ONTARIO COURT OF JUSTICE

CITATION: R. v. Trudel, 2022 ONCJ 87

DATE: 2022 03 02

COURT FILE No.: Central East Region: Oshawa Courthouse: File #20-36502

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DANIEL TRUDEL

Before Justice Peter C. West

Guilty Plea Entered on July 23, 2021

Oral Submissions Heard on January 26, 2022

Written Reasons for Judgment released on March 2, 2022

Ms. A. Yorgiadis and Ms. K. Myge................................ counsel for the Crown

Mr. M. Herman................................... counsel for the defendant Daniel Trudel

WEST J.

Introduction:

[1] On July 23, 2021, Daniel Trudel pleaded guilty to offences of Dangerous Operation of a Motor Vehicle, Failure to Stop After an Accident and Flight from a Police Officer, offences committed on October 13, 2020. A presentence report was ordered and sentencing was adjourned to November 26, 2021. Sentencing was adjourned to January 26, 2022, as a result of counsel seeking a Gladue Report that could not be completed until January 2022. On January 26, 2022, Mr. Trudel’s Criminal Record was marked as Exhibit 1; the Presentence Report, dated November 9, 2021, authored by Maritza Lawrence, Probation Officer, was marked as Exhibit 2, and 6 letters supporting Mr. Trudel and 5 pages of photographs of large wood carvings made by Mr. Trudel, one which he donated to the Town of Uxbridge, were all marked as Exhibit 4. I want to express my appreciation for Mr. Herman obtaining the various letters he provided on behalf of Mr. Trudel, as well as the Psychological Assessment Report, dated May 1, 2021, authored by Dr. Sandra Jackson C. Psych, Exhibit 5, and the Gladue Report, dated January 24, 2022, authored by Melanie Grant, Gladue Writer, Aboriginal Legal Services, marked as Exhibit 3, as both reports were of considerable assistance in determining a fit and proportionate sentence.

[2] On October 13, 2020, Mr. Trudel was involved in an altercation at 296 Goodwood Road, in Goodwood. I was not provided any information respecting this incident, which resulted in him leaving this residence in his pickup truck driving eastbound on Goodwood Road. Police were contacted, provided a description of his vehicle, which was observed travelling at a high rate of speed by a police officer. The police followed Mr. Trudel’s vehicle northbound on Uxbridge Concession Road 7 with their emergency lights and sirens activated. Mr. Trudel’s vehicle did not stop and a short pursuit ensued, which was terminated at Concession Road 7 and Bell Street in Uxbridge. Estimated speeds by Mr. Trudel’s pickup were in excess of 190 km/hr. Another officer attempted to stop Mr. Trudel’s vehicle, which struck this police vehicle and left in an easterly direction on Reach Street, Uxbridge. Police followed with emergency lights activated but Mr. Trudel once again did not stop. At one point Mr. Trudel made an abrupt stop and reversed into the following police vehicle twice, causing major front end damage.

[3] At a later point in time, I was not provided the time, Mr. Trudel was involved in an unwanted person incident at 3900 Front Street, Goodwood and during this incident he was identified as the driver of the above-mentioned pickup truck. Mr. Trudel left this area but was later found in a shed at 295 Goodwood Road and was arrested. During his arrest he was found in possession of a knife.

[4] A total of three police vehicles were damaged during the pursuit. An estimate of this damage was indicated to be $62,000.00, which was covered by insurance. The Crown sought restitution in the amount of $1000.00, the amount of the deductible, which Mr. Herman advised he had in his Trust Account and undertook to pay on Mr. Trudel’s behalf.

Position of the Parties

[5] The Crown is seeking a 9 month custodial sentence to be followed by 2 years probation and a 2 year driving prohibition.

[6] The defence sought an 8 month conditional sentence, with house arrest under the Electronic Supervision Program for the entirety of the conditional sentence. The defence did not oppose the probation order or prohibition order.

Offender’s Background and Mitigating and Aggravating Circumstances

[7] Daniel Trudel is 33 years of age and is single with no dependants. His Indigenous ancestry comes from his father’s side of his family. His paternal grandmother is Algonquin from the Eagle Village First Nation-Kipawa Indian Reserve. His father is a status-Indian under the Indian Act and is a registered member with the Kebaowek First Nation. Daniel Trudel is in the process of applying for his status card as he has indicated he wishes to become more familiar with his indigenous heritage.

[8] He has a criminal record with two entries, which occurred 13 and 7 years ago:

2008-11-26 Lindsay, Ontario, Assault with a weapon 90 day Conditional Sentence, 12 Probation, s. 110 order 3 years

2014-11-17 Oshawa, Ontario 1. Fail to comply recognizance 6 month conditional sentence conc., 12 months probation; 2. Produce schedule II substance 6 month conditional sentence, 12 months probation, s. 109 weapons prohibition

[9] Mr. Trudel has two older brothers, 35 and 36. His parents were married for more than 20 years but are now divorced and his father has been in a common law relationship for 15 years. Mr. Trudel attributed his parents divorce to his mother’s mental health issues of chronic depression. Also his mother’s parents interfered with her marriage because they did not accept his father’s Indigenous background. The probation officer spoke to Mr. Trudel’s father, his father’s common law spouse and his father’s brother, who Mr. Trudel is employed by. Mr. Trudel has been residing with his father, who is his surety, since his release from custody. His family members are supportive, although he is currently estranged with his 35 year old brother.

[10] He completed Grade 9 and reported struggling with reading and writing skills to the present time. He has worked intermittently for his uncle’s roofing business, Trudel & Sons Roofing Ltd. since the age of 14. His uncle advised he works as a part-time employee with the company and his primary responsibility is to clean job sites. He also has worked in excavation, demolition, and construction jobs.

[11] Around the time of the commission of these offences Mr. Trudel was spending time with his 35 year old brother, who has a criminal record and was described by family members to be involved in excessive use of alcohol and cocaine. Mr. Trudel was described as being under the influence of alcohol and drugs at the time of the offences. In the PSR, Mr. Trudel described his use of marihuana as occasional, as well as his use of alcohol. He could not recall if on the night of the offences he had consumed alcohol or drugs. His family members in the PSR and in the Gladue report expressed concerns over Mr. Trudel’s abuse of alcohol and drugs. As will be discussed Mr. Trudel’s insight into his abuse of alcohol and drugs has changed since his arrest on these charges.

[12] Mr. Trudel was referred to Dr. Sandra Jackson, a psychologist with Allied Psychological Services, for an assessment by his counsel, Mr. Herman. Dr. Jackson indicated in her report: “The result of the current assessment suggests Mr. Trudel’s cognitive limitations, substance use and mental health status are contributing to difficulties with historical information and insight. Some of these difficulties are long-standing and have been supported by collateral information.” There were concerns expressed, as of the date of the report, May 1, 2021, that Mr. Trudel was resistant to talking about his substance use, which created a lack of awareness on his part.

[13] Dr. Jackson conducted a risk assessment with Mr. Trudel, which is set out from pages 13 to 18 of the report. His identified risk is moderate or average and the assessment also categorizes Mr. Trudel as having high needs, which identifies important intervention and treatment factors. A primary target for intervention would be to address his substance use and mental health needs. It was Dr. Jackson’s opinion that by addressing these issues and given the positive protective factors in his life, such as his family support, this risk could effectively be managed and reduced. Dr. Jackson believed Mr. Trudel would respond well to supportive treatment and she makes a number of recommendations respecting how his treatment should be conducted.

[14] Interestingly, during his interviews with Melanie Grant, the Gladue writer, Mr. Trudel, in my view, became more open, forthright, and transparent in describing the personal issues he was facing at the time of the commission of the offences and thereafter. He described to Ms. Grant, his belief that he might be an alcoholic and he described commencing addictions counselling with Cheyenne Sherbo at Addictions Services Central Ontario. Ms. Sherbo confirmed that she is having one-on-one telephone sessions with Mr. Trudel and she believes he is “very motivated for services.” This is a very positive change in Mr. Trudel’s insight and awareness of his issue with substance use. Mr. Trudel has also expressed to Ms. Grant his interest in speaking with the Aboriginal Addictions and Mental Health Worker, Connie Spencer, at Durham Mental Health Services. Mr. Trudel described to Ms. Grant in their discussions how he has experienced anxiety in the past. Mr. Trudel was open to becoming involved in counselling with Ms. Spencer and focussing on his mental health issues. He also wanted to seek assistance through tutoring to improve his reading and writing. It is my view, as I will discuss later in my reasons, that this openness and an increased awareness of his personal issues bodes well for Mr. Trudel’s continued rehabilitation and reducing his future risk, as identified by Dr. Jackson.

[15] Mr. Trudel disclosed and described to Ms. Grant an incident when he was snow plowing and a snowmobiler was killed as a result of driving into the plough Mr. Trudel was operating and how this incident has detrimentally affected him. He also described a serious snowmobile accident he had in 2014 and how he sought out counselling with a therapist that he has seen as recently as three or four months ago.

[16] Mr. Trudel accepts responsibility for his actions and indicated it was always his instructions to plead guilty to the charges he was facing. He suffered a head injury during his arrest and does not have much memory of the offences. The PSR indicated that prior to the commission of the offences Mr. Trudel was described as associating with the wrong crowd. He has cut ties with these individuals as a result of their refusal to act as his surety after he was charged. He has also embraced the positive support from family members he has experienced since his arrest and release from custody.

[17] Mr. Trudel also expressed to Ms. Grant his desire to learn more about his culture and heritage, although he advised he did not do well in large groups. Ms. Grant referred to a number of programs in her report that Mr. Trudel could become involved in for this purpose.

[18] A number of letters were provided by Mr. Herman, which attest to Mr. Trudel being a kind individual, helpful to others and generous. He is artistic and carves large wooden carvings of animals as well as working with metal, making copper roses (a number of photographs of his art were included as part of Exhibit 4). He is currently attempting to donate one of his carvings to the Town of Uxbridge.

[19] During the time I was writing my reasons for sentence Mr. Herman provided a letter from Cheyenne Sherbo, dated February 17, 2022, with Addiction Services of York Region, reflecting that as of that date Mr. Trudel had attended 5 counselling sessions with Ms. Sherbo and that he was highly motivated to receive counselling for his substance use issues. This emailed letter was marked today as Exhibit 6.

[20] The criminal conduct engaged in by Mr. Trudel was serious and resulted in significant property damage. Fortunately none of the police officers dispatched to investigate the 911 complaint were injured, although Mr. Trudel’s actions could have had that result. In my view the serious damage caused is an aggravating circumstance to be considered in determining a proportionate sentence. Further, the importance of the sentencing principles of deterrence and denunciation are somewhat elevated, although the principles of rehabilitation and restraint are also to be considered having regard to the mitigating circumstances I have described above.

Availability and Appropriateness of a Conditional Sentence

[21] Mr. Herman submitted that a conditional sentence is the appropriate, proportionate sentence based on the facts of this case and having regard to the significant steps taken by Mr. Trudel to rehabilitate himself. The Crown conceded that a conditional sentence is an available sanction for the charges to which Mr. Trudel entered guilty pleas. The conditional sentence provisions in the Criminal Code have been amended on a number of occasions since they were first introduced in 1996. The current legislation sets out specific offences and categories of offences that are not eligible for the imposition of a conditional sentence. There are five prerequisites for the imposition of a conditional sentence as it relates to the offences Mr. Trudel pleaded guilty to:

1. The safety of the community would not be endangered by the offender serving the sentence in the community (s. 742.1(a));

2. The offence is not an offence punishable by a minimum term of imprisonment (s. 742.1(b));

3. The offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life (S. 742.1(c));

4. The court must impose a sentence of imprisonment that is less than two years (S. 742.1); and

5. Is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 (s. 742.1(a)).

[22] In my view on the facts of this case the first four pre-conditions have been met. The Crown did not proceed by indictment, there is no minimum sentence applicable, the Crown is seeking a nine (9) month custodial sentence and the safety of the community would not be endangered by Mr. Trudel serving the sentence in the community. It is my view the safety of the community would not be endangered by permitting Mr. Trudel to serve a custodial sentence in the community for the following reasons. Although Mr. Trudel has a criminal record, he served a 90 day conditional sentence in 2008 and a six month conditional sentence in 2014 without any issues in terms of breaching any of the terms of those conditional sentences. Further, as indicated he has been on a house arrest release order in respect of these charges for almost 17 months without any breaches or further run-ins with the police. He has been employed for a number of years in a family business and has the support of his family. Finally, he has recognized a number of personal issues that contributed to his involvement in the offences he committed and has taken sincere steps towards addressing them. All of this in my view establishes that Mr. Trudel would not pose a danger to the community if he was permitted to serve his jail sentence in the community.

[23] In R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6, at para. 127, #7, the Supreme Court directed that where the first four pre-conditions of s. 742.1 are met, sentencing judges must give serious consideration to community based sentences. The only pre-condition remaining therefore is whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[24] The purpose of sentencing is set out in s. 718 of the Criminal Code. I am of the view it is important to indicate what this section sets out and the sections that follow because I believe this is where the applicable principles of sentencing are defined for criminal cases. Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

a) Denounce the unlawful conduct;

b) Deter the offender, and others, from committing such an offence;

c) Separate the offender from society, where necessary;

d) Assist in the rehabilitation of the offender;

e) Provide reparation for harm done to “victims”, or the community; and

f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.

[25] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary

[26] As Rosenberg J.A. held in R. v. Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369, at para. 26:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[27] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances, which I have set out above. This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

[28] In R. v. Proulx, supra, at para. 22, the Supreme Court held a conditional sentence is a "punitive sanction capable of achieving the objectives of deterrence and denunciation." In para. 127, #8, the Court held:

A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.

[29] Initially the SCC held in Proulx that a conditional sentence was in principle, although not always in practice, available for all offences where the prerequisites were met as no specific offence or category of offence was presumptively excluded from the conditional sentence option: R. v. Proulx, supra, at paras. 79-81 (see also R. v. Jacko, 2010 ONCA 452, [2010] O.J. No. 2583 (C.A.), at para. 69). The current legislation sets out specific offences and categories of offences that are not eligible for the imposition of a conditional sentence, although the recent decision in the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 478, [2020] O.J. No. 3183, held that the provisions of s. 742.1, which restrict the availability of conditional sentences for Aboriginal offenders, for offences where the maximum penalty was 14 years or 10 years in the case of offences involving the import, export, trafficking or production of drugs are contrary to ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and are not saved by s. 1.

[30] Lamer C.J., in Proulx, supra, at para. 100, explained that a conditional sentence can achieve both punitive and restorative sentencing objectives:

To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstance

[31] Mr. Trudel spent two days in custody before he was released on a surety release order with a house arrest condition. As a result, he has spent almost 17 months under strict conditions of release similar to a conditional sentence served in the community. In R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (C.A.), Rosenberg, J.A. held that “time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance.” (See para. 33)

Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code. (See para. 29)

Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case. (See para. 36)

[32] The Crown did not argue that R. v. Downes had no application to this case. If I imposed a custodial sentence in real “jail” I would be required to consider the mitigating circumstance of Mr. Trudel’s strict, restrictive conditions of release. In my view, the appropriate credit for the 525 days Mr. Trudel was subject to the house arrest condition would be 150 days of credit. I recognize there is no formula for determining the appropriate amount of credit to be assessed from stringent bail conditions pursuant to Downes. Taking this mitigating circumstance into account this would have resulted in a remaining custodial sentence of four months.

[33] Sentencing is highly individualized (see R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paragraph 92) and must be proportionate to the gravity of the offence, and the degree of responsibility of the offender. It is to be increased or reduced to account for any aggravating or mitigating circumstances. It should strive to be similar in relation to other sentences imposed on similar offenders in similar circumstances.

[34] It is important to note that a conditional sentence can be of longer duration than a jail sentence and impose restrictions for a longer period of time. In fact, in Proulx the Supreme Court indicated where a conditional sentence is consistent with the fundamental purpose and principles of sentencing and the more serious the offence and the greater the need for denunciation, “the longer and more onerous the conditional sentence should be” (at para. 106).

[35] I am of the view that on a careful balancing of all of the relevant factors neither a community based sentence with onerous conditions nor a custodial sentence as proposed by the Crown can be said to be unfit. In those circumstances, what tips the balance between the two alternatives is the important principle of restraint that underlies s. 742.1, (see R. v. Wismayer, 1997 CanLII 3294 (ON CA), [1997] O.J. No. 1380 (C.A.), at paragraphs 67-68 and R. v. Proulx, at para. 100) and is found in ss. 718.2(d) and 718.2(e). Further, it is my view the principles of general deterrence and denunciation can be properly addressed in this case by a conditional sentence with restrictive conditions involving house arrest and community service. Finally, it is my view the sentencing principles of rehabilitation, protection of the public and reparations to the community, together with the promotion of a sense of responsibility on Mr. Trudel’s part, can also be best addressed through a conditional sentence, as opposed to a jail sentence, to be followed by a lengthy period of probation. A significant mitigating circumstance, which I also consider, is Mr. Trudel’s positive efforts to address his underlying mental health and substance abuse issues since his involvement in the commission of these offences. In my view, it would be inappropriate and counter-productive to incarcerate Mr. Trudel at this time given the significant, and what I find to be sincere steps, he has taken to address these issues. Further, a sentence which supports Mr. Trudel’s efforts by ensuring his rehabilitation will also better serve to protect the public in the future. All of this supports the imposition of a conditional sentence as opposed to a custodial sentence in “real” jail.

[36] Consequently, it is my view a six month conditional sentence in the circumstances of this case can and does meet all of the five prerequisites set out in s. 742.1 of the Criminal Code. I am aware that the Electronic Supervision Program (ESP) has assessed the suitability of an electronic bracelet for Mr. Trudel and has given a positive report. In my view a house arrest condition for one half of the conditional sentence or three months under the ESP is appropriate. This will be followed by a curfew condition for the remaining three months, which will not be subject to the ESP. I will discuss with counsel the exceptions under the house arrest condition and any other appropriate conditions to be included respecting this conditional sentence.

[37] The conditional sentence will be followed by two years of probation and I will discuss the conditions of Mr. Trudel’s probation order with counsel.

[38] In addition, there will be a two year driving prohibition order prohibiting Mr. Trudel from operating a conveyance (which includes a motor vehicle of any type) anywhere in Canada.

[39] Finally, Mr. Herman and the Crown advised that the damages to the DRPS police vehicles were paid for through insurance with the exception of a $1000.00 deductible, which was paid for by the DRPS. Mr. Herman has this amount in Trust and he undertook to provide this to DRPS.

Released: March 2, 2022

Signed: Justice Peter C. West