tremblay coupled with an appropriate yet significant global sentence reduction should suffice to satisfy all penalty exigencies respecting the more serious charge of break and enter and assault with a weapon committed on March 23, 2019. As to the other three charges, Mr. Michel is asking the court to consider imposing a conditional sentence order should a further period of custody be required.
6: AGGRAVATING FACTORS
[16] Of relevance to the imposition of an appropriate sentence are the following aggravating factors:
In committing the indictable offence of break and enter and assault with a weapon (which carries a maximum term of imprisonment of life), Mr. Tremblay engaged in violent behaviour which caused injuries;
Mr. Tremblay has a significant prior record which includes convictions of four (4) counts of robbery, one (1) break and enter, two (2) counts of possession, seven (7) breaches, two (2) counts of mischief and one (1) count of fraud under $5,000.00;
The offences of November 13, 2019 were committed while Mr. Tremblay was out on a bail recognizance which had granted his release on May 31, 2019;
Mr. Tremblay failed to re-attend court on March 9, 2020 after he was allowed out of custody for personal related reasons. On March 9, 2020, he deceptively removed the ankle monitor bracelet after having attended at the court building with his mother. He did so when she went to park her vehicle. As a result a police search ensued further to issuance of a Canada-wide arrest warrant;
According to the pre-sentence report, Mr. Tremblay demonstrated minimal remorse for the victims of the assault. He stated that he was defending himself and described the situation as a "drug deal gone wrong";
While on earlier parole, Mr. Tremblay succumbed to the temptation to use and possess drugs. His parole was suspended on April 13, 2019;
There is an absence of any clear evidence that Mr. Tremblay has managed to wrestle his serious drug addiction to the ground. Absent a clear commitment to change his habits and lifestyle, followed by a track record of abstinence, he may continue to pose a risk to himself and society.
7: MITIGATING FACTORS
[17] Mr. Tremblay entered pleas of guilt saving the court the time and expense to conduct one or more trials:
Mr. Tremblay did turn himself on June 12, 2020. This has saved police and court-related resources;
Mr. Tremblay's parents continue to be a strong presence in his life. They are prepared to not give up on him but at the same time they indicate that they will not tolerate their son engaging in any further drug-related lifestyle;
Mr. Tremblay has skills and talents and expresses a determination to find employment;
Mr. Tremblay's father describes him as having strong work ethic;
Mr. Tremblay is described as being thoughtful and likeable when he is clean.
8: ANALYSIS
[18] I thank counsel for having provided me with several relevant cases. Obviously each case must be determined on its own facts.
[19] The cases provided contained judicial commentary regarding the impact of Covid-19 on the sentencing process which I have fully taken into account.
[20] The purpose and principles of sentencing are set out in sections 718 – 718.2 of the Criminal Code. Given the aggravating factors weight must be given to the sentencing objectives of general deterrence and denunciation. At the same time the court must always remain mindful of an accused person's personal circumstances and any prospects of rehabilitation. Generally speaking, as a fundamental principle an appropriate sentence must always be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[21] I am satisfied that Mr. Tremblay fully understands the serious nature of his conduct. His background, ongoing addiction and criminal behaviour portray a man who has not yet satisfactorily dealt with an evolving and insufficiently treated drug addiction.
[22] Defence counsel argues that although a lengthier period of incarceration may normally be warranted, we have been in exceptional circumstances and in imposing a jail sentence the court should consider the pandemic factors.
[23] In terms of the approach to be taken, factoring in the Covid-19 pandemic, I adopted Justice Kwolek's comments in the decision of R. v. Leclair, 2020 ONCJ 260, released May 28, 2020 where he indicates the following:
The court recognizes and acknowledges the additional risk that those individuals incarcerated in our institutions face as a result of Covid-19. That risk is not only a risk to themselves but also to the community at large as a possible site of infection, incubation and transmission and release of the virus into the community and society at large. There is a benefit to society, therefore in reducing the population of our jails. That benefit must be balanced against the court's consideration as to the interests of the administration of justice as a whole and the need to tailor an appropriate sentence for the offender.
[24] Without rejecting Mr. Tremblay's evidence, the circumstances at the Sudbury Jail as described by him are not in sync with evidence provided by Mr. Nathan Aubin as Deputy Superintendent of the Sudbury Jail.
[25] According to Mr. Aubin, there has been no lock-down since March 12, 2020. The fire department was called once since March 12, 2020 but the reason for the call was unrelated to any area within the facility affecting Mr. Tremblay. There were no gas leaks although there may have been a suspicious odour of unknown origin at some point in the facility. According to Mr. Aubin, there is no mold in the jail affecting inmates and cleaning has been accelerated since Covid-19. Additionally the inmate population in the jail has been reduced to well below full capacity.
[26] There are no reported cases of Covid-19 at the Sudbury District Jail. Mr. Tremblay does not appear to suffer from any health risks that would make him susceptible to the corona virus. There has been hardship associated with Covid-19 in terms of restrictions of visits. Understandably there have been emotional consequences in terms of inmates and staff being subjectively concerned and wary of potential risks given the difficulty in ensuring personal distancing within an institutional setting.
[27] I would agree with the Crown's submission that a further period of custody is required given Mr. Tremblay's history including the commission of past violent offences, notwithstanding the Covid-19 concerns. I do not accept that a conditional sentence would adequately address the principles of deterrence and denunciation on these facts. Moreover, there is insufficient evidence before the court, taking into account Mr. Tremblay's history and conduct on March 9, 2020, when he damaged and removed the ankle monitoring bracelet and brazenly broke his promise to comply, about the circumstances regarding the conditional sentence being proposed.
[28] Overall, I do not find that the circumstances as described warrant a further mitigation of sentence. Given Mr. Tremblay's record and the nature of his ongoing behaviour leading up the charges, the additional custody time as suggested by the Crown, is well within an appropriate sentencing range.
[29] Nonetheless, all factors considered, a modest credit associated with some reduced services as a result of Covid-19 would be appropriate bearing in mind that the jail facility has implemented measures to mitigate risk.
[30] It is important at this stage to remain mindful that Mr. Tremblay still has rehabilitative prospects. On this note, it is important to consider a period of monitoring after his release from custody. Consequently, and for reasons already expressed, Mr. Tremblay's sentence in terms of custody shall be reduced to permit a period of probation.
[31] Taking into account the submissions of counsel, the authorities referred to, the relevant principles of sentencing, the circumstances surrounding the commission of the offences, Mr. Tremblay's personal circumstances including rehabilitation prospects, the advent of Covid-19 and all associated factors, the sentence imposed shall be as follows:
SENTENCE
1) There shall be a period of probation extending twenty-four (24) months with the following conditions:
(a) He report to probation services forthwith and within 48 hours of his release from custody and afterward as directed by his probation officer;
(b) That he keep the peace and be of good behaviour;
(c) Attend and actively participate in all assessment, counselling, treatment or other rehabilitative programs as may be directed by the probation officer and complete them to the satisfaction of the probation officer;
(d) To not communicate directly and indirectly in any way with Taylor Twilley and Natalie Peach;
(e) Actively seek and maintain employment and provide proof to the PPO (Probation and parole officer);
(f) Abstain from illicit drugs and to not possess or consume any opiates unless prescribed by a physician; and
(g) That he discuss with his probation officer his future plans toward employment and participating within several organizations in order to avoid any relapse.
2) On the charge of break and enter and assault with a weapon there shall be a period of custody of twenty-two (22) months.
3) On all other counts there shall be a period of custody of three (3) months all concurrent.
4) There shall be a DNA order where Mr. Tremblay will provide a small sample of his blood for analysis and data banking.
5) There shall be an order in accordance with section 109 of the Criminal Code extending for a period of life.
Released: June 22, 2020
Signed: Justice Randall W. Lalande