Court File and Parties

Ontario Court of Justice

Date: 2020-12-02

Court File No.: 0911-998-20-5603

Between:

Her Majesty the Queen

— and —

Andre Taillefer

Before: Justice A. Wheeler

Heard on: November 18, 2020

Reasons for Judgment released on: December 2, 2020

Counsel:

• N. Thompson, counsel for the Crown
• M. Mandelcorn, counsel for the defendant

Judgment

WHEELER J.:

Introduction

[1] Andre Taillefer pleaded guilty before me on November 18, 2020 to a single count of breaching the "no drugs" condition of his long term supervision order. Mr. Taillefer has an extensive criminal record, but this is the first time he has been convicted of breaching his LTSO. He was in the community for about ten and a half months, first on statutory release and then on the LTSO, prior to the breach. He has now been in custody for just over five months. I have concluded that the appropriate sentence is the equivalent of 11 months, and that pre-trial custody should be credited at 1.5 to 1, which leaves 96 days left to be served. These are my reasons for reaching that decision.

[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] Mr. Taillefer was released on statutory release in July 2019. He was already residing at the Henry Traill Community Correctional Centre prior to reaching warrant expiry on January 16, 2020 on the 54 month sentence imposed on the index offence of criminal harassment. The LTSO included a condition the prohibited illicit drug use. A urine sample taken on June 23 tested positive for cocaine. Mr. Taillefer's explanation for this in a post-suspension interview was that this was a "slip" in that he was at the Cataraqui Town Centre mall, someone offered him cocaine, and he used one line of cocaine.

Positions of the Parties

[4] The Crown seeks a sentence of 15 months with pre-trial custody credited at 1 to 1 during the period of pre-trial detention when the LTSO was still running, but credited at 1.5 to 1 during the initial period when it was suspended.

[5] Mr. Taillefer has served 156 days to date. The defence asks that I credit Mr. Taillefer with 1.5 to 1 for that entire period, such that the pre-trial custody should be considered as the equivalent of 234 days, or almost eight months, and argues that in view of the pandemic, no more time should be imposed.

Mr. Taillefer's Background

[6] Mr. Taillefer is now 54 years old. He had a stable upbringing in a loving, two parent home in eastern Ontario. There is no suggestion of abuse in his childhood. Both his parents are now deceased.

[7] The materials indicate that Mr. Taillefer consistently reports having a girlfriend in Quebec. However, Mr. Taillefer's parole officer expresses scepticism about this given his refusal to provide meaningful information about the relationship. Information from the Correctional Service of Canada indicates that he has no significant level of contact with this person.

[8] Mr. Taillefer has an Aboriginal background, derived from his father's family. He has a connection to Aboriginal cultural activities through learning to hunt, fish and trap with his uncle.

[9] Mr. Taillefer has also engaged in Aboriginal cultural activities during his incarceration and while residing at HTCCC, such as participating in ceremonies and employment related to maintenance of spiritual grounds, and he has worked with an Aboriginal Liaison Officer. The comments of the Aboriginal Liaison Officer are the most positive aspect of the reports about Mr. Taillefer. He is described as having a good work ethic and a willingness to help out, participating fully in ceremonies, being attentive and listening to the Elders as they provide teachings, and being polite and respectful while engaging in cultural activities.

[10] Mr. Taillefer has a longstanding issue with substance abuse, which began in to his early teenage years.

Mr. Taillefer's Criminal Record

[11] Mr. Taillefer's criminal record is significant. It dates back to 1985 without any significant gaps.

[12] In 2015 he was convicted of criminal harassment and sentenced to 54 months and a 10 year LTSO. Prior to that he had served penitentiary sentences that were the equivalent of 34 months imposed in 2011 for uttering threats (x 2), break and enter, and unlawfully in a dwelling house, and eight years imposed 2001 for sexual assault causing bodily harm. The 2001 conviction involved breaking into the home of a 76 year old woman and sexually assaulting her in her bedroom.

[13] The criminal harassment conviction was based on a persistent and prolonged course of conduct when Mr. Taillefer was in custody. He sent 104 letters to an elderly victim despite being told to stop. Mr. Taillefer had been introduced to the victim through his uncle. His letters were offensive and threatening and included graphic descriptions of sexual activities he planned to carry out towards her. In sentencing Mr. Taillefer, Pelletier J. described the victim as frail, meek and vulnerable. He stated (at p. 17):

There was a very clear imbalance as between Mr. Taillefer and [the victim], physically, psychologically and otherwise. And this did not seem to create any difficulty for Mr. Taillefer in pursuing his very selfish purposes.

[14] The Assessment for Decision Report prepared for the Parole Board, dated July 23, 2020 contains the following description of Mr. Taillefer's pattern of offending:

To summarize, according to an Assessment of Sexual Behaviour, completed at the commencement of TAILLEFER's current sentence (2015/10/22), TAILLEFER has a considerable history of imposing himself upon women, through assault, home invasions, harassment and sexual assault. To date, he has amassed charges and convictions against a number of elderly females, including a violent and intrusive offence of sexual assault. Details of additional home invasions suggest sexual motivation.

Mr. Taillefer's History of Community Supervision

[15] Mr. Taillefer was initially released on statutory release on July 23, 2018. That was revoked by the parole board in November 2018 when Mr. Taillefer failed to return to the community residential facility by curfew, and also a breached other conditions. He was described in the Assessment for Decision Report as "defiant about his activities and whereabouts in the community" at that time (p. 4).

[16] Mr. Taillefer was re-released on August 7, 2019 (this date was provided by counsel). The terms of his statutory release included a no drugs condition. However, late in 2019 he tested positive for THC and the statutory release was briefly suspended but the suspension was cancelled after a few days. His explanation was that while working outside at the community correctional centre, he collected discarded "roaches" that other inmates had left around from legitimate marijuana smoking, and that he combined these small amounts and smoked it. Just after that positive test, Mr. Taillefer did obtain his own prescription for marijuana and as result the decision was made to continue his statutory release.

[17] The Assessment for Decision Report dated July 23, 2020 that was prepared in connection with the positive cocaine test and consequent suspension of the LTSO states (at p. 4):

Though no formal misconducts are noted in recent times, the Correctional Plan Update (2019/02/18) notes TAILLEFER's interpersonal style with his Case Management Team has varied from dismissive to aggressive and even described as combative on one occasion. Indeed his behaviour since release to HTCCC has been consistent with this assessment. [emphasis added]

The Report also notes that the cocaine use occurred just a month after he had completed a maintenance program.

[18] The Assessment for Decision Report also states that Mr. Taillefer is frustrated by this charge of breaching the LTSO given that he felt he was generally doing well. It states that he feels that staff are always looking for an excuse to return him to jail.

[19] Mr. Taillefer's own comments before me reflect that he feels a sense of hopelessness, that he will end up in jail for even the littlest mistake. This has been exacerbated by how he feels about the time spent in the provincial detention centre. He said that he feels he has been treated like dirt.

The Relationship Between Mr. Taillefer's Drug Use and Crimes

[20] The materials filed before me indicate that Mr. Taillefer was under the influence of alcohol or drugs when he committed many of his prior offences of violence. The Parole Board of Canada noted in its report dated July 25, 2019 that use of substances intensifies Mr. Taillefer's violent tendencies and that he is inclined to commit crimes while under the influence. The Criminal Profile report dated August 18, 2018 indicates that Mr. Taillefer acknowledged that alcohol was linked to criminal behaviour.

Principles of Sentencing

[21] 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.

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

[22] 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.

[23] 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.

[24] 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

[25] 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.

[26] 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.

[27] 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).

[28] 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.

[29] 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).

[30] 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

[31] 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.

[32] 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.

[33] 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.

[34] 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

[35] The Court of Appeal's 2012 decision in R. v. 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

[36] 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).

[37] 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).

[38] 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.

[39] 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.

[40] 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.

[41] 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

[42] 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).

[43] 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

[44] 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

[45] 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.

[46] 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]

[47] 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.

[48] 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

[49] 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."

[50] 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.

[51] 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.

[52] 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.

[53] 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

[54] In my view, these cases indicate that the following factors will inform the sentence imposed for breach of an 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

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

1. Extent of the breach. Mr. Taillefer used cocaine on one occasion.

2. Number of prior breaches. This is Mr. Taillefer'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. Taillefer. Mr. Taillefer's conduct in breaching the LTSO did not undermine the core of the order or the ability to supervise him. He used cocaine in the community, but he returned to the community correctional centre and the breach was discovered through urinalysis.

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

5. Length of time on supervision prior to the breach. Mr. Taillefer had been on supervision on statutory release and then the LTSO for approximately ten and a half months prior to the breach.

6. History of compliance with supervision. Mr. Taillefer's criminal record shows a history of non-compliance with court orders. His conduct in the index offence of criminal harassment suggests a significant level disregard for rules and authority. He breached his statutory release in 2018 and was defiant about it. However, apart from the brief suspension of his statutory release late in 2019 relating to marijuana use, the material does not indicate any that he breached the conditions of supervision over the ten and a half month period leading up to this offence.

7. Attitude. Mr. Taillefer is described as having a very poor attitude prior to his release from custody, and the parole officer describes this as continuing during Mr. Taillefer's time at HTCCC. In fact, the materials are replete with references to Mr. Taillefer being difficult and combative. These can be found as far back as the 1996 pre-sentence report addendum that the Crown filed before me. On the other hand, it appears that Mr. Taillefer himself thought that he was doing well during the time period in the community. The comments of the Aboriginal Liaison Officer about Mr. Taillefer's engagement with work and cultural activities while at HTCCC are positive.

8. Role of substances in criminal history. The materials placed before me indicate that substances played a direct role in Mr. Taillefer's prior violent offences.

9. Context of Mr. Taillefer's use of an illicit substance. Mr. Taillefer used a schedule 1 substance that he obtained illicitly. That is really all I know. I have no information about what precipitated Mr. Taillefer's decision to use cocaine, and I have some difficulty in understanding how Mr. Taillefer could have obtained the cocaine from someone at the mall during a pandemic without taking some initiative to get it. Given the nature of the drug and the lack of information about the context of Mr. Taillefer's decision to use it, I am not able to conclude that this was a mere slip. However, at the same time the breach must be kept in perspective. It was a single occasion and Mr. Taillefer did return to the community correctional centre. I do not have a basis to find that it was a serious relapse that actually endangered public safety.

[56] Taken together, these factors do not present a clear picture about whether Mr. Taillefer is making serious efforts towards his rehabilitation. Mr. Taillefer was apparently substantially compliant with conditions in the ten and a half months prior to the breach. However, his attitude was poor, which is cause for real concern that he is not engaging with the rehabilitative process in a meaningful way. In addition, the drug he used is very serious. And yet, the report from the Aboriginal Liaison Officer is positive. I conclude that the seriousness of the breach is broadly comparable to the breach at issue in Ipeelee.

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

Mr. Taillefer's Aboriginal Heritage

[58] 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. I 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.

[59] 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]unless 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."

[60] The information put before me does not allow me to conclude that systemic and background factors affecting Aboriginal people in Canadian society have impacted Mr. Taillefer's life in ways that bear on his moral blameworthiness. Mr. Taillefer has Aboriginal heritage, but no Gladue report was filed, and the defence specifically waived the right to have one prepared. The materials obtained by the Crown from the Correctional Service of Canada reference Mr. Taillefer's Aboriginal heritage, but contain no indication that Mr. Taillefer has been impacted by systemic factors affecting Aboriginal people in Canadian society. He was raised in a stable home with no reported difficulties that could be attributed to intergenerational trauma.

[61] However, Mr. Taillefer's involvement with his Aboriginal culture and practices while serving his sentence in custody and in the community is a factor that bears on his potential for rehabilitation. It appears that a connection to his Aboriginal culture gives Mr. Taillefer a sense of comfort and hope, and as already noted, the description provided by the Aboriginal Liaison Officer is the most encouraging aspect of the materials filed before me. Accordingly, it is my view that Gladue factors should be taken into consideration as bearing on Mr. Taillefer's potential for rehabilitation.

Credit for Time in Pre-Sentence Custody

[62] Mr. Taillefer has been in custody since June 29, 2020, which is 156 days to today (December 2, 2020). For the 58 days from June 29 to August 26, the LTSO was suspended. However, for the 98 days from August 26 to today, the LTSO has continued to run while Mr. Taillefer has been in pre-trial custody.

[63] The defence asks that I credit Mr. Taillefer with 1.5 to 1 for the entire period, such that the pre-trial custody should be considered as the equivalent of 234 days, or almost eight months.

[64] The Crown argues that pre-sentence custody should only be credited on a one for one basis for the post-suspension period, because the LTSO has continued to run during the period of pre-trial custody since August 26, and will only be interrupted once a new sentence of imprisonment is imposed: s. 753.4(1) of the Criminal Code.

[65] 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.

[66] 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.

[67] 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.

[68] 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.

[69] 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.

[70] 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.

[71] 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.

[72] I find that it is appropriate to credit the pre-trial custody at 1.5 to 1. Mr. Taillefer has served his entire period of pre-trial custody in a provincial detention centre. Despite the concerning aspects of the information before me, I cannot say that he would be unlikely to receive early release. In addition, Mr. Taillefer advised at the sentencing hearing that conditions at the Central East Correctional Centre have been very difficult. Amongst other things, he has not had access to an Elder and has not been allowed to have his medicine bag. In my view, lack of access to the cultural practices that appear to assist Mr. Taillefer is an additional factor in his case that supports the 1.5 to 1 credit.

The COVID-19 Pandemic

[73] 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.

[74] There is no evidence that Mr. Taillefer suffers from any particular vulnerability to the pandemic. However, in view of the Court of Appeal's comments, I find that the pandemic is still a relevant factor in the imposition of sentence. In this regard I also rely on the reasoning of Dennison J. in R. v. Walker, 2020 ONSC 7029 at paras. 88-89:

[87] I agree that COVID-19, as a collateral consequence, cannot be used to create a sentence that is "disproportionate to the gravity of the offence or the moral blameworthiness of the offender"; Morgan, at para. 10, quoting R. v. Suter, 2018 SCC 34 (S.C.C.).

[88] I find, however that COVID-19 is a factor that should be considered in determining what is a fit sentence. The general implications arising from COVID-19, including harsher conditions in prison are a relevant factor to consider in sentencing Mr. Walker. The fact that Mr. Walker does not have a particular vulnerability to COVID-19 does not detract from the fact that the conditions he will face in prison will be harsher, to some extent because of COVID-19. Where an accused has a particular vulnerability, the impact of COVID-19 may have greater weight in determining what is a fit sentence.

[89] I recognize that no one knows for sure how long the pandemic will last, however, the public has been repeatedly told that until there is a vaccine the pandemic will remain with us. Predictions for when there will be a vaccine range from January 2021 to the fall of 2021. Regardless, life as we knew it prior to COVID-19 will not be same for at least some time. As such, I do not find it arbitrary to give some consideration in determining what is a fit sentence to the fact that Mr. Walker will serve his sentence under harsher conditions than if there was no global pandemic. That being said, COVID-19 is simply one of many factors that must be considered in determining an appropriate sentence including the principles of denunciation, deterrence and rehabilitation.

The Sentence Imposed

[75] Mr. Taillefer has no prior convictions for breaching the LTSO and he has pleaded guilty. The sentence imposed must not be so severe as to cause him to lose hope. Substance use is a long-standing issue for him. Much of what the Supreme Court said in the passage from Ipeelee set out above is also directly applicable to Mr. Taillefer.

[76] But for the pandemic, I would have imposed a sentence that was the equivalent of 12 months. Given my assessment of the breach as discussed above, I find that there is nothing in this case that would warrant a significantly more lenient or more severe sentence than the 12 month sentence that was imposed in Ipeelee. However, it is my view that the pandemic does justify imposing a slightly lower sentence, of eleven months. Any lesser sentence would not in my view send the necessary message about the seriousness of Mr. Taillefer's conduct in breaching the LTSO by using cocaine.

[77] The time credited for pre-trial custody is 234 days. An 11 month sentence would be 330 days. Subtracting credit for pre-trial custody there are 96 days left to be served. I also order that Mr. Taillefer provide a sample of his DNA.

Released: December 2, 2020

Signed: Justice A. Wheeler