ONTARIO COURT OF JUSTICE

DATE: 2021 06 15

COURT FILE No: Sudbury 19-4545, 17-812, 18-0044-01, 17-734, 17-4504, 18-0114, and 18-0717

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JEREMY TRODD

Before: Justice André L. Guay

Heard on: March 18 and 26 and April 13, 2021

Reasons for Sentencing released on: June 15, 2021

Counsel: Kenrick Abott, counsel for the Crown Michael Haraschuk, counsel for the accused Jeremy Trodd

GUAY J.:

1: Introduction

[1] The accused, Jeremy Trodd, pled guilty to a number of criminal offences, the most serious of which was assault causing bodily harm contrary to 267(b) of the Criminal Code. The accused’s other offences included failure to appear, breaches of probation and recognizance, obstruct police, possession of illegal weapons and possession of a variety of prohibited drugs.

[2] The offences before the court today occurred in 2017 and 2018. In December 2019, the accused was sentenced for the commission a number of similar prior offences. All of the present offences occurred before that sentence was imposed on him.

2: The Accused

[3] Jeremy Trodd is a 38-year-old indigenous person. He is a member of the Magnetewan First Nation, an Ojibway community located near the shores of Georgian Bay, Ontario. Jeremy Trodd had a very unstable childhood. When he was five years old, his family left British Columbia and settled for a few years in Winnipeg, Manitoba. When he was nine, the family moved to Magnetewan, near Britt, Ontario. This is where Jeremy resided until he approached his 16th birthday.

[4] As a result of the neglect and instability he experienced at a young age, the accused became involved in the youth criminal justice system once he turned 12 years of age. He was sent into youth custody a number of times prior to his 16th birthday. In 2016, he drove a stolen vehicle into police officer, Sgt. Rick McDonald, killing him instantly. His cousin, Peter Noganosh, a passenger in the front seat of the vehicle he was driving, was also killed in the accident. After spending approximately 21 months at Cecil Facer Youth Centre in Sudbury awaiting the disposition of his charges, he was transferred to adult court. There he pled guilty to criminal negligence causing the death of Sgt. Rick McDonald and Peter Noganosh. For these and related charges, he was sentenced to a term of 5½ years in jail. He served the full amount of his sentence alternately at Millhaven Penitentiary and Joyceville Penitentiary.

[5] When he was released from Joyceville Penitentiary, the accused returned to live with his mother at Magnetewan First Nation. At that time, he made a serious attempt at resolving his addiction issues. These issues had arisen prior to the tragic accident involving his cousin and Sgt. McDonald. When he left prison, the accused entered into a peace bond. He was soon arrested on a breach of this peace bond. Unfortunately, this charge brought an end to his attempts at treatment and counselling. On his release from custody on that charge, he would again soon fail to comply with other release conditions, ending up in jail on a number of occasions. As time passed, he failed or was unable to secure appropriate treatment for his drug addiction. This led to a pattern of offending and reoffending which has persisted until the present time.

3: Assault Causing Bodily Harm

[6] Foremost among the charges for which Jeremy Trodd is being sentenced today is the one respecting assault causing bodily harm to Cst. Carroll. This incident occurred on April 27, 2018 after the accused was picked up on an outstanding warrant for breach of recognizance.

[7] At the time of his arrest, the accused was heavily clothed. One might describe his clothing as the typical dress of a street person at that time of year in Northeastern Ontario. In the process of booking him in, three police officers attempted to remove the outer layers of his clothing. They were looking for concealed weapons and drugs which they suspected he might have on his person. In the process of trying to remove his ring and his footwear, the accused became uncontrollable. As the accused and Cst. Carroll fell to the ground in the melee which occurred, Cst. Carroll’s right arm came into full contact with the accused’s mouth. The accused bit Cst. Carroll’s right arm, piercing the skin and making a hole in the shirt sleeve immediately covering it. What could be deduced from the booking-in room video (exhibit 1) was that the officer’s search in the accused’s hair from a position immediately behind him triggered a strong physical reaction on the accused’s part.

[8] Clearly, the offence was not premeditated in nature. While removal of the accused’s outer clothing was a necessary procedure, I find his wild response to the removal of his outer clothing to have been the unanticipated reaction of a street person at being handled by three police officers following his unexpected arrest. Whether the accused was under the influence of drugs at the time is uncertain, although very likely, especially considering the “personal use” drugs found on him as he was being searched. Given the accused’s initial compliance with the removal of his outerwear, we are left to wonder whether a less aggressive approach to the accused might have avoided the accused’s response leading to his assault on Cst. Carroll.

4: The Victim Impact Statement

[9] While the accused’s bite was very unpleasant and painful, what made the matter significantly worse was the accused’s refusal to consent to providing a blood sample to the police. This blood sample would have been used to determine whether the bite had infected the officer with a communicable disease. In the end, Cst. Carroll was compelled to take a six-month course of drug treatment designed to eradicate any infection in his body resulting from the accused’s bite.

[10] In his victim impact statement, Cst. Carroll explained how the incident had had major consequences on his peace of mind. Describing the drug regimen he was obliged to follow as “very hard” on his body, the officer noted that it was of no help to him when the accused consented to provide a sample of his blood more than six months later. By this point, Cst. Carroll had already completed his course of treatment. Given that the police were dealing on this occasion with a street person, it was not unrealistic for the officer to fear that he might have contracted a serious infection or disease from the bite inflicted on him by the accused.

5: Dangerous Person

[11] In searching the accused’s backpack, the officers located a large hunting knife in a sheath as well as two collapsible batons. As a result, they charged the accused with breaching his recognizances. I do not find anything surprising here. While illegal, it is not uncommon for a person involved with the drug culture and living on the street to be in possession of a knife or other weapons for self-protection and not for the purpose of committing violent offences.

[12] Pointing to the accused’s possession of the hunting knife and two collapsible batons, the Crown argues that the accused is a violent person. I do not see the situation in that way, even though the accused was committing offences by possessing the weapons found on him.

[13] The accused had previously been involved in two spousal relationships and had fathered two children during these relationships. There is nothing to suggest that he was violent or abusive to his former partners or his children. If the local Children’s Aid Society in the area where he lived after his release from prison intervened to protect his children from him, it is clear that they were acting on the presumption that his criminal negligence conviction meant that he was a dangerous criminal and a threat to the safety of his children.

[14] Such evidence, as can be gleaned from the accused’s record, suggests the occurrence of some assaultive behaviour in his past. One of the accused’s assault convictions, in fact, dates from his time in the penitentiary. Those who may have visited an institution like Millhaven would have been shown pictures of murdered inmates illustrating how violent men can be when incarcerated in such places.

[15] When assessing a person with a criminal history, it is prudent to consider whether such a person is like he or she presently is because they have a malevolent nature and criminal predisposition or whether it is because of unfortunate circumstances suffered in early life. So often, we find that behind the criminal acts a person commits, there is both past trauma and failure to access the mental health services needed to help them resolve that trauma.

[16] In reviewing the accused’s lengthy record, it appears to me that his record reflects a life full of neglect and abuse of one kind or another including, in the accused’s case, sexual abuse at a young age by a family member. The accused is today clearly addicted to drugs. It is commonly known by those in working the criminal justice system that behind an addiction you will often find a trauma. The accused is not a violent psychopath. He suffers from a drug addiction. To see him as otherwise is surely to condemn him to a life of increasing criminality. I believe that his behavior will not change until he gets the mental health services he needs. If the accused is not treated, there is a possibility that he could become more alienated. Given his very unfortunate history, this could lead him to engage in violence.

6: Case Law

[17] In R. v. Ipeelee, 2012 SCC 13, the Supreme Court discussed the systemic and background factors affecting Canada’s indigenous people, maintaining that the presence of such factors might lessen the moral blameworthiness of an indigenous offender. Noting that the concept of criminal liability follows from voluntary conduct, the Court in Ipeelee explained how factors of social and economic deprivation could lead indigenous persons to a lack of opportunity and limited options for positive development. Failure to take these circumstances into account would, the Court stated, violate the principle whereby an accused is judged both on the basis of the seriousness of the offence committed and the degree of responsibility of the accused committing an offence. This principle is enshrined in s.718.1 of the Criminal Code. (See para. 23).

[18] There will be a relationship between how we approach indigenous accused in the criminal justice system and how we handle the pre-sentence custody issue. It follows that a consideration of one informs the other. It is not uncommon to find that an indigenous accused person will have amassed a considerable amount of time in pre-sentence custody before he finally appears for sentencing. How we handle this issue bears directly on the sentencing principles enunciated both in the Criminal Code and in the case law.

[19] The principal sentencing principles in most cases, including this one, are denunciation and deterrence. These principles are found in section 718 of the Code. There follows in section 718.1 of the Code, the principle of proportionality. It stipulates that a sentence must reflect the seriousness of an offence and the moral culpability of the accused in the commission of an offence. These sentencing principles remain applicable in all cases.

[20] In sentencing, the court must also bear in mind the principles set out in section 718.2 of the Code. When dealing with an indigenous person, the Court must give particular attention to subsection 718.2(e). While among other factors section 718.2 directs us to weigh mitigating and aggravating factors in arriving at a fit sentence, subsection 718.2(e) mandates that we give special attention to the circumstances of indigenous persons in arriving at an appropriate sentence. The link between section 718.2(e) and the principle of proportionality was set out by the Court in R. v. Ipeelee (supra).

[21] The link between the above principles and the principle enshrined in section 719(3.1) of the Code is clear not only with respect to indigenous but also with respect to non-indigenous accused. In R. v. Duncan, 2016 ONCA 754, Docket C 61612, the Ontario Court of Appeal dealt with the issue of whether sentencing courts could give more than a 1.5 to 1 credit to an accused for time spent in pre-sentence custody. Critical of the sentencing court in that matter, the Court found that that court had misinterpreted section 719(3.1) as limiting credit for pre-sentence custody to that calculated on a maximum of 1.5 days for each day served. The Court found that it was possible for a sentencing court to allow a higher credit than 1.5 to 1 in “appropriate circumstances”, particularly where harsh pre-sentence incarceration conditions could provide mitigation in addition to the 1.5 credit referred to in section 719(3.1) (para.7).

[22] While finding that the accused in Duncan had served a considerable part of his pre-sentence incarceration in “lockdown” conditions (the result of staffing issues in his correctional institution), the accused failed, the Court noted, to provide evidence of the adverse effects on him flowing from “lockdown” conditions in his custodial institution (para. 6). The Court therefore found that his claim for mitigation on the basis of the harsh conditions alleged had not been made out.

[23] In R. v. Hearns, 2020 ONSC 2365, File No. CR-18-4381, a case not unlike the present one, the court dealt with the issue of what if any credit above the one provided in section 719(3.1) of the Code should be allowed to the offender. In doing so, the court addressed the issue of proportionality and how it was to be interpreted in light of the need for a “fit” sentence. The principal sentencing pillars enshrined in section 718.1 of the Code, that a sentence must be proportionate to the gravity of the offence and the degree of the offender’s responsibility, the Court maintained, remained but were not the only factors to be considered in imposing a “fit” sentence. A sentence might, the Court reasoned, “be fit even if it is not perfectly proportionate”. “Fitness”, the Court stated, looks not only at the length of a sentence but also at the conditions under which it is served. Allowing credit for an increased level of punishment, such as serving a sentence under the prevailing pandemic, the Court maintained, might make a sentence less proportionate but more fit (para.16).

[24] Continuing, the Court considered at length the fact that being in prison during the time of a pandemic would cause persons in custody to suffer from finding themselves at increased physical risk and psychological stress. Persons in custody, the court held, were unable to avail themselves of the means of reducing contamination from the COVID-19 virus. The collateral consequences of incarceration at a time of a pandemic, the court suggested, would increase the impact of incarceration on the offender more than would be the case if there were no such a situation. The collateral impact of the pandemic, while extrinsic to the “pillars of proportionality”, the Court explained, could justify a reduced sentence because of its significant impact on offenders.

[25] Maintaining respect for the principal of proportionality and citing the continuing appellate insistence on doing so, the Court concluded that it was “not only tolerable, but appropriate, in the interests of personal and public safety” to impose a sentence of shorter duration under conditions where the collateral effects impacting on a sentence of imprisonment were severe (para. 22).

7: Sudbury District Jail

[26] To date, the accused, Jeremy Trodd, has been in pre-sentence custody the equivalent of some 35 months when calculated by way of enhanced credits. In the affidavit filed by him in support of a further credit mitigating his sentence, he set out a list of harsh conditions impacting on himself while serving pre-sentence custody. Likely foreseeing the strong possibility of a sentence greater in length than the amount of pre-sentence custody already served, the accused argued for the sentencing court’s consideration of the impact on him of COVID-19 factors if it were to impose on him a sentence which included additional custody.

[27] Having reviewed his complaints with respect to the conditions prevailing at the Sudbury District Jail during the time spent by him in pre-sentence custody, I find that the majority of the accused’s complaints are linked directly to his decision to be segregated from the other inmates. For reasons best known to himself, Jeremy Trodd believes that his safety at the Sudbury District Jail is entirely dependent on not having to serve his custody in a cell located in one of the jail’s ranges.

[28] In his evidence, Jeremy Trodd pointed out that when incarcerated on a protective custody basis, the jail was only obliged to allow an inmate out of his cell for a minimum period of two hours a day. In his evidence, Correctional Officer Hamilton noted that the Sudbury District Jail did not want the accused or other inmates to remain in segregation. He testified that the accused was actually encouraged on a more than weekly basis to consider leaving his segregated cell and join the rest of the inmate population in a cell where he would have regular access to them. As noted by the officer, even while housed in a segregated cell, the accused was regularly encouraged to avail himself of additional opportunities to participate in activities outside his cell. These included attending for medical and professional services as well as engaging in regular cleaning duties in the area in which his cell was located and periodically accessing the television room.

[29] On the basis of the accused’s evidence and the evidence of Correctional Officer Hamilton, I must conclude that the accused was quite often able to spend more than two hours a day outside his cell. To be sure, this was no holiday for the accused and was made more difficult by the fact that during the course of the pandemic visitation was not permitted for a time.

8: Health Issues

[30] The accused testified that he was on a suboxone program while an inmate at the jail. There was no suggestion on his part that there was any neglect in assisting him with this aspect of his well-being.

[31] I accept the evidence that during the course of his pre-sentence custody, the accused suffered from anxiety and depression. He appears to have received medication for this. The evidence suggested that these mental health problems had arisen prior to his latest incarceration. It seems reasonable to conclude that if this were the case, these problems were exacerbated by his current incarceration and, in particular, his decision to serve the time in pre-sentence custody in segregation.

[32] In a consultation note prepared with respect to the accused in 2010 by psychiatrist, Dr. Shivakumar, at the Shkagamig-Kwe Clinic in Sudbury, the accused was found “not to have any evidence of mental disorder at the present”. The note further stated that the accused was “…showing some traits of anti-social personality disorder, but apart from that, he does not have any significant mental health disorder”. (see exhibit 4, Tab 4, p.3)

[33] The accused complained that during his time in pre-sentence custody, his dental health was neglected. I accept the accused’s evidence that he received less than adequate dental care while in pre-sentence custody. It ought to have been realized by personnel at the jail that if an inmate has spent more than a reasonable time in pre-sentence custody, an onus arises on them to make sure that the inmate’s dental and other health needs are appropriately looked after.

9: Lockdowns

[34] Perhaps the most valid complaint made by Jeremy Trodd about the harshness of his pre-sentence custody relates to the number of “lockdown” days imposed by the jail. Such days are days during which inmate jail activities and programs are either wholly or partially shut down.

[35] The evidence indicates that Jeremy Trodd was subject to “lock-down” on more than 45 occasions (my estimate) while serving pre-sentence custody. Such lockdowns appear to have occurred in 2019, 2020 and 2021. The evidence indicated that during lockdowns, the few activities available to prisoners at the Sudbury District Jail are either cancelled completely or are significantly reduced. The chief cause for these lockdowns appears to be staff shortage. This was a major concern at the time the court reported on this problem in late 2016 (see R. v. W.V., 2016 ONSC 7661 Court File No. 751/15). While some amelioration in this situation had been anticipated at the time of that decision, this problem obviously remains of concern.

[36] To be frank, however, the fact that Jeremy Trodd originally asked to be placed in segregation and has since continued to be asked by jail authorities if he would not wish to be housed with the other inmates weakens his hardship claim on this basis. I have concluded this because this choice on his part has had the practical effect of making his pre-sentence custody a self-imposed form of lockdown.

[37] Returning to the Court’s comments in R. v. Hearns (supra), I find myself in agreement with the proposition that serving time in a custodial institution when society is in the midst of a pandemic constitutes a collateral consequence which bears on the accused’s claim for mitigation of sentence. Even if the accused has been in voluntary segregation during his pre-sentence custody, I find, as is the case with other inmates housed at the Sudbury District Jail during the pandemic, that it was not unforeseeable he and they could very likely to be afflicted with the COVID-19 virus. While the jail’s administration appears to have succeeded in keeping the COVID-19 virus at bay, there were other correctional facilities where the virus did gain access to the inmate population. Unable to completely protect himself even in segregation by practicing social distancing and by avoiding possible contamination brought into the institution by third parties, this would certainly have increased the accused’s mental health problems of anxiety and depression. On this basis, I believe that the accused is entitled to some mitigation in the sentence I am going to impose on him today.

10: Conclusion

[38] In conclusion, it should be recalled that Jeremy Trodd was not kept in pre-sentence custody in order to punish him for failing to comply with conditions in his interim release order, even though this was the effect of his behaviour. What has brought him before this court today is his failure to deal with his drug addiction and the trauma underlying it. The nightmare in which he lived prior to committing the offences before the court as well as those for which he was sentenced in December 2019 led him straight to jail in circumstances where he was obliged to ask for and continue to be held in segregated custody.

[39] There is evidence indicating that Jeremy Trodd is an intelligent person. We also have evidence indicating that at times in his life he has been motivated to address his addiction problem. As noted by his Parry Sound addiction counsellor, Darla McEwen, (see Gladue Report - exhibit 4, p.31), however, it may be that he is a marked man because he caused the death of Sgt. MacDonald. This crime, committed when he was 16, has continued to follow him. He has continued offending in large part because of his unresolved drug addiction. His addiction has led him into a never-ending cycle of custody. If he fails or is unable to successfully address his addiction and its underlying trauma, he will lay himself open to a life of petty criminality and custody on the instalment plan.

11: Sentence

[40] The Crown has asked for a sentence amounting to a period of five years in custody, together with a period of probation. The accused ask this Court for a sentence of time served together with three years of probation. With respect, I find that neither proposed sentence is realistic. Neither would result in a fit sentence.

[41] The sentence proposed by the Crown anticipates a very negative future for the accused. I find, however, that it fails to address the strong Gladue factors at play here. It also fails to give sufficient consideration to the collateral consequences at play in this matter. Bearing in mind the accused’s 14-month “time-served” sentence handed down on December 12, 2019, I find the Crown’s proposed sentence fails to give sufficient consideration to the principle of totality. Lastly, I find the focus of the Crown’s proposed sentence places too much emphasis on the principles of denunciation and deterrence, without adverting to the possibility of the accused’s rehabilitation.

[42] The accused’s sentencing proposal, on the other hand, fails to account for his degree of responsibility in the commission of the offences for which he is today before the Court. In particular, I find his refusal to provide a sample of his blood to the authorities to assist in the determination of the viral infection of the complainant police officer very reproachable. While there was originally much emotionality at play in the accused’s assault of Cst. Carroll, prolonging the anguish experienced by the latter until the appropriate and useful time for consent had passed increased the accused’s blameworthiness.

[43] In addition, there is as well the accused’s failure to pursue pre-sentence custody rehabilitation for his drug addiction. A person in the accused’s position and at his age has a duty to himself and others to make use of the rehabilitative and counselling services available in their community to deal with this problem. The accused’s plan in this respect is still vague and will need to be addressed. The absence of a clearly considered plan on the accused’s part leaves one concerned about whether he is really committed to alter the course of his life and become a functioning member of society.

[44] I find that the accused will, at the anticipated date of sentencing, have served the equivalent of 35 months pre-sentence custody calculated at a 1.5 to 1 basis. In addition to this credit, I am going to give him a mitigation credit of 3 months with respect to the impact of serving his sentence during the time of the COVID-19 pandemic. This, then, gives the accused a total pre-sentence custody credit of 38 months.

[45] I will impose on the accused a global sentence totaling 44 months which I will assign by information. In determining the sentence to be imposed on each matter, I have taken into consideration the accused’s Gladue factors, together with the sentencing principles set out in the Criminal Code (see sections 718, 718.1, 718.2 and 719(3.1)). The sentence shall be apportioned as follows:

1. Information 19-4545: (a) section 267(b) CCC (assault cause bodily harm), a sentence of 24 months; (b) section 145(3) (breach of recognizance x 2 for possession of drugs and weapons), section 88 (weapon dangerous) and section 90 (carrying a concealed weapon - a collapsible baton) CCC, a sentence of 4 months consecutive to (a) but concurrent with each other; (c) section 4(1) CDSA X 2 (possession of cocaine and hydromorphone) a sentence of 4 months, concurrent with each other and concurrent with the breach of recognizance and the 2 weapons-related charges in (b);

2. Information 17-812: (a) section 4(1) CDSA and section 129(a) CCC (possession of amphetamine and obstruct officer), a sentence of 1 month on each count but concurrent with each other; (b) section 733.1 CCC (breach of probation X 2), a sentence of 3 months consecutive to the sentence in (a) but concurrent with each other;

3. Information 18-0044-01: (a) sections 334(b) (theft) and 733.1 (breach of probation) CCC, a sentence of 4 months concurrent with each other;

4. Information 17-734: (a) section 733.1 CCC (breach of April 7, 2016 probation order) a sentence of 2 months;

5. Information 17-4504: (a) section 733.1(1) CCC (breach of November 23, 2016 probation order - failure to report) a sentence of 2 months;

6. Information 18-0114: (a) section 145(2)(b) CCC (failure to attend court on January 4, 2018) a sentence of 2 months;

7. Information 18-0717: (a) section 145(2)(b) CCC (failure to attend court on February 14, 2018) a sentence of 2 months.

[46] The total custodial sentence is therefore 44 months of custody less the enhanced pre-sentence custody credit of 38 months.

[47] I have decided not to impose a probation order on the accused. In deciding not to do so, I have considered and given weight to the principle of totality and, more importantly, to the Gladue principles applicable in this matter.

[48] On the basis of the evidence, including his extensive record for breach of court orders, I believe that the imposition of a probation order on the accused would almost certainly lead to a quick breach on his part. Rather than assisting him to change his ways, I find that placing an addicted, indigenous person like the accused on probation or on another type of administrative order has had and will continue to have the effect of causing him to be perpetually incarcerated. The accused’s breach of an order of this kind soon after his release from the penitentiary is mute testimony to this. On that occasion, he was literally torn from a rehabilitative program or course of treatment for his addiction when he breached such an order. Not only did the result of his breach fail to protect the community; it has prevented the accused from accessing the mental health care he needs in order to deal with the addiction at the heart of his ongoing, offending behavior.

[49] There will be a DNA order pursuant to section 487.05 of the Code on the assault cause bodily harm charge and on each of the section 145 charges. There will also be a ten-year weapons prohibition order pursuant to section 110 of the Code. There will be an order forfeiting the drugs seized from the accused at the time of his arrest. Lastly, given his financial impecuniosity, the accused is dispensed from having to pay the victim fine surcharges on his offences.

Released: June 15, 2021 Signed: Justice André L. Guay