Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 11 20 COURT FILE No.: Toronto Region 4810 998 23 48111588-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

JASON (Jayson) POTHIER

Before: Justice André Chamberlain

Heard on: October 20 & 27, 2023 Reasons for Judgment read on: November 2, 2023 Released: November 20, 2023

Counsel: Peter Hamm......................................................................................... counsel for the Crown The accused Jayson (Jayson) Pothier.................................................. on his own behalf

The overrepresentation of Indigenous people in Canada's prisons is a present-day product of this country's colonial past. As Indigenous incarceration rates have climbed, and those of Indigenous women have soared, some have compared Canadian correctional facilities to residential schools (see Truth and Reconciliation Commission, The Final Report of the Truth and Reconciliation Commission of Canada, vol. 5, The Legacy (2015), at p. 219). Like residential schools before it, this overincarceration is an ongoing source of intergenerational harm to families and communities. It is a striking sign of the discrimination that Indigenous peoples experience in "all parts of the criminal justice system" (*Ewert v. Canada*, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 57). And it remains a poignant obstacle to realizing the constitutional imperative of reconciliation.

Sentencing law cannot erase this country's colonial past. Nor can it remove the causes behind an offender's crime. But it is uniquely positioned to ameliorate — or aggravate — the racial inequalities in our criminal justice system.

*R. v. SHARMA*, 2022 SCC 39, at paras 114 & 115

Chamberlain J.:

Endorsement

[1] Jayson Pothier, you entered guilty pleas before me on October 20, 2023. Despite my best efforts, and given the seriousness of the charges and the significant jail time the Crown is seeking as a sentence, you made it clear, on many occasions, that you wished to represent yourself. We had you speak to duty counsel on many occasions to confirm this, and even reached out to your previous counsel who offered to represent you, but you were insistent.

[2] You entered pleas on October 20. I have found you guilty of the following three charges: break and enter, robbery, and disguise with intent to commit a robbery. The facts on which I found you guilty were as follows: on July 21, 2023, you broke into the Uncle Tetsu, a Japanese bakery at 595 Bay Street in Toronto, where you damaged over $14,400 worth of equipment, including baking equipment and electronic equipment. You consumed some of the fruit puree and then passed out in the location where you were found and arrested. You admitted you were high on fentanyl at the time and pretty out of it.

[3] A few days after being released, on July 26, 2023, you attended the Canadian Imperial Bank of Commerce at 1 St. Clair Street West, in Toronto. You wore a bandana to cover your face and approached a teller, Lynette Camacho. You made a demand for cash, and told her that you had a gun. You then fled the bank, discarded the clothing you were wearing in a nearby garbage can and tried to hide in the shed of a property a few blocks away. Someone called the police because of that suspicious behaviour, and you were found by the police and arrested. You had the cash from the bank in your possession, and police later found the discarded clothing. Because of your drugged-out state, you were first transported to the Toronto General Hospital to be medically cleared and then held for show cause. You have been in custody since that time.

[4] It is worth noting that at the time, you were still serving a conditional sentence, one I had placed you on for a robbery and other charges last winter following a sentencing circle back in December 2022. Ultimately, there were issues with the process surrounding the timelines on the breach of the conditional sentence, and Mr. Hamm, the assigned Crown, elected to withdraw the allegation of breach of the conditional sentence. However, the withdrawal of that allegation does not take away from the fact that you committed these offences while you were serving that conditional sentence.

[5] At your last sentencing hearing before me, you had spent a considerable amount of time in pre-sentence custody, 287 days enhanced to 430 days, following which I imposed a conditional sentence for 6 months, knowing you had been given a supportive housing bed to address treatment for addictions and trauma. *R. v. Pothier*, 2022 ONCJ 86. Because those reasons were fairly recent, and coupled with the fact that we relied in this hearing on the updated Gladue report I ordered for that sentencing, I have reproduced some of that decision in these reasons, as they pertain to your background and some applicable principles of law.

The aggravating circumstances regarding these offences

[6] The Victim Impact Statement of Lynette Camacho was important, and I hope that you appreciate the effects on her and reflect on it, given your own personal circumstances. Her honesty and openness reflected a brave woman who admitted to previously struggling with depression and anxiety, finding herself struggling even further as a result of your actions that day. Her anxiety attacks have increased, she struggles with trust and fear at work, and she cannot afford or have access to the treatment and the supports she needs to recover. I hope you can appreciate that, like you, in her own way, she is a vulnerable individual. Her life has become more difficult because of the frightening actions of another person. You did not commit any physical harm to her, but your actions that day caused her further distress and trauma that she did not deserve.

[7] The economic damage you caused to the Japanese bakery is significant, with no apparent gain to you other than a simple destructive act costing a small business significant amounts of money and trouble.

[8] Your criminal record is aggravating because it is lengthy and you have committed similar offences before. Your youth entries start in 1993, and your first adult entry begins in 1995. Your involvement with the criminal justice system was consistent and steady through these early years, though strictly in the lower to mid-reformatory range. It is telling that many of those early entries were noted as “consecutive to sentences being served.” You were lining them up like dominoes, one after the other.

[9] The first serious entry as an adult came in 1998, when you would have been around 21: you got 4 years on four counts of robbery, and then in 2002, while you were on parole, you received another 2 year sentence consecutive to the unserved portion remaining on that 4 year sentence. Following your release in 2005, you did more shorter sentences in 2006 and 2007, but then got another two years at the end of 2007, were statutorily released in April 2009, only to be convicted of another armed robbery, and sentenced to 2 years on top of 12 months pre-trial custody in April of 2010. Then in July of 2012, you were sentenced to 42 months, 3 and ½ years, for yet another robbery.

[10] I explained the reasons for the multi-year gap in convictions from 2012 to 2017 at paragraph 22 of my last sentencing: “From what you’ve told me, that was at least in part because you were in a relationship that was positive and fulfilling for you. During this period of time you were on methadone for your addiction, and you were working to support yourself and your partner. But following a difficult breakup, you found yourself back on the street and committing offences again to feed your addiction.”

[11] Until that last armed robbery in 2021, between 2017 and 2020, you accumulated mostly lessor offences for which you received sentences ranging from lower reformatory and even a few conditional sentences.

[12] I want to be clear: I don’t recount this catalogue of offences and sentences to shame or embarrass you. There are two conclusions I draw from this review: one is that in many ways, you have become institutionalized, having spent the better part of your life in correctional institutions. You have said yourself that you do well in structured environments. That is a mindset that you need to work on if you are going to find some recovery. There are seemingly deep seeded drivers that will undermine your progress and journey to recovery if you don’t address them, and if you don’t learn to develop your own skills at creating structure for yourself, you will keep returning to jail because you seek their structured environment.

[13] Secondly, as I have stated before, at first glance, your record would conjure in me, if I did not know you over the past couple of years, the image of a hardened, mean and heartless criminal with no moral compass and no heart or compassion. That is not the person I see. You are a man with deep love and admiration for others. Sometimes your priorities are messed up because of addiction and other traumatic experiences. What we choose to do, what we feel we need to do to survive, can often be harmful to ourselves and to others. These are known responses to serious childhood trauma. But I have no doubt that your heart feels the pain of others and strives to relieve that pain. And I have no doubt that you love the people around you. I look to your sister and mother, and the things you sacrificed for them, at your own expense. And I look to your latest loss, your last partner, Mags, whom you lost by overdose this past spring while living in a tent in Moss Park. She struggled with her own demons, and you did your best to be there for her, sometimes in ways the rest of the world would not understand; you did what you could to be there for her. But she, like too many others in our community, could not make it in the face of the crisis with fentanyl, poverty, and lack of housing and supports.

[14] We, as a community, failed you and Mags. And she paid the price. We mourn for you and for Mags.

[15] Your record is a catalogue of the choices you made and I don’t absolve you of that. But it is also a catalogue of the failures of the community at large: a failure to address poverty and lack of supportive housing; a lack of treatment facilities and mental health supports that are culturally appropriate. It is a catalogue of the ongoing injustices so many in our community face and who are affected by the colonial past we all share: the residential school survivors, and the lost children in those schools, the damaged communities and families who lost their children and their culture because of outdated racist ideas that as a people, our beliefs and our practices were not to be respected, must less tolerated or allowed, the murdered and missing women and girls in our communities whose numbers continue to rise and the indignities they suffer, even after death, at the hands of the criminal justice system and government inaction.

[16] The significant over-representation of Indigenous children in care in Canada has become the new ‘Indian Residential Schools.’ Higher rates of poverty, dispossession of lands and resources, the dislocation of individuals from their communities, the denial of autonomy, sovereignty, self-governance, and the under-resourcing of education, health and social services demonstrate, as Justice Drennan, of the Saskatchewan Court of Appeal stated in her reasons in *R v Tinker*, 2023 SKCA 54 at paragraph 16:

. . . [W]e don't need to harken back to any Gladue factors in the past. We certainly should and must, but they're present in our everyday and they impact us in the courtroom and for Mr. Tinker the impact of colonialism has been very evident".

[17] The same applies to you Jayson Pothier. This catalogue of failures on the part of our Canadian society are a large part of the reason why we fail so many in our community, including you. It is the reason why, instead of being able to address your needs through a restorative justice lens, meant to heal and support, our drive is to punish and isolate further.

[18] The problem that we, as a court have, is clear also: with too few and inadequate community supports out there, we are left with the tools provided to us by the criminal justice system: a system that has already been identified as flawed and a part of the problem. But those are the tools that I have to work with.

Your Background

[19] I will cite briefly my past sentencing ruling at paras 34 to 38 to capture in these reasons some of your background experiences that bring me to this sentence:

34. I am not going to spend a lot of time recounting the specifics of your background that I learned from the previous Gladue Reports and the one prepared for me "…. I will do my best to give a summary while striving to preserve your dignity, with whatever level of privacy we can muster for you in such a public proceeding, as is required in the criminal justice system. I will also keep in mind that this is not just your story but the story of your family. You were not the only victim of the horrors inflicted on you. You had siblings you watched be brutalized as you were; you watched your mother be brutalized, and because of her own pain and suffering, stand by as you and your siblings were brutalized and harmed. And that harm, was physical, it was emotional, it was psychological, it was, at times, sexual and sadistic.

35. When I say sadistic, I am choosing my words carefully. We all accept that sexual activity with a child is violence by its very nature, but you suffered indignities and violence that [were] meant to deliberately cause pain and suffering for the depraved enjoyment of adults who were supposed to be your protectors and your providers.

36. And this did not only happen in your home and community, which would be horrific enough, in and of itself. But it happened when you were apprehended and taken into care by authorities who were supposed to take you from the pain and suffering in your family, and because of that pain and suffering, left you to be marked as an easy victim by other residents and the caregivers themselves of those agencies and institutions. That kind of betrayal cuts to the bone of our own view of ourselves as a caring and compassionate society. It is hard to fathom that we stood by while these horrors were happening, not just by the people who were supposed to protect you from that harm, but our government funded them, and did not meet its fiduciary duty to protect you and restore you to a healthier place.

37. But I note that you have found peace and forgiveness, it seems, when it comes to your mother. You recognize that she is as much a part of this tragic story as you are. I admire you for that.

38. You deserved to be cared for, nurtured, fed, protected and supported. Instead, when your family couldn’t do it because of their own issues and pains, Canadian society stepped in and perpetuated your pain and suffering, adding to your trauma.

Sentencing position

[20] The Crown seeks a 5 year sentence. I don’t fault Mr. Hamm for taking that position. Given your record, he could well have asked for more. He argues that the Gladue principles have moderated his position, and I agree. But he also argues that in more serious cases, sentences may not differ significantly from non-Indigenous offenders.

79 Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non‑aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.

*R. v. Gladue*, [1999] 1 S.C.R. 688 at para. 79

[21] I dare say that this may be the most often quoted paragraph in the Gladue decision, cited repeatedly in sentencing hearings in this Court’s experience, as a justification for a lack of imagination and true attempt to properly address the issues of over-representation of Indigenous people in the criminal justice system. I also suggest that it is the most misunderstood quotation when looked at in isolation of the rest of the judgement of the Court, which was conveniently summarized at paragraph 93 of the judgement: (bold emphasis added.)

93 Let us see if a general summary can be made of what has been discussed in these reasons.

1. Part XXIII of the *Criminal Code* codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence.
2. Section 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.
3. Section 718.2(e) is not simply a codification of existing jurisprudence. It is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. There is a judicial duty to give the provision’s remedial purpose real force.
4. Section 718.2(e) must be read and considered in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. All principles and factors set out in Part XXIII must be taken into consideration in determining the fit sentence. Attention should be paid to the fact that Part XXIII, through ss. 718, 718.2(e), and 742.1, among other provisions, has placed a new emphasis upon decreasing the use of incarceration.
5. Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. However, the effect of s. 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders.
6. Section 718.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider: (A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (B) 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.
7. In order to undertake these considerations the trial judge will require information pertaining to the accused. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. In the usual course of events, additional case‑specific information will come from counsel and from a pre‑sentence report which takes into account the factors set out in #6, which in turn may come from representations of the relevant aboriginal community which will usually be that of the offender. The offender may waive the gathering of that information.
8. If there is no alternative to incarceration the length of the term must be carefully considered.
9. Section 718.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders; nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed.
10. The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved.
11. Section 718.2(e) applies to all aboriginal persons wherever they reside, whether on- or off-reserve, in a large city or a rural area. In defining the relevant aboriginal community for the purpose of achieving an effective sentence, the term “community” must be defined broadly so as to include any network of support and interaction that might be available, including in an urban centre. At the same time, the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment.
12. Based on the foregoing, the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non‑aboriginal offender for the same offence.
13. It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non‑aboriginal.

*R. v. Gladue*, [1999] 1 S.C.R. 688 at para. 93

[22] We must be mindful that Gladue principles are an invocation to do better than the overreliance on deterrence, denunciation, and separation from the community as a default when other attempts at rehabilitation have failed. My last sentence was such a hope that you could find the resources in the community to get connected to housing and treatment to address your addiction and trauma issues. It failed as the call to the drug and your old lifestyle was too powerful and the resources too lacking to provide the needed incentive to keep you on your journey to recovery.

[23] I am mindful of the statement by Justice Gibson in *R. v. Morrisseau*, [2017] O.J. No. 2409; he stated at para. 103:

103 Where, as here, we lack the assistance of community elders to help us identify all the energies disturbed by the offending behavior and to craft a plan for how to heal them, we must be creative. I recognized community based resources are often limited and the safety and protection of the community is always a consideration as well as the need to rehabilitate offenders. It is our legal obligation, however, not to allow ourselves to default to incarceration as a substitute for the exercise of imagination. Restorative justice requires us to identify the harm done, tailor a plan for the offender to make meaningful restitution and to get the help they need.

[24] This does not mean that jail is never an option. There are times when there is a need to protect the community or send a clear statement to the offender or the community that certain behaviors attract consequences and that the possibility of jail can and does exist in the most serious cases. However, where we lack the imagination to do things differently, we rely on what is familiar and gives the community comfort, in punishment that relies solely on denunciation and deterrence.

[25] In some ways, I fear we’ve reached the limits of access to community resources as a means of addressing your sentence. In large part, this is because the resources are seriously lacking, and where they are present, they are severely underfunded. Once again, our community has failed to provide what you need to begin addressing your serious mental health and addiction issues.

[26] But for Gladue to have meaning, and for Ipeelee to have teeth, we must do more than simply moderate. If applying the principles from section 718.2(e) simply means we reduce our sentences or give a discount, then we don’t reduce the rate of incarceration, we merely delay it. I concede that in some circumstances, based on the seriousness of the offence, the offender’s background and antecedents, a reduction might well be the only option available and is entirely appropriate. But without turning our mind to more imaginative options in sentencing consistently, we risk losing focus on making the sentencing process one that looks to restoring the individual and the community to a healthier position than they were at the time the offence was committed.

[27] In her dissenting reasons, Justice Karakatsanis states in Sharma:

[138] In Ipeelee, this Court redoubled its earlier guidance. It emphasized that, as "a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons", s. 718.2(e) "calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders", taking account of their unique systemic or background factors and culturally appropriate sentences (para. 59). It reiterated that courts "must take judicial notice" of colonialism's ongoing effects (at para. 60), with which overrepresentation is "intimately tied" (para. 77). ….. And it cautioned against diluting s. 718.2(e)'s effect in "serious or violent offences" (para. 84), a carve-out that would "deprive s. 718.2(e) of much of its remedial power" (para. 86). Rather, judges must consider the unique circumstances of Aboriginal offenders in all cases; failing to do so would not only contravene s. 718.2(e), but would "result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality" (para. 87).

*R. v. Sharma*, 2022 SCC 39 at para 138

[28] These principles of restraint when an individual with the significantly traumatic background you experienced as a child, is supported in *R. v. Kerr* 2001, Dec. 2001 Ont. C.A., Justice Abella noted:

“Although the seriousness of the offence is clearly relevant, to under-emphasize rehabilitation in this case would, on the other hand, send the unwarranted signal that courts will sacrifice evidence of considerable rehabilitative progress on the altar of general deterrence.

It seems to me that this is a case where the ultimate interests both of the community and of the appellant are best served by a sentence most conducive to eliminating the risk of re-offending. And that, in turn, argues for a sentence that both acknowledges and facilitates the ongoing rehabilitation of the appellant"

*R. v. Kerr* 2001, Dec. 2001 Ont. C.A., at para **

[29] This is why I am, in this case, putting less weight on the ladder principle in favour of applying the Gladue principles. I do not say this should apply in all cases. I have myself sentenced Indigenous members of the community more severely when the sentence was fit. But this case is different.

[30] I also note that members of the Indigenous community are disadvantaged in many other ways when serving time in the penitentiary:

[126] Inside prisons, Indigenous offenders also experience some of incarceration's harshest effects. They are more likely than their peers to "receive higher security classifications, to spend more time in segregation, to serve more of their sentence behind bars before first release, to be under-represented in community supervision populations, and to return to prison on revocation of parole" (*Ewert*, at para. 60).

*R. v. Sharma*, 2022 SCC 39 at para 126

[31] It has often been noted that the resources and programming in federal institutions and the tools available to assess risk and help determine an offender’s eligibility for parole are seriously flawed. See *Ewert v. Canada*, 2018 SCC 30, [2018] 2 S.C.R. 165.

[32] Significant jail sentences have been imposed on you in the past: 2, 3 ½ & 4 years. I ask, to what end? Where has the community been better protected or better served, other than to have had the benefit of some relief from you for some months or years? These sentences have failed to address what you need to become that loving and caring person I see.

[33] We cannot sacrifice the prospect of safe and secure rehabilitation that provides the hope for a restorative justice approach on the altar of general or specific deterrence and denunciation. If specific deterrence worked, we would not be here today, because you have spent the better part of your adult life in custody.

[34] But Mr. Pothier, the work will be yours to do. I cannot, in these circumstances, give you another conditional sentence. You have also demonstrated that struggling on your own, with the limited support and services available, is too risky. And I think a reformatory sentence, in light of these offences and your record, are inadequate. For these reasons, I will sentence you to a penitentiary sentence of 3 years. I also make a strong recommendation that you attend to an Indigenous healing lodge as soon as is feasible.

[35] This won’t happen because I recommend it. You will need to be your own advocate, much like you have done in this sentencing hearing. You will need to apply, and ask, and follow through, I suspect repeatedly, because bureaucracies don’t make things easy.

[36] Remember what Dorothy Peters, our grandmother and knowledge keeper said to you, she was there for both sentencings and she said:

Starting drugs at such a young age, you did not have a childhood, you don't know who you are. You are searching because you feel empty inside, don't feel important and find value inside. They chip away at you, and the only path you see is towards prison,

You have not tried a new path yet, but look within yourself and see what you really want, what would work for you. It’s never too late to make changes. Draw a line, and think “this is where I am going to start from.”

What do you want to put forth in terms of effort to get to the life you want to live. People will be there once you know what you want.

[37] So I say to you, Jayson Pothier, draw the line, find your path. I suggest the healing lodge within the correctional system. It might not be the path that I would have chosen if a greater range of options were available to you. Given the circumstances I think it provides you with the best hope to find and become that healthier person you deserve to be.

Released: November 20, 2023 Signed: Justice André Chamberlain