Court File and Parties

Court File No.: 0911-998-20-5330 Date: 2020-12-02

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Benjamin Liedtke

Before: Justice A. Wheeler

Heard on: November 25, 2020

Reasons for Judgment released on: December 2, 2020

Counsel

R. Makasare — counsel for the Crown

J. Dillon — counsel for the defendant

Reasons for Judgment

WHEELER J.:

Introduction

[1] Benjamin Liedtke pleaded guilty before me on November 25, 2020 to breaching the "no drugs" condition of his long term supervision order, by purchasing and using "shatter" (a form of concentrated cannabis) that he obtained on the street. Mr. Liedtke has a lengthy criminal record, although it does not reflect the same level of violence as is typical for most offenders who are subject to an LTSO. He was only in the community on the LTSO for approximately four months prior to the breach, but was cooperative with supervision and doing well during that time. He has now been in custody for 251 days. I have decided that in all the circumstances, a fit sentence is 10 months, and that in view of the pre-trial custody, Mr. Liedtke has served more than enough time. I impose one day further. These are my reasons for reaching that conclusion.

[2] This is one of two sentencing decisions I am releasing today relating to an offender who has breached the no drugs condition of an LTSO. In both decisions I review a set of sentencing decisions relating to breach of a no drugs or no intoxicants condition of an LTSO, with a view to arriving at a set of factors that should inform the sentence imposed. I have applied the same set of factors in both cases.

The Offence

[3] On March 18, 2020 Mr. Liedtke was found unresponsive in his room at the Henry Traill Community Correctional Centre. His fingertips and ears were turning blue. He regained his senses before paramedics took him to Kingston General Hospital. He was released and returned to HTCCC about two and a half hours later. There was no medical explanation for Mr. Liedtke's condition, but Mr. Liedtke did sign a consent for release of his medical records, because he initially thought he had suffered a stroke. However, urinalysis showed the presence of THC, amphetamine and methamphetamine and morphine.

[4] Of these substances, the concern relates primarily to the amphetamine and methamphetamine, because Mr. Liedtke had a prescription for marijuana and also for Kadian which is form of morphine. There was an indication in file material from the Correctional Service of Canada filed as an exhibit on this sentencing proceeding that the urine sample also tested positive for fentanyl, but Crown counsel acknowledged that this was incorrect.

[5] At the sentencing hearing, Mr. Liedtke said (this was not under oath, but the Crown did not argue that I should not rely on this) that he did not have the funds to pay for his prescribed marijuana, so he had been purchasing from a local dispensary, but that on the day of the incident he ended up purchasing shatter from someone he met.

[6] According to the Assessment for Decision Report, Mr. Liedtke's marijuana box was empty and had not been accessed for 12 days prior to the incident. In addition, the Assessment for Decision Report indicates that Mr. Liedtke's prescribed Kadian was empty when he was arrested on March 23, and that he was due for a refill on March 25.

Positions of the Parties

[7] The Crown argues that I should impose an 18 month sentence, less credit for pre-trial custody credited at 1 to 1. The defence argues that pre-trial custody should be credited at 1.5 to 1, and that the time served to date should result in a sentence of time served.

Mr. Liedtke's Background

[8] Mr. Liedtke is now 44 years old. He has spent a significant amount of his adult life in custody.

[9] When he was seven months old Mr. Liedtke was adopted by his mother's sister Sandra Liedtke and her husband. Defence counsel filed a letter from Sandra Liedtke. It speaks to the circumstances that led to the adoption and to Mr. Liedtke's difficult childhood.

[10] Sandra Liedtke states that Mr. Liedtke's biological parents drank, smoked heavily and used marijuana. They always complained about not having money to care for their son, Mr. Liedtke. Although the family gave them money, Mr. Liedtke's father would take it for himself.

[11] Mr. Liedtke's father hit him when he cried to try to make him stop. At one point Sandra Liedtke noticed a goose egg bump on Mr. Liedtke's forehead and later learned that his father had caused it by smacking him hard, knocking him out of a laundry basket they had placed him in.

[12] Sandra Liedtke also describes her sister taking Mr. Liedtke to the hospital on weekends so that she could go out and party, and states that her sister did not feed him properly. When Mr. Liedtke was seven months old, his mother dropped him off with Sandra Liedtke and never took him back. A year later she agreed to allow Sandra Liedtke and her husband to adopt Mr. Liedtke. However, his biological mother embarked on an emotionally manipulative course of conduct, telling him that he was her son, that he could come to live with her when he was 12, and that his adoptive parents had stolen him from her. Sandra Liedtke believes that this resulted in Mr. Liedtke feeling conflicted, unwanted and unloved.

[13] Mr. Liedtke was as difficult child. He had many temper tantrums. He recounted some of his behavioural problems to Dr. Gray, who assessed him in relation to the sentencing proceedings on the index offences. He began shoplifting at age five, engaged in vandalism at age 10 and possibly set fires and hurt animals throughout his childhood. In her letter, Sandra Liedtke alludes to Mr. Liedtke having suffered fetal alcohol syndrome.

[14] In rather stark contrast to these reported difficulties is the fact that between ages 12 and 16, Mr. Liedtke was an army cadet with the Lanark and Renfrew Scottish Regiment, where he received a rank of Master Corporal and had responsibilities as a cadet instructor. This information is contained in Dr. Gray's report.

[15] When Mr. Liedtke was 14 years old the situation at home was so bad that his adoptive parents sought help from Children's Aid. Mr. Liedtke was removed from the family home and placed into foster care. Mr. Liedtke ran away from foster homes, and incurred his first criminal conviction as a youth at the age of 16. He only returned to the family home in 2005 as an adult when on bail.

[16] At the time of his incarceration for the index offences in 2008, Mr. Liedtke had not finished high school. He said he gave himself a goal to make himself employable and that he has made "miles" of progress. This would seem to be a fair description. He has now finished high school and is just a few credits short of finishing a university degree through Athabasca University. He has also gained skills in welding, asbestos abatement and construction.

[17] Mr. Liedtke has a common law spouse. His spouse does not have a criminal record. She lives in Ottawa and has children from a previous relationship. She and Mr. Liedtke are expecting a child, who is due on December 25, 2020. Defence counsel advised that he expected to have a letter of support from Mr. Liedtke's spouse, but was unable to contact her after she and one her children tested positive for Covid-19.

Mr. Liedtke's Criminal Record

[18] The long term supervision order was made in 2009 in relation to convictions arising from robberies at 4 separate banks.

[19] The first of those bank robberies occurred in 2002, the second and third in June 2006 and the fourth in September 2006.

[20] These were armed bank robberies. In the 2002 robbery Mr. Liedtke carried a loaded revolver and had his head and face covered. He was arrested shortly after the robbery. At that point he had only been in the community for 34 days after being released on parole on a sentence of almost 8 years imposed in relation to four prior robberies. He was released on bail in August 2005.

[21] Mr. Liedtke pleaded guilty to the 2002 robbery before Ratushny J. in May 2006, but then just weeks later and while on bail he committed two more robberies in June, and then another in September 2006. In the two June 2006 robberies Mr. Liedtke was again masked and his accomplice had a gun, not Mr. Liedtke. In the September 2006 robbery Mr. Liedtke carried a pellet gun that looked like a real gun.

[22] When caught by police shortly after the September 2006 robbery, Mr. Liedtke dropped the pellet gun immediately and surrendered, and provided an inculpatory statement. He also provided a DNA sample on consent that led to charges for the June 2006 robberies.

[23] Ratushny J. found that Mr. Liedtke was genuinely remorseful. She noted that since Mr. Liedtke's arrest he had been taking a new form of psychiatric medication that had served to calm some of his antisocial personality traits, particularly his impulsivity and aggression. While there "was obvious emotional trauma suffered by the victims" (p. 6), she also stated that (at p.15):

It is also important that Mr. Liedtke has never acted to physically hurt any of the victims of his 2002 and 2006 robberies, although the carrying of a loaded handgun in 2002 was fraught with risk and danger especially in such emotionally charged situations.

[24] Based on the criminal record filed before me when read in conjunction with Ratushny J.'s reasons for sentence dated February 2, 2009, it is my understanding that Mr. Liedtke was sentenced to an effective sentence of 15 years in relation to four separate bank robberies and related offences. It appears that an initial sentence had already been imposed in relation to one of the robberies in April 2008 (on a charge of using a firearm while attempting to commit an offence) and that the rest of the sentences were imposed in February 2009. As I read the reasons as supplemented by the discussion with counsel at the end of the reasons, Mr. Liedtke was to serve 11 years on top of four years credit for pre-trial custody, but given the initial sentence imposed in April 2008, that meant that the sentences imposed in February 2009 totalled 10 years and two months going forward from that point.

[25] Prior to 2009, Mr. Liedtke's record is extensive. It goes back to 1993 as a youth and does not contain any significant breaks. In addition to the four bank robberies at issue in the 2009 proceedings, his prior offences include multiple break and enters and property offences as well as four other robberies. Those were two grocery store robberies and two bank robberies where handguns were used. In 1997 he was sentenced to almost 8 years for those offences.

[26] In addition, Mr. Liedtke was convicted of uttering threats in 2003. The materials contain conflicting information from Mr. Liedtke (Dr. Gray's report, p. 11) and official sources (police report as summarized in the Criminal Profile Report, p. 4) as to how serious that offence was.

[27] After the 2009 convictions, Mr. Liedtke's only other conviction was in November 2018, when he received a four month consecutive sentence for being unlawfully at large. In his comments before me, Mr. Liedtke emphasized that the last time he committed a specific intent offence was in 2006.

[28] Mr. Liedtke met the criteria for designation as a long term offender, but he is atypical of long term offenders, in that his prior offences do not include offences of significant gratuitous sexual or other violence that is immediately directed at other persons. Bank robbery is an inherently violent offence which is very traumatizing for the victims, as Ratushny J. pointed out. Nevertheless it does bear noting that there is nothing in Mr. Liedtke's criminal history that suggests that he engages in uncontrolled violence or gratuitously degrading conduct.

Offence Cycle and Risk of Reoffence

[29] The Parole Board decision from October 14, 2019 that set the conditions of Mr. Liedtke's LTSO states that substance abuse is a direct contributing factor in Mr. Liedtke's offending. In addition, the Assessment for Decision Report dated April 2, 2020 indicates that although initially assessed in 2008 as having "some need" for intervention with respect to substance abuse, this had increased to high by the last Correctional Plan Update in November 2019.

[30] Mr. Liedtke took exception to the view taken by the Correctional Service and the Parole Board as regards the connection between his substance use and the risk of reoffence. He pointed out that he was never under the influence of substances when he committed the robberies. Rather, he committed the robberies strictly for financial gain. He argued that the notion of substances use being a direct contributing factor in his offences is not supported by the underlying material that led to the LTSO order, and that the role of substance abuse in his offence cycle has become wrongly overemphasized by the Correctional Service.

[31] This case was originally scheduled for hearing on November 17, 2020 and when the Crown sought an adjournment because it needed to gather and file materials, Mr. Liedtke was insistent that the materials put before the court should include Dr. Gray's report and Justice Ratushny's reasons.

[32] My role is very different from that of the Correctional Service and the Parole Board. It is not for me to assess the correctness of their views. I must make my own assessment of the information before me, for the purpose of determining a fit sentence.

[33] In his 2007 assessment report, Dr. Gray commented that financial pressure from drug debts appeared to play some role in at least some of Mr. Liedtke's offences, and that this made it important for Mr. Liedtke to stay clean of drugs to avoid this pressure (p. 19). Dr. Gray was also of the opinion that substance use could have a bearing on Mr. Liedtke's reported feelings that "he had periods of time where he felt like 'Superman' and his mood would be 'up' from two weeks to a month at a time." He told Dr. Gray that this had last occurred in 2005. Given that there were no reports of such periods of mania during Mr. Liedtke's periods in custody, Dr. Gray thought that this could be explained by use of illicit substances or symptoms of a personality disorder (p. 9).

[34] Mr. Liedtke denied to Dr. Gray that he was under the influence of drugs when he committed any of his crimes as an adult, but acknowledged that alcohol was a factor in some break and enters committed as a youth (p. 7). He acknowledged using cocaine early in the day of the September 2006 robbery but denied that this had influenced his thinking. He told Dr. Gray that he committed the 2006 robberies because given his outstanding court case in relation to the 2002 robbery and the prospect of another jail sentence, he felt pressure to provide enough money for his son who was very young at the time.

[35] Dr. Gray recommended that a supervision order should include strict conditions and these should include a requirement that Mr. Liedtke abstain completely from illicit substances. He stated: "Although drug intoxication has not been a factor in his offences, using drugs has caused him financial problems and formed associations with career criminals" (p. 20).

[36] Dr. Gray also stated (p. 19):

People with diagnoses of antisocial personality disorder tend to "burn out" and present less of a risk of recidivism with age. Mr. Liedtke is fairly young but seems to have exhibited a pattern of decreasing risk in his robberies from 1997 to the 2006 robberies.

[37] In sentencing Mr. Liedtke in 2009, Ratushny J. noted that Mr. Liedtke acknowledged that he had a drug problem his whole life, but that he did not want to make that a focus in the assessment with Dr. Gray as to why he committed crimes. Rather, he wanted to focus on his impulsivity and aggression which went back to childhood.

[38] Ratushny J. stated (at pp. 14-15):

While it is commendable that Mr. Liedtke has never sought to blame his illicit drug dependence for his actions in the sense of using this as his excuse for them, a recognition by him that their use has contributed to his financial problems, associations with criminal peers and his reoffending, as Dr. Gray has pointed out, would be beneficial.

Conclusions with Respect to the Role of Substance Use and Risk of Reoffence

[39] Dr. Gray's report is in my view the most authoritative source of information about Mr. Liedtke's risk of violent reoffence and the role of substance use in that. That report formed the basis of Ratushny J.'s conclusions, quoted above. However, that report is now 13 years old, and should be put in the context of Mr. Liedtke's subsequent behaviour.

[40] On the negative side, the subsequent behaviour includes his poor institutional record, and the fact that he absconded from the Maison Decision House in 2018 and was at large for almost three months.

[41] On the positive side, the subsequent behaviour includes the fact that he did complete the Maison Decision House program in 2019; the fact that he did not abscond or turn to further drug use when he could have in the days between the apparent overdose and his suspension; the fact that there is no evidence that he has committed an offence of violence since 2006, and indeed the only criminal offence since that time is the charge of being unlawfully at large; and the success he has had since being incarcerated with skill training and education, which should create the means for him to earn a legitimate income.

[42] I find that there is no basis for me to conclude that there is a direct link between Mr. Liedtke's use of substances and his past robberies in the sense of committing crimes while under the influence of substances. There is certainly an indirect link, as found by Ratushny J. based on Dr. Gray's report, but I do not find that subsequent events allow me to conclude that the risk of violent reoffence arising from substance use goes beyond that. In addition, given that Mr. Liedtke was only actively seeking cannabis when he bought shatter illicitly, the concerns arising from this particular offence are not as significant as they would be if that Mr. Liedtke had actually sought to use methamphetamine or another stimulant.

Prior History of Supervision

[43] Some of Mr. Liedtke's prior history of compliance with supervision is described above, with respect to his commission of the 2002 and 2006 robberies while on parole and on bail. During his two substantial penitentiary sentences, he incurred many institutional charges. The Assessment for Decision Report states (p. 5):

Incidents are noted for disciplinary problems, assault on inmate, possession of contraband, intelligence, possession of unauthorized items. The last documented incident (2018-11-22) suspected he was concealing contraband in his body. From these incidents, he has incurred over 60 minor/serious institutional charges, while several others were withdrawn. The behaviour suggests significant difficulties complying with institutional rules and expectations.

[44] Mr. Liedtke reached warrant expiry on November 13, 2019. Prior to that he was released on statutory release in August 2015. His history of compliance was poor. He twice tested positive for alcohol and was suspended, but that suspension was cancelled given his apparent motivation to comply with his correctional plan and ongoing support from the community residential facility. In 2016 he was found in possession of a bag of needles but apparently was not suspended. His statutory release was however suspended and then revoked when in April 2016 it was determined that 30 Lorazepam pills were missing. They were supposed to be taken once daily and had been prescribed two weeks earlier. He admitted to using drugs but refused to provide a urine sample. He ran from the community residential facility and returned that evening. He was found in his room with drugs and needles.

[45] Mr. Liedtke was released on statutory release again on April 23, 2018, to go the Maison Decision House rehabilitation facility. He presented with a positive attitude. There were no concerns about his behaviour and he appeared motivated. However, he absconded on June 1, 2018 and was not located for 83 days.

[46] Mr. Liedtke was again released to Maison Decision House on June 17, 2019, and this time he successfully completed the 60 day residential treatment for substance abuse and engaged in aftercare counselling. However, a suspension warrant was issued in November 2019 very shortly before he reached warrant expiry, based on information that he had engaged in threatening behaviour towards a female partner, although the materials contain no details about this. He then remained in custody until warrant expiry on November 12, 2019.

[47] In his own comments at the sentencing hearing, Mr. Liedtke credited the Maison Decision House program with giving him the skills he needs to make better decisions. He acknowledged his wrongdoing in seeking out illicit cannabis in the community, and said that when he realized that the urine sample was going to come back as "dirty", he still had four days in the community and was still getting passes to leave the community correctional centre. He said that in the past he would have taken off and relapsed into further drug use. However, he made a decision to face the music. He pointed out that in order to continue receiving his prescribed medications at the provincial detention centre he had to undergo a urine screen upon admission, and that this did not show any other illicit substances.

[48] The Assessment for Decision Report dated April 2, 2020 indicates that Mr. Liedtke was doing relatively well at HTCCC up until the incident that gave rise to this charge. He seemed motivated and wanted to make meaningful change in his life. He obtained employment at CORCAN, met regularly with the in-house mental health team, presented as co-operative and transparent with the case management team and completed a community maintenance program. Mr. Liedtke was not happy with the work at CORCAN but did get positive performance appraisals. With the support of his case-management team he secured work the community but this ended after a week. Mr. Liedtke believed that this was because of his criminal record, and he continued to look for work.

[49] Given how well Mr. Liedtke was doing, his case management team supported his plan to have his supervision transferred to a community where he had more connections and support. On March 24, 2020 Ottawa Parole indicated that they were willing to assume supervision of Mr. Liedtke.

Mr. Liedtke's Aboriginal Heritage

[50] A Gladue report was originally ordered by another judge in August, and investigations were undertaken by a case manager at the Tyendinaga Justice Circle. Ryan Sager provided a letter dated November 4, 2020 which states:

TJC staff conducted extensive genealogical research and found no conclusive links to Mr. Liedtke's reported Indigenous heritage. Additionally, staff failed to identify any causal links between Mr. Liedtke's personal history, and systemic factors affecting Indigenous peoples in Canada arising from colonialism; on this basis, the TJC is unable to complete a Gladue Report for Mr. Liedtke.

Mr. Liedtke willingly participated in the Gladue Interview process and provided his personal history and family circumstances. The TJC wishes to acknowledge that Mr. Liedtke disclosed a history where he has struggled with mental health issues, was the victim of sexual abuse, and has had substance abuse issues beginning at a young age. Finally, the TJC would like to acknowledge that tracing Indigenous ancestry can be difficult due to many factors, such as Enfranchisement under the Indian Act: as such, the decision that a Gladue Report will not be completed for Mr. Liedtke may be amended if he is able to bring forward conclusive information in the future.

[51] Sandra Liedtke, Mr. Liedtke's adoptive mother, states the following in the letter she provided to the court through defence counsel:

I also know that there is native blood on both sides of me and my sister Sheila's parents. Our father side has Mohawk blood and our mother's side has Blackfoot blood. I learned from my aunt on my father's side that there was aboriginal in our blood line. From Benjamin back would be about the 5th generation. I learned from my uncle on my mother's side that there was Blackfoot in our blood line.

In addition, defence counsel filed a copy of Sandra Liedtke's Métis status card from the Painted Feather Woodland Metis organization.

[52] This information was known to Mr. Sager when he wrote his letter to explain that no Gladue report could be prepared. TJC staff did speak with Sandra Liedtke, but "determined that she was unable to provide a conclusive link to the family's reported Indigenous heritage." He stated that "it is important to note that The Métis Nation of Ontario (MNO) maintains the only recognized provincial Registry for Métis."

[53] In R. v. L.(F.H.), 2018 ONCA 83, the Court of Appeal reviewed the proper approach to how an offender's Aboriginal background should be considered in sentencing. A sentencing judge must consider:

(1) The unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts;

(2) 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.

[54] The Court of Appeal held:

[40] The correct approach may be articulated as follows. For an offender's Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender's life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender's case. This approach finds support both in Ipeelee and decisions of this court.

[41] The Supreme Court made clear in Ipeelee, at para. 83, that systemic and background factors need to be "tied in some way to the particular offender and offence". LeBel J. went on to note that "[u]nless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence." LeBel J. elaborated on the concept of "culpability" at para. 73, explaining that "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."

[55] Defence counsel argued that Mr. Liedtke's self-identification should be sufficient for Gladue factors to apply to the sentencing process.

[56] While not taking the position that Mr. Liedtke is not Aboriginal, the Crown argued that the court has not been provided with a sufficient basis to justify application of Gladue.

[57] The Crown urged me to rely on R. v. Boyd, 2015 ONCJ 120, where George J. held (at para. 17) that he was unable to apply Gladue factors based only on self-identification because no part of the "picture" had been provided as regards how the accused's Aboriginal background may have played a role in his criminality. George J. acknowledged that this is a tricky issue, because it is not the role of a sentencing judge to make determinations about who is and who is not Aboriginal, and that Aboriginal peoples have experienced displacement and loss of identity.

[58] In Indigenous People and the Criminal Justice System, A Practitioner's Handbook (Toronto: Emond Montgomery Publications, 2019) Jonathan Rudin endorses the approach taken in Boyd, describing it as "perhaps the best discussion of this issue" of identity (p. 103). The author states (at p. 104):

In arriving at his conclusion, George J was not concerned with whether Mr Boyd's Indigenous identity could be proven or disproven. The reason that he declined to embark upon a Gladue analysis was based on the fact that he had no relevant information about the significance of Mr. Boyd's Indigenous identity. At the end of the day, the information provided about the circumstances of the individual as an Indigenous person is what matters. Arguments about whether someone is or is not an Indigenous person are beside the point.

[59] This is the approach I adopt in relation to the information put before me. I am not able to conclude that Mr. Liedtke's Aboriginal heritage has any bearing on his moral blameworthiness for this offence. However, like the Court of Appeal in R. v. Quesnelle, 2014 ONCA 634, I note that Mr. Liedtke's difficult background is before the me and is something that I must consider in crafting an appropriate sentence. Furthermore, it is relevant that Mr. Liedtke did engage with Aboriginal cultural practices while incarcerated. This can only be a positive factor in his efforts towards rehabilitation and must also be considered in the sentencing decision.

Principles of Sentencing

[60] As set out in s. 718 of the Criminal Code, the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society. That section directs that a sentence should have one or more of the following objectives: denunciation of unlawful conduct and the harm to victims, deterrence of the offender and others, separation of offenders from society where necessary, rehabilitation, reparations for harm to victims or to the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done. According to s. 718.1 a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender." Section 718.2 provides that a sentence must take into account the relevant aggravating or mitigating circumstances relating to the offence or the offender, it should be similar to sentences imposed on similar offenders for offences committed in similar circumstances and s. 718.2(e) speaks to restraint in the imposition of imprisonment, and mandates that I pay particular attention to the circumstances of Aboriginal offenders in determining a fit sentence.

The General Approach to Sentencing for Breach of Long Term Supervision Orders

[61] The principles applicable to sentencing for breach of an LTSO are as follows (see R. v. Ipeelee, 2012 SCC 13 at paras. 48-55; R. v. Matte, 2012 ONCA 504 at para. 34-37):

1. Long-term supervision has two specific objectives: protecting the public from the risk of re-offence and rehabilitating the offender and reintegrating him or her into the community.

2. It is wrong to say that protection of the public is paramount and that significant sentences must be imposed even for slight breaches.

3. The severity of a breach of an LTSO depends on all the circumstances, including, but not only the circumstances of the breach, the nature of the condition breached, and the relationship between the condition breached and the management of the offender's risk of re-offence.

4. Rehabilitation will not always be the foremost consideration when determining a fit sentence for breach of an LTSO. A sentencing judge must apply all the principles mandated by ss. 718.1 and 718.2 of the Criminal Code. The relative weight to assign to each sentencing principle or objective varies with the circumstances of the particular breach. Ultimately, the sentence must be proportionate to the gravity of the offence and the degree of the offender's responsibility.

Range of Sentence for Breach of a No-Drugs or No-Intoxicants Condition of LTSO

[62] In R. v. Ipeelee, 2012 SCC 13, the Supreme Court held that sentencing decisions and appellate case law relating to breach of LTSO had wrongly focused primarily on protection of the public on the basis that this was the paramount goal of the LTSO regime, such that rehabilitation had little to no role to play in the sentencing process (see paras. 48-51). As such, Ipeelee is the appropriate place to start the analysis; sentencing decisions prior to Ipeelee have very limited, if any real value.

[63] Furthermore, given the nature of the breach at issue in Ipeelee and the companion decision R. v. Ladue, the Supreme Court's decision is directly relevant to the determination of a fit sentence for Mr. Liedtke's breach of the no-drugs condition of his LTSO.

[64] The cases set out below all involve breach of a no-intoxicants condition, and provide guidance as to the specific factors that inform the determination of a fit sentence.

R. v. Ipeelee, 2012 SCC 13

[65] For Mr. Ipeelee himself, the Supreme Court reduced the sentence from three years to one year. Mr. Ipeelee had been on the LTSO for 18 months prior to the incident. He was found riding his bicycle erratically in downtown Kingston, he was obviously intoxicated and had two bottles of alcohol on him. It was Mr. Ipeelee's first breach of his LTSO.

[66] The three year sentence imposed at trial had been upheld by the Ontario Court of Appeal. The Supreme Court noted two errors. The first was in concluding that rehabilitation was not a relevant sentencing objective. The second was in holding that the nature of the offence meant that Mr. Ipeelee's circumstances as an Aboriginal offender merited little weight in the sentencing decision.

[67] Mr. Ipeelee's criminal record included a significant number of very violent and sexually violent offences committed while intoxicated, including the charge of sexual assault causing bodily harm that gave rise to the LTSO. The trial judge described the criminal record as showing "a consistent pattern of Mr. Ipeelee administering gratuitous violence against vulnerable, helpless people while he is in a state of intoxication" (R. v. Ipeelee, 2001 NWTSC 33, [2001] N.W.T.J. No. 30 (QL), at para. 34 as quoted by LeBel J. at para. 9).

[68] Mr. Ipeelee was Inuk. He was 39 years old and had a difficult background. His mother froze to death when he was young, and he was raised by his grandparents. He developed a serious addiction to alcohol as a child, and his interactions with the criminal justice system began when he was 12.

[69] Although it was Mr. Ipeelee's first breach of his LTSO, the order had been suspended on several prior occasions. Those suspensions related to behavioural issues and attitude problems, and did not involve use of intoxicants although in one instance Mr. Ipeelee refused urinalysis (see para. 12).

[70] The Supreme Court concluded:

[91] It is therefore necessary to consider what sentence is warranted in the circumstances. Mr. Ipeelee breached the alcohol abstention condition of his LTSO. His history indicates a strong correlation between alcohol use and violent offending. As a result, abstaining from alcohol is critical to managing his risk in the community. That being said, the conduct constituting the breach was becoming intoxicated, not becoming intoxicated and engaging in violence. The Court must focus on the actual incident giving rise to the breach. A fit sentence should seek to manage the risk of reoffence he continues to pose to the community in a manner that addresses his alcohol abuse, rather than punish him for what might have been. To engage in the latter would certainly run afoul of the principles of fundamental justice.

[92] At the time of the offence, Mr. Ipeelee was eighteen months into his LTSO. He was living in Kingston, where there were few culturally-relevant support systems in place. There is no evidence, other than one isolated instance of refusing urinalysis, that he consumed alcohol on any occasion prior to this breach. Mr. Ipeelee's history indicates that he has been drinking heavily since the age of 11. Relapse is to be expected as he continues to address his addiction.

[93] Taking into account the relevant sentencing principles, the fact that this is Mr. Ipeelee's first breach of his LTSO and that he pleaded guilty to the offence, I would substitute a sentence of one year's imprisonment. Given the circumstances of his previous convictions, abstaining from alcohol is crucial to Mr. Ipeelee's rehabilitation under the long-term offender regime. Consequently, this sentence is designed to denounce Mr. Ipeelee's conduct and deter him from consuming alcohol in the future. In addition, it provides a sufficient period of time without access to alcohol so that Mr. Ipeelee can get back on track with his alcohol treatment. Finally, the sentence is not so harsh as to suggest to Mr. Ipeelee that success under the long-term offender regime is simply not possible.

R. v. Ladue, 2012 SCC 13

[71] R. v. Ladue (decided at the same time as Ipeelee, and also at 2012 SCC 13) also dealt with breach of a condition to abstain from intoxicants. Mr. Ladue had a lengthy and varied criminal record. It included a series of sexual assaults committed while intoxicated, against defenceless victims who were sleeping or passed out. A psychological report indicated that he was "incapable of refraining from the use of alcohol and was unable to control his sexual impulses" (para. 24). In addition, he had been diagnosed as a sexual sadist and with having antisocial personality disorder.

[72] Like Mr. Ipeelee, Mr. Ladue was Aboriginal and he too had a very difficult background. He was 49 years old and a residential school survivor, having been removed from his community in the Yukon when he was only five years old. He suffered serious abuse at residential school. He returned to his community at the age of nine, unable to speak the language. He started drinking and acting out. He was placed with foster families and also put into juvenile detention. He started using hard drugs while serving a penitentiary sentence.

[73] Mr. Ladue's LTSO had been suspended on numerous occasions. He had been convicted on two prior occasions of breaching the condition to abstain from intoxicants. The breach at issue before the Supreme Court was for using cocaine. Mr. Ladue was sentenced to three years, less credit for pretrial custody. The British Columbia Court of Appeal reduced this to one year, finding that the trial judge had failed to give sufficient weight to Mr. Ladue's circumstances as an Aboriginal offender, and the circumstances of the offence. The British Columbia Court of Appeal noted that: "Repeated efforts at abstinence are not unusual for those dealing with addiction" (as quoted in the Supreme Court decision, at para. 95). The Supreme Court agreed with the British Columbia Court of Appeal's reasoning.

[74] In addition, the Supreme Court held that the British Columbia Court of Appeal had correctly emphasized the fact that Mr. Ladue had, through administrative error, lost a placement at a halfway house where he would have received culturally relevant support, and was instead placed at a halfway house in downtown Vancouver, where drugs were readily accessible. This was a significant factor in the court's finding that a three year sentence was not proportionate to the gravity of the offence and the degree of responsibility of the offender.

R. v. Matte, 2012 ONCA 504

[75] The Court of Appeal's 2012 decision in Matte provides another benchmark. The court upheld the effective two year sentence (350 days on top of 380 days pretrial custody) imposed on Mr. Matte for ingesting a single pill of dilaudid. It was the accused's third breach of the order, and he had a significant history of non-compliance. The accused had not engaged in a meaningful way with rehabilitative programs. He was described as having a bad attitude towards authority and as disagreeing with the conditions of his release. The significance of an offender's attitude towards the rehabilitative process is reflected in the judgment, as follows:

[48] Rehabilitation requires effort on an offender's part. It cannot be force fed to the unwilling. It ill lies in the mouth of the unwilling to complain that rehabilitation should have been accorded a prominent place in the sentencing decision, particularly where, as here, the offender complaining has been unswerving in his resistance to rehabilitative efforts for several years.

R. v. Whalen, 2017 ONCJ 43

[76] The accused in R. v. Whalen pleaded guilty to breaching the LTSO by using cocaine. Doody J. imposed one day custody on top of seven months pre-trial custody (without additional credit, although Doody J. would have given 1.3 to 1 credit if a longer sentence were required).

[77] The accused in that case was Aboriginal and came from a difficult background with extensive trauma. He had a lengthy criminal record that included significant violence and "terrifying behaviour" (para. 26). He also had a longstanding history of abusing alcohol and cocaine. Doody J. noted that the accused "admitted that his past use of cocaine had fuelled some of his past offences," and that he "agreed that his use of cocaine had impacted every area of his life negatively" (para. 63).

[78] The accused had no prior convictions for breaching the order. He had been on supervision in the community for three and a half years at the time of the breach, and was cooperative with his supervisor. He was subject to regular urinalysis for the first two years. He was tested 23 times and all samples came back clean. The accused was motivated to obtain treatment and he engaged with programming. The background reports both from custody and supervision were positive.

[79] The accused had found skilled work, and was actively involved with amateur boxing. Although he had a good relationship with his common law spouse and was considered to be a good parent to their child, he and his spouse experienced some difficulties that led to an argument. As a result, the accused was prohibited from contacting his spouse or their infant daughter. After learning that, he turned to cocaine, using four times before a urine sample came back positive. Although he had been afraid to tell his case manager, he had sought help at an Aboriginal community health and outreach organization. The accused had significant support from his common law spouse, family members and others.

[80] Doody J. described the breach as follows:

[81] The context of Mr. Whalen's relapse, however, gives reason to conclude that it may not have been an indication of a serious problem that requires lengthy incarceration to protect the public, but a warning light that, despite many positive signs, he still has a way to go before he reaches his goal.

[81] Doody J. held that when compared to Ipeelee, the context suggested that Mr. Whalen should receive a less severe sentence (para. 90). Doody J. also used the Court of Appeal's decision in Matte as a point of comparison on the basis that the court upheld a one year sentence in that case, although I note that Mr. Matte's pretrial custody meant that the effective sentence was two years. Doody J. held that given the much more aggravating circumstances in Matte, parity required a significantly lower sentence (para. 92).

R. v. MacDonald, 2014 ONSC 4671

[82] In R. v. MacDonald, 2014 ONSC 4671 Molloy J. imposed a conditional sentence of two years less a day on top of 15 months of pre-trial custody arising out of the accused having consumed one alcoholic drink and snorted cocaine that was offered to him at a halfway house. The accused was convicted following a trial (his defence attacked the validity of the documentation relating to urinalysis). The accused had actually completed the LTSO by the time he was sentenced. He had three prior convictions for breaching the LTSO, and typically had not gone more than a year without incident. However, the accused had taken significant steps towards rehabilitation. He was in a stable, long-term relationship with a law abiding person who did not use alcohol or drugs, he was a good father, he had learned a trade and held a good job where he was highly valued by his employer, and apart from "minor and infrequent missteps", he had been sober for over ten years (para. 31).

[83] Although not a central factor in the decision, Molloy J. did give some weight to the fact that the level of violence reflected in the accused's prior criminal history was not as serious as what is seen with most offenders who are subject to long term supervision. She stated:

[29] The focus of this sentencing process is on the breach of the LTSO and what it signifies, rather than on Mr. MacDonald's criminal record. Mr. MacDonald's record prior to the long-term offender designation is not an irrelevant consideration, but it must be remembered that in every LTSO breach, there will be an underlying criminal record of some considerable concern. Otherwise, there could not have been an LTSO in the first place. Taking that into account, Mr. MacDonald's criminal record is less serious than most, and involves less extreme harm to others. For example, he was not a sexual predator, he did not harm children, and his criminality arose more from poor impulse control than from deliberate planning.

R. v. Pelletier, 2016 ONCJ 628

[84] In R. v. Pelletier, 2016 ONCJ 628, Nakatsuru J. (as he then was) imposed one day on top of 161 days in pre-trial custody credited on a 1:1 basis. The accused breached the no drugs condition of her LTSO just two months after her release from custody. It was her first breach and no other criminal conduct was associated with the breach. She was only 26 years old. Gladue factors played a significant role in the sentencing decision. Nakatsuru J. also noted that the risk posed by the accused arising out of drug use was not as great as that posed by the offenders in Ipeelee and Ladue.

R. v. Middleton, 2019 ONCJ 280

[85] In R. v. Middleton, 2019 ONCJ 280 the accused breached the LTSO by using cocaine, but his conduct also included going AWOL, failing to report, and not taking programming. It was the accused's third breach of the LTSO. Greene J. described the breach as going to the core of the LTSO in the sense that the accused's conduct undermined both the public safety and the rehabilitative purposes of the order. The accused in that case had been designated a dangerous offender at the original sentencing.

[86] Greene J.'s analysis of the range of sentence is helpful. She held:

[37] With these aggravating and mitigating factors in mind, it is helpful to consider the range of sentences normally imposed for breaches of Long Term Sentence Orders. The range seems to be between nine months and five years. Where there is a single breach with prior compliance then sentences in the one year mark are imposed. Where there are multiple breaches or the breach is considered serious sentences as high as five years are imposed. [emphasis added]

[87] Greene J. reviewed the case law that led her to that conclusion. She stated:

[42] In my view, what flows from these decisions is that where the offender has otherwise being doing well and really making efforts to engage in meaningful rehabilitation, the courts treat the breaches as a "blip" and impose a relatively short sentence. Where, however, the offender is consistently noncompliant or where the offender's breach is going AWOL, as in the case at bar, sentences well in excess of two years are imposed - namely in the four to five year range.

[88] Greene J. imposed an effective sentence of 34 months (20 months on top of pretrial custody of 14 months.)

R. v. Hoshal, 2020 ONCJ 345

[89] In R. v. Hoshal, 2020 ONCJ 345, the accused pleaded guilty to two charges of breaching his LTSO. The first breach related to use of alcohol shortly after he commenced the LTSO. He took a shot of alcohol offered by a friend. The second breach occurred after the accused had been on the LTSO for approximately a year. The accused had a prescription for THC, but accepted a joint from a friend in the park and it turned out to be laced with methamphetamine. It appears that he did not intend to smoke meth. He was on bail for the first breach when this occurred. The accused had provided 11 clean urine tests while on the LTSO, which Pringle J. described (at para. 29) as "showing true effort and a pattern of more compliance than disobedience."

[90] The accused had a very difficult and traumatic childhood, and his issues with addiction began when he was very young. The accused had Indigenous heritage, but experienced difficulty in connecting with it and being accepted in an Indigenous community. He had participated in culturally relevant programming in custody. Pringle J. held that the accused experienced intergenerational trauma in being separated from his Indigenous culture.

[91] Pringle J. found that there was a direct and strong relationship between the accused's use of alcohol or drugs and his history of serious domestic violence offences.

[92] The accused had a pattern of doing well in custody and accepting treatment, and also when initially released, but then deteriorating and failing to follow rules. This was an ingrained response of distrusting authority that arose from the accused's history of trauma and abandonment.

[93] Pringle J. held that the appropriate sentence was 14 months in custody less credit for pre-trial custody.

Conclusion Regarding Factors That Inform the Length of Sentence Imposed

[94] In my view, these cases indicate that the following factors will inform the sentence imposed for breach of a LTSO relating to use of illicit drugs or intoxicants:

1. Did the breach reflect use of substances on one or more than one occasion?

2. Is it the first breach? If not, how many prior breaches were there?

3. What was the impact of the breach on the ability to supervise the offender?

4. Were there other breaches or crimes committed coincident with the use of alcohol or substances?

5. How long had the offender been subject to supervision in the community prior to the breach?

6. What is the offender's prior history of supervision, whether on parole, statutory release or LTSO?

7. What is the offender's attitude towards the scheme of supervision under the LTSO?

8. What role did the use of alcohol or substances play in the accused's history of violence?

9. What was the overall context of the use of an illicit substance? Where should it be placed on a scale between being what Doody J. described as an indication of a serious problem that implicates public safety, and what he described as a "warning light" or what Greene J. described as a "blip"?

Assessment of the Breach in This Case

[95] Applying the factors set out above, I make the following findings:

1. Extent of the breach. Mr. Liedtke used an illicit substance on one occasion.

2. Number of prior breaches. This is Mr. Liedtke's first breach of the LTSO. This sentencing is his first real lesson in how seriously breaches of LTSO are treated.

3. Impact of the breach on the ability to supervise Mr. Liedtke. His conduct in breaching the LTSO did not undermine the core of the order or the ability to supervise him. It appears that Mr. Liedtke likely used the substance when he was at the community correctional centre, or that he returned to the facility shortly after he used. This makes the breach less serious than if Mr. Liedtke had been impaired by alcohol or drug while actually out in the community.

4. Other breaches or criminal offences. There is no allegation that Mr. Liedtke breached the LTSO in any other way or committed any other crimes.

5. Length of time on supervision prior to the breach. Mr. Liedtke had only been on supervision for about four months prior to the breach.

6. History of supervision. Overall, Mr. Liedtke's history of compliance with supervision has been poor. However, his level of compliance has generally been improving. Although only on the LTSO for a few months prior to the breach, he had the support of his case management team to have his case transferred to Ottawa. It is also relevant that he remained in the community for several days prior to being suspended, and did not flee or relapse into further drug use. In addition, there is no suggestion that he used illicit substances or alcohol in the time period leading up to this breach.

7. Attitude. Reports about Mr. Liedtke's attitude and engagement during the few months prior to the breach are positive. This is also reflected in the fact that he had the support of his case management team to be transferred to Ottawa. There is no indication that Mr. Liedtke disagrees with the conditions imposed. He did not minimize the seriousness of his conduct in seeking out illicit drugs in the community.

8. Role of substances in Mr. Liedtke's history of violence. Substances did not play a direct role in Mr. Liedtke's past offences in the same way that they did in most of the cases reviewed above. Furthermore, the drug that Mr. Liedtke sought out was cannabis in the form of shatter. While he took a reckless risk that it would contain other substances, he was not actively seeking out cocaine which was the drug he was using during the time period that he committed the robberies, and which had an indirect influence in his criminality.

Like the offenders in MacDonald and perhaps Pelletier, Mr. Liedtke is somewhat unusual amongst LTSO offenders, in that his past offences do not involve gratuitous, degrading or invasive violence or sexual violence. Furthermore, Dr. Gray, who evaluated Mr. Liedtke in 2007, noted that Mr. Liedtke's offences were tending towards becoming less dangerous.

9. Context of Mr. Liedtke's use of an illicit substance. Mr. Liedtke used shatter from a street source in a quest to obtain cannabis. Mr. Liedtke should not have been seeking cannabis other than through what was legally prescribed to him. Obtaining marijuana from a legal if non-prescribed source would still have been a breach of his condition, but a less serious one. By seeking cannabis from a street source, Mr. Liedtke took the risk that it would contain other substances, and that is exactly the risk that transpired. However, Mr. Liedtke did not seek out those drugs, nor did he seek out or use cocaine, which was his drug of choice when he was immersed in a criminal lifestyle robbing banks. It is also concerning that Mr. Liedtke was willing to engage with a street source to obtain drugs, as this raises the concern that he would be coming into contact with a criminal subculture. On the range of seriousness I would not quite characterize Mr. Liedtke's breach as being a warning light or a blip, but it is much closer to that end of the range than it is to a serious problem that endangered public safety.

[96] Taken together, these factors present a rather mixed set of aggravating and mitigating circumstances. While the time period on supervision prior to the breach was short and Mr. Liedtke's conduct in seeking street drugs was a deliberate, intentional choice on his part that was reckless about what substances he would ingest, there are reasons to be optimistic about Mr. Liedtke's ability to succeed on the LTSO. The basis for that optimism is found in several factors: despite his recklessness, Mr. Liedtke was not seeking out the hard drugs that he ended up ingesting; Mr. Liedtke successfully completed the Maison Decision House rehabilitation program in the summer of 2019; Mr. Liedtke has gained significant skills and education while incarcerated; Mr. Liedtke had been cooperative with his case management team prior to the breach and they were supportive of his supervision being transferred to Ottawa; and Mr. Liedtke stayed to face the music and did not flee or use more drugs in the days prior to his apprehension.

[97] This was not a trivial breach of the LTSO. However, in my view it was less serious than the breaches at issue in most of the cases I have reviewed.

[98] This assessment of the breach also serves to review the most significant aggravating and mitigating factors in this case. In addition, Mr. Liedtke pleaded guilty, which is a mitigating factor standing alone.

Impact of the Covid-19 Pandemic

[99] There is no evidence that Mr. Liedtke suffers from any particular vulnerability to Covid-19. Defence counsel advised that Mr. Liedtke has been isolated from his parents and his spouse during his incarceration. Initially there were no visits, and although more recently he has been allowed to have visits on Thursdays, his family is not able to come. He underwent one 15-day period of quarantine. In addition, yard time has been extremely limited compared to what it should be. Defence counsel argued that this should reduce the sentence imposed.

[100] The Court of Appeal has held that the impact of the pandemic is a collateral consequence that can be considered with respect to sentencing, but that the sentence must remain proportionate to the gravity of the offence and the moral blameworthiness of the offender. Where an otherwise fit sentence was imposed prior to the pandemic, the court has declined to reduce the sentence because of the pandemic, holding that the pandemic is something to be considered by the correctional authorities with respect to granting of parole or statutory release. See R. v. Morgan 2020 ONCA 279; R. v. Lariviere, 2020 ONCA 324.

[101] In view of my conclusion about credit for pre-trial custody, I do not need to engage in a separate analysis of whether the pandemic would justify shortening the sentence I would otherwise impose in this case.

Credit for Pre-Trial Custody

[102] As noted above, the Crown argues that the pre-trial custody should be credited at 1 to 1, while the defence argues that it should be credited at 1.5 to 1. In arguing against any enhanced credit, the Crown points to the fact that the LTSO has continued to run.

[103] The Court of Appeal addressed credit for pretrial custody in relation to LTSO breaches in R. v. Bourdon, 2012 ONCA 256 at paras. 17-21. The court pointed out that an LTSO continues to run while an offender is in pre-trial custody, whereas the order is interrupted when the offender is serving a sentence. The judgment notes that in Ipeelee (2009 ONCA 892, [2009] O.J. No. 5402, appeal to SCC allowed on other grounds), the Court of Appeal denied enhanced credit for pre-trial custody on the basis that the LTSO continued to run, and that the lack of credit for time served towards early release was not a factor for Mr. Ipeelee, who was unlikely to be granted early release. In addition, the court also pointed to the potential for long term offenders to be transferred to a penitentiary and receive treatment programs while awaiting sentence, such that the lack of access to programs in pre-trial custody as a rationale for enhanced credit would not be applicable. However, the judgment in Bourdon also recognized that credit for pre-trial custody remains within the discretion of the sentencing judge even though the considerations discussed pointed to giving less credit than in other cases.

[104] In Whalen, Doody J. would have granted 1.3 to 1 credit for pre-trial custody had he concluded that the time served credited at 1 to 1 was not a long enough sentence. He held that given Mr. Whalen's record since his incarceration, he could not conclude that Mr. Whalen would be unlikely to receive early release if he had served a custodial sentence rather than being held in pre-trial custody (para. 95). Doody J. stated:

[96] I acknowledge that it is somewhat incongruous for an offender to see his long-term supervision order diminish at the same time he is earning credit towards a sentence. This would not happen if the offender was serving a sentence for breach of a long-term supervision order – the sentence interrupts the running of the long-term supervision order. At the same time, however, the offender is denied the benefit he derives from the re-integration into society through the managed process of the long-term supervision order.

[105] In R. v. Hoshal, 2020 ONCJ 345, Pringle J. considered the impact of Bourdon as follows:

[43] The COA in Bourdon referenced s. 135(2) [135.1] of the CCRA as enabling access to rehabilitative penitentiary programs pending an LTSO sentence. Mr. Hoshal's experienced parole officer, who testified, was entirely unfamiliar with this as an option. In her experience, when an offender is suspended and then charged criminally, they stay in "provincial custody" until the charge is dealt with. I presume were it a viable option, in the context of transferring offenders from remand centres to the penitentiary pending LTSO breach sentences, she would know.

[44] Moreover, jurisprudence post-Bourdon militates against relying on the National Parole Board's s. 135.1 transfer powers in this context. Transfer to a 'penitentiary', which includes both incarceration and residential community centres, is not triggered by any action of, or request by, the alleged LTSO offender. It is a matter wholly within the discretion of the National Parole Board: see Masse v. Canada (AG), [2017] F.C.J. No. 690 at para. 99.

[45] Section 135.1 transfers seem to bear no relationship to the detention of an alleged LTSO offender in a remand centre pending trial. As per the Federal Court decision of Masse, supra at para. 99:

In practice, a long-term offender who has been returned to custody [pursuant to s. 135.1] will return to the community after 90 days, unless the offender has been charged, and a provincial judge has meanwhile ordered the offender's detention [page441] pending trial or refused to release the offender on bail. The fact that the offender is in preventive detention following the filing of a criminal charge for the offence set out in section 753.3 of the Criminal Code, is, however, extrinsic to the Board's decision under section 135.1 of the CCRA. The Attorney General is not bound by a Board recommendation. [emphasis added]

[46] Thus the NPB may remove an LTO from the community and return him/her to a range of federal custody options, from a residential community centre to federal incarceration, and independent of whether a breach charge is laid. Even if the NPB returns the offender to the community after 90 days, if she/he is charged with breach he/she may still be detained pending trial in a remand centre. This is my interpretation of the legislation and the jurisprudence, and it accords with the evidence of Mr. Hoshal's parole officer. Section 135.1 transfers and LTSO presentence custody appear entirely independent of one another.

[46] In sum, Bourdon does not bind me to impose 1 to 1 credit. Further, I cannot rely on the NPB's s. 135.1 transfer power to conclude that Mr. Hoshal could have accessed penitentiary programs instead of wasting away his rehabilitative potential in the TSDC. I see no reason why 1.5 to 1 credit should not be credited here and I have begun with this figure as a starting point. Mr. Hoshal's 220 days presentence custody would be the equivalent of 330 days at 1.5 days per day.

[106] I agree with Pringle J.'s analysis. I do not read s. 135.1 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 as providing general authority for a person charged with LTSO breach to be transferred to federal custody while in pre-trial detention. The provision does speak to commitment of the offender upon suspension of the LTSO, but that period of commitment is limited to a maximum of 90 days, and it is during that period of commitment that the authorities may order the transfer of the offender to a penitentiary.

[107] That scenario has to be what was contemplated in Bourdon. Indeed, in an ideal situation, a charge of breach of LTSO would be dealt with during that 90 day time frame (although of course there is no requirement that the offender be in federal custody during that time). Lengthy delay where an LTSO offender is warehoused in a provincial detention centre does not advance the offender's rehabilitation, nor does it advance the long term public safety because the offender is not receiving necessary rehabilitative intervention.

[108] I also agree with Doody J.'s observation that there is an incongruity. In a sense, the fact that the LTSO continues to run during a period of pre-trial custody is a collateral consequence that benefits the offender. However, the offender has no control over that. He cannot, for instance, choose to give up that credit against the LTSO in favour of the credit for pre-trial custody that other offenders receive in the ordinary course. In my view, at least for an offender who would have a prospect of early release on sentence, it is not appropriate to resolve the incongruity in a way that has a detrimental impact on the offender's physical liberty (increased time in custody compared to other offenders or compared to an LTSO offender who does not serve pre-trial custody) just because the offender will later benefit from a lesser period of restrictions in the community.

[109] The incongruity would of course be resolved if the legislation were amended to provide that pre-trial custody credited against sentence does not count towards the duration of the LTSO. However, as it stands, and for an offender who would have a prospect of early release, it is my view that the quantitative and qualitative rationales for granting enhanced credit beyond 1 to 1 (see R. v. Summers, 2014 SCC 26 at paras. 2, 21-29) can properly apply to the determination of credit for pretrial custody on sentencing for breach of an LTSO.

[110] Mr. Liedtke has served his entire period of pre-trial custody in a provincial detention centre. Given the information before me, I cannot say that Mr. Liedtke would be unlikely to receive early release. Accordingly, it would be appropriate to credit the pre-trial custody at 1.5 to 1.

The Sentence Imposed

[111] Mr. Liedtke pleaded guilty, which is mitigating. Given my assessment of the breach as discussed above, I find that it is appropriate to impose a lesser sentence than the 12 months imposed in Ipeelee.

[112] In my view, the appropriate sentence is ten months. Credited at 1.5 to one, Mr. Liedtke's pre-trial custody of 251 days would come to 377 days which exceeds the sentence I would impose. Accordingly the pre-trial custody is credited as being the equivalent of 300 days, which is roughly 1.2 days to 1 day, and I impose one day further.

[113] In addition, I order that Mr. Liedtke provide a sample of his DNA.

Released: December 2, 2020

Signed: Justice A. Wheeler