ONTARIO COURT OF JUSTICE

DATE: 2026 02 24

COURT FILE No.: Central West Region (Niagara) 998 25 21100486

BETWEEN:

HIS MAJESTY THE KING

— AND —

Donavin Buckingham

Before Justice J. De Filippis

Heard on January 30, 2026

Reasons for Sentence released on February 24, 2026

Ms. Bajwa............................................................................................. counsel for the Crown

Mr. Munna...................................................................................................... for the defendant

De Filippis J.:

[ 1 ] The issues raised in this case are (1) the extent to which the principles of denunciation and deterrence apply to a person who claims to be indigenous and suffers from Fetal Alcohol Spectrum Disorder (FASD) and (2) what constitutes a fit sentence that balances the seriousness of the offence with the offender’s rehabilitative needs, in the absence of a strong rehabilitation plan.

[ 2 ] The defendant was found guilty after trial of assault with a weapon. At the time he was on probation with terms that included keep the peace and be of good behaviour and not to possess weapons. Accordingly, he was found guilty of these additional two charges of breach of probation.

[ 3 ] The facts can be briefly stated. On the day in question, the defendant was at the central bus station in downtown St. Catharines. A security officer approached the defendant, concerned that he was loitering. The defendant pulled out a knife and said, “look what I’ve got”. The security guard withdrew to the safety of a nearby office in the station and contacted police. The defendant left and was apprehended by police minutes later in a parking lot. On arrest he was found in possession of a knife with a four-inch blade.

[ 4 ] The defendant identifies as indigenous. A Gladue Report was not requested. However, I have the benefit of a presentence report.

[ 5 ] The defendant has the following criminal record:

• 2016 – Assault CBH – Suspended sentence and probation for two years

• 2019 – FTC undertaking – Suspended sentence and probation for two years

• 2024 – Assault, Mischief, and FTC probation – Suspended sentence and probation for three years (in addition to 40 days pre-sentence custody)

• 2024 – Fail to attend Court – Suspended sentence and probation for three years (in addition to 40 days pre-sentence custody)

[ 6 ] The defendant is 29 years old. He was apprehended by Family and Children Services at birth from the hospital. His mother was a drug user and an alcoholic which severely impacted his development in the womb. The defendant was diagnosed with Failure to Thrive syndrome and Fetal Alcohol Spectrum Disorder. He was placed in foster care for four years and then reunited with his father. The defendant has little memory of his mother and was raised by his father who he describes as “drunk all the time”. His mother passed away from a drug overdose when he was seventeen years old. The defendant understands that his mother had indigenous ancestry, and her mother was a residential school survivor. He knows nothing more and had little contact with his mother and her family.

[ 7 ] The defendant was evicted from his father’s home when he was 20 years old because his behaviour was so bad that his father was concerned that he would lose the subsidized housing in question. The defendant has significant learning disabilities, has rarely been employed, and is supported through government assistance which he supplemented with casual employment as a labourer.

[ 8 ] Substance abuse has been, and remains, a significant problem. The defendant began drinking as a teenager and by his mid-twenties was consuming 24-30 alcoholic beverages a day. This level of consumption continued until two years ago when he stopped abruptly. However, he is now addicted to crystal methamphetamines. He describes his daily life as “surviving and getting high.”

[ 9 ] The defendant acknowledges his diagnosis of FASD and how this affects his decision making. The author of the presentence report added that the government of Canada website identifies FASD as a lifelong disability and indicates people with the disorder may need ongoing support with learning, memory, attention, social skills, motor skills, communication and emotional regulation. It further states that people who do not receive support are more likely to face difficulties with, substance use, unemployment, housing problems, trouble with the law, mental health issues, disrupted school experiences, challenges with independence, sexually inappropriate behaviours.

[ 10 ] The defendant has been the subject of community supervision through three previous probation orders. In 2021, he became homeless, and this has “severely” impacted his ability to comply with conditions. In May of 2025 he was charged with failure to comply with probation by not reporting. Since that time, he has reported regularly and begun attending counselling as required.

[ 11 ] The Crown argues that an appropriate sentence is one of eight months in custody followed by probation for three years on terms that are not controversial. In advancing this position, counsel relies on the fact that the weapon in this case was a knife, the defendant’s criminal record and the fact he was on probation at the time. The Defence advocates for a suspended sentence and probation. Counsel provided me with a helpful article on FASD and a compelling decision by Justice Lilles in R. v. Charlie , 2012 YKTC 5 . Counsel added that the defendant is homeless and currently “living on the streets”.

[ 12 ] In imposing sentence, I am guided by Part XXIII of the Criminal Code . Section 718.1 is particularly important: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Proportionality means that the severity of a sentence will depend on the seriousness of the offence as well as the moral blameworthiness of the offender; see R v Lacasse 2015 SCC 64 . Personal circumstances are relevant in determining proportionality considering the seriousness of the offence, but they do not alter the seriousness of the offence: see R v Schofield [2019] B.C.J. No. 22 (BCCA) .

[ 13 ] The conclusion I have arrived at with respect to the defendant’s claim of indigenous ancestry mean that s. 718.2 is also relevant. It provides that, “A court that imposes a sentence shall also take into consideration the following principles…..(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” Having regard to the history of Crown and Aboriginal relations – a history that too often reflected poorly on the honour of the Crown – this provision has been given robust interpretation by the Courts.

[ 14 ] Simply put, the sentencing process with respect to indigenous offenders is unique and the sentence imposed can be markedly different than is the case with non-indigenous offenders. I am required to be faithful to this common law. It is important to add that public confidence in the justice system, including respect for the different approach to indigenous offenders, requires the Court to be careful to scrutinize claims of indigeneity. In saying this, I appreciate that the very history of Crown and Aboriginal relations may be the reason for the quality of independent proof. In this case, I am comfortable in accepting the defendant’s claim because I know that he has been working with the Niagara Native Centre for some time. This is an established local indigenous organization. While acceptance of a person by indigenous organizations may not be determinative, it is important, and in this case, persuasive.

[ 15 ] The obvious tension in this case is the doctrine of proportionality. The crime is serious because the defendant threatened a person with a knife in a prominent community centre – a bus terminal – against a person charged with protecting the public in that place. This crime was not only an assault on the security guard, but it also undermines the community’s sense of safety. On the other hand, the defendant’s moral blameworthiness is much diminished because he suffers from FASD. I do not need an individual Gladue Report to connect that condition to his indigenous ancestry. I have read enough such reports to know the link between FASD and the history of Crown and Aboriginal relations.

[ 16 ] In R. v. Charlie the Court considered the offender’s background as an Aboriginal person, his FASD diagnosis, and the systemic factors affecting his life, including the legacy of residential schools. While the offender demonstrated some capability of living pro-socially under structured conditions, his difficulties managing behaviors and substance abuse remained significant concerns. The Court recognized the offender's diminished moral culpability due to FASD and ruled that the principles of denunciation and deterrence had limited applicability. The Court decided that incarceration beyond nine additional weeks – far less than what the Crown submitted was appropriate – would hinder the offender’s rehabilitation prospects and opportunities for reintegration into society. Structured probation terms, including abstinence from alcohol, maintaining employment, and a curfew, were imposed. These conditions aimed to provide support and structure for reintegration and reduce the risk of reoffending.

[ 17 ] I adopt the reasoning set out in R. v. Charlie . FASD is known to affect a wide array of developmental markers and many individuals with this diagnosis are expected to require on-going assistance throughout their lives. The author of the presentence report note that the defendant has not received appropriate levels of assistance to mitigate the effects of FASD. Appropriate assistance can help the defendant and, thereby, protect society from further crimes. That said, unlike Mr. Charlie, the defendant has little structure or support within which probation can operate. Aggravating this is the fact that he is homeless. This harsh reality does not mean I should ignore defendant’s personal circumstances. By the same token, it does not mean I can ignore the absence of a strong plan for rehabilitation.

[ 18 ] Although a strong rehabilitative plan has not been put before me, the availability of the Niagara Native Centre provides some grounds for optimism in the viability of a rehabilitative sentence. However, a narrow focus on rehabilitation would not be appropriate in this case, having regard to the seriousness of the offence and the need to impress upon the defendant that further criminal activity will not always result, as in the past, with probation. Like the Court in R v Charlie , I conclude that a period of incarceration, restrained by the indigenous factors at play, is necessary.

[ 19 ] On all counts concurrent, the defendant is sentenced to custody for 60 days. This will be followed by probation for three years on these additional non-statutory terms: He will report to a probation officer within two days of his release and thereafter as required, take counselling as directed, including with the Niagara Native Centre, have no contact with the victim of this offence, and not possess weapons.

[ 20 ] The defendant will provide a sample of his DNA and be subject to a s. 110 order for 10 years. Victim fine surcharges are waived.

Released: February 24, 2026

Signed: Justice J. De Filippis